Federal Court Decisions

Date: 20050429

Docket: IMM-1289-04

Citation: 2005 FC 581

Ottawa, Ontario, the 29th day of April , 2005

PRESENT:    THE HONOURABLE MR. JUSTICE O'KEEFE

BETWEEN:

KYDRETE PEPA

ALTIN PEPA

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

OI'KEEFE J.

[1]    This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 21, 2004, wherein it was determined that the applicants were not Convention refugees nor persons in need of protection.

[2]    The applicants seek an order that the matter be referred back to the Board for a new hearing before a differently constituted panel.

Background

[3]    The applicants, Kydrete Pepa (the "female applicant") and her son, Altin Pepa (the "male applicant") are citizens of Albania who claim a well-founded fear of persecution as they would be subjected personally to serious harm by the Socialist Party (SP) in Albania, due to their late husband/father's (the "deceased") political activities.

[4]    The female applicant stated that the deceased joined the Legality Movement Party ("LP") in 1994 and actively involved himself in political activities until his death.

[5]    In 1996, the deceased was made an election commissioner for the party. In September 1996, the female applicant joined the LP. In June 1997, the deceased was again made an election commissioner. Notwithstanding difficulties with the Socialists during the election, the candidate he supported was successful.

[6]    In September 1998, during a protest against a murder, the deceased was threatened and the male applicant who was also protesting was shot.

[7]    In the October 2000 election, the deceased was a member of the election commission and although he was threatened in an attempt to cause him to leave before counting the votes, he stayed to monitor the process. A representative of the Union for Victory, of which the LP was a member, won the election in that area.

[8]    On October 3, 2000, the deceased was shot and killed by three masked men. Right after the death of his father, the male applicant went into hiding until he left Albania.

[9]    The applicants reported the matter to the police. The three perpetrators were identified and Gentian Gruda (who was later sentenced to a prison term of twenty-two years) took responsibility for the killing.

[10]                        The applicants stated that according to the rules of tradition of Kanun of Lek, the male applicant is required to avenge the deceased's death. The applicants received anonymous telephone calls to withdraw their accusations against Gentian Gruda.

[11]                        In May 2003, the female applicant was attacked by four people and was told to give up efforts to seek justice for her husband's killing or she, along with the male applicant, would be killed. Subsequently, the female applicant left Albania and came to Canada in July 2003 and a couple of weeks later the male claimant arrived in Canada.

[12]                        Their claim for refugee status was heard on December 15, 2003 and denied on January 21, 2004. This is the judicial review of that decision.

Reasons of the Board

[13]                        The Board held that the determinative issue was credibility related to the political motivation for the death of the deceased. The Board found that the applicants were not credible. The relevant portions of the Board's reasons are as follows:

The claimants alleged in their Personal Information Form (PIF) and during the hearing that their husband/father was killed because of his political activities for the LP, especially because of his refusal to leave as a member of the election commission before counting the votes, which resulted in the Union for Victory's winning 2000 October elections with the LP being one of the Union for Victory member parties. The claimants testified that no other factor was in play for his death and submitted various documents to substantiate their allegations, e.g. hospital verification and death certificate. However, these documents only indicated that his death occurred on October 3, 2000 and was caused with a firearm. No evidence before the panel established the political motivation for his killing.

In reference to the death of the claimants'husband/father, the Attestation from the LP Shkoder Branch only states "With his death, the Legality Movement Party, Shkoder Branch lost a devoted militant, a man trusted by the people". The attestation does not indicate that the killing was politically motivated because of the contribution to the Union for Victory's winning in the elections by the claimants'husband/father. The attestation does not even mention his involvement in the 2000 election as a member of the election commission, although it refers to his direction of the campaigns as a member of the staff for elections in May 26 of the year 1996, in June 29 of the year 1997, until the beginning of October 2000. The claimants testified during the hearing that they did not know why the Attestation does not contain any information about their husband/father's role as a member of the election commission and his politically-motivated killing after the elections.

The claimants alleged in their PIF that after their husband/father's killing, members of the Union for Victory came to the claimants' house to be advised of the killing, promised to look for the murderers, went to the police with the female claimant to follow up on the case, and leading members of the LP, including the local branch chairman and vice-chairman, went to his funeral. If that was the case, the panel finds it implausible for the LP local branch chairman not to mention anything about their husband/father's involvement in the 2000 October election as a member of the election commission and political motivation for killing him.

As the Attestation from the LP local branch chairman makes no reference to the link between the death of the claimants'husband/father and his contribution to the Union for Victory's winning 2000 October elections, the panel concludes that his death was not caused by his political activities.

The claimants also alleged in the CIC documents that "They killed my husband for political issues"and "the newspaper said that it was a political killing". However, no newspaper articles about the claimants'husband/father's killing were submitted. When asked why no newspaper article was made available to the panel, the claimant replied that they did not keep the newspaper articles and did not have enough time to acquire some for the panel. The panel did not accept that explanation as credible.

The panel received numerous documents from the claimants, including forensic report dated December 4, 2003, death certificate dated July 14, 2003, police verification dated November 11, 2003, LP attestation dated November 10, 2003, hospital verification dated November 19, 2003, diploma dated December 26, 2000, marriage certificate dated November 18, 2003, etc. These documents were issued as early as in December 2000 or as late as in December 2003 and related to events as early as their marriage in October 1973 or as late as the female claimant's reporting to the police in May 2003. As the claimants succeeded in acquiring all those documents, they should have had plenty of time to obtain newspaper articles about their husband/father's political killing and make them available to the panel if the alleged newspaper articles did exist. In the panel's opinion, newspaper articles would be much easier to be acquired compared to some of the above-listed documents because they are publicaly available.

Since the claimants, although required to provide acceptable documents to establish events described in their PIF, did not submit newspaper articles about their husband/father's political killing, did not explain credibly why they could not make those articles available to the panel and did not provide any credible documentary evidence to establish that their husband/father was killed because of his deep involvement in the October 2000 elections for the Union of Victory or the LP, the panel concludes that the alleged newspaper articles about the political killing of the claimant's husband/father do not exist and his death had nothing to do with 2000 October elections as alleged.

The claimants alleged in their PIF dated August 2003 that "Many times members of the Union for Victory came with me to the police to follow up. The police claim they have a warrant for Gentian Gruda, and sent a notice to Interpol. Our problem is that the police are not even trying, as Gentian Gruda walks around Shkoder in plain sight".

However, as the verification from the local police in Shkoder shows, the criminal police identified the perpetrators after an investigation of the claimants' husband/father's death, and the court sentenced the principal one, Gentian Gruda, to a 22-year imprisonment in December 2002, about 8 months before the claimants signed their PIF.

When asked whether she ever saw Gentian Gruda in their hometown of Shkoder, the female claimant answered that she did not but she was told that Gentian Gruda walked around in plain sight in Shkoder. No evidence was submitted to substantiate the allegation. Since the claimants did not witness the fact and did not provide any documentary evidence for the allegation, in the panel's opinion, it was implausible for Gentian Gruda to walk around after his being sentenced to 22-year imprisonment.

As the police's verification tendered by the claimants totally contradicts the claimants' allegations that the police did nothing except to notify Interpol while Gentian Gruda walked around in Shkoder, the panel concludes that the allegations were fabricated to embellish their claims.

The claimants also alleged that four people came to their home in May 2003, attacked the female claimant and told here to give up their efforts to seek justice for their husband/father's death or they would kill her and her son. After that incident, the female claimant left Albania.

Although the claimants did not mention their intention of appealing the court's verdict in their PIF, the claimants testified during the hearing that they, not satisfied with the court's decision to sentence just one of the perpetrators, went to consult a lawyer about appealing the court's verdict in January 2003. When asked about the result of the consultation, the female claimant responded that the lawyer told them that the perpetrator was sentenced and it was not worthwhile to appeal. The female claimant acknowledged during the hearing that after being advised by their lawyer, they stopped efforts to pursue the case.

Since the Court delivered the verdict to sentence the principal perpetrator to a 22-year imprisonment term in December 2002, the panel concludes that, even if the claimants could have provided credible evidence for the attack in May 2003, which they did not, they failed to establish the link of the incident to their efforts to seeking justice for her husband or their husband/father's killing because the case was closed half a year ago and there was no action taken to seek justice by the claimants except that consultation with their lawyer in January 2003.

The male claimant alleged that he could not return to Albania without putting himself into danger as the killing of his father involved him in a blood feud. The male claimant alleged that, as the only son of the family, he was supposed to revenge his father's death. He testified during the hearing that, although he did not plan to kill anyone, he was afraid that the other party thought that he would take revenge and, therefore, would want to kill him pre-emptively.

However, the claimants testified during the hearing that there was no communication or personal contact between the two sides. Also, neither persuasive evidence nor any indication was provided to the panel about the other party's intention of taking pre-emptive action against the male claimant. Therefore, the panel concludes that the claimants merely presented their speculation of what the other party had in its mind and, as a result, their fear of the blood feud was not a reasonable one.

CONCLUSION

The panel finds that the claimants are not credible or trustworthy witnesses with respect to their testimony. The panel concludes that, on a balance of probabilities, the death of the claimants'husband/father was not related to his political activities for the LP as alleged. The panel also finds that there is not a serious possibility of the claimants being harmed because of their husband/father's political affiliation if they return to Albania. Therefore, the panel concludes that the claimants are not Convention refugees.

The panel considered as well whether the claimants would be subjected personally to a risk to their lives or to cruel and unusual treatment or punishment or whether there were substantial grounds to believe that they would be subjected personally to a danger of torture if they go back to Albania now. Due to lack of credibility in the claimants'testimony, the panel concludes that there is no such risk.

Issues

[14]                        The issues as framed by the applicants are:

1.          Did the Board err in law by:

a) making a decision that is patently unreasonable?

b) Ignoring relevant evidence, misinterpreting evidence, making erroneous findings of fact, and placing reliance on irrelevant evidence?

2.          Is the decision patently unreasonable, having regard to the evidence properly before the Board so as to amount to an error of law?

3.          Did the Board lose jurisdiction and err in law by ignoring evidence, in taking into account irrelevant evidence and misinterpreting evidence properly before it, and in making erroneous findings of fact without regard to the evidence before it?

4.          In the alternative, do the cumulative effects of the above errors amount to an error of law?

5.          Did the panel err in law by ignoring evidence, or by acting perversely and or capriciously?

6.          Did the panel err in law and lose jurisdiction by making negative credibility findings not supported by the evidence?

[15]                        I will reframe the issues as:

1.                   Did the Board err in finding that the applicants were not credible?

2.                   Did the Board err and ignore evidence in relation to the blood feud?

Applicants'Submissions

[16]                        The applicants submitted that the Board erred in making negative credibility findings against the applicants. There were no inconsistencies significant enough to justify a finding of no credible basis (see Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312).

[17]                        The applicants submitted where an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are truthful (see Permaul v. Canada (Minister of Employment and Immigration) (1983), 53 N.R. 323 (F.C.A.)). The PIF narrative stated that the deceased was a member of the LP election committee. The applicants submitted that the Board erred in making a negative credibility finding because the attestation from the LP stated that the deceased directed campaigns as a member of the staff for elections and does not use the phrase election commission. Both the applicants and the LP are Albanian. The same concept is clearly enunciated, and just because interpreters do not use exactly the same words is insufficient for a negative credibility finding. The applicants submitted that such a finding is perverse and capricious (see Permaul, supra).

[18]                        The applicants submitted that the Board erred in finding that the applicants did not credibly explain why they did not provide newspaper articles as to the killing of the deceased. In testimony, the applicants explained that because of the short time to the hearing, they were unable to obtain newspaper articles. The Board member is required to at least try to consider the answer. There is no indication that the Board analyzed whether three months is sufficient time to request and have newspaper articles sent. Instead, the Board punished the applicants for having provided some documents.

[19]                        The applicants submitted that the Board erred in stating that "the police's verification tendered by the claimants totally contradicts the claimants' allegations that the police did nothing except to notify Interpol while Gentian Gruda walked around in Shkroder ..." The applicants submitted the PIF narrative stated that "our problem is the police are not even trying as Gentian Gruda walks around Shkroder in plain sight". The passage was, in fact, with respect to the warrant for arrest and the problem is the inaction of the police in arresting and detaining Gentian Gruda.

[20]                        The applicants submitted that there is evidence on the record of current country conditions which supports the male applicant's fear of persecution in Albania. The Board was obligated to make a finding as to whether, given the uncontradicted evidence of a credible witness as to a blood feud, the applicants would be persecuted in Albania. The applicant submitted that the Board has not undertaken that analysis and therefore has failed to provide proper reasons (see Benitez v Canada (Solicitor General) (1993), 66 F.T.R. 224). It was not sufficient to just review the evidence, the Board was also required to evaluate it. Based on all the evidence, there is a refugee claim based on blood feud which the Board has not provided any basis to deny.

[21]                        The applicants submitted that the Board misstated the law respecting evidence for the tribunal. The applicants do not have to have witnessed anything as the Board asserted in the reasons, and there is no requirement in law for documentary evidence to be submitted. Hearsay evidence is evidence for the purpose of this tribunal. There was evidence to substantiate the allegations. That evidence consisted of the hearsay testimony of the female applicant that people told her they saw Gentian Gruda walking around.

[22]                        Further, the Board erred in finding that there had been no communication between the parties. As stated in the PIF narrative, the mediators contacted the family, and the killers contacted the female applicant to arrange a meeting with the male applicant. She refused to allow him to have direct communication. Therefore, indication was provided about the other party's intent of taking pre-emptive action. There is also documentary evidence that demonstrates that once in a blood feud, there are no rules, which the Board failed to mention.

[23]                        The applicants submitted that the Board erred by misstating the test imposed by the Convention definition. The proper test as set out by the Court is 'more than a mere possibility'. The applicants do not have to be likely targets of a pre-emptive strike. There need only be more than a minimal possibility. The Board did not dispute the existence of the blood feud, rather, based on a series of errors ruled the fear of the blood feud was not well founded.

[24]                        The applicants submitted that the Board's findings are patently unreasonable and should be overturned.

Respondent's Submissions

[25]                        The respondent submitted that the applicants have not shown the Board erred,, instead they have simply reassessed the evidence and offered further clarifications and alternative explanations in order to attempt to rebut the negative credibility assessment. The Board is not obligated to accept the applicants' explanations at the hearing, and is entitled to weigh the explanations along with the rest of the evidence before it. (see Sheikh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1039; Razzaq v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No.1104).

[26]                        The respondent submitted that the Board found numerous credibility problems with the applicants' evidence and found them not to be credible or trustworthy witnesses. The Federal Court of Appeal has held that issues relating to credibility and plausibility fall within the discretion of the Board. Further, the Court should not intervene on a finding of a lack of credibility made by the Board, which is based on problems internal to the applicant's testimony (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).

[27]                        The respondent submitted that the onus rests on the applicants to prove their case on a balance of probabilities, based on credible or trustworthy evidence. Contrary to the applicants' submissions that the Board made no negative credibility findings with respect to the male applicant's fear of a blood feud, the Board found that the male applicant's testimony was not plausible and was mere speculation. The Board clearly indicated in the reasons that it found no persuasive evidence of the other party's intention to take pre-emptive action due to a blood feud.

[28]                        The respondent submitted that when an applicant swears to the truth of certain allegations, it creates a presumption that the allegations are true, but it can be rebutted if there is a reason to doubt their truthfulness (see Moldanado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.)). The Board clearly indicated in its reasons why the applicants were not credible.

[29]                        The respondent submitted that the Board found a number of reasons to doubt the usefulness or credibility of the attestation from the LP. The Board noted that the attestation neither referred to the deceased's alleged involvement in the 2000 election as a member of the election commission nor made any reference to the killing being politically motivated as the applicants claimed. The Board correctly found this to be inconsistent with the applicants' evidence.

[30]                        Similarly, it was open to the Board to not accept the applicants' claim that they did not keep, or have enough time to obtain, copies of the newspaper articles showing the deceased had been murdered for political reasons. The Board noted that the applicants had obtained and presented copies of numerous other documents which would be much more difficult to obtain. The onus rests on the applicants to ensure they provide all the evidence that they feel will corroborate their claim.

[31]                        The respondent submitted that the Board's negative credibility findings were based upon not only inconsistencies and contradictions, but also implausibilities in the evidence. For example, the applicants did not indicate anywhere in their PIFs that the police had failed to detain Gentian Gruda as they suggested at the hearing. Further, the applicants' PIF did not mention the existence of a blood feud or any indication with respect to the other party taking pre-emptive action. Even at the hearing, the applicants did not provide any corroborating evidence about these new allegations. The Board thus found that the applicants' evidence in regards to the new allegations was mere speculation which it did not find to be plausible.

[32]                        The respondent submitted that there is no evidence that the Board misstated the test imposed by the Convention definition. In fact, the Board properly applied the test as set out in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.). The Board did not indicate that the applicants would have to be "likely" targets of a pre-emptive strike in relation to the alleged blood feud. This was the applicants' own interpretation and speculation.

[33]                        The respondent submitted that the Board has specialized jurisdiction to determine the weight to be assigned to the evidence and the Board is entitled to rely on the evidence which it considers most consistent with reality. The Board can rely on criteria such as rationality and common sense (see Takhar v. Canada (Minister of Citizenship and Immigration),, [1999] F.C.J. No.240 (T.D.); Tekin v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 506 (T.D.)).

[34]                        As the applicants have not shown that the Board's factual findings are in error, and were arrived at in a perverse and capricious manner or without regard to the material before it, this application for judicial review should be dismissed.

Relevant Statutory Provisions

[35]                        Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or . . . 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; . . . 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.