Date: 20030218
Docket: IMM-1196-02
Neutral citation: 2003 FCT 191
OTTAWA, ONTARIO, FEBRUARY 18, 2003
PRESENT: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
RAYMOND (KULLOL) TAFILICA
ERGYS TAFILICA
IGLI TAFILICA
INES TAFILICA
MYZAFER TAFILICA
Applicants
-and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board ("the Board") dated February 18, 2002 in which the applicants were found not to be Convention Refugees.
[2] The applicants argue that the Board made a number of errors in its fact-finding, the result of which was a general conclusion that the applicants lacked credibility. The applicants accept that the Board's conclusions on such matters are not easily disturbed but assert that these alleged errors caused the Board's analysis of their claims to be carried out in a manner that constituted reversible error.
FACTUAL BACKGROUND
[3] The applicants are citizens of Albania. The family consists of Myzafer Tafilica, a 48-year-old male ("the applicant"), his 45-year-old wife Raimonda (Kullol) Tafilica ("the applicant's wife"), and their children Ergys (21), Igili (15) and Ines (15). The applicants claim a well-founded fear of persecution in Albania based on their involvement with the Democratic Party (DP).
[4] According to Mr. Talifica, he and his wife had been members of the Democratic Party of Albania since 1992 and had been engaged in its political activities until their departure from the country in 2000. He held the post of chairman of a local party unit in Tirana, and his wife was vice-chairman of the Democratic Women Association in the same locality.
[5] Mr. Talifica alleges that, since the Democratic Party lost power in Albania in 1997, their family became a target for the ruling Socialist Party and its sympathizers. In his PIF and oral testimony, he elaborates on various instances of persecution.
[6] Mr. Talifica decided to leave the country and went into hiding. His son Ergys returned from England and the entire family, but for Mr. Tafilica, left Albania for Canada in May 2000, travelling on false Italian passports arranged for them by a friend. Mr. Talifica waited until such a passport was ready for him, and then joined his family in Canada in July 2000.
THE BOARD'S ALLEGED ERRORS
[7] As mentioned, the applicants claim a number of errors were made by the Board. However, there is one area on which the applicants place particular emphasis because, they suggest, it affects the correctness of the Board's conclusion that the applicants had failed to establish the core of their claim: that they were members of the Democratic Party subjected to mistreatment by the Albanian government.
[8] Among the Board's findings were the following:
. the adult male applicant was elected Chairman of District No. 5 of the Democratic Party in September, 1992.
. the adult applicants' knowledge of political matters was sparse and general;
. the adult male applicant did not provide many details of his political activities or distinguish his involvement beyond that of an ordinary member;
. the adult male applicant could not provide the exact street address of the Democratic Party headquarters in Tirana or the names of other District Chairmen;
. the adult male applicant did not give a detailed description of the platform of the Democratic Party as distinguished from the Socialist Party;
. the adult male applicant was unaware of the tumult surrounding the funeral of Adjem Hajdari in 1998, instead describing the event as "peaceful".
[9] The Board's expectations of Mr. Talifica's knowledge and understanding of political matters was based on its finding that he was Chairman of District No. 5 of the Democratic Party in Tirana for 9 years. In fact, there was some confusion in the evidence about his position. Mr. Tafilica stated first that he was Chairman of "a small region or branch" of the Party (Tribunal Record, p. 603). When asked further about his position, he stated that he was Chairman of "Region number 5" and then that it was "District number 5, region number 3" (Tribunal Record, p. 604). He explained that Tirana was divided into four districts, two in the east and two in the west (Tribunal Record, p. 604). The matter came up again later in the hearing during questioning by the RCO:
RCO: Okay. So now you were Chair of the Democratic Party in your region. I believe it's district number 3, region number 5, is that correct?
Claimant #2: Yes. District 5, region 3.
RCO: Yes, okay, I believe that's what I said.
[Emphasis added].
[10] This exchange reveals that there was some confusion, possibly due to translating the terms for the various geographical units, as between "districts" and "regions". The subject arose once again:
PRESIDING MEMBER: You told us earlier that Tirana was divided into four districts or four regions and I'm asking, you were the Chair of one of them. Who were the other three Chairs?
CLAIMANT #2: I'm sorry, I guess it's a misunderstanding. I was not a Chair of one of the regions, I was a Chair of one of the branches for one region.
PRESIDING MEMBER: Okay. Do you know the Chairs of other branches of other regions?
CLAIMANT #2: I never had to deal with Chairmen of other regions. I only directly have to deal with the Chairman of my region.
(Tribunal Record, at p. 644).
Mr. Tafilica had already given the name of the Chairman of his region.
[11] The Board had an elevated expectation of Mr. Tafilica's knowledge of various political matters in Albania based on the understanding that he was a fairly high-level official in the Democratic Party. The Board stated: "The panel is of the opinion that it is reasonable for the adult male claimant to provide the aforementioned details and names and drew a negative inference from his inability to do so". However, the record shows that Mr. Talifica appeared to be trying to make clear that his responsibilities were within a small geographical area and involved rather mundane activities. The Board thought it peculiar that the applicant had only a sparse and general knowledge of the Democratic Party's platform, did not know the exact street address of the main party headquarters and did not know the names of Chairmen of the Districts other than his own. Yet, this would be not be so surprising if he were merely a party official in a small section of Tirana.
[12] With respect to the funeral of Adjem Hajdari in 1998, the Board said the following:
"The claimant also had a markedly different version of the events surrounding Adjem Hajdari's funeral in 1998, which he allegedly attended, than the documentary evidence on the event. According to the claimant, the funeral was peaceful. However, the documentary evidence indicates that Democratic Party members ransacked government offices, over ran the Prime Minister's Office and Parliament and occupied the State Television and Radio Building. Order was only restored after 72 hours. According to the adult male claimant, he was at the graveyard when the events occurred. The panel drew a negative inference from the claimant's lack of information. Even if the claimant did not witness the events the panel believes it is reasonable he would be aware of them given their very public and chaotic nature. In the panel's opinion, the adult male claimant's oral testimony did not reflect the knowledge one would expect from a person who was allegedly Chairman of a district for nine years and involved in the numerous activities attested to in the letter from the Chief of the DP."
[13] Again, the Board, having understood that Mr. Tafilica was a District Chairman of the party, felt that a person of that stature should have had greater knowledge of the funeral. However, if it was wrong about the applicant's position, the negative inference the panel drew from the applicant's evidence on this subject would not have been justified.
[14] In any case, however, the Board's summary of Mr. Tafilica's evidence about the funeral is simply not accurate. He stated that he had attended the funeral. He said that it began with a peaceful procession in the centre of the city but as it proceeded toward the graveyard some Socialists started shooting (Tribunal Record, at p. 627). He was aware of the problems elsewhere in the city, stating "on the day of his funeral, Tirana, the whole city was in chaos". (Tribunal Record, at p. 612). However, he did not personally witness those events as he was at the grave site. He saw them later on television (Tribunal Record, at p. 627).
[15] Yet, the Board drew a negative inference from the applicant's lack of knowledge of the events surrounding the funeral. It stated that "it is reasonable he would be aware of them given their very public and chaotic nature." Clearly, the evidence shows the applicant was aware of them. He did not describe the funeral as peaceful. He said it began peacefully. Both the applicant and the Board described the event in like terms: "chaos" or "chaotic".
[16] Clearly, it is for the Board to determine credibility and it is not for the Court to substitute its view of the evidence for that of the Board. The Board is entitled to make findings regarding credibility so long as its inferences are not unreasonable and its reasons are set out in clear and unmistakable terms (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.)).
[17] Here, the Board made a general finding that the applicants lacked credibility and concluded that the claimants had failed to establish "the core of their claim." Similarly, the negative inferences whose validity is challenged by the applicants were at the core of the Board's assessment of their claims and were central to its conclusion regarding the applicants' credibility. Where the Board has made clear errors in the course of arriving at such a conclusion, judicial intervention is warranted. In my view, the evidence referred to above, viewed reasonably, is incapable of supporting the Board's conclusion (see Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.)).
[18] The applicants allege that the Board has also made other errors in its assessment of the evidence. In particular, the applicants contend:
- that the Board had no reasonable grounds to doubt the authenticity of their documents, such as their Democratic Party membership cards and booklets;
- that the Board overlooked or disregarded some important documentary evidence, such as a letter from the Democratic Party, the motel ownership certificate, and the fire report from the Public Order Department;
- that the Board's adverse inference from Ergys's failure to make a refugee claim in England was unreasonable.
I need not consider those submissions as I am satisfied that the foregoing analysis is sufficient to justify allowing this application for judicial review. At the new hearing, the applicants will have the opportunity to have these additional matters considered afresh.
DECISION
[19] The application for judicial review is allowed, the Board's negative decision in relation to the applicants is quashed and the matter is referred back to the Board for reconsideration by a differently constituted panel. No question of general importance was submitted by counsel and none is certified by the Court.
JUDGMENT
The application for judicial review is allowed. The decision of the Immigration and Refugee Board of February 18, 2002 is quashed and the matter is remitted to a differently constituted panel for reconsideration. No question of general importance is certified.
"James W. O'Reilly"
J.F.C.C.
OTTAWA, Ontario
February 18, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-1196-02
STYLE OF CAUSE: RAYMOND (KULLOL) TAFILICA, ERGYS TAFILICA, IGLI TAFILICA, INES TAFILICA and
MYZAFER TAFILICA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 11, 2003
REASONS FOR ORDER OF: The Honourable Mr. Justice O'Reilly
DATED: February 18, 2003
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANTS
Mr. Greg G. George FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Ottawa, Ontario FOR THE RESPONDENT