Federal Court Decisions

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Date: 20030220

Docket: IMM-755-02

Neutral citation: 2003 FCT 206

BETWEEN:

                                                              YLLDES ZALOSHNJA

Applicant

- and -

THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                            REASONS FOR ORDER

TREMBLAY-LAMER J.

[1]                 This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated January 14, 2002, wherein the Board determined that the applicant was not a Convention refugee.

[2]                 The applicant is a 70-year-old citizen of Albania. She claims to have a well-founded fear of persecution by reason of her membership in a particular social group, namely family, and her political opinion, as perceived by the state.

[3]                 The central issue for the Board was credibility. The Board found that there was insufficient credible evidence to make a determination of Convention refugee. The gravity of the lack of credibility was such that the Board concluded that the applicant had fabricated the allegations to advance her refugee claim.

[4]                 The Board noted that the applicant's allegations in her oral testimony and the narrative portion of her PIF were significantly different from her allegation in the Port of Entry ("POE") notes. The POE notes indicated the following:

She is coming to claim refugee status because her husband died six months ago of cancer of the liver. He got the tumour as a result of being scared by gunfire - source boys were playing with a gun - it went off and scared her husband into having a tumour - stated this is her conclusion and not medical opinion.

Application Record at 7.

[5]                 However, the applicant's testimony and PIF alleged that her husband was shot to death by two masked men on March 15, 2000, because of his political involvement.

[6]                 The Board was entitled to base an adverse credibility finding on discrepancies between POE notes and the applicant's testimony at a refugee hearing.

[7]                 The Board committed no error by admitting the POE notes. Subsection 68(3) of the Immigration Act, R.S.C. 1985, c. I-2, indicates that the Board is not bound by technical rules of evidence and may base its decision on evidence adduced at the proceedings that it considers credible or trustworthy. This Court has held that POE notes fall within this category. (Parnian v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 142).

[8]                 The applicant further argues that the Board improperly exercised its discretion by refusing to require the immigration officer at the POE to be summoned for the purpose of cross-examination. I disagree. There was no duty on the Refugee Division to call the immigration officer. If the applicant believed that cross-examining the officer would assist her claim, it was up to her to call him as a witness. Rule 25(1) of the Convention Refugee Determination Division Rules (SOR/93-45) specifically direct claimants to make an application in writing if they wish to summon a witness. The burden of proof is on claimants to substantiate their claims and to call whatever evidence and witnesses they require.

[9]                 The applicant's story was full of contradictions, omissions and discrepancies. The Board gave numerous examples. This overall lack of credibility affected the weight given to the documents submitted, with the result that the Board gave no probative value to all the documents submitted by the applicant. In reaching this conclusion, the Board was mindful of the documentary evidence which indicated that manufactured and forged documents were readily available in Albania.

[10]            The Board concluded that this lack of credibility extended to all relevant evidence emanating from the applicant, and rendered suspect her entire testimony with respect to the alleged incidents that caused her departure to Canada.

[11]            As a result, the Board found that the applicant had failed to establish that there was a reasonable chance or serious possibility that she would be persecuted if she were to return to Albania, and as such, was not a Convention refugee.

[12]            The Board set out clear reasons to support its adverse credibility finding. The applicant has failed to show that the Board's decision is perverse or capricious.

[13]            For all these reasons, this application for judicial review is dismissed.

    

        "Danièle Tremblay-Lamer"

                                                                                                                                                                                    

J.F.C.C.

Toronto, Ontario

February 20, 2003


             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-755-02

STYLE OF CAUSE:              YLLDES ZALOSHNJA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        THURSDAY, FEBRUARY 20, 2003   

REASONS FOR ORDER BY:          TREMBLAY-LAMER, J.

DATED:                                                 THURSDAY, FEBRUARY 20, 2003

APPEARANCES BY:                          Mr. Norris Ormston

For the Applicant

Ms. Ann Margaret Oberst

For the Respondent

                                                                                                                   

SOLICITORS OF RECORD:           Ormston, Bellissimo, Younan

Barristers & Solicitors

900 - 1000 Finch Avenue West

Toronto, Ontario

M3J 2V5

For the Applicant                       

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent


FEDERAL COURT OF CANADA

Date: 20030220

     Docket: IMM-755-02

BETWEEN:

YLLDES ZALOSHNJA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                     Respondent

                                                   

REASONS FOR ORDER

                                                   

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