Date: 20100430
Docket: IMM-4867-09
Citation: 2010 FC 483
Ottawa, Ontario, April 30, 2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
JAKIN
GJURAJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for the judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated September 2, 2009. The Board determined that the Applicant is neither a
convention refugee nor a person in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, R.S. 2001, c. 27.
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant is a 30 year old Albanian citizen who claimed asylum based on an
allegation that he was the target of a blood feud. The Applicant claims he was
threatened and assaulted by the family of a 15 year old girl he had a
relationship with while she was engaged to another man.
[4]
The
Board rejected the Applicant’s claim based on credibility and plausibility
concerns. The Board did not find the Applicant to be straightforward and noted
that there were inconsistencies between his story when told at different
interviews, that the Applicant was unaware of the contents of his own
documentary evidence, that the Applicant’s story was implausible, and that the
Applicant was not able to provide any corroborating evidence of the existence
of the girl he allegedly had the affair with. The Board was also concerned with
the Applicant’s failure to mention a blood feud at his first immigration
interview and his admission that he wanted to work in Canada.
II. Issues
and Standard of Review
[5]
The
Applicant raised several issues which can be summarized as follows:
(a) Did the Board err by making
plausibility findings based on assumptions and without supporting evidence and
in concluding that statements were false based on the absence of other
documentation alone?
(b) Did
the Board misapprehend the evidence before it and draw unwarranted conclusions
from the evidence provided by the Applicant?
[6]
The
issues raised in this matter relate to the factual findings of the Board and
will be assessed on a standard of reasonableness (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R.
339). The Court is to demonstrate significant deference to Board decisions with
regard to issues of credibility and the assessment of evidence (see Camara
v. Canada (Minister of Citizenship and Immigration), 2008 FC 362; [2008] F.C.J.
No. 442 at paragraph 12).
III. Analysis
A. Did
the Board Err by Making Plausibility Findings Based on Assumptions and Without
Supporting Evidence and in Concluding that Statements were False Based on the
Absence of Other Documentation Alone?
[7]
The
Board found it implausible that it took over five months for the blood feud to
be declared after the girl’s father threatened to kill the Applicant. The
Applicant argues that the Board erred in finding this time period implausible
and that the finding was made without any claim of specialized knowledge by the
Board or supporting evidence. The Applicant cites Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776; 208 F.T.R. 267 for the
position that the Board should not apply Canadian paradigms or speculate on
what would be reasonably expected in another country or culture.
[8]
The
Respondent argues that the Board is entitled to make reasonable findings based
on implausibility, common sense and rationality, and may reject evidence if it
is not consistent with the probabilities affecting the case as a whole.
[9]
The
Board may consider an Applicant’s story, and the manner in which it was told
and tested in the course of the hearing, against the backdrop of other evidence
and its own understanding of human behaviour (see Gonzalez v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 805; 88
A.C.W.S. (3d) 1062)). While the Board needs to be careful when rendering a
decision based on a lack of plausibility as refugee claimants come from diverse
cultures, determinations as to the plausibility of human conduct are within the
jurisdiction of the Board. As set out in Aguebor v. (Canada) Minister of
Employment and Immigration (1993), 160 N.R. 315; [1993] F.C.J. No. 732
(F.C.A.), as long as the inferences drawn by the tribunal are not so
unreasonable to warrant the Court’s intervention, its findings are not open to
judicial review.
[10]
In
this case, it was the Applicant’s testimony that the girl’s father had a hatred
for the Applicant, was going to kill him, and that he had to flee the country. It
was open to the Board to find the claim that the father waited five months
after the triggering event to act on this hatred to be implausible.
[11]
The
Applicant also argues that the Board erred by giving documents from an NGO
little weight. The Board deemed the documents to be unreliable as there were
different material dates used in the Applicant’s testimony and the documents,
and the fact that some of the documents were not known to the Applicant.
[12]
The
Board is entitled to assess and weigh the evidence presented to it and it is
not the role of this Court to re-weigh the evidence and substitute its opinion
if the decision is defensible in respect of the facts and law. The Applicant
did not demonstrate that the decision lacked justification, transparency, and
intelligibility and therefore the decision of the Board with regard to the
documents was reasonable.
B. Did
the Board Misapprehend the Evidence Before it and Draw Unwarranted Conclusions
from the Evidence Provided by the Applicant?
[13]
The
Applicant claims that the Board misapprehended the evidence and did not accept
his explanations for inconsistencies in the evidence. The Board made negative
findings based on the Applicant not going to the police a second time, not
having first hand knowledge of efforts made to end the blood feud or documents
related to it, and his explanations for why he had told an immigration officer
that he had come to Canada to work and why some of his testimony was inconsistent
with the evidence.
[14]
In
this case, the Board’s decision was open to it. The Board considered the
totality of the evidence and did not find the Applicant to be credible. While
the Applicant may offer explanations for inconsistencies, the Board does not
have to accept them. In light of the Board’s finding on the issue of
credibility, it was open to them to give the documentary evidence little weight
(see Waheed v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 329; [2003] F.C.J. No. 466).
[15]
The
parties did not advance a question for certification and no such question
arose.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this application is dismissed;
and
2. there is no order as to costs.
“ D.
G. Near ”
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