Date: 20070123
Docket: IMM-9689-04
Citation: 2007 FC 68
OTTAWA, Ontario, January 23,
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
MIRELA
RUSTEMI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, filed pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
Mirela Rustemi is seeking review of a decision by the Immigration and Refugee
Board’s Refugee Protection Division (the Board), dated October 24, 2004. The
Board found Ms. Rustemi was neither a Convention refugee nor a person in need
of protection, pursuant to sections 96 and 97 of the IRPA. Essentially, the
Board came to that conclusion because it did not believe Ms. Rustemi was
credible.
[2]
Ms.
Rustemi challenges that decision on the basis that the Board failed to consider
three newspaper articles she filed into evidence for her hearing. She alleges
these articles were material to her case and were crucial to assess her claim
that she was persecuted for political reasons.
[3]
For
the reasons outlined below, I have found that Ms. Rustemi must succeed, as the
Board made a reviewable error by disregarding the articles.
FACTS
[4]
Ms.
Rustemi is an Albanian citizen, who was trained as an economist. She left her
country on January
26, 2001
because she was allegedly persecuted for her political opinions. She claims
her father, a founding member of the local branch of the Democratic Party, was
killed by members of the Socialist Party, while her brother was arrested and
detained by the secret police because of his activities in the Democratic
Party.
[5]
Ms.
Rustemi also claims she was a prominent member of the Democratic Party, because
she was named coordinator of the party’s Youth Forum and because she spoke at
political rallies. She was apparently attacked by socialist partisans and
beaten by the police on a few occasions.
[6]
In
March 1999, she started living with a man whose estranged wife’s family was
closely associated with the Socialist Party, and whose uncle was allegedly
chief of the local secret police. Because of Ms. Rustemi’s political activities,
her partner was shot twice - once in August 1999 (as a result of which he lost
his right leg), and again on August 3, 2000. They went into hiding, and
decided to flee to Canada. They ended their relationship a few months
after they arrived in Canada.
[7]
At
her hearing before the Board, Ms. Rustemi also argued she was the victim of a
vendetta orchestrated by the family of her partner’s ex-wife. She said she now
fears for her life and for that of her son, born in Canada on January 29, 2002,
if they are returned to Albania.
DECISION UNDER REVIEW
[8]
The
Board concluded Ms. Rustemi was not credible overall, noting many
inconsistencies and an omission with regard to two key elements of her story. With
respect to the allegations about her political activities, the Board found her
claim that Democratic Party members were persecuted for their political activities
incompatible with the objective documentary evidence. While accepting she may
have been a party member, the Board also questioned her alleged high profile,
and noted that the membership card she filed was issued two months after she
arrived in Canada. Finally,
the Board stressed that her father’s death certificate did not mention the
cause of his death.
[9]
As
for her allegations about the vendetta, the Board indicated they were not
mentioned anywhere in her Personal Information Form (PIF), and were only raised
when her claim was heard in 2004. The Board added that Ms. Rustemi only
changed her version when she was confronted with the documentary evidence
contradicting her allegations that Democratic Party members were persecuted.
Only then did she indicate the problems she mentioned in her PIF were linked
with the family of her then partner’s ex-wife.
[10]
These
inconsistencies, combined with the fact that Ms. Rustemi waited five months
before leaving her country and did not know the name and nationality on the
forged passport she used to enter Canada, led the Board to
believe she was not credible.
ISSUE
[11]
The
only issue to be decided in this judicial review application is whether the
Board erred in making adverse credibility findings against Ms. Rustemi.
ANALYSIS
[12]
It
is well established that findings of credibility must be assessed against a
standard of patent unreasonableness. In other words, the Board’s decision will
be found to be defective and therefore reviewable only if it is clearly
irrational or, to use the words of the Supreme Court of Canada in Law
Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1
S.C.R. 247 at paragraph 52, if it “… is so flawed that no amount of curial
deference can justify letting it stand.”
[13]
Ms.
Rustemi contends the Board erred when it failed to consider and even mention in
its decision the existence of three newspaper articles she filed into
evidence. She submits these articles were specific to her claim and
corroborated her evidence.
[14]
One
of these articles, published in an Albanian newspaper on August 4, 2000, states
the following: “Deux activistes et ardents membres du Parti Démocratique,
Julian Calamani [Ms. Rustemi’s ex-partner] et Mirela Rustemi, après avoir participé
dans un meeting organisé par le parti Démocratique, revenaient tranquillement à
la maison.” Later on in the same article we find: “Dans les rangs des
victimes rentrent aussi Calamani et Rustemi, deux défenseurs ardents des idées démocratiques.”
And further on, this article states the following: “Ainsi, aux nombreux cas de
violence et de persécution infligée aux membres du parti de l’opposition sont
joint [sic] Julia Calamani et Mirela Rustemi” (Applicant’s Record, Exhibit E,
as translated).
[15]
The
two other articles, taken from the April 2, 2004 edition of Albania’s most important
newspaper, also mention Ms. Rustemi by name and allegedly support her claim
that she is the victim of a vendetta. In these articles, Ms. Rustemi is
described as having obtained false identity documents to work as a prostitute
in Greece (Applicant’s Record,
Exhibit F, as translated).
[16]
Yet
the Board failed not only to discuss these articles, but to even mention them.
Referring
to Ms. Rustemi’s membership card on page four of its decision, the Board wrote:
“Elle n’a soumis aucun autre document relié à ses activités politiques ou à
celles de son père qu’elle a allégué être un des fondateurs du parti à Fier.”
[17]
The Minister
has countered that submission by arguing, first, that the Board does not have
to mention every piece of evidence before it. The fact that the Board did not
mention all of the evidence in its decision does not mean the evidence was
ignored. Second, the Minister argues the Board is not bound to give weight to
documentary evidence submitted by a claimant if it does not believe the facts
related in the testimony. Third, the Minister is of the view that the Board
was well founded not to give probative value to the newspaper article referring
to Ms. Rustemi’s alleged political activities in 2000, since the membership
card filed into evidence was issued in March 2001. Finally, according to the
Minister, the allegations of persecution of the Democratic Party members are
clearly incompatible with the objective documentary evidence about the
situation in Albania.
[18]
None
of these arguments convince me. It is trite law, of course, that the Board
does not have to deal specifically with every piece of evidence filed by the
parties, even if that evidence is contrary to its finding (see, for example, Hassan
v. Minister of Employment and Immigration (1992), 147 N.R. 317
(F.C.A.)). On the other hand, it is also well established that an
administrative decision will be at fault and reviewable if it is silent on an
important piece of evidence. As Mr. Justice John Evans remarked in this
oft-quoted passage from Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.) (QL) at
paragraph 17:
However, the more important the evidence
that is not mentioned specifically and analyzed in the agency’s reasons, the
more willing a court may be to infer from the silence that the agency made an
erroneous finding of fact “without regard to the evidence”: Bains v. Canada
(Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.).
In other words, the agency’s burden of explanation increases with the relevance
of the evidence in question to the disputed facts.
[19]
In
this case, the Board’s failure to even mention the three newspaper articles is
particularly damning and egregious considering that this evidence is not of a
documentary and general nature, but refers specifically to Ms. Rustemi by name
and seems to confirm her story. I note in passing that the cases the Minister submitted
in support of his argument all relate to documentary evidence and country
conditions, and not to documents referring to an applicant explicitly by name.
[20]
The
three articles tend to confirm that Ms. Rustemi had some profile and was not merely
an obscure rank and file member of the Democratic Party. They also appear to
confirm that she was a member of that organization at least as far back as
August, 2000. At the very least, Ms. Rustemi was entitled to know why the
Board did not consider this corroborating evidence compelling. The Board could
not disregard this evidence in assessing Ms. Rustemi’s credibility. It is
precisely because the newspaper articles undermine the Board’s assumption that
Ms. Rustemi was not a prominent member, and somewhat dispel the notion that she
may only have been a recent member of the Democratic Party, that the Board had
to take stock of these articles and discuss their significance.
[21]
Counsel
for the Minister also tried to argue that the Board was justified in not
attaching too much importance to the articles because Ms. Rustemi’s claim, at least
at the hearing, was focused on the family vendetta. But that cannot excuse the
Board from assessing the totality of the evidence. Ms. Rustemi never abandoned
her allegation based on political persecution, and the Board had to address
that claim.
[22]
It
may be that Ms. Rustemi will be found to lack credibility, even after the
newspaper articles are duly taken into consideration. But it is not for this
Court to speculate. And more importantly, an applicant is entitled to have his
or her credibility assessed on the basis of the totality of the evidence, and
in clear, unmistakable and reasoned terms.
[23]
For
the foregoing reasons, I am of the view that this application for judicial
review must be allowed. Neither counsel suggested a question for certification,
and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review is allowed, and the
matter is remitted for determination before a differently constituted panel of
the Board’s Refugee Protection Division. Neither counsel suggested a question for
certification, and none arises.
"Yves
de Montigny"
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