Date: 20031120
Docket: IMM-6223-02
Citation: 2003 FC 1356
Between:
MARIGLEN ALIAJ
ERVIN ALIAJ
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated November 6, 2002, wherein the Board found that the applicants are not Convention refugees or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The applicants Mariglen ("Mariglen") and Ervin ("Ervin") Aliaj, are brothers from Vlorë, Albania. They allege a well-founded fear of persecution at the hands of the government of Albania and the Socialist Party of Albania on the basis of their membership in the Democratic Party of Albania ("DP").
[3] The Board found that the applicants' credibility and their well-founded fear of persecution were undermined because of the many discrepancies between their Personal Information Forms ("PIF"s), their oral testimony, and the four medical reports.
[4] The applicants submit that the Board's credibility findings should be set aside because they are perverse, patently unreasonable and in breach of the rules of natural justice.
[5] I am not convinced that the Board acted arbitrarily in evaluating the applicants' credibility in light of the inconsistencies. The Board clearly and comprehensibly explained its reasons for doubting the applicants' credibility on the basis of numerous discrepancies between the applicants' PIFs, their testimonies and the medical reports. Namely, I do not think that the Board erred in concluding that the applicants had not sustained their injuries for the reasons they alleged; that the family van had been burned; and, that Mariglen attended the political rally in May 1999.
[6] However, there is a difficulty in this case with respect to the Board's conclusions that Edmund had not been killed for political reasons, that Ervin had not participated in the activities of the DP Youth Forum, and that Mariglen's DP membership card was a fake.
[7] First, the Board did not believe that Edmund was killed for political reasons because it felt that the death of a DP activist would be mentioned in the country reports. In order to support its conclusion, the Board relies on documentary evidence which is referred to as "Exhibit R-1, s. 2.2.30" (see footnote 8 at page 11 of the Tribunal record). A review of the entire file has failed to reveal this evidence and "Exhibit R-1," a Notice to Appear, can be found at page 100 of the Tribunal record. The Tribunal record does include a table of contents of the documentary evidence but not the documents themselves (see page 103 of the Tribunal record).
[8] Similarly, the Board rejected Mariglen's DP membership card on the basis of information contained in "Exhibit R-1" that suggests that, "every element in Albanian society is corrupt . . . everything is for sale, . . . everything from visas to goods to university diplomas are for sale" (see page 14 of the Tribunal record).
[9] Finally, Ervin testified that he participated in DP Youth Forum activities in the 1999 local government elections. The hearing transcripts show that the Refugee Protection Officer and the Presiding Member then discussed a document which confirms that the local elections were in 2000. In the decision, the Presiding Member refers once again to a document that is missing in "Exhibit R-1" to support this conclusion (page 17 of the Tribunal record).
[10] Justice Reed has held in Kong et al.v. Canada (M.E.I.) (1994), 73 F.T.R. 204, at 211, that such omissions can be grounds for a reversal of the decision:
[20] What is more, although the record which was sent to the court is certified as a true copy of all the material which was before the Board, I can find no copy of the article from which the quote was taken included herein. Thus, I cannot consider the context from which the quote was taken. It would appear from one of the indexes on the file that there is more material than just this one article which is missing from the certified record. A certified record should include all the evidence which was before the Board. The absence of such can itself be grounds for a reversal of the decision.
[11] In the Federal Court decision Halili v. Minister of Citizenship and Immigration (September 24, 2002), IMM-5144-01, 2002 FCT 999, Heneghan J. found that:
[5] In the present case, the Board purported to rely on evidence that the forging of official documents was widespread in Albania. Although there is a footnote referring to such evidence in the reasons, the Tribunal record does not contain any evidence in support of this conclusion by the Board. Furthermore, the record discloses no evidence that the Board has particular knowledge or expertise in the validity of documents emanating from Albania.
[12] Although this case refers to a political membership card rather than a state issued document, the Board should not have challenged the validity of Mariglen's card without adducing evidence in support of its finding because "the matter of foreign documents is not an area where the Board can claim particular knowledge" (Ramalingam v. Minister of Citizenship and Immigration (January 8, 1998), IMM-1298-97, [1998] F.C.J. No. 10 (T.D.) (QL)).
[13] Subsequently, in Sardar Mumtaz Ahmed v. The Minister of Citizenship and Immigration (February 17, 2003), IMM-4571-01, [2003] F.C.J. No. 254 (T.D.) (QL), Heneghan J. stated:
[25] In my opinion, the deficiencies in the record give rise to the apprehension that the Board rendered a conclusion in the absence of evidence to support it. . . .
[26] It then proceeded to consider whether an IFA was available and concluded that it was. The Board reached this conclusion primarily on the basis of certain documentary material. However, the certified tribunal record does not include the material in question.
[27] The absence of this evidence casts doubt upon the conclusion of the Board, that an IFA was reasonably available. One of the purposes of an application for judicial review is to test the reasonable basis for a decision of a statutory tribunal. In this case, the Board's conclusion is not justified by the evidence submitted, by the Respondent, to the Court.
[14] In Amrik Singh Gill v. The Minister of Citizenship and Immigration (August 28, 2003), IMM-4020-02, 2003 FC 1003, I stated the following:
. . . Again, the relevant documentary evidence is missing from the CCTR, which makes it impossible for this Court to evaluate the accuracy of the Board's interpretation of it, . . .
. . ., rule 17(b) of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, makes it clear that it is incumbent upon a tribunal to prepare and produce, without delay, a record containing, inter alia, "all papers relevant to the matter that are in the possession or control of the tribunal". In that respect, I fully agree with the following notes printed underneath rule 17, in Federal Court Practice, 2003, by Sgayias, Kinnear, Rennie and Saunders, at page 1026:
Rule 17 is a departure from the procedure that usually applies to judicial review applications. Under Part 5 of the Federal Court Rules, 1998 it is for the parties to prove the record. They may request, under rule 317, that the tribunal file material relevant to the application. Rule 17 would appear to supplant rule 317 as the summary way of putting the relevant material before the Court and avoiding delays that could occur if this were left to the parties and to the usual practice.
[15] The present case can be distinguished from the Federal Court of Appeal's decision in Hassan v. Minister of Employment and Immigration (February 8, 1993), A-757-91, [1993] F.C.J. No. 127 (C.A.) (QL), where the Court found that the Board may take judicial notice of published material relating to conditions in the applicant's country of origin because such information may be expected to be within the specialized knowledge of the Board. The Federal Court of Appeal writes that: "to the extent that any such material has not been specifically referred to by the Board in its reasons for decision, it need not be produced to form part of the record in this Court". In the present case, since the Board specifically referred to the missing documentary evidence to refute very precise aspects of the claim which is not the sort of information that may be expected to be within the Board's specialized knowledge, the present case can be distinguished from the Hassan decision.
[16] Given the lack of the specific documentary evidence heavily relied upon by the Board to support its negative credibility finding, it is not possible for this Court to properly determine whether the Board's analysis of the missing evidence is patently unreasonable. Consequently, the application for judicial review is granted, the decision of the Board set aside, and the matter sent back for redetermination before a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
November 20, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6223-02
STYLE OF CAUSE: MARIGLEN ALIAJ, ERVIN ALIAJ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 16, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 20, 2003
APPEARANCES:
Mr. Michael F. Battista FOR THE APPLICANTS
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Watson Jordan Battista FOR THE APPLICANTS
Barristers & Solicitors
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario