Date: 19990813
Docket: IMM-5200-98
BETWEEN:
LEONARD ZOGA
ERANDA ZOGA
KATRIN ZOGA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning assigned to that term in subsection 2(1) of the Immigration Act1. The notice of decision of the CRDD is dated the 16th of September, 1998.
[2] The applicants are husband and wife and their minor daughter. All are citizens of Albania. The CRDD, in its reasons for decision, wrote:
| The male claimant alleged that because of his political beliefs and membership in a particular social group, namely his family, he fears persecution at the hands of members of another family which has been in a land dispute with the claimant"s family for many years, and also at the hands of the police. |
The claims of Eranda Zoga and Katrin Zoga are dependent on the claim of the male applicant.
[3] The CRDD"s statement regarding those at whose hands the male applicant fears persecution is incomplete. In the testimony of the male applicant before the CRDD, the following exchange is recorded:
| Counsel: All right. So if the Alushi family has the home, they have the house, they have the lands, why would they want to bother with you if you went back? |
| Male claimant: I am with the Democratic Party but not with the people who created the Democratic Party I am a Democrat. How could they like people who are Democrats? I will always fight for the rights of people. I will always fight for the freedom of speech. Things which they have always lacked. That"s why I say that my going back to Albania presumes my death. |
| Counsel: At whose hands? |
| Male claimant: First of all in the hands of the government. And second, in the hands of Alushi family which is the government itself.2 |
[4] In fact, the material that was before the CRDD discloses that the male applicant and members of his family have had long-standing difficulties with another family, the Alushis, who were closely identified with the Communist party of Albania and with the Communist government itself. More recently, the male applicant has experienced difficulties with the Democratic Party that succeeded the Communist regime and of which he was once a member and supporter. That government has now been succeeded by a Socialist government which is generally accepted as being dominated by former members of the Communist party and their successors. Thus, the male applicant"s primary fear could be said to be at the hands of the current government, his secondary fear at the hands of the "...Alushi family which is the government itself", and his tertiary fear at the hands of the Democratic Party.
[5] At the heart of the dispute between the male applicant"s family and the Alushi family was property in or near the city of Vlore which the male applicant described as being owned outright by his family and for which his family had deeds registered in the City Hall at Vlore. In his Personal Information Form narrative, the male applicant wrote:
| It was the Alushi family with the head of the family, Bari Alushi contesting ownership of these properties. He was the Communist Party Secretary in the City of Vlore and had substantial power. From what my parents tell me, the family of Bari Alushi have always threatened and provoked my family. They have physically harmed members of my family and caused members of my family to be imprisoned, particularly, my grandfather was set up and imprisoned in 1965. |
| My grandfather, Faslli Zoga refused to allow our properties to be confiscated by the state and divided. He tried to hold on to them. He was tried and imprisoned for speaking out against the Communist system and denouncing the confiscation of private lands as illegal. The government threw him in jail with a sentence of twenty years for his democratic ideas and he died in jail from Tuberculosis around 1970. Even when he died he was poorly treated and buried in an unmarked grave by prison authorities. It wasn"t until 1985 that the family was able to arrange the eventual proper burial of my grandfather. |
| Around 1965, the Zoga family was removed from Vlore and interned at a place for political problem persons at Llakatund. The properties were taken over by the Alushi family even though we actually had the original legal deeds. |
[6] Thus, the material before the CRDD alleged a strong link between the feud with the Alushi family and the former Communist government and, at least in the mind of the male applicant, its successor Socialist government.
[7] In remarkably brief reasons for a claim as complex as the one that was here before it, the CRDD concluded:
| The claimant"s fears of the police or authorities now appear to be over, since those authorities would no longer be in power nor is it likely that they would be concerned about a signature validating that a prior election was properly conducted. |
| Thus, we determine that the claimant would not have a reasonable chance of being persecuted by reason on his political opinion. |
| So far as fear of members of the "other family" which is claiming the property, they now apparently have possession of the property; obviously, the claimant has given up his right to it by leaving the country. |
| The panel does not know the basis upon which the other family claims the property. Even if it has no right to it, it would amount to a criminal act and not one which forms a ground under the Convention. While it is most unfortunate that a dispute over land would lead to murder, we do not feel that this would constitute a nexus to a Convention ground. Accordingly, we do not find, on all the evidence before us, the claimant, Leonard Zoga, to be a Convention refugee. |
[8] With great respect, I find the foregoing analysis to be incomplete, in some particulars ambiguous, in general terms unclear and reflecting a misunderstanding, misrepresentation or ignoring of much of the evidence that was before the CRDD.
[9] As quoted earlier, the male applicant describes himself as a Democrat. The material before the CRDD demonstrated that he was an outspoken advocate of his Democratic views. I find no basis upon which the CRDD could conclude on the evidence before it that, given his strongly held and expressed political views, he "...would not have a reasonable chance of being persecuted by reason of his political opinion". The totality of the evidence would tend to indicate that this is in error whatever form of government is in power in Albania.
[10] It is difficult to understand how the CRDD would conclude that the male applicant had "obviously" given up his right to the disputed property simply because he is now out of Albania.
[11] The conclusion that the claim of the Alushi family to the disputed property, if ill-founded, would only amount to a criminal act and therefore not one which could form a basis for a Convention refugee claim appears to ignore the reality that criminal acts may be motivated by a Convention reason and the unequivocal evidence was that the Alushi family has, or at least had, significant political power.
[12] In Mehterian v. Canada (Minister of Employment and Immigration)3, the Court wrote:
| Section 69.1(11) of the Immigration Act... requires that the Refugee Division "give written reasons" for any decision against the claimant. If this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary. [citations omitted] |
The reasons here under review are simply not sufficiently clear, precise and intelligible.
[13] In Sagharichi v. Minister of Employment and Immigration4, Mr. Justice Marceau wrote:
| It remains however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and the proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable. |
[14] Here, it simply cannot be said that the CRDD proceeded with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein.
[15] In the result, while the conclusion reached by the CRDD, on the totality of the evidence before it properly analysed might have been reasonably open to it, it is impossible on the reasons here under consideration to determine that the conclusion reached by the CRDD was neither capricious nor unreasonable.
[16] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the applicants" application for Convention refugee status will be referred back to the Immigration and Refugee Board for redetermination by a differently constituted panel.
[17] Neither counsel recommended certification of a question. No question will be certified.
____________________________
Judge
Ottawa, Ontario
August 13, 1999
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