Date: 20050708
Docket: IMM-7390-04
Citation: 2005 FC 932
Québec, Quebec, July 8, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
Arjan GJERMIZA
Marjana GJERMIZA
Klaudio GJERMIZA
Jurgen GJERMIZA
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated July 27, 2004, refusing to recognize Arjan Gjermiza (the applicant), his wife and his two sons (collectively, the applicants), as Convention refugees or as persons in need of protection within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicants are all citizens of Albania and state that they have a well-founded fear of persecution based on the applicant's membership in the Democratic Party. The principal applicant alleges that the former Communist regime shot his grandfather. His father had been imprisoned for five years for propaganda and for causing unrest. He himself began to participate in demonstrations against the Communist regime in 1990.
[3] The applicant became an official member of the Democratic Party in 1995 and on May 15, 1997, participated in a demonstration in Petrele which was disrupted by members of the Socialist Party. The applicant then used his minibus to distance the Democratic Party members from danger. However, he was arrested en route and was beaten by four armed men who called him a "small dog from the Democratic Party".
[4] Even though he felt that he was in danger, on September 14, 1998, he participated in a demonstration in memory of deputy Hajdari. The day after the demonstration, the police came to his home to arrest him, brought him to the police station and beat him.
[5] On March 22, 2000, the applicant again participated in a demonstration, and that same evening there was gunfire directed at his house. On June 20, 2001, while he was transporting materials in his minibus for a demonstration the next day, he was arrested by the police and beaten for two days, threatened and warned not to participate in Democratic Party activities again.
[6] On September 23, 2003, while leaving a Democratic Party meeting, there was an assassination attempt against the applicant. He was not hurt, but a colleague was shot in the thigh. The applicant therefore went to hide at his friends' home before leaving a few days later for Kukës. During that period, the police went to his home several times to ask his wife where he was.
[7] On October 28, 2003, the applicants left Albania and arrived in Canada on October 31, 2003.
ISSUE
[8] Did the Board make a patently unreasonable error in finding that the applicants were not credible?
ANALYSIS
[9] In this case, where the applicants allege that the Board erred in assessing their credibility, the applicable standard of review is that of patent unreasonableness (Singh v. Canada (MCI), [1999] F.C.J. No. 1283; Kabeya v. Canada (MCI), [2000] F.C.J. No. 106; Sivagurunathan v. Canada (MCI), [2001] F.C.J. No. 1905; Botros v. Canada (MCI), [2002] F.C.J. No. 1773). The applicants therefore have a heavy burden.
[10] The applicants indicated on many occasions that they had intended to leave Albania following the incidents of September 14, 2003. The Board found it odd that a passport application had been filed at the beginning of September and determined that the applicants therefore had intended to leave Albania even before September 14, 2003.
[11] When asked to explain this situation, the applicants stated that it has simply been a coincidence and that they had decided to apply for passports (for the husband and wife but not for the children) simply to be able to use them as identification. In the immigration officer's notes, at page 3, the officer asked the question:
[TRANSLATION]
Q: Why didn't you ask for passports for the children?
A: Because the process would have been longer and we had already made our departure plans.
(Immigration officer's notes dated November 24, 2003, at page 143 of the record.)
[12] The applicants therefore intended to leave Albania well before the events of September 14, 2003. The Board doubted the applicants' credibility, given that they wanted to leave the country before the beginning of a series of events which the applicant alleged had forced him to leave his country. The Board therefore determined that the applicants had intended to leave Albania before the alleged incident in mid-September 2003 and I am not convinced that that finding is patently unreasonable.
[13] In his personal information form and in his testimony, the applicant alleges that he went to Kukës for six weeks in order to hide from the police and from the Socialist Party, which were looking for him. However, this was never mentioned in the documents that the applicant filled out at the port of entry. In itself, this omission is not serious, but the explanation provided by the applicant was contradictory and the Board therefore did not believe the applicant's story.
[14] The applicant first stated that he had mentioned his stay in Kukës to the person who helped him fill out the documents, but that the person had failed to mention it. However, a little later in his testimony, the applicant said that he did not think it was important to mention his stay in Kukës and therefore, he did not mention it in the initial documents:
[TRANSLATION]
Q :Why was it [his stay in Kukës] not mentioned the first time, on November 21?
A: That was the person who questioned me the first time [who] did not ask the questions exactly, like . . .
- Yes, but . . . okay.
A: When I filled out the Personal Information Form, I did it with an interpreter who knew the questions (inaudible).
- Yes, but it's . . . You are saying that they made a mistake.
Q: What mistake did they make?
A: I, that I was in Kukës, that I mentioned it at the interview that I had at Immigration. I said before filling out the Form that I was in Kukës. If it is mentioned, if there was a mistake when they filled out the . . .
Q: Excuse me?
A: There was a mistake when they filled out the Form.
. . .
Q: And do you know what it was that you think you misunderstood about the addresses that you have had in the last 10 years?
A: When he said address, I gave the address where I lived. I did not think to mention where I had hid as an address.
- Sir, do not say that, because you wrote it later on that you, that you had been in Kukës. Look in your Personal Information Form.
A: That, I did with an interpreter.
Q: Well, Sir, that is what I'm telling you. You said it. You cannot say that you did not mention where you hid, you wrote it. So, if you have another explanation, give it, but I do not believe that it is an explanation.
(Transcript dated April 30, 2004, at pages 402, 403 and 406 of the record)
[15] The Board determined that the applicant's story regarding whether he had stayed in Kukës was not credible, given the lack of evidence to that effect, and given the fact that he contradicted himself when explaining why he had not mentioned this in the documents that he filled out at the port of entry.
[16] In the Board's opinion, the applicant's arguments did not offer any valid explanation for the fact that the applicant had not stated in his initial claim that he had left to hide in Kukës for six weeks and therefore, the Board's dismissal of that allegation is not patently unreasonable.
[17] The applicant testified that he had been detained on three occasions, but did not mention those three events in his background information form. When asked to explain that omission, the applicant alleged that the word "detention" for him meant incarceration following a conviction. That argument must be rejected because the question reads: "Have you ever been detained or put in jail?", and therefore asks to indicate more than just incarcerations following a conviction. As my colleague Pinard J. stated in Bobic v. Canada (Minister of Citizenship and Immigration), 2004 FC 1488, [2004] F.C.J. No. 1869 at paragraph 5:
Secondly, the applicant alleged police detention in his PIF, however his POE notes indicate no detention. It is reasonable that the Board didn't accept the applicant's explanation that he understood the POE notes to mean legal detention as the question clearly states both detention and prison as options.
[18] Therefore, in determining that doubt was cast on the applicant's credibility after he failed to mention that he had been detained on many occasions, the Board did not make any patently unreasonable error.
[19] As for the documentary evidence, I would first point out that the Federal Court of Appeal has already held that the Board can prefer the documentary evidence to the claimant's testimony:
We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed.
Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087.
[20] Further, the fact that it did not refer to all of the documents filed into evidence does not indicate that it did not consider the evidence, given the fact that the Board is presumed to have weighed and considered all of the evidence (Florea v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 598, (F.C.A.)).
[21] Contrary to the applicants' allegations, I am not persuaded that the Board considered only one piece of documentary evidence, given that when reading the different reports on Albania, several indicate that the government respects the right to freedom of association and that the Albanian police are rarely involved in violent political incidents, as the violent incidents are rather connected to criminal activities.
[22] Finally, I do not consider that the dismissal of the article in the Democratic Party's newspaper bearing the applicant's name was patently unreasonable. First, the Board noted that according to the documentary evidence, the Democratic Party is constantly exaggerating its allegations of harassment of its party members :
According to one international human rights observer, the DP's allegations of political harassment are greatly inflated. The riots of November 2000 are a case in point, he explained. The troubles were confined mainly to Tirana, where DP supporters demonstrating against alleged fraud in the municipal elections clashed with the police. DP officials initially accused the police of having beaten 900 of its members. The DP's newspaper subsequently published a list of 200 people who had been affected. Of these it appears that only six may have sustained injuries. None of the six granted consent for their cases to be investigated by the Office of the People's Advocate, a national ombudsman named in February 2000 to deal with complaints from citizens regarding government administration.
(Page 120 of the record, Report on Albania, Rome, July 2002)
[23] Further, the documentary evidence indicates that it is relatively simple to corrupt journalists to place false articles in any Albanian newspaper and, of particular note, in the newspaper of the Democratic Party, a party in which the applicant, his father and his grandfather were all members.
[24] The applicant has not convinced me that the Board made a patently unreasonable error in its analysis. I would therefore dismiss the application for judicial review.
[25] The applicant proposes the following question for certification:
In assessing a claimant, must the member take into account the language skills of the person who filled out the Immigration Canada questionnaires signed by a claimant?
[26] I agree with the respondent's submissions; it is purely a factual question and one of general importance, therefore, no question will be certified.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed;
- No question for certification.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7390-04
STYLE OF CAUSE: Arjan GJERMIZA, Marjana GJERMIZA
Klaudio GJERMIZA, Jurgen GJERMIZA
v. MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING TORONTO
DATE OF HEARING: June 27, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE BLAIS
APPEARANCES:
Noël St. Pierre FOR THE APPLICANTS
Alexandre Tavadian FOR THE RESPONDENT
SOLICITORS OF RECORD:
Noël St. Pierre
Montréal, Quebec FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT