Federal Court Decisions

Date: 20050120

Docket: IMM-5612-03

Citation: 2005 FC 66

Ottawa, Ontario, this 20th day of January, 2005

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                DASHMIR ZYLI

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated June 20, 2003, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.

The applicant requested an order setting aside the Board's decision and referring his claim back for re-determination.

Background

[2]                The applicant, Dashmir Zyli, is a citizen of Albania who claims a well-founded fear of persecution at the hands of the authorities and the supporters of the Socialist Party by reason of his political opinion and membership in a particular social group, namely, his family.

[3]                The applicant was born in the village of Arrez e Madhe of the municipality of Tepelene, Albania. In the narrative portion of his Personal Information Form ("PIF"), the applicant stated that his family has been persecuted for their political beliefs for generations. Growing up, the applicant stated that he was ostracized and mistreated for his family's perceived anti-government views.

[4]                In the early 1990s, the applicant's family was one of the first to join the Democratic movement in Albania. His older brothers took part in the Students Movement and became members of the Democratic Party or the National Front, which were united in their opposition to the Socialist Party.

[5]                On May 10, 1993, the applicant alleged that he became a member of the National Front Party and later that year was elected to the Executive Committee for the Tepelena region.

[6]                In 1996, the applicant raised his political profile by running, albeit unsuccessfully, for the position of Commune Chairman for the village of Luftinja.

[7]                The applicant alleged that on July 3, 1997, he was taken by the police from a peaceful rally in Tirana which protested election manipulation by the Socialist Party. He stated that he was detained for a number of hours and mistreated at a police station in Tirana before being released.

[8]                The applicant stated that on July 5, 1997, at a meeting of National Front Party members of southern Albania, he was appointed as a representative for the Tepelena branch. After the meeting, the applicant stated that he and another executive member were travelling in a taxi when masked men started to shoot at them. The driver and the other executive members were wounded. The applicant stated that the masked men pulled all three of them from the car, beat them and threw them at the side of the road. The men insulted the National Front party and told them that they were never going to gain power in the government. The applicant stated that he blacked out during the incident and woke up in the Tepelena hospital, where he stayed until July 11, 1997, recovering from cuts to his head.

[9]                The applicant alleged that on September 14, 1998, he was detained by police after a rally protesting the assassination of Azem Hajdari, was detained for three days, mistreated, and accused of being involved in a coup.

[10]            The applicant further alleged that on a number of occasions, men visited his house looking for him and told his mother that if he continued with his National Front Party activities, he would be killed.

[11]            On September 10, 1999, the applicant was stopped by police while shopping in Tepelena. He stated that after being detained for a few hours, the police threatened that if the applicant did not cease his activities, he would not live.

[12]            The applicant's PIF narrative describes a significant event which allegedly took place on October 1, 2000. The applicant was selected by the National Front Party to be its representative in the municipal election commission. The applicant was posted to the voting station in Luftinja, Tepelena, where the vote count showed a win for the National Front Party candidate. Although the other right wing parties accepted this result as accurate, the Socialist Party representative did not. The applicant further alleged that a few minutes later, the armed guards outside the voting station came inside, started shooting at the walls, beat up the representatives of the right wing parties, burned the National Front's voting box and replaced it with one from the Socialist Party. The representative of the Socialist Party was left unharmed.

[13]            The applicant alleged that at the end of October 2000, he attended a general meeting of the National Front Party and gave a speech during which he called the Socialist Party thieves and manipulators.

[14]            The applicant alleged that on November 5, 2000, unknown persons shot at his house in the middle of the night, shattering all the windows and damaging the walls. The shooters allegedly screamed that they were going to kill all members of the National Front Party.

[15]            Fearing for his family's safety, the applicant stated that he fled to his brother's house in Tirana. While there, his mother reported that the police had been to the applicant's house in Tepelena looking for him and threatening to find him and put him in prison for participating in a coup. The applicant and his brother discussed the situation and decided that the applicant had to leave Albania immediately. Arrangements were made with a smuggler, the applicant left Albania on December 5, 2000, and arrived in Canada on December 11, 2000. He made a refugee claim two days later.

[16]            The applicant alleged that his life is in danger in Albania from the Socialist government and the secret service police. He stated that his membership in the National Front Party and his family background puts him at risk, and that he would have no protection if he were to return to Albania.

[17]            On March 11, 2003, the Board held a hearing into the applicant's claim.

Reasons of the Immigration and Refugee Board (Refugee Protection Division)

[18]            In a decision dated June 20, 2003, the Board determined that the applicant was neither a Convention refugee nor a person in need of protection within the meaning of IRPA.

[19]            The basis for the Board's negative decision was its view that the applicant was not credible and failed to provide trustworthy evidence that he had a well-founded fear of persecution in Albania on a Convention ground.

[20]            The Board stated that its starting point of analysis was that allegations sworn to by a refugee claimant are presumed to be true unless there is reason to doubt their truthfulness. In this case, the Board stated that it had reason to doubt the truthfulness of the material aspects of the applicant's claim.

[21]            First, the Board noted that during the hearing, the applicant testified that his mother told him that the police came looking for him twice in December 2000 after he had left Albania. This allegation was not included in the applicant's PIF, which was signed on April 11, 2001. When questioned about this discrepancy, the applicant stated that he only included events up to and including his departure from Albania in his PIF. The Board found this explanation

unreasonable, given the set of instructions on the PIF itself, and concluded that the applicant was attempting to exaggerate the police's interest in him. The Board found this testimony to lack credibility and discounted it as untrue.

[22]            Second, the Board concluded that the voting irregularities and violent incident described by the applicant to have happened on October 1, 2000 did not occur. The Board noted that the documentary evidence stated that the October 2000 local elections were generally acceptable, although some irregularities and incidents of intimidation were noted in Himara and other regions. Although the Board noted that the applicant had testified that there was no international observer present at the Luftinja, Tepelena voting station, if the incident described by the applicant had actually occurred, some reference to it would have appeared in the documentary evidence. The Board reasoned that if such a serious incident had actually occurred, it would have come to light because of the involvement of the international community, non-governmental organizations and the political aspirations of the non-Socialist Party politicians. Furthermore, the Board found that the other events related to the October 2000 elections had not occurred either, namely the alleged political speech delivered by the applicant at the end of October 2000, the gunshots outside the applicant's home on November 5, 2000 and the police visit to the applicant's home on November 2000 after he had left for Tirana.

[23]            The Board concluded that the applicant had not provided sufficient or credible trustworthy evidence that he experienced any mistreatment since 1999 because of his political activities or for any other reason.

[24]            Since the Board accepted the applicant's evidence that he was a member of the National Front Party, it then assessed whether his fear of mistreatment if returned to Albania was objectively well-founded on a forward-looking basis.

[25]            Although the Board noted that various incidents of police harassment and torture of those who oppose the current regime were reported in 2000 and 2001, several recent reports indicate either no political persecution or a significant decline in incidents. Furthermore, the Board noted that the political situation in Albania is precarious but improving, and the country conditions indicate no confirmed reports of political killings or detainees being held for strictly political reasons.

[26]            Based on its analysis of this documentary evidence, the Board concluded that while the Albanian police mistreat some people, there is not a serious possibility that the Socialist government or the police will persecute the applicant if he returned to Albania.

[27]            The Board concluded that the applicant was neither a Convention refugee nor a person in need of protection.

[28]            This is the judicial review of the Board's decision.

Applicant's Submissions

[29]            The applicant submitted that the key error made by the Board was its finding that his testimony regarding events of October and November 2000 was not true. While it is conceded that the Board may draw an inference from the absence of documentary evidence of facts that one would expect to see there, the applicant submitted that one would not expect a specific reference to irregularities in Luftinja. Further, the documentary evidence referred to various incidents of intimidation and other voting irregularities without specific mention of where they took place. Given this evidence, and the applicant's established political profile, it is submitted that it was unreasonable for the Board to disbelieve that the events of 2000 occurred at all, merely because there was no specific reference to his voting station in the documentary evidence.

[30]            Especially since the documentary evidence corroborated the applicant's evidence that international observers were not at every voting station, the applicant submitted that the Board's finding of fact on this issue is based on no evidence, amounts to speculation or is otherwise not based on the evidence before it.

[31]            In the applicant's view, although the documentary evidence noted a marked progress towards international standards on democratic elections, it also documented continued police misconduct and electoral fraud during 2001. This evidence, it is submitted, supports the applicant's claim of a well-founded fear of persecution if he returned to Albania.

[32]            Given his explanation that his PIF narrative only contained events up to and including his departure from Albania, the applicant argued that it was unreasonable for the Board to draw a negative inference from his omission of the allegation that police visited his house a number of times, looking for and threatening him in December 2000 and June 2001. The applicant pointed to the wording of the PIF, which instructs claimants to set out "all significant incidents which caused you to seek protection outside of your country of nationality". The applicant submitted that this direction can reasonably be interpreted as referring to events which occurred before the seeking of protection or initiating a refugee claim, not all events before a PIF is signed.

[33]            The applicant pointed out that the June 2001 police visit post-dated the signing of his PIF, meaning that it was even more unreasonable for the Board to draw a negative inference from the applicant's failure to include a future event in his narrative.

[34]            The applicant argued that the Board's adverse credibility findings were made in a perverse manner, since the PIF instructions were misapprehended. The applicant further submitted that this constitutes an error of law which warrants this Court's intervention.

Respondent's Submissions

[35]            The respondent submitted that the Board's decision was not patently unreasonable and should therefore not be disturbed by this Court.

[36]            The respondent argued that it was reasonably open to the Board to draw a negative inference based on the applicant's omission of allegations from his PIF narrative. The respondent disputed the applicant's interpretation of the instructions that accompany question 37 of the PIF, and submitted that the ability of claimants to amend and update their PIF, and the fact that the applicant was represented by a lawyer negate the reasonableness of his position on this issue. Furthermore, the respondent submitted that it was reasonable for the Board to expect the applicant to mention these incidents in his PIF, had they actually happened.

[37]            The respondent submitted that the Board is entitled to draw a negative inference from the failure of the documentary evidence to mention what one would normally expect it to mention. In the case at bar, the respondent argued that the Board was justified in giving greater weight to the silence of the documentary evidence than to the applicant's testimony. Contrary to the applicant's assertion, specific incidents of election irregularities are described in the documentary evidence, therefore the respondent argued that it was not patently unreasonable for the Board to expect the violent incident described by the applicant to be mentioned if it had actually happened.

[38]            The respondent submitted that it was reasonably open to the Board to decide that the applicant's fear was not objectively well-founded, given the evidence available. It is argued that the Board's conclusion was reasonable, just as the opposing view could also reasonably be taken. As such, the respondent submitted that this Court's intervention is not warranted.

[39]            The respondent requested that this application for judicial review be dismissed.

Issue

[40]            Has the applicant established any basis for this Court's intervention?

Relevant Statutory Provisions

[41]          Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:

Analysis and Decision

[42]            Preliminary Issue: Standard of Review

The standard of review to be applied to a Board's decision in respect of credibility is a highly deferential one. In Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), Décary J.A. stated at paragraph 4:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review . . .

[43]            The standard of review to be applied to the Board's decision in this case is that of patent unreasonableness.

[44]            Issue

Has the applicant established any basis for this Court's intervention?

The applicant's arguments centre principally around three aspects of the Board's decision. The applicant submitted that the Board was in error in not believing his testimony regarding the incidents in October and November 2000 because no specific reference to his polling station was found in the documentary evidence. Secondly, the applicant submitted that the Board made an error in drawing a negative inference from his PIF omissions since he provided a reasonable explanation. Third, the Board erred in concluding that his fear of persecution was not objectively well-founded.

[45]            Events of October and November 2000

The applicant stated in his PIF that he was a representative for the National Front Party at the election and that his candidate won the vote count. The win was not accepted by the Socialist Party and a few minutes later armed guards outside the polling station came inside, started shooting at the walls, beat up the representatives of the right wing parties, burned the National Front's ballot box and replaced it with one from the Socialist Party. The representative of the Socialist Party was not harmed. The applicant also stated that he made a speech at the end of October, criticizing the Socialist Party and that in November 2000, unknown people shot at this house in the night, and these people screamed that they were going to kill all the members of the National Front Party.

[46]            The Board found at pages 5 to 6 of its decision:

In addition, I do not find it credible that the voting station guards in Luftinja, Tepelena at the end of the voting day, October 1, 2000, beat up the non-Socialist Party representatives, burned the National Front voting box and replaced it with a Socialist Party voting box. The local elections of October 2000 were generally found by international observers to be acceptable but also with serious deficiencies remaining to be corrected. The Organization for Security and Co-operation in Europe (OSCE) concluded that despite some irregularities and some incidents of intimidation, the elections were generally valid. The documents include a description of the events in Himara where there were serious irregularities including intimidation of Election Commission members, and the destruction of one ballot box. The documents do not include information about what happened at the claimant's voting station. The claimant testified that there was not an international observer at his station. In addition to the claimant, other representatives of right wing parties were allegedly present. Given the involvement of the international community and NGOs and given the political aspirations of non-Socialist Party politicians, I find it reasonable to assume that if the incident described by the claimant actually occurred, it would have been reported in some of the documents. On a balance of probabilities, I conclude that the alleged voting irregularities of October 1, 2000 at the voting station in Luftinja, Tepelena did not occur. Further, on a balance of probabilities, I find that the other events relating to this incident did not occur. This includes the claimant's speech at a meeting of the National Front party at the end of October 2000, the incident on November 5, 2000 when unknown persons shot at his house and threatened to kill all members of the National Front and the police visit to his home in November 2000 after he had left for Tirana.

[47]            In Adu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 114 (C.A.), Hugessen J.A. for the Court stated:

. . . The "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.

[48]            The applicant submitted that the documents made general reference to irregularities without specific reference to where the incidents occurred, and that no international representative was at his polling station, hence, you would not expect to find reference to the incidents he stated happened.

[49]            I cannot agree that the Board's decision on these points is patently unreasonable. The Board was entitled in these circumstances to draw a negative inference and not accept the applicant's testimony. The incidents reported by the applicant were serious and a number of other parties' representatives were also present. Given the severity of the incidents and the fact that it would be in the interests of the political representatives to report this incident, the Board's decision not to accept that the incidents took place is a conclusion that was reasonably open to it.

[50]            PIF Ommissions

The applicant failed to include events that happened after his departure from Albania in his PIF (that police came looking for him twice in December 2000 after he left Albania). The applicant, who was represented by counsel, did not file an amended PIF as he was entitled to do, to include this information. He first mentioned the December 2000 visits in his oral testimony. The Board did not accept the applicant's explanation that he only included information up until the time he left Albania and found the testimony concerning the December 2000 visits not credible. In Sahi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 527, [2001] F.C.J. No. 805 (QL), Trembley-Lamer J. stated at paragraph 18:

Further, with regard to the applicant's omission from his PIF, this Court has held that the Board is reasonably entitled to draw a negative inference by reason of an omission of significant evidence from the applicant's PIF. (Lobo v. M.C.I., [1995] F.C.J. No. 597 (F.C.T.D.)). I find that it was reasonably open for the Board to draw a negative inference from the applicant's failure to mention this information prior to being questioned regarding his reporting requirements with the police authorities.

[51]            The applicant disagrees that a negative inference should be drawn because he failed to include these events in his PIF, but I am of the opinion that the Board's decision to draw a negative inference, as a result of the failure to include the events in his PIF was a decision that was reasonably open to it. The definition of Convention refugee is a forward-looking definition which means that all incidents are relevant up to the time an applicant's case is heard. The Board's decision on this point was not patently unreasonable.

[52]            Well-foundedness of the Applicant's Fear

I have reviewed the Board's reasons under the heading "Well-Founded Fear" and I cannot conclude that the Board made a reviewable error in this respect. The Board did an extensive review of the documentary evidence in coming to its conclusion.

[53]            The application for judicial review is therefore dismissed.

[54]            Neither party wished to submit a question of general importance for consideration for certification.

                                               ORDER

[55]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                              "John A. O'Keefe"                

J.F.C.                     

Ottawa, Ontario

January 20, 2005

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-5612-03

STYLE OF CAUSE: DASHMIR ZYLI

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   August 5, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     January 20, 2005

APPEARANCES:

Jack Martin

FOR APPLICANT

Tamrat Gebeyehu

FOR RESPONDENT

SOLICITORS OF RECORD:

Jack Martin

Toronto, Ontario

FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT