Date: 20030529
Docket: IMM-1431-02
Citation: 2003 FCT 704
Ottawa, Ontario, this 29th day of May, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
GEZIM MATLIJA
MIRANDA MATLIJA
LULZIM MATLIJA
SUADA MATLIJA
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Matlija family consists of Mr. Gezim Matlija, his wife Miranda, and their two children - Suada, their 17-year-old daughter, and Lulzim, their 13-year-old son. They came to Canada from Albania in 2000.
[2] The family was associated with the Republican Party in Albania. According to their description of the events preceding their departure, they were badly mistreated by members of the Socialist Party. Mr. Matlija alleged that he had been threatened, beaten and shot at. Mrs. Matlija stated that her brother and father, also Republicans, were attacked repeatedly and fled to Canada, where they made successful refugee claims. Suada testified that two Socialist Party members attempted to abduct her. Mr. Matlija said he had tried to get the police to help protect his family but they refused. The family left home the day after the alleged abduction attempt.
[3] The Matlijas made a refugee claim upon their arrival in Canada. The Immigration and Refugee Board dismissed it for a lack of credible or trustworthy evidence. The family argues that the Board made serious errors in arriving at its conclusion. They request a new hearing.
I. Issues
[4] There are two issues in this case:
1. Did the Board fail to take adequate account of the testimony of Mrs. Matlija and Suada Matlija?
2. Should the Board have considered the documentary evidence relating to the persecution of Mrs. Matlija's brother and father?
A. Did the Board fail to take adequate account of the testimony of Mrs. Matlija and Suada Matlija?
[5] The Board found that there were a number of inconsistencies and omissions in Mr. Matlija's account of events. It also concluded that his political profile was not prominent enough to attract all the negative attention he claimed to have received from the Socialist Party. In fact, it found that no Republican Party members were mistreated by the Socialist Party. It also disbelieved Mr. Matlija's testimony about the assault and shooting incidents, as well as the attempted abduction of Suada.
[6] In this area, the Board's decision is detailed and well reasoned. The applicants' counsel takes no serious issue with this aspect of the decision.
[7] However, the Matlijas argue that the Board missed something. It did not, they say, address adequately the testimony of two other family members - Mrs. Matlija and Suada Matlija.
[8] Regarding Mrs. Matlija, the Board referred to her description of the persecution of her brother and father and noted that, by contrast to their experiences, she was not specifically targeted. It concluded that there was no serious possibility that she or her immediate family would be persecuted just because of the activities of her brother.
[9] In respect of Suada Matlija, the Board did not refer to her testimony at all. She gave evidence about the alleged attempt to abduct her. She said that during the incident the attackers made threats against the family because of her father's involvement in the Republican Party. Two neighbours intervened and drove the attackers off. Affidavit evidence from the neighbours was also before the Board. The Board did not refer to that evidence either.
[10] There are three problems with the Board's treatment of Mrs. Matlija's testimony. First, the Board treated it as being of limited significance. The evidence that she gave about the experiences of her brother and father substantiated the family's principal allegation that Republican Party members did, in fact, suffer mistreatment from the Socialist Party. Yet, the Board concluded that no such thing happened in Albania. The Board did not refer to Mrs. Matlija's testimony when it arrived at that conclusion and it did not say that it disbelieved her. It simply concluded that she was not personally targeted and that the family was not put in danger by her brother's activities.
[11] The second problem is that it is not clear why the Board required evidence that Mrs. Matlija was personally targeted in order to conclude that her claim was well-founded. A justified fear of persecution can clearly derive from the treatment of others in similar circumstances: Salibian v. Canada (Minister of Employment & Immigration), [1990] F.C.J. No. 454 (QL) (C.A.); Adjei v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 67 (QL) (C.A.).
[12] The third problem with the Board's treatment of Mrs. Matlija's testimony is that it does not refer to her evidence regarding the alleged abduction attempt. Mrs. Matlija was at home at the time and, unlike her husband, heard Suada's account first-hand, immediately after the event. The Board concluded, based on its credibility finding in relation to her husband, that the incident did not occur. But in order to make that finding, the Board would also have had to conclude that Mrs. Matlija was not to be believed. It did not do so - at least, not in its reasons.
[13] Obviously, there is a further problem in respect of Suada's testimony given that the Board did not refer to it at all. Again, in order to make a finding that the attempted abduction did not occur, the Board would have had to reject her testimony, which it did not do.
[14] It is possible, of course, that the Board disbelieved the evidence of both Mrs. Matlija and Suada. Counsel for the Minister argued before me that the Board was treading "delicately" around the issue of credibility in respect of these two witnesses so that it would not have to make an express finding that they were lying.
[15] However, the law is clear that credibility findings must be explicit and explained in clear terms: Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (QL) (C.A.).
[16] In my view, the Board either failed to take proper account of the testimony of Mrs. Matlija and Suada Matlija, or its reasons are deficient. If it did not believe them, it should have said so and explained why. The Board may be understandably reluctant to characterize witnesses as mendacious, but it does them no kindness by appearing to ignore their testimony.
[17] These errors are sufficient to decide this application in favour of the Matlija family. However, I must say something on the second issue because it may be important at the new hearing.
B. Should the Board have considered the documentary evidence with respect to the persecution of Mrs. Matlija's brother and father?
[18] In general, a Board has no obligation to refer to or follow the decisions of other panels, even when it is dealing with members of the same family: Rahmatizadeh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 578 (QL) (T.D.).
[19] However, here the Board specifically asked the family to provide written information about the refugee claims of Mrs. Matlija's brother and father. The Board requested copies of the Personal Information Forms they had submitted in support of their claims.
[20] In the context of this case, the Board should have at least referred to that evidence. After all, it made a specific finding that there was no persecution of Republican Party members in Albania. Yet, it had before it, at its own request, documentary evidence relating to two individuals who successfully made refugee claims in Canada on that very basis.
II. Disposition
[21] This application for judicial review is allowed. The Matlija family is entitled to a new hearing before a different panel of the Board. No question of general importance was proposed for certification and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED THAT:
1. The application for judicial review is allowed.
2. The Matlija family is entitled to a new hearing before a different panel.
3. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-1431-02
STYLE OF CAUSE: GEZIM MATLIJA, MIRANDA MATLIJA
LULZIM MATLIJA, SUADA MATLIJA
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MAY 1, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
APPEARANCES BY:
Mr. Norris Ormston FOR THE APPLICANTS
Mr. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Norris Ormston
Barrister and Solicitor
900-1000 Finch Ave. West.
Toronto, OntarioM3J 2V5 FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT