Docket: IMM-5869-11
Citation: 2012 FC 411
Ottawa, Ontario, April 11,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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RAIT DAKU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Rait Daku, seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
July 26, 2011. The Board found that he was neither a Convention refugee nor
person in need of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
I. Facts
[2]
The
Applicant is a citizen of Albania. He sought refugee
protection in Canada based on his
family’s blood feud with the Domi clan. He claimed his father killed Avzi Domi
in a fight over disputed land and the family remains at risk.
II. Decision Under Review
[3]
The
Board was not satisfied that the Applicant’s family was awarded a section of
land in 1991 that led to the declaration of a blood feud. Considering a
diagram from the Directorate of Administration and Land Protection in Albania, the Board
noted “nothing on the document that shows or states where this land is
located.” There was also a discrepancy in the size of the plot assigned to the
family. The Board stated it was “implausible that a document prepared by any
agency in Albania awarding a
section of land to the claimant’s family would make such an error.” The
document was seen as being created to advance the refugee claim and the Board
made a negative credibility inference in this regard.
[4]
In
addition, the Board was not satisfied that the family contacted police
concerning the blood feud. The Applicant provided inconsistent evidence as to
whether his wife or mother contacted the police in January 2008.
[5]
A
letter from the Chief Elder of the Village was given insufficient weight to
offset the two major credibility concerns. There was no indication as to what
investigation the author conducted to verify the events. The letter could
easily be created as the author was not a witness and there were no documents
to show he is the village Chief Elder.
[6]
Similarly,
a letter from Gjin Marku, the Chair of the Committee of Nationwide
Reconciliation, was given insufficient weight as it was “written by a person
who has no first hand knowledge of the facts.”
[7]
Considering
a medical report from Kamza Medical Clinic, the Board noted that only the
Applicant provided “the information concerning the case, and cause of the
medical conditions.”
[8]
The
Board concluded:
Due to the fact the account of a land
dispute was only supported by a document that is probably not genuine and the
account of the family contacting the police was deemed not credible, I am
satisfied the claimant is prepared to create evidence and swear to its
truthfulness and hence, is not a credible witness.
Lacking sufficient credible evidence to
the contrary, I am satisfied the claimant has failed to establish, on a balance
of probabilities, that he is at risk of serious harm should he return to Albania today. Hence, the Refugee
Protection Division rejects the claim pursuant to section 97(1) of the Immigration
and Refugee Protection Act.
III. Issue
[9]
The
main issue before the Court is the reasonableness of the Board’s negative
credibility findings.
IV. Standard
of Review
[10]
Questions
of fact and credibility are reviewed according to the reasonableness standard (Aguirre
v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at paras
13-14).
[11]
Under
this standard, the Court should only intervene where the decision fails to
accord with the principles of justification, transparency and intelligibility
and does not fall within the range of possible, acceptable outcomes (Dunsmuir
v New Brunswick, 2008 SCC 9, [2009] 1 S.C.R. 190 at para 47).
V. Analysis
[12]
The
Applicant contests the credibility findings regarding the family’s property and
related document from the Directorate of Administration and Land Protection;
the low weight attributed to the letter from Gjin Marku as being based on
hearsay; and the microscopic analysis as to who contacted the police.
[13]
While
I consider most of the findings reasonable, I recognize the concern raised by
the Applicant regarding the Board’s treatment of the document from the
Directorate of Administration and Land Protection.
[14]
In
considering this property document, the Board suggested there was an
inconsistency regarding the size of the property as described in the Personal
Information Form (PIF). The diagram indicated the plot is 850m2, while the
PIF indicated that was the size of the Domi plot and the Applicant’s plot
should have been 2900m2. This observation led the Board to state:
I find it implausible that a document
prepared by any agency in Albania awarding a section of land to
the claimant’s family would make such an error. As a result, lacking objective
evidence to the contrary, I am satisfied this document was created to advance
this refugee claim and make a negative credibility inference.
[15]
The
Applicant insists that the Board erred in making this finding without regard to
an amendment to the PIF by way of a letter dated March 27, 2011. This
amendment erased the reference to the size of the Domi family’s land and
clarified that the Applicant’s family land was 850m2. The
Respondent also concedes that the issue of the size of the plot of land was
addressed by the Applicant and is not a flaw in the certificate from the
Albanian government.
[16]
As
a consequence, the Board’s negative credibility finding that there was an error
in this document and going as far as to suggest that it was created to advance
his refugee claim is highly questionable.
[17]
The
Respondent implies that the Board made its finding based on the rudimentary
nature of the certificate more generally, as there was no indication of the
location of the plot or compass showing directions on the diagram.
[18]
Admittedly,
the document lacks some of these more specific details. In my view, however,
it does not necessarily follow that the document was, as the Board concluded,
“probably not genuine.” It may have been open to the Board to afford the
document less weight as a result of this lack of specificity, but that is not
what occurred in this instance. Instead, the Board made a much broader finding
as to the authenticity of that document. A reading of the relevant passage
suggests that the erroneous issue associated with the size of the land also
remained central to this negative credibility inference.
[19]
The
Applicant directs the Court’s attention to the finding in Halili v Canada (Minister of
Citizenship and Immigration), 2002 FCT 999, [2002] FCJ no 1335 that it
constitutes a reviewable error for the Board to reject an official document
absent evidence tending to show its invalidity.
[20]
Since
the negative credibility finding as to the property document proved critical to
the Board’s assessment of the Applicant’s claim in the sense that other
evidence was insufficient to overcome it, I am prepared to accept the
Applicant’s position that this constitutes a reviewable error.
VI. Conclusion
[21]
The
Board’s negative credibility finding based on the property document was
unreasonable in the circumstances. Accordingly, this application for judicial
review is allowed and the matter is remitted back to a newly constituted panel
of the Board for re-consideration.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is allowed and the matter is remitted back to a newly constituted panel
of the Board for re-consideration.
“ D.
G. Near ”
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