Toronto, Ontario, January 19, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated
December 29, 2004, wherein the Board determined that the applicant was not a Convention refugee nor a person in need of protection according to sections 96 and 97 of the Act, respectively.
[2] The applicant, a citizen of Albania, claims refugee protection on the basis of his publicly demonstrated anti-Socialist Party government and pro-New Democrat Party political opinion and activities as well as on the basis of his membership in a particular social group, his family including his father and uncle, who have shared the same political views for many years.
[3] The applicant was employed by the government educational authority as a German language instructor from September 2001 until he was fired on April l7, 2002.
[4] He alleges membership in the New Democrat Party from its formation in January 2001 as a splitter group of the Albanian Democratic Party until he left Albania in August of 2002. He held no official position in the New Democrat Party; he was an ordinary member. He alleges participation in the elections of 2001 as an observer at a polling station and that, as a result of his participation, he was beaten, arrested and detained by police.
[5] On July 28, 2002, the applicant alleges receiving a summons to report to the local police station. He claims this was the event which triggered his decision to flee the country on August 3, 2002. He went to Greece, where he spent two months before coming to Canada. On October 20, 2002, the applicant made his claim for refugee protection.
[6] The Board found that the applicant's claim of political harassment and abuse was not credible. The Board found inconsistencies between his statement (written as part of his refugee protection application process) and his PIF narrative. In his statement, the applicant asserts that the triggering event for his having left Albania to seek protection were threats made to him, and about him through his father, following a public disputatious encounter he had had with his local Member of Parliament after he complained about government policies and practices. In his PIF narrative, the triggering event for the applicant's decision to flee Albania and seek protection was the delivery of a police summons received at the applicant's residence on July 28, 2002. The summons required the appearance of the applicant at the local police station but contained no reason for its issuance and no time of day when the applicant was expected to appear.
[7] The Board cited documentary evidence of country conditions quoting officials of the New Democrat Party as saying, "they have no problem with harassment at present". The Board stated that no evidence was found or proffered with respect to politically motivated acts of physical interference against any members of the New Democrat Party.
[8] The Board found the July 28, 2002 summons to attend at the local police station unrelated to any allegation made by the applicant with respect to his political activity or to any of the experiences alleged in his PIF or in his statement. The applicant alleged that the summons was delivered by the police and received by his sister at his residence and that it was given to him when he returned home. The summons carries no acknowledgement of receipt and there is no documentary evidence of any follow-up action taken by the police consequent upon the applicant's failure to appear. Moreover, the summons contained neither reasons for its issue nor a date and time to appear. The Board, considering the documentary evidence of the treatment of members of the New Democrat Party and the ease with which fraudulent documents can be obtained in Albania, gave no weight to the summons. The Board did not believe that this was the reason the applicant decided to leave Albania.
[9] The standard of review with regard to negative credibility findings is that of patent unreasonableness: Aguebor v. Canada(Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Sinnathamby v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 742 (T.D.) (QL); N'Sungani v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 2142 (F.C.) (QL).
[10] While it is well established that a Board need not mention every piece of evidence in its reasons and is presumed to have considered all the evidence: Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 (F.C.A.), the Court may infer from the Board's failure to mention in its reasons material evidence that the Board made a finding without regard to the totality of the evidence. The Board's burden of explanation increases with the relevance of the evidence in question to the disputed facts: Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration)(1998), 157 F.T.R. 35 (T.D.).
[11] The applicant submits that the medical report corroborates a key persecutory experience, described in his PIF narrative, in which the police beat and subsequently detained the applicant for complaining about electoral irregularities on July 8, 2001. As a result of the beating, the applicant claims he was hospitalized for two days. The medical report is quite brief and states that the applicant suffered from "contuso corporis" and was treated in the hospital from July 9, 2001 to
July 11, 2001.
[12] In my view, the medical report is highly relevant and should have been addressed by the Board in its reasons for decision. The treatment dates in the medical report are contemporaneous with the beating and detention, which the applicant alleged to have taken place. While the report is brief and contains no cause of injury, it is not for this Court to determine the reliability or weight to be given to the report. It is incumbent upon the Board, however, given the report's highly relevant and corroborative nature, to comment on it and provide some explanation for why it should be granted significant or little or no weight.
[13] The applicant submits that the Board assigned no weight to the police summons due to several adverse conclusions drawn about the document. The Board drew an adverse inference based on the lack of any documentary evidence indicating any follow-up action taken by the police resulting from the applicant's failure to appear as required as well as the lack of any reasons for issuance or time of day when the applicant was expected to appear.
[14] The applicant contends that, based on the totality of the evidence, it should have been clear to the Board that the applicant was in no position to receive any documentation reporting any follow-up action taken by the police after his failure to appear, since he fled Albania days after he received the summons. The applicant also contends that the Board failed to provide any evidence that Albanian police summons customarily state the reasons for their issuance or time of day. Thus, there was insufficient evidence to substantiate its conclusion.
[15] While it was open to the Board to draw an adverse inference regarding the lack of any follow-up action by the police, I cannot agree with the Board's conclusion that the summons should be assigned no weight due to its lack of any acknowledgement of receipt, reasons for issuance or time of day. The Board is a specialized tribunal with specialized knowledge. If there is evidence that police summonses in Albania contain certain information, then the Board should, in clear and unequivocal terms, state so. It does not suffice to offer the general explanation that fraudulent documents can be easily obtained in Albania.
[16] These errors are sufficiently important to render the Board's decision patently unreasonable.
[17] For these reasons, the application for judicial review is granted. The matter is referred back for redetermination by a newly constituted panel.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is granted.
2. The matter is referred back for redetermination by a newly constituted panel.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1092-05
STYLE OF CAUSE: ELTON CECO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: JANUARY 18, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND
ORDER BY: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: JANUARY 19, 2006
APPEARANCES BY:
L. J. Cuddy for:
Robert Gertler FOR THE APPLICANT
Deborah Drukarsh FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROBERT GERTLER AND
ASSOCIATES
Etobicoke, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT