Date: 20030403
Docket: IMM-2431-02
Citation: 2003 FCT 397
Ottawa, Ontario, April 3, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ERMAL TENEQEXHIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Teneqexhiu claims refugee status in Canada on the grounds that he was persecuted in his native Albania for his political affiliation and that of his family. He is 21 years old. His political activity amounted to leadership of the Youth Forum of the Democratic Party at his secondary school. His father was an active member of the Democratic Party and was subject to mistreatment by members of the ruling Socialist Party. So was his mother.
[2] The Immigration and Refugee Board dismissed Mr. Teneqexhiu's refugee claim on April 30, 2002 because of an absence of credible and reliable evidence. Mr. Teneqexhiu seeks to have that decision quashed and to have the benefit of a new hearing.
Evidence that was of Concern to the Board
[3] There were four areas of evidence that concerned the Board:
I. Documentary Evidence
[4] The Board felt the documentary evidence tendered by Mr. Teneqexhiu was untrustworthy. Mr. Teneqexhiu had been able to acquire various false documents, including a student visa for entry to the United States and a Dutch passport. The Board noted that Mr. Teneqexhiu had travelled to Turkey expressly for the purpose of acquiring false documents. The Board was also concerned that other documentary evidence supplied by Mr. Teneqexhiu might have been fraudulent, especially given the prevalence of false documents in Albania generally. Some of the documents supplied by Mr. Teneqexhiu, for example, did not have dates of issuance on them, leading the Board to be worried about the authenticity of those documents, as well as others. In particular, it was not satisfied with Mr. Teneqexhiu's explanation of the provenance of a letter protesting the treatment and arrest of Democratic Party members.
[5] The fact that Mr. Teneqexhiu had to resort to false documents in order to leave Albania and make his way to Canada is not a firm basis on which to impugn his credibility or the reliability of other documents: Takhar v. Canada (Minister of Employment and Immigration), [1999] F.C.J. No. 240 (QL) (T.D.), at para. 14. Further, Mr. Teneqexhiu stated that he had obtained false documents in Turkey, but he did not say that he had travelled there in order to obtain them. Rather, he went there to flee persecution in Albania.
[6] The Board referred to two specific documents that lacked dates of issuance. Both of them were medical reports - one for Mr. Teneqexhiu and one for his father. In fact, both reports have dates on them. They refer both to the date on which the report was prepared and the date and time at which medical treatment was provided. The Board itself makes reference to those dates elsewhere in its reasons. However, it felt, additionally, that the documents should have had dates of issuance on them because they were requested after the event. Their absence does not, however, seem to be a particularly significant defect. There were two other documents out of the fifteen tendered by Mr. Teneqexhiu that did indeed lack dates. Still, the Board's concerns do not amount to a valid basis on which to impugn the reliability of all of the documentary evidence before it.
[7] With respect to the letter, Mr. Teneqexhiu had explained to the Board that it was acquired by his cousin. At first he seemed unsure, but ultimately he said that the letter must certainly have come from the Society of Ex Persecuted and Political Condemned. His explanation was reasonably clear.
II. Political Knowledge
[8] The Board felt there were some gaps in Mr. Teneqexhiu's testimony. It was concerned, for example, that he was unable to name any candidates in any of the elections in which he had participated. He knew that his member of parliament represented the socialist party, but he did not know his name. Mr. Teneqexhiu could not identify the specific candidate that his party was trying to defeat.
[9] During the relevant period of time, Mr. Teneqexhiu was in high school. His role was to try to encourage his classmates to become Democratic Party members. His activities were limited to organising monthly meetings of students. The documentary evidence before the Board indicates that there were no elections during the time that Mr. Teneqexhiu held his position with the Youth Forum. He had not, therefore, participated in any elections. There were no candidates standing for office. He was never in a position of trying to defeat the incumbent Socialist Party representative. Accordingly, the expectations that the Board had of this young man were excessive in the circumstances, and the negative inferences it drew from his evidence were unwarranted.
III. Medical Treatment
[10] Mr. Teneqexhiu said that he and his father had been detained and beaten in June 1999. His father had gone to the hospital, but he had not. Instead, he was visited by a family friend who was a physician. The Board was not satisfied with his explanation for not going to the hospital. Mr. Teneqexhiu had stated that he was worried that the medical staff might be connected with or supportive of the police. The Board did not accept that explanation in light of the fact that Mr. Teneqexhiu had gone to the hospital after an earlier beating.
[11] It does not seem inherently implausible that a person who was in fear of the authorities might want to avoid a visit to the hospital, where an explanation of the source of the injuries could be demanded or those very authorities could be present. This would be particularly so if the injuries were readily treatable without a hospital visit. While he described the beating as "brutal", according to his evidence he only suffered bruises. True, he had visited the hospital after a previous beating in February 1999. The medical report for that visit discloses that he required three stitches to close a head wound. Clearly, the differences in the injuries would explain, at least in part, his decision to attend the hospital on one occasion but not on the other.
IV. The Firing Incident
[12] Mr. Teneqexhiu testified that one night in March 2000 his family's apartment was sprayed by gunfire. His family lived on the third floor of a five-story building. Each floor had four apartments - one on each side. The panel found it unlikely that gunmen would be capable of isolating and striking the Teneqexhiu family's apartment from street level, while avoiding other residences. It also thought it improbable that the gunmen could have been identified by Mr. Teneqexhiu, in the darkness, as being Socialist Party members.
[13] It seems obvious that if the gunmen knew which apartment on the third floor they were meant to strike, they could easily do so from street level. Further, Mr. Teneqexhiu never said that he had identified the gunmen. He said that neighbours across the street, who had witnessed the event and knew the culprits, made the identification.
V. Conclusions
[14] The Board is entitled to considerable deference in its fact-finding role. However, based on the foregoing, the Board's concerns with the evidence, as well as the negative inferences it drew, were unwarranted. Accordingly, the Board's decision was reached in a manner that constituted reviewable error.
[15] Mr. Teneqexhiu 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 the application for judicial review is allowed. The applicant is entitled to a new hearing before a different panel. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-2431-02
STYLE OF CAUSE: ERMAL TENEQEXHIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MARCH 19, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: WEDNESDAY, MARCH 19, 2003
APPEARANCES BY:
Mr. Jeffrey L. Goldman For the Applicant
Ms. Pamela Larmondin For the Respondent
SOLICITORS OF RECORD:
Jeffrey L. Goldman
Barrister and Solicitor
425 University Avenue, Suite 500
Toronto, Ontario M5G 1T6 For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario For the Respondent