Ottawa, Ontario, February 13, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
AURORA YMERI
KLEA YMERI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
(Orally delivered from the bench and subsequently written for clarification and precision)
[1] The Applicant, Artan Ymeri, and his wife are citizens of Albania and are both members of the National Front Party (the "BK"). The Applicant claims he has been targeted for persecution by the governing Socialist Party of Albania for having participated in elections and having led the BK party's youth program.
[2] The Applicant also claims that his entire family is at risk due to his family's involvement in a blood feud. He fears for his life should he return to Albania. Following various acts of persecution against him by thugs of the ruling party, and finding that no protection was available from the blood feud, the Applicant left Albania on September 24, 2000 and sought refuge in Canada.
[3] The Immigration and Refugee Board (the "Board") denied the application finding a) that his claim of political persecution was not credible and b) that state protection was available with respect to his s. 97 claim based on an alleged blood feud.
[4] In my view, the Board's decision cannot stand due to the following two patently unreasonable findings (see Aleshkina v. Canada(Minister of Citizenship and Immigration), 2002 FCT 589).
[5] First, the Applicant presented a letter from an NGO called the 'Peace Missionaries Union' based in Albania which attested to the blood feud. The Board had its doubt regarding the authenticity of the document, and sent it to the embassy in Rome (which is responsible for Albania) to have the writer of the letter confirm its genuineness. Nonetheless, the Board held:
The panel concluded that while the letter has all the indicia of genuineness and has, in fact, been stated to be genuine, it is not credible both for the reasons set out above and because it originates from a suspect source, the mother of the principal claimant.
[6] The 'reasons set out above' referred to in the preceding quote are the following:
The Board's documentary evidence indicates that the Peace Missionaries Union, while it was in operation, maintained "meticulous manual records of the blood feud murders that have occurred in its territories of interest. Therefore, the panel found that it was reasonable to expect that the Peace Missionaries Union would provide the answers to the questions in the AIF on a timely basis.
The Panel takes a negative credibility inference from the failure of the Peace Missionaries Union to provide nothing more than a confirmation of the feud.
[7] There are several things wrong with this finding. One, the embassy confirmed the genuineness of the letter from the writer itself, i.e. the best evidence of its authenticity. Two, the fact that the mother obtained the document does not make it suspect. Most evidence obtained by refugees subsequent to arrival is procured by relatives. The mere fact that a relative assists a refugee does not make the document suspect by itself. The production of evidence by refugees would be severely constrained or would become impossible if such a rule were adopted. Third, the writer of the note was killed between the original verification of authenticity and before he could answer the further questions of the Board. This is hardly the proper basis for a negative inference because nothing more than confirmation was provided. Thus, this finding of the Board is patently unreasonable.
[8] The second patently unreasonable finding is where the Board found that state protection was available to persons being the victims of blood feuds. The Board's first hearing was July 14, 2003, and the second hearing was held on November 4, 2003. This hearing was adjourned while the Board made inquiries about the authenticity of the letter from the Peace Missionaries Union. More than a year elapsed before the hearing resumed on January 28, 2005. At the beginning of the rehearing, the Refugee Protection Officer introduced a Refugee Protection Division Information Package dated November 2004. The Board's decision, that state protection was available, was based entirely on this information package. Every improvement cited by the Board had taken place since the second hearing in November 2003. The Board asserted that state protection was now available in light of the establishment of a Serious Crimes Court, the appointment of 12 new prosecutors, the creation of a special police unit, and the passing of a new law.
[9] Counsel was never given an opportunity to make submissions on this new information package. The information package references as its primary source the Department of State report for Albania dated February 2005 which contained the following statement about police at page 5:
According to the Ministry of Public Order, there were 12,454 police officers; the majority remained largely untrained, despite assistance received from foreign governments. The overall performance of law enforcement remained weak. Unprofessional behavior and corruption remained major impediments to the development of an effective, civilian police force.
and about the courts at page 6:
The Constitution provides for an independent judiciary; however, because of political pressure, intimidation, endemic corruption, bribery, and limited resources, much of the judiciary was unable to function independently and efficiently.
[10] The failure to afford the Applicant an opportunity to comment on this new information package (especially since the state protection ruling relies entirely on the said report), coupled with the failure to refer to the very negative assessment of the police and the courts (as cited above) found in the same information package make this finding unsustainable.
[11] Accordingly, this application will be allowed.
ORDER
THIS COURT ORDERS that the decision of the Board dated April 4, 2005 be set aside and the matter referred back to another differently constituted panel.
"Konrad W. von Finckenstein"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2365-05
STYLE OF CAUSE: Artan Ymeri
Aurora Ymeri
Klea Ymeri Applicant
And
M.C.I.
Respondent
PLACE OF HEARING: TORONTO, Ontario
DATE OF HEARING: February 9, 2006
REASONS BY: Justice von Finckenstein
APPEARANCES:
| FOR THE APPLICANT
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| FOR THE RESPONDENT
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SOLICITORS OF RECORD:
| FOR THE APPLICANT
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| FOR THE RESPONDENT
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