Date: 20050506
Docket: IMM-4674-04
Citation: 2005 FC 638
BETWEEN:
SONILA LUZATI
LORHEN LUZATI
ORSIDA LUZATI
XHEVAIR LUZATI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
STRAYER D.J.
[1] This is an application for judicial review to have set aside a decision of the Refugee Protection Division of the Immigration and Refugee Board dated May 6, 2004, which determined that the claimants are not Convention Refugees and are not persons in need of protection.
[2] The claimants are a family from Albania: Sonila, the wife and mother; Xhevair, the husband and father; Lorhen, an adult son; and Orsida, a minor daughter. Their claim is based on their alleged fear of persecution on the grounds of political opinion and membership in a particular social group should they return to Albania.
[3] The claimants make the following allegations. As the communist regime in Albania was starting to break down in 1990 both husband and wife participated in anti-communist demonstrations. The Democratic Party won power in elections in 1992 and in 1993. Both husband and wife joined that Party. The husband had been busy prior to this time distributing literature of the Party and organising meetings and demonstrations. Sonila has stated that she served as a Democratic Party Observer for her local district during local elections of October, 1996. During the first half of 1997, Sonila received anonymous threatening letters telling her to abandon the Democratic Party. Her husband was dragged out of a car and beaten and threatened by assailants who were obviously acting for the Socialist Party (which had been organised to replace the Communist Party). In the election of June 29, 1997, the Socialist Party won and the couple continued to receive threatening phone calls, threatening letters, and threatening warnings on the street. In March 1998, two unknown persons tried to kidnap their son, Lorhen, who was then 13. He escaped. The matter was reported to the police who never contacted them again. Sonila was fired from her job in a state school. In September 1999, Xhevair was badly beaten by the police when he was in attendance at a Democratic Party meeting. On June 21, 2000, Sonila was kidnapped while on the street, put in a van, and beaten. Her two assailants threatened to rape and kill her and told her they would kill all members of the Democratic Party. When she was released, she went to the Police Station and reported this attack. The police were unconcerned. Shortly thereafter, on July 11, 2000 Sonila left Albania with her children and came to Canada. According to them, Xhevair remained behind because they could not all afford to come at once. He remained in Albania and continued to work in a bar and restaurant. He was attacked and threatened on several occasions because of his membership in the Democratic Party. He left Albania on April 13, 2001 and arrived in Canada the next day. All of the family have made refugee claims upon arrival in Canada.
[4] With respect to Sonila, the Board concluded that she may have been a member of the Democratic Party but not an active member or a high-profile member of a sort who would attract intimidation by supporters of the Socialist Party. The Board concluded that "she has failed to establish her political profile which is the crux of her claim" (Applicant's Record, p. 5). Among other things, Sonila had alleged that she acted as a party monitor during the 1996 local elections. While the Board said that "it was possible that the principal claimant could have acted as an election monitor in 1996" it gave "little weight" to her evidence showing knowledge of the role of an election monitor. The Board also rejected as "fraudulent or fraudulently obtained" a letter of attestation dated July 21, 2000 apparently signed by the President of the Democratic Party confirming that she was one of the "activists" of the Party. Further, the Board rejected her story of being abducted, beaten and threatened with rape and death. It did so because, while she claimed she had reported it to the police, she never sought medical attention. The Board found it unreasonable that in light of the severe beating she had suffered she would not go immediately to a medical facility, but instead went to the police station without seeking medical attention at any time. One of her explanations for not going for medical treatment, namely that medical facilities were staffed with Socialist Party personnel who would further abuse her, was rejected by the Board.
[5] With respect to the husband Xhevair, the Board apparently rejected his evidence concerning the beatings and threats he had received as a member of the Democratic Party for the following reasons. The Board was not satisfied that he was even in Albania after September, 1999 because he could not produce his passport or his "work book" which would have shown his whereabouts during this period. The Board disbelieved his evidence that he had been working in bars and cafes in Tirana during this period because he would be known there as a member of the Democratic Party and these places were frequented by important members of the Socialist Government. As he had not alleged any incidents at these bars, the Board did not find his evidence of working there to be credible. It rejected a letter of September 27, 2003, purportedly from the Democratic Party of Albania attesting to the fact that he was a member of the Party, had been one of the first activists during the 1990's, had participated in all meetings and effectively criticized the Socialist Party. It also certified that he had been an observer in the local elections of October, 1996. Further the letter attested to the fact that he and his family had been a target for the Socialist Party. The Board rejected this letter because it was not in the same format as a sample letter of attestation provided by the Chairman of the Democratic Party. Further, because the attestation letters for him and his wife had been obtained from the Party by his sister-in-law they were "obtained under conditions that are ripe with the opportunity for fraud". Evidence was mentioned to the effect that many documents are forged in Albania. With respect to Xhevair, just as in respect to his wife, the Board found that he was an ordinary member of the Democratic Party and nothing more.
[6] On the basis that the Board considered the Democratic Party letters of attestation to be false documents, and because of the Board's findings of lack of credibility concerning certain evidence of both of the adult claimants, the Board rejected the whole of their evidence of persecution based on their political opinion.
[7] These are all essentially findings of fact and the standard of review is that of patent unreasonableness. Although the Court should generally defer to the Board's findings of fact and credibility, it may intervene if it concludes that such findings are unreasonable. See e.g. Toth v. Canada [2002] F.C.J. No. 518; Ortiz v. Canada [2004] F.C.J. No. 863. There are several very important findings of the Board concerning credibility which I consider are patently unreasonable.
[8] A central cause for finding Sonila's evidence to be generally not credible was the Board's conclusion that her account of being kidnapped, assaulted and threatened was implausible. The Board found it not possible that she would fail to seek medical attention. When questioned about this, she said that though bruised she did not need medical care, she was embarrassed to seek such care in the circumstances, and that personnel at medical facilities were mostly Socialists who would be unfriendly and unhelpful. With respect I believe the Board reached a patently unreasonable conclusion as to the implausibility of such evidence. There was put in evidence a certificate from the Chief of Police Station No. 1 in Tirana, dated June 21, 2000 which attests to the fact that Sonila had made a complaint that day, that she had been maltreated, beaten, and rape had been attempted, because "she is an activist and member of the Democratic Party in the zone where she lives." Nor was her concern about being treated by Socialist medical personnel implausible: the Presiding Member of the Board had herself acknowledged her awareness that in many work places Socialist Party workers had replaced Democratic Party supporters after the elections of 1997. (See Board Record, p. 1543). In my view, this unreasonable finding as to the plausibility of her story was central to the Board's finding that her evidence as a whole, was not credible.
[9] I also find unreasonable the Board's conclusions that Xhevair could not have worked at two Tirana cafes from 1991 to 2001 because, at least during the period after the election of the Socialist Party, there would have been incidents at these bars or cafes and these bars or cafes were "frequented by important members of the Government." This conclusion assumes that an important member of the Government upon entering a café or a bar where an activist in the Democratic Party might work would necessarily create an incident or that such Democratic Party worker would trigger an incident with the customer. I find this conclusion to be unreasonable and patently so.
[10] Counsel for the claimants argued that if the Board had such concern about Xhevair's whereabouts after September, 1999 it should have put the question to him directly and given him the opportunity to explain contradictions perceived by the Board. Counsel cited numerous cases for this proportion, including Owusu Ausah v. Canada (1989), 8 Imm. L.R. (2d) 106 (F.C.A.) and Gracielome v. Canada (1989) 9 Imm. L.R.(2d) 237 (F.C.A.). I agree that this issue should have been raised with the claimant husband. It was obviously a very important issue for the Board but not one apparent to the claimant. There is no explanation, for example, of why the Board specifically disbelieved that he had been in Albania "after September, 1999". Neither counsel could explain the significance of that particular month and it must not have been obvious to Xhevair why his movements after that specific date were particularly suspect. For example had it been specifically raised he might have brought to the Board's attention an International Driver's License in his name and bearing his photo issued in Tarana on "11.07.2000" valid until "11.07.2001". Whether these dates refer to November 7 or July 11, the document could have been relevant to whether he was in Albania at all after September, 1999. As I understand it this document was part of the record of the Board but was not mentioned in the submissions of counsel before the Board.
[11] I also find patently unreasonable the conclusion of the Board that the documents from the Democratic Party attesting to the activities of both Xhevair and Lorhen were forged. It reached this conclusion for two reasons. First, it observed that the letters in question were in a different format from a "sample attestation document" supplied by the Chairman of the Democratic Party. This model letter appears at page 366 of the Board Record. It appears to be nothing more than a computer-generated macro which could be readily modified to personalize the letter in respect to the party member in question. The attestations in respect of these claimants were treated as fraudulent because they lacked the telephone and facsimile numbers of the Democratic Party. Further, the Board regarded them as suspect because they had been obtained at the request of Lorhen's sister-in-law who was in Albania. I think it was unreasonable to conclude for these reasons that these were fraudulent documents.
[12] I will not deal with some of the other criticisms of the Board's decision raised by the claimants as I think the foregoing provides sufficient reason to set aside the decision and refer the matter back for hearing by a differently constituted panel.
(s) "Barry L. Strayer"
Deputy Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4674-04
STYLE OF CAUSE: SONILA LUZATI, LORHEN LUZATI, ORSIDA LUZATI, XHEVAIR LUZATI v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 14, 2005
REASONS FOR ORDER: Strayer D.J.
DATED: May 6, 2005
APPEARANCES:
D. Clifford Luyt FOR THE APPLICANTS
Kareena R. Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
Czuma Ritter
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT