Docket: IMM-4867-03
Ottawa, Ontario, this 18th day of June, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
TAULANT GRAMSHI
ENDRITA GRAMSHI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Taulant Gramshi (the "male applicant") and Ms. Endrita Gramshi (the "female applicant") seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated May 26, 2003. In that decision, the Board determined that the Mr. and Ms. Gramshi were not Convention refugees or persons in need of protection. The applicants seek an order quashing this decision and an order remitting the matter back for redetermination by a differently constituted panel.
BACKGROUND
[2] The applicants are siblings and citizens of Albania. The male applicant is 31 years old while the female applicant is 27 years old. The applicants claim to have a well-founded fear of persecution by reason of membership in a particular social group, namely as members of a family well known for its anti-Communist views and opposition to the current Socialist Party government. In addition, the male applicant fears persecution by reason of his own membership and activity in the political party the "Legality Party".
[3] The applicants, who resided in Shkoder, Albania, claim that their family is well known in the Shkoder area where they settled about one hundred years ago. They were large landowners whose property was seized by the Communist government after World War II. Their grandfather was involved in organizing an uprising against the Communists in the area south of Shkoder.
[4] Presently, the family supports the Legality Party, which the male applicant and his father joined in 1993. The applicants' paternal uncle was a well-known activist in the same party in Shkoder and often spoke at Legality Party rallies.
[5] This uncle was killed in 1997. There was an attempt to assassinate the father of the claimants in 1994. He was also beaten by the Shkoder police because of the family's political activities. The male applicant was active in recruiting members for the party in Shkoder and campaigned for the party during various election campaigns. He was beaten by the police in Shkoder in July 1997, August 1998 and September 1998. He was also detained for three days by the police in September 1999. The male applicant received a summons to appear at the police station on May 25, 2000 but was advised by leaders of the Shkoder Legality Party that, based on their knowledge of what happened to other party members who responded to such summonses, he should not appear. He thus hid with an uncle in a village. While he was in hiding, the police came to his home looking for him.
[6] In June 2000, his father retired from his job and moved the family to Tirana. The male applicant left his hiding place and joined his family in Tirana on June 12, 2000. In Tirana, he resumed his activity with the Legality Party. He claims that in July 2000 two men beat him in the street in Tirana and called him a "monarchist dog".
[7] The female applicant does not belong to a political party. However, there was an attempted kidnapping of her and her sister on August 7, 2000, while they were returning from a visit with their aunt. They were close to home when a car approached them. One man got out of the car and attempted to force her into it. She hit him with a handbag and the two women succeeded in escaping to their home.
[8] The family concluded that this attempted kidnapping was a politically motivated attack because of the pattern of past persecution, the men who attempted to abduct the female applicant were well-dressed, and the car had tinted glass windows, which is only permitted on police vehicles in Albania.
[9] On August 20, 2000, the applicant was summoned by the police in Tirana. The applicant once again consulted with members of the Legality Party in regards to the summons. He was told it was dangerous to respond to such a summons. The applicant did not go to the police and instead went into hiding until smugglers arranged to bring him and his sister to Canada.
The Board's Decision
[10] The Board accepted the applicant's testimony in regards to persecution suffered from 1997-1998. It then reviewed the documentary evidence and determined that generally, people who are persecuted for their political views are high profile figures from the Democratic Party or are journalists.
[11] It found that the male applicant was not credible, stating that on the basis of its experience, summons are printed in a form very different than the one presented by the male applicant. Although the Refugee Protection Officer (RPO), who had alerted the male applicant to this inconsistency, asked the applicant to explain it, the applicant was unable to do so. Given that the forging of documents is a widespread occurrence in Albania, the Board gave no weight to the document and drew a negative inference from the attempt by the applicant to bolster his claim with the fabricated document.
[12] The Board noted that the applicant's original narrative did not mention that on April 26, 2000 the Tirana police were looking for him, but that this was amended to his Personal Information Form ("PIF"). The Board drew a negative inference from this original omission.
[13] The Board also found that the applicant's story of the beating in Tirana not to be credible, given that he had been in Tirana about one month when the alleged beating occurred, had not been that active in the movement and his family had no profile in Tirana.
[14] In regards to the female claimant, the Board noted that her alleged abductors did not say or do anything to indicate that their attack on her was politically motivated. The Board then went on to state that, given the predominance of trafficking of women in Albania, and given that the police are often involved in trafficking, the kidnapping attempt may have been an attempt to force her into prostitution rather than to harm her because of her family's political involvement.
[15] The Board concluded that neither applicant was at risk of being persecuted should they return to Albania. Furthermore, neither applicant alleged a risk to life or a risk of cruel or unusual treatment or punishment or a danger of torture should they return to Albania. The applicants were therefore not persons in need of protection or Convention refugees.
ISSUES
[16] 1. Did the Board err in determining that the female applicant's attempted abduction may have been an attempted kidnapping for prostitution purposes and then fail to determine whether she could still have a claim as a Convention refugee or as a person in need of protection for that reason?
2. Did the tribunal err in relying on its specialized expertise without providing notice to the applicants that it would do so?
3. Did the Board err in its finding that the male applicant was not credible?
PARTIES' POSITIONS and ANALYSIS
No error of Board in not considering female applicant's claim on other Convention ground
[17] The applicants submit that the Board erred when it concluded that the attempted kidnapping of the female applicant may not have been politically motivated, but rather, may have been done as a way to traffic her. Because the Board accepted that the family was politically involved and had been persecuted in the past, the applicant's explanation was as plausible as the Board's explanation. The Board thus erred in preferring one explanation over another.
[18] The applicants further submit that the Board erred by then not determining whether the female applicant had a Convention refugee claim or was a person in need of protection on the basis that she had gone through an attempted kidnapping. The applicants rely on Cheung v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 309 (C.A.)(QL).
[19] The respondent submits that the female applicant's claim, at best, relies on one random incident. Further, the panel simply concluded that it could not accept the female applicant's explanation for the incident, in light of alternative possibilities unconnected to the grounds claimed by the applicants, but did not conclusively decide that this was an attempt to force her into prostitution.
[20] On this issue, the Board did not err in not accepting that the attempted abduction of the female applicant was politically motivated. Supposition as to the motive, based on the dress of the assailants and the tinted glass of their vehicle, was insufficient to meet the applicant's burden on a balance of probabilities.
[21] The Board, while accepting that the female applicant had been the victim of an attempted abduction, suggested that there was another, equally plausible explanation for the attempted kidnapping. This did not, in my view, amount to a determination by the Board that the applicant was at risk of being forced into prostitution and for that reason had a Convention refugee claim or was a person in need of protection. It was merely offered as a possible alternative scenario to explain the unknown motives of those attempting the abduction.
[22] At no stage in the proceedings before the Board did the female applicant identify her claim as based on her membership in a social group namely women at risk of being forced into prostitution. This is not a case such as Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689, where the Supreme Court of Canada held that it would entertain an appeal where a ground for consideration of Convention refugee status had not been dealt with, despite evidence to support it, in the proceedings before the Board and the Federal Court. In those circumstances, the Board was obliged to make a determination on that ground notwithstanding that it was not raised or argued by the applicant.
[23] The Federal Court of Appeal had earlier determined in Pierre-Louis v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 420 (C.A.)(QL), that the applicant could not on appeal succeed on a new ground not raised before the Board. The Court of Appeal had occasion to revisit this question in Guajardo-Espinoza v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 797 (C.A.)(QL). It held that Pierre-Louis had not been overturned by Ward and stated as follows at paragraph 5 :
...the Refugee Division cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole. Saying the contrary would lead to a real hide-and-seek or guessing game and oblige the Refugee Division to undertake interminable investigations to eliminate reasons that did not apply in any case, that no one had raised and that the evidence did not support in any way, to say nothing of frivolous and pointless appeals that would certainly follow.
[24] There was no evidence before the Board to support the conclusion that the female applicant was a member of a social group namely women at risk of being forced into prostitution or that she faced any personalized risk. The alternative hypothesis posited by the Board as to the motives of the abductors did not "emerge perceptibly" from the evidence so as to require the Board to consider it as a serious possibility. This was nothing more than mere speculation on its part. Although it could have chosen its words more carefully, I am unable to conclude that it erred in not proceeding to consider whether the applicant had a valid claim on that basis.
Procedural Breach in relying on specialized knowledge
[25] Moving to the second issue, the applicants submit that the Board relied on its specialized knowledge in order to find that the summons to the male applicant was fraudulent but did not give adequate notice as well as an opportunity for him to respond. In doing so, the Board violated subsection 170(i) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The applicants argue that this error in law is fatal to the Board's decision and rely on the decision of Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404 (C.A.).
[26] The respondent submits that it is evident from its reasons that the Board was mindful of the documentary record before it. It furthermore gave the male applicant the opportunity to respond to its concerns. The respondent also submits that the Board was entitled to rely on its specialized knowledge and refers to Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.)(QL) at para. 4 and Chen v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1032 (T.D.)(QL) at para. 10.
[27] I agree with the applicants. The respondent is correct in stating that the Board is entitled to rely on specialized knowledge. However, the Board is obligated by subsection 170(i) of IRPA and section 18 of the Refugee Protection Division Rules, SOR/2002-228 (the "Rules") to provide an applicant notice when it intends to rely on that knowledge, as well as an opportunity to reply to that knowledge.
[28] Contrary to the respondent's submission, the Board did not, at any point during the hearing, indicate that it was concerned about the summons because of its specialized knowledge. The RPO, on the other hand, did state that he had specialized knowledge about summonses, or "call-in notices" as he described them, issued in Albania while he questioned the male applicant. (see p. 86 of applicants' record, transcript of hearing). Arguably, then, the applicants were alerted that the authenticity of the summons was an issue and were given an opportunity to respond to this allegation.
[29] I do not accept this argument. Section 18 of the Rules clearly state that it is the Board that must give notice to the parties of its intent to rely on its specialized knowledge. It cannot, therefore, use the RPO as a mouthpiece in performing this mandated step in the hearing process.
[30] Moreover, hearing an allegation from an RPO based on his or her specialized knowledge may potentially have a different effect on the applicant than hearing the statement from the Board that it intends to rely on its specialized knowledge. An applicant, or applicant's counsel, may dismiss the RPO's allegation if it is not echoed by the Board. This would not be true should the Board itself state its misgivings about the applicant's testimony, based on its specialized knowledge.
[31] This is especially true in the case at bar. The male applicant would not necessarily have personal knowledge of what a valid summons looks like and may not have been able to respond effectively while being questioned at the hearing. Had the Board alerted the applicants to the fact that it had specialized knowledge about summonses in Albania, the applicants may have asked to provide further evidence and submissions on the issue post-hearing. Because it did not, the Board committed a reviewable error in the procedure it employed at the hearing.
Credibility Findings not reviewable
[32] Finally, I address the third issue identified above, related to the issue of the Board's credibility findings of the male applicant's allegations and testimony.
[33] The applicants submit that the Board relied on its specialized knowledge, but made no reference to documentary evidence in support of its opinion. Furthermore, it failed to consider the fact that, as explained by the applicant, there may well be different forms of summonses used for different purposes.
[34] In addition to its submission that the Board may rely on specialized knowledge, the respondent makes the more general submission that questions of credibility and weight of evidence are within the jurisdiction of the Board, and require great deference: Aguebor, supra; Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.)(QL). The Board's reasons do not indicate that its finding in relation to the summons was made in an arbitrary manner.
[35] On this point, I agree with the respondent. As noted above, the Board may clearly rely on its specialized knowledge, and, by implication, where it does so, it will not refer to documentary information. Here, the Board was also not obligated to refer to the applicant's explanation that there may be different summons used for different purposes, as the applicant admitted he did not know what form summons took in Albania (see pp. 87-88 applicants' record, transcript of hearing) and was therefore merely speculating as to why his summons was different. The Board did not err when it did not refer to this speculation in its reasons.
[36] The applicants further submit that the Board ignored the male applicant's explanation for the omission from the PIF of the April 26, 2000 incident when coming to its conclusion that the applicant was not credible. The Board could consider and reject this explanation, but it could not simply ignore it in its reasons. The applicants cite Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.).
[37] The respondent does not make any specific submissions on this issue.
[38] A Board's reasons will be inadequate in situations where it ignores an applicant's explanation for inconsistencies and contradictions in his or her evidence. In this case, however, the male applicant gave an incomplete explanation. He did state, as the applicants submit, that the inconsistency was a result of bad translation(p. 93 of applicants' record, transcript of hearing). When pressed by the RPO, though, he admitted that the interpreter interpreted the completed English PIF back to him in Albanian (p. 94 of applicants' record, transcript of hearing). Like all other evidence, a Board is required to refer to such explanation in its reasons when it is relevant and significant to its findings: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.)(QL) at paras. 16-17. Here, however, the explanation was so flawed that it had very little relevance. The Board was therefore under no obligation to refer to it in coming to its conclusion.
[39] The applicants also submit that the male applicant testified that after he and his family moved to Tirana, they went to the headquarters of the Legality Party to see how they were operating in Tirana. He went to two or three political meetings and provided his membership there. He furthermore learned how to collect votes and signatures for the opposition. Thus, contrary to the Board's finding, the male applicant was clearly active in Tirana such that he could have come to the attention of the authorities. The Board, according to the applicants, erred in finding that the male applicant had not been sufficiently active in Tirana to be considered high-profile and thus would not be a target of persecution.
[40] Again, the respondent makes no specific submission on this issue.
[41] The evidence discloses that the male applicant was involved in the Legality Party in Tirana, but does not overwhelmingly show that he was so visible as to become identifiable by enemies of the Party. Therefore, in my opinion, it was open to the Board to conclude that the applicant was not very active in the party at the time of his alleged beating in Tirana.
[42] The issue of whether the summons was fraudulent was an important underpinning to this decision and affected not only the strength of probative evidence submitted by the applicants in support of their claims, but also their credibility. Given that I am satisfied that the Board committed a procedural error in failing to notify the applicants of its specialized knowledge in this area and failing to give them an opportunity to respond, it cannot be known how this may have affected the outcome of both the male and female applicants' claims on the ground of political opinion or imputed political opinion. Therefore both their claims shall be sent back for redetermination.
ORDER
THIS COURT ORDERS this application for judicial review is allowed, the Board's decision is set aside and a differently constituted Board shall reconsider the applicants' claims in accordance with these reasons. No question is certified.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4867-03
STYLE OF CAUSE: TAULANT GRAMSHI
ENDRITA GRAMSHI
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 10, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: June 18, 2004
APPEARANCES:
Lorne Waldman FOR THE APPLICANT
A. Leena Jaakimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
LORNE WALDMAN FOR THE APPLICANT
Barrister & Solicitor
Waldman & Associates
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario