OTTAWA, Ontario, January 23, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review, filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). Mirela Rustemi is seeking review of a decision by the Immigration and Refugee Board’s Refugee Protection Division (the Board), dated October 24, 2004. The Board found Ms. Rustemi was neither a Convention refugee nor a person in need of protection, pursuant to sections 96 and 97 of the IRPA. Essentially, the Board came to that conclusion because it did not believe Ms. Rustemi was credible.
[2] Ms. Rustemi challenges that decision on the basis that the Board failed to consider three newspaper articles she filed into evidence for her hearing. She alleges these articles were material to her case and were crucial to assess her claim that she was persecuted for political reasons.
[3] For the reasons outlined below, I have found that Ms. Rustemi must succeed, as the Board made a reviewable error by disregarding the articles.
FACTS
[4] Ms. Rustemi is an Albanian citizen, who was trained as an economist. She left her country on January 26, 2001 because she was allegedly persecuted for her political opinions. She claims her father, a founding member of the local branch of the Democratic Party, was killed by members of the Socialist Party, while her brother was arrested and detained by the secret police because of his activities in the Democratic Party.
[5] Ms. Rustemi also claims she was a prominent member of the Democratic Party, because she was named coordinator of the party’s Youth Forum and because she spoke at political rallies. She was apparently attacked by socialist partisans and beaten by the police on a few occasions.
[6] In March 1999, she started living with a man whose estranged wife’s family was closely associated with the Socialist Party, and whose uncle was allegedly chief of the local secret police. Because of Ms. Rustemi’s political activities, her partner was shot twice - once in August 1999 (as a result of which he lost his right leg), and again on August 3, 2000. They went into hiding, and decided to flee to Canada. They ended their relationship a few months after they arrived in Canada.
[7] At her hearing before the Board, Ms. Rustemi also argued she was the victim of a vendetta orchestrated by the family of her partner’s ex-wife. She said she now fears for her life and for that of her son, born in Canada on January 29, 2002, if they are returned to Albania.
DECISION UNDER REVIEW
[8] The Board concluded Ms. Rustemi was not credible overall, noting many inconsistencies and an omission with regard to two key elements of her story. With respect to the allegations about her political activities, the Board found her claim that Democratic Party members were persecuted for their political activities incompatible with the objective documentary evidence. While accepting she may have been a party member, the Board also questioned her alleged high profile, and noted that the membership card she filed was issued two months after she arrived in Canada. Finally, the Board stressed that her father’s death certificate did not mention the cause of his death.
[9] As for her allegations about the vendetta, the Board indicated they were not mentioned anywhere in her Personal Information Form (PIF), and were only raised when her claim was heard in 2004. The Board added that Ms. Rustemi only changed her version when she was confronted with the documentary evidence contradicting her allegations that Democratic Party members were persecuted. Only then did she indicate the problems she mentioned in her PIF were linked with the family of her then partner’s ex-wife.
[10] These inconsistencies, combined with the fact that Ms. Rustemi waited five months before leaving her country and did not know the name and nationality on the forged passport she used to enter Canada, led the Board to believe she was not credible.
ISSUE
[11] The only issue to be decided in this judicial review application is whether the Board erred in making adverse credibility findings against Ms. Rustemi.
ANALYSIS
[12] It is well established that findings of credibility must be assessed against a standard of patent unreasonableness. In other words, the Board’s decision will be found to be defective and therefore reviewable only if it is clearly irrational or, to use the words of the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at paragraph 52, if it “… is so flawed that no amount of curial deference can justify letting it stand.”
[13] Ms. Rustemi contends the Board erred when it failed to consider and even mention in its decision the existence of three newspaper articles she filed into evidence. She submits these articles were specific to her claim and corroborated her evidence.
[14] One of these articles, published in an Albanian newspaper on August 4, 2000, states the following: “Deux activistes et ardents membres du Parti Démocratique, Julian Calamani [Ms. Rustemi’s ex-partner] et Mirela Rustemi, après avoir participé dans un meeting organisé par le parti Démocratique, revenaient tranquillement à la maison.” Later on in the same article we find: “Dans les rangs des victimes rentrent aussi Calamani et Rustemi, deux défenseurs ardents des idées démocratiques.” And further on, this article states the following: “Ainsi, aux nombreux cas de violence et de persécution infligée aux membres du parti de l’opposition sont joint [sic] Julia Calamani et Mirela Rustemi” (Applicant’s Record, Exhibit E, as translated).
[15] The two other articles, taken from the April 2, 2004 edition of Albania’s most important newspaper, also mention Ms. Rustemi by name and allegedly support her claim that she is the victim of a vendetta. In these articles, Ms. Rustemi is described as having obtained false identity documents to work as a prostitute in Greece (Applicant’s Record, Exhibit F, as translated).
[16] Yet the Board failed not only to discuss these articles, but to even mention them. Referring to Ms. Rustemi’s membership card on page four of its decision, the Board wrote: “Elle n’a soumis aucun autre document relié à ses activités politiques ou à celles de son père qu’elle a allégué être un des fondateurs du parti à Fier.”
[17] The Minister has countered that submission by arguing, first, that the Board does not have to mention every piece of evidence before it. The fact that the Board did not mention all of the evidence in its decision does not mean the evidence was ignored. Second, the Minister argues the Board is not bound to give weight to documentary evidence submitted by a claimant if it does not believe the facts related in the testimony. Third, the Minister is of the view that the Board was well founded not to give probative value to the newspaper article referring to Ms. Rustemi’s alleged political activities in 2000, since the membership card filed into evidence was issued in March 2001. Finally, according to the Minister, the allegations of persecution of the Democratic Party members are clearly incompatible with the objective documentary evidence about the situation in Albania.
[18] None of these arguments convince me. It is trite law, of course, that the Board does not have to deal specifically with every piece of evidence filed by the parties, even if that evidence is contrary to its finding (see, for example, Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.)). On the other hand, it is also well established that an administrative decision will be at fault and reviewable if it is silent on an important piece of evidence. As Mr. Justice John Evans remarked in this oft-quoted passage from Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.) (QL) at paragraph 17:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts.
[19] In this case, the Board’s failure to even mention the three newspaper articles is particularly damning and egregious considering that this evidence is not of a documentary and general nature, but refers specifically to Ms. Rustemi by name and seems to confirm her story. I note in passing that the cases the Minister submitted in support of his argument all relate to documentary evidence and country conditions, and not to documents referring to an applicant explicitly by name.
[20] The three articles tend to confirm that Ms. Rustemi had some profile and was not merely an obscure rank and file member of the Democratic Party. They also appear to confirm that she was a member of that organization at least as far back as August, 2000. At the very least, Ms. Rustemi was entitled to know why the Board did not consider this corroborating evidence compelling. The Board could not disregard this evidence in assessing Ms. Rustemi’s credibility. It is precisely because the newspaper articles undermine the Board’s assumption that Ms. Rustemi was not a prominent member, and somewhat dispel the notion that she may only have been a recent member of the Democratic Party, that the Board had to take stock of these articles and discuss their significance.
[21] Counsel for the Minister also tried to argue that the Board was justified in not attaching too much importance to the articles because Ms. Rustemi’s claim, at least at the hearing, was focused on the family vendetta. But that cannot excuse the Board from assessing the totality of the evidence. Ms. Rustemi never abandoned her allegation based on political persecution, and the Board had to address that claim.
[22] It may be that Ms. Rustemi will be found to lack credibility, even after the newspaper articles are duly taken into consideration. But it is not for this Court to speculate. And more importantly, an applicant is entitled to have his or her credibility assessed on the basis of the totality of the evidence, and in clear, unmistakable and reasoned terms.
[23] For the foregoing reasons, I am of the view that this application for judicial review must be allowed. Neither counsel suggested a question for certification, and none arises.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is allowed, and the matter is remitted for determination before a differently constituted panel of the Board’s Refugee Protection Division. Neither counsel suggested a question for certification, and none arises.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9689-04
STYLE OF CAUSE: Mirela Rustemi v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 9, 2007
APPEARANCES:
Mr. Yehuda Levinson FOR THE APPLICANT
Ms. Aviva Basman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Yehuda Levinson
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE APPLICANT