Ottawa, Ontario, October 17, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench and Subsequently Edited and Written
for Precision and Clarification)
[1] Viktor Dokaj is an ethnic Albanian, and a citizen of the former Yugoslavia (Serbia and Montenegro). He claims to have a well-founded fear of persecution in Serbia and Montenegro because he was suspected of having been involved in espionage against the state because of work that he did for a French television organization during the conflict in Kosovo. He also asserts that he was tortured and beaten during his period of military service during the early 1990's.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Dokaj's claim for refugee protection, finding that his evidence was simply not credible. In coming to this conclusion, the Board made reference to the negative decision of an American immigration judge in relation to Mr. Dokaj's claim for refugee protection in the United States. Mr. Dokaj asserts that the Board erred in relying on findings of fact made by the American authorities in coming to the conclusion that Mr. Dokaj was not credible. Mr. Dokaj also takes issue with the weight accorded to various items of evidence by the Board.
[3] At the close of the hearing, I advised the parties that I would be dismissing Mr. Dokaj's application for judicial review. These are my reasons for doing so.
Analysis
[4] According to counsel for Mr. Dokaj, the essence of his argument is that the presiding member did not pay sufficient attention to the fact that Mr. Dokaj's evidence before the Board was internally consistent. Rather, the member took the conclusions reached by the US immigration judge, and compared those conclusions with Mr. Dokaj's evidence in the Canadian immigration proceeding, finding inconsistencies as a result.
[5] I agree with counsel for Mr. Dokaj that a tribunal cannot simply look at findings of fact and credibility made by an earlier adjudicative body, and adopt those findings as its own. This would amount to an abdication of the Board's responsibility to make an independent assessment of the facts, based upon the evidence before it. In other words, it would not have been open to the Board to say that because the US immigration judge did not believe Mr. Dokaj's story, the Board did not believe him either. That is not, however, what happened in this case.
[6] It is evident from a review of the Board's decision that what the Board did was look at Mr. Dokaj's testimony in the USproceeding and compare it with the story that he told before the Board. The Board noted that there were significant discrepancies between the two stories, particularly as it related to the dates that he allegedly worked for the French television company. The Board then relied upon these inconsistencies to find that Mr. Dokaj's evidence was not credible.
[7] In my view, there was nothing improper about this. Mr. Dokaj's testimony before the US immigration judge amounted to a prior inconsistent statement. It was no different for the Board to have relied upon inconsistencies between Mr. Dokaj's earlier evidence and his testimony before the Board than it would have been for the Board to have relied upon inconsistencies between a claimant's testimony before the Board and statements given by the claimant at the Port of Entry or in the claimant's Personal Information Form.
[8] Mr. Dokaj does not deny that his evidence before the American immigration judge was different than his testimony before the Board. He explains the discrepancies by saying that he was upset and confused when he testified in the American proceeding because of the recent deaths of his father and his uncle. It is clear from the Board's reasons that the Board considered and rejected this explanation. This finding was one that was reasonably open to the Board and I see no basis for interfering with it.
[9] Finally, counsel for Mr. Dokaj takes issue with the weight that the Board accorded to the business cards from French television journalists that Mr. Dokaj relied upon as evidence of his employment with the agency. He also submits that the Board did not give sufficient weight to certificates that purportedly showed that he had been approved to work for the French journalists.
[10] It is clear from the Board's reasons that these items were considered by the Board in its evaluation of the evidence. The Board explained precisely why it chose not to give much weight to this evidence. The weight to be accorded to the evidence is a matter for the Board, and I see no basis for interfering with the Board's conclusions in this regard.
Conclusion
[11] For these reasons, the application is dismissed.
Certification
[12] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-514-05
STYLE OF CAUSE: VIKTOR DOKAJ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 13, 2005
REASONS FOR ORDER: MACTAVISH J.
APPEARANCES:
| J. Norris Ormston
|
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| Matina Karvellas
|
SOLICITORS OF RECORD:
Ormston, Bellissimo, Younan
Barristers and Solicitors
900-1000 Finch Avenue
Toronto, Ontario
| M3J 2V5
John H. Sims, Q.C. Deputy Attorney General of Canada |
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