Ottawa, Ontario, October 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 11, 2004, in which Mr. Feriz Demaj (the applicant) was determined not to be a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a citizen of Albania. While he still lived there, he was an engineering student at the University of Tirana. His family were farmers and shared a parcel of land with the Bardhi family for over 200 years. However, following a heated argument between his family and that of the Bardhi's, the applicant's brother killed a member of the Bardhi family in self-defence.
[3] The applicant claims that the Bardhi family had a vendetta against all members of his family and that he therefore had to leave his studies and live barricaded in his family home in Tropoje, in Northern Albania, for almost four years, until he left for Canada on May 3, 2004.
ISSUES
[4] 1. Did the Board err in finding the applicant to be non-credible?
2. Did the Board err in not providing an opportunity for the applicant to respond?
ANALYSIS
1. Did the Board err in finding the applicant to be non-credible?
[5] The main issue in this judicial review turns on the question of how the Board evaluated the credibility of the applicant. In cases such as these, the standard of review to be applied is that of patent unreasonableness, as was explained in Anthonimuthu v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 162 at paragraph 45:
Turning first to the credibility issue, it is trite to say that decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of witnesses. As indicated in a number of decisions, credibility determinations lie within "the heartland of the discretion of triers of fact" and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts (Aguebor v. Minister of Employment & Immigration, [1993] F.C.J. No. 732 (F.C.A.); Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1113; Sivanathan v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. No. 662 (F.C.).
[6] As previously mentioned, the applicant claims to have lived with his family in Tropoje, in Nothern Albania, for almost four years until he left for Canada on May 3, 2004. The applicant also claims that the Board erroneously concluded that he failed to prove he was indeed living in Tropoje, as he had a medical note proving that he was living there. Having read the note, it states that the applicant entered the hospital on September 3, 2003 and left on September 4, 2003. Therefore, at best, the note indicates that the applicant stated he lived in Tropoje for the month of September 2003. It does not indicate that the applicant was present for the whole period of 2000 to 2004.
[7] Furthermore, I find that it was reasonable for the Board to assume that the applicant was not in Tropoje during the stated period, seeing as to how the other evidence in the file indicates that:
- The applicant's driver's license states his place of residence as being that of Tirana, not Tropoje even until the document was issued on April 25, 2000;
- The applicant was only able to produce a plane ticket from London to Toronto and no other ticket showing that he left Tirana or Tropoje, leading the Board to believe that the applicant was not in Albania before coming to Canada;
- The applicant did have a stamp in his passport from the town of Rozvadov in the Czech Republic on March 13, 2004. However, the applicant stated having obtained his passport in Tirana at the end of April 2004, after the stamp would have been placed;
- The applicant had no other stamps in his passport; nothing to indicate that he had left his country or that he had stayed three days in London as he had claimed.
[8] Based on the above facts presented to the Board, it was not unreasonable for it to find that the applicant had not proved that he was indeed residing in Tirana and therefore, that his credibility was severely tarnished.
[9] However, the Board went further and examined other aspects of the applicant's claim in order to determine whether or not it could determine that he was indeed credible. The Board paid particular attention to the failure of the applicant to produce any form of military record, seeing as military service is compulsory in Albania. The applicant who was attending university before the vendetta began, claims that students are exempt from military service in Albania. The Board was clearly unsatisfied with this response noting that the documentary evidence proved that military service may be postponed for students but must ultimately be served. The Board found it suspect that the applicant, who had not been a student for four years, had no military record whatsoever, nor that the Albanian authorities had not taken measures to ensure the applicant's military service obligations be respected.
[10] With few documents provided by the applicant to demonstrate that he really lived in Tropoje for a period of four years, the Board was entitled to examine the applicant and rely on his oral testimony.
[11] The credibility findings rest with the Board that deserves deference on this point. In my view, the applicant failed to convince me that the Board committed a reviewable error in assessing the applicant's credibility.
2. Did the Board err in not providing an opportunity for the applicant to respond?
[12] The applicant claims that the Board breached procedural fairness by not providing him the opportunity to respond to the fact that he only gave in one piece of evidence concerning his brother.
[13] In Rasiah v. Canada (Minister of Citizenship and Immigration) 2004 FC 1379, Justice Lemieux, while commenting on credibility findings based on contradictions and omissions, made reference to the findings of Justice Tremblay-Lamer in Ngongo v. Canada(Minister of Citizenship and Immigration) [1999] F.C.J. No. 1627, by stating at paragraph 14:
I add, in Ngongo, supra, Justice Tremblay-Lamer identified a number of factors to be considered whether an inconsistency must be put to an applicant before an adverse credibility finding is drawn. She considered the factors of obviousness, singularity, (was the tribunal's decision based on a single contradiction or a number of contradictions) [...]
[14] Considering the Board made its decision based on many contradictions and omissions, the fact that the Board failed to give the opportunity to the applicant to respond to the lack of evidence concerning his brother does not imply a breach of procedural fairness.
[15] I find that the Board did not err in finding the applicant to be non-credible and that the Board did not breach procedural fairness by not providing an opportunity for the applicant to respond.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review be dismissed;
2. Neither counsel provided question for certification.
"Pierre Blais"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2176-05
STYLE OF CAUSE: FERIZ DEMAJ v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 21, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
APPEARANCES:
Jeffrey Nadler
Ian Demers
SOLICITORS OF RECORD:
Jeffrey Nadler
Westmount, Quebec
John H.Sims, Q.C.
Deputy Attorney General
Montreal, Quebec