Date: 20050329
Citation: 2005 FC 415
Ottawa, Ontario, Tuesday the 29th day of March 2005
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
HEKURAN VILA
ZENIJE VILA
RAJMONDA KOXHA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Hekuran Vila, his wife Zenije Vila, and their adult daughter Rajmonda Koxha, are citizens of Albania who claim Convention refugee status and protection in Canada. They say that they fear persecution from a faction within the Democratic Party in Albania, led by the ex-Vice Chief of the Albanian army. Mr. Vila and his family say they have faced persecution from this faction in the past arising from Mr. Vila's status as a former member of the Labour Party of Albania, and a loyal communist during the communist regime in Albania.
[2] The Refugee Protection Division of the Immigration and Refugee Board ("RPD") found the applicants to be neither Convention refugees, nor persons in need of protection because:
i. the evidence in areas crucial to the claim lacked credibility;
ii. the applicants failed to establish that if they were to return to Albania there is a serious possibility they singly, or together, would be subject to serious harm;
iii. the applicants supplied no credible evidence on which to determine that they have a well-founded fear of persecution in Albania, or face a risk to their lives, or a risk of cruel and unusual punishment or treatment, or danger of torture;
iv. the findings that the applicants failed to establish their claim and supplied no credible evidence were supported by the applicants' conduct in having stayed in Albania from 1997 until Mr. and Mrs. Vila came to Canada in 2001; and
v. the Albanian Labour Party ceased to exist in 1991, so there was no "credible connection between the distant historical activity of the principal claimant and of his family and any possible risk of harm at the hands of the principal agent of persecution prospectively".
[3] The RPD could only find that the applicants failed to establish their claims by providing credible evidence if it rejected the testimony of Mr. Vila and a second witness who the RPD found "essentially corroborated" Mr. Vila's testimony.
[4] The proper standard review of the RPD's findings of credibility is patent unreasonableness and this Court has repeatedly acknowledged the deference that is due to the RPD in respect to findings of credibility.
[5] That said, it is insufficient, as a matter of law, for the RPD to simply state that it considered the applicants' evidence to be incredible. The RPD is obliged to give reasons in clear and unmistakable terms for rejecting a claim on the ground of credibility. See: Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm L.R. (2d) 150 (F.C.A.); Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Wilanowski v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 205 (F.C.A.).
[6] After a careful reading of the RPD reasons as a whole, I can find no portion of the reasons that complies with the requirement to give reasons for credibility findings in clear and unmistakable terms. Clear reasons were particularly required in view of the finding of the RPD that Mr.Vila's uncontradicted testimony was "essentially corroborated" by another witness.
[7] To the extent that the RPD relied on the applicants' conduct in remaining in Albania so as to infer a lack of a well-founded fear, delay is a relevant, but not a decisive, factor when considering a claim to protection or refugee status. Moreover, in this case, the RPD unreasonably disregarded the applicants' explanation for their delay by neither commenting upon, nor rejecting for clear reasons, that explanation.
[8] Similarly, while the Albanian Labour Party ceased to exist after 1991, all of the allegations of persecutory treatment made by Mr. Vila took place between 1996 and the time the applicants left Albania. In order to conclude that Mr. Vila's "historical" political involvement would not result in a risk of harm to Mr. Vila or his family, the RPD had to find Mr. Vila's evidence to be incredible. As stated above, the RPD failed to give any proper reasons for such a conclusion.
[9] The failure of the RPD to adequately give reasons explaining its negative findings of credibility is a material, reviewable error. The application for judicial review is allowed on that ground.
[10] Counsel did not pose a question for certification and no question arises on this record.
ORDER
[11] THIS COURT ORDERS:
1. The application for judicial review is allowed.
2. The matter is remitted to the Refugee Protection Division of the Immigration and Refugee Board for redetermination before a differently constituted panel.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6079-04
STYLE OF CAUSE: Hekuran Vila, Zenije Vila, Rajmonda Koxha v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 23, 2005
REASONS FOR ORDER AND ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Paul VanderVennen FOR THE APPLICANTS
Deborah Drukarsh FOR THE RESPONDENT
SOLICITORS OF RECORD:
Paul VanderVennen
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT