Date: 20071023
Docket: IMM-1304-07
Citation: 2007 FC 2004
Ottawa, Ontario, October 23,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
HARUSHA,
Paulin
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Paulin
Harusha is an Albanian citizen, who claims to fear persecution in Albania, because of
his family’s involvement in a blood feud. The Refugee Protection Division of
the Immigration and Refugee Board rejected his claim, finding that Mr. Harusha
was not credible and that the documents that he provided in support of his
claim were not reliable.
[2]
For
the reasons that follow, I am of the view that several of the Board’s central
credibility findings were patently unreasonable. As a consequence, the
application for judicial review will be allowed, and the Board’s decision set
aside.
Background
[3]
Mr.
Harusha testified that in 1993, his father was working as a security guard at a
government warehouse in the city of Shkodra. In August of that
year, several individuals broke into the warehouse. The applicant’s father
shot and killed one of the intruders, a man by the name of Arden Alia. Arden
Alia was a member of the Aprian Alia family.
[4]
According
to Mr. Harusha, the Aprian Alia family then declared a blood feud against his
family. As a result of the declaration of the feud, Mr. Harusha’s family went
into hiding in the mountains in the Dugagjine area, where they remained for
some four years.
[5]
In
1996, Mr. Harusha’s brother came to Canada with his wife and
children. Once in Canada the family sought and obtained refugee
protection, basing their claims on their fears arising from the blood feud.
[6]
The
following year, Mr. Harusha was sent to live with relatives in the United
States.
A few months later, Mr. Harusha’s father left Albania for the United
States.
Father and son were both subsequently accepted as Convention refugees in the U.S.
[7]
In
2002, Mr. Harusha was convicted of several criminal offences. After serving
time in prison, he was deported back to Albania on August 1,
2005.
[8]
Mr.
Harusha says that three days after he arrived back in Albania, the family
home in Shkodra was riddled with bullets. Believing that this was an attempt
by the Aprian Alia family to send him a message, Mr. Harusha once again fled
Albania, this time coming to Canada, where he sought refugee protection.
[9]
In
support of his claim for refugee protection, Mr. Harusha produced a letter from
the Chief of Police in Shkodra, which confirms that a shooting took place at
the Harusha home on August 5, 2005. The letter further confirms that the
attack occurred because of a blood feud.
[10]
Mr.
Harusha also produced a letter from the Peace Reconciliation Missionaries of
Albania, which confirms the existence of the blood feud with “citizen Aprian
Alia”. The letter further states that the Peace Reconciliation Missionaries
had been in contact with the Aprian Alia family in an effort to resolve the
feud, but that these efforts had not been successful. Finally, the letter states
that as a result of the tense situation between the Harusha and Aprian Alia
families, Mr. Harusha was forced to leave Albania.
The Board’s Decision
[11]
The
Board accepted that Mr. Harusha was a citizen of Albania.
Recognizing that blood feuds are a serious problem in Albania,
particularly in the Shkodra area, the Board stated that it would have had no
hesitation in accepting the applicant as a refugee had it believed his story.
However, as the Board did not believe Mr. Harusha’s story, the claim was rejected
on credibility grounds.
[12]
Amongst
other reasons given for rejecting the claim, the Board found that there were
material discrepancies in Mr. Harusha’s story with respect to the identity of
the agents of persecution. In this regard, the Board noted that while Mr.
Harusha usually referred to the family with whom his own family was engaged in
a feud as the “Aprian Alia” family, at the port of entry, he stated that he
feared the “Hoxja” family. The Board did not accept Mr. Harusha’s explanation
for this discrepancy.
[13]
The
Board further found that there were inconsistencies in Mr. Harusha’s story as
it related to the timing of his return to Albania, and the
attack on the family home. Moreover, the Board took issue with the fact that
there was no credible evidence given by Mr. Harusha that he had reported the
shooting to the police.
[14]
The
focus of much of the Board’s analysis was on the documents proffered by Mr.
Harusha to support his claim. In this regard, the Board commenced its analysis
by questioning the fact that neither document was dated.
[15]
With
respect to the letter from the Peace Reconciliation Missionaries, the Board was
concerned that while the letter described Mr. Harusha’s situation, it did not
mention the fact that other family members had also been forced to flee Albania.
[16]
Finally,
the Board noted that while Mr. Harusha’s Personal Information Form (or “PIF”)
did not record the date on which his father shot and killed the intruder, Mr.
Harusha had testified that this occurred on August 10, 1993. According to the
Board, this “…‘coincides’ with the date in the Missionary’s letter. It is
obvious to me therefore that that the claimant’s oral testimony before me had
to ‘jive’ with the date of the shooting as set out in the Missionary’s letter.”
[17]
Insofar
as the letter from the police chief was concerned, the Board noted that the
shooting at Mr. Harusha’s house ostensibly took place on August 5, 2005.
According to the Board, this raised a material inconsistency in Mr. Harusha’s
story, given that he stated that he left the United States on August 1,
2005, and that the shooting took place three days after he returned to Albania.
[18]
Noting
the ready availability of fraudulent documents in Albania, the Board
found that the documents in question were not genuine.
[19]
Having
found that Mr. Harusha was not credible and that the documents that he provided
in support of his claim were not reliable, the claim was dismissed.
Standard of Review
[20]
The
only issue before the Court is whether the Board’s negative credibility
findings are patently unreasonable.
[21]
The
Refugee Protection Division has a well-established expertise in the
determination of questions of fact, including the evaluation of the credibility
of refugee claimants. Indeed, such determinations lie at the very heart of the
Board’s jurisdiction. As a consequence, before a finding of fact made by the
Board will be set aside by this Court, it must be demonstrated that such
finding is patently unreasonable. Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982, at ¶49, and Aguebor
v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[22]
Similarly,
the standard of review of findings relating to the authenticity of documents is
one of patent unreasonableness: Adar v. Canada (Minister of
Citizenship and Immigration), (1997) 132 F.T.R. 35.
Analysis
[23]
Notwithstanding
the high degree of deference to be paid to findings of fact made by the Refugee
Protection Division, I am satisfied that several of the Board’s key negative
credibility findings are patently unreasonable.
[24]
For
example, it was simply perverse for the Board to base a negative credibility
finding on the fact that Mr. Harusha’s oral testimony was consistent
with the documentary evidence offered in support of his claim.
[25]
Insofar
as the timing of the attack on the Harusha family home is concerned, the Board
attached considerable importance to the fact that the letter from the police
chief stated that the attack occurred on August 5, 2005, whereas Mr. Harusha
had said that he left the United States on August 1, 2005, and that the
shooting took place three days after he returned to Albania. According to the
Board, this meant that the attack should have occurred on August 4, 2005.
[26]
In
my view, the Board was finding an inconsistency where none existed. It is true
that Mr. Harusha testified that he left the United States on August 1,
2005. However, the copy of his passport contained in the tribunal record shows
that he entered Albania the next day. This is not unusual or
unexpected, given the distance between the United States and Albania, the time
that it would take to travel between the two destinations, and the fact that
many trans-Atlantic flights are overnight flights.
[27]
Mr.
Harusha clearly arrived in Albania three days before the
attack on the family home. As such, there was no inconsistency between his
evidence and the letter from the police chief, and the Board’s finding in this
regard is patently unreasonable.
[28]
The
Board’s finding that there was no credible evidence given by Mr. Harusha that
he had reported the shooting to the police is puzzling. Questions as to
whether a crime has been reported to the police often arise where the
availability of state protection is in issue. This is not such a case.
[29]
Moreover,
Mr. Harusha never claimed to have reported the crime to the police. In this
regard, he noted that the attack was reported on the television news, and that
the police were clearly well aware of it.
[30]
Finally,
the Board took issue with the fact that while Mr. Harusha usually referred to
the family with whom his own family was engaged in a feud as the “Aprian Alia”
family, he stated at the port of entry that he feared the “Hoxja” family.
[31]
A
review of the transcript from the hearing discloses that Mr. Harusha explained
that Arden Alia’s father was an imam and that Imams are known in Albania as “Hoxja”.
Mr. Harusha further explained that the father was known as Ismet Hoxja,
although his family name was Alia. According to Mr. Harusha, when he was asked
for the names of the agents of persecution at the port of entry, it was the
name of Arden Alia’s father that sprang to mind.
[32]
It
was certainly open to the Board to disbelieve Mr. Harusha’s explanation for the
discrepancy in the identity of the agents of persecution.
[33]
That
said, the reasons given by the Board for doing so were that “There’s no
credible evidence before me that [Imams] in Albania are called
Hoxja.”
[34]
However,
the transcript discloses that after the exchange between Mr. Harusha and the
presiding member on this issue, the interpreter interjected, apparently in an
attempt to help clarify the matter, explaining that Imams are indeed called
“Hoxja” in Albania. No mention
of this was made by the Board, and no reasons are given for rejecting the
interpreter’s confirmation of Mr. Harusha’s explanation. In my view, this was
an error: see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at ¶14
– 17.
Conclusion
[35]
It
is true that the Board had a number of different reasons for disbelieving Mr.
Harusha. However, given the central role that the findings discussed above
played in the Board’s analysis, it would, in my view, be unsafe to allow the
decision to stand.
[36]
As
a consequence, the application for judicial review is allowed.
Certification
[37]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a differently
constituted panel for re-determination; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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