Date : 20050719
Docket : IMM-7715-04
Citation : 2005 FC 994
OTTAWA, Ontario, this 19th day of July, 2005
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN :
LLUKA KOSTA and LENI KOSTA
Applicants
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
TEITELBAUM, J.
[1] This is an application pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Immigration and Refugee Board, Refugee Protection Division ("the Board"), dated August 18, 2004, wherein the Board determined that Lluka and Leni Kosta ("the Applicants") are not Convention refugees or persons in need of protection.
[2] The Applicants are 69 and 61 years old respectively, and are married to each other. They are citizens of Albania. They allege persecution on the basis of the political beliefs of their son, and membership in the particular social group of a family that was persecuted under the former regime.
[3] The Applicants state that when the democracy movement started in Albania, they were supporters (particularly the husband), but it was their son who became the most involved, organizing for the Democratic Party (DP) and its Youth Forum.
[4] When power began to shift back to the Socialist Party (SP) in 1997, the son was allegedly threatened and persecuted, and prevented from finding employment. The Applicants state that he was beaten by people on the street while serving as an observer in the 2000 elections. They state that he fled to Greece in 2001 as a consequence of these incidents.
[5] The Applicants say they have also received threats themselves for supporting the DP. They allege that in February 2001, two masked men broke down their door and threatened to dynamite the house, and in July 2001, a caller threatened them over the phone and demanded they contribute $2000 to the SP.
[6] The female Applicant testified at the hearing, since the male Applicant suffers from partial deafness, but the male Applicant was determined to be capable of understanding the nature of the proceedings by the Board.
[7] The Board criticized the female Applicant in its decision for her "rambling" answers and "repetitions" of information in the PIF, and accused her of "obfuscations."
[8] The decision states that neither Applicant is a member of the DP (although the Board's facts earlier state that the husband was a member), and that the Applicants' son has now returned from Greece, both facts which are apparently admitted by the Applicants. (The Applicants also have a daughter who lives in Ontario.)
[9] The Board asked if the son had claimed refugee status in Greece and if the Applicants had documentation of this. The female Applicant stated she did not know and had no such documents. The Applicants did produce documentation confirming the son's work permit in Greece, and the Board found that the son was there for economic reasons only.
[10] The Board focussed on a discrepancy in the PIF concerning the PIF's statement that the son left for Greece in June 2000, which the female Applicant said was a "mistake" and corrected to June 2001 in the hearing. The Board also found an inconsistency between the PIF's statement that the son was in Greece and the Applicants' statement at the hearing that he was now back in Albania.
[11] The Board also noted that the Applicants documentation of their son's involvement with the DP included a statement that he was an observer, and not a statement that he was a member of the election commission, which the Board noted to be a different position. It is not clear that the Applicants were actually claiming he was a member of the commission. The Board found the Applicants in default of s. 100(4) and 106 of IRPA and Rule 7 of the Refugee Protection Division Rules, SOR/2002-228, ("the RPD Rules") with regard to this documentation, and with regard to their failure to present their son's membership card for the DP Youth Forum.
[12] There was also an inconsistency with regard to the sole police report in the file, which concerned a burglary. The Applicants stated that they requested their report to the police concerning the phone threat incident, but received one concerning the earlier burglary that was misdated - the female Applicant surmised that perhaps it was a "summary" of what the police found in their complaint file, and stated that Albania does not have a rigorous record-keeping infrastructure. The Board did not find this explanation credible, nor did it find the Applicants' claims that they had filed other reports with the police that were not in the evidence proffered credible either.
[13] Having found the claim of persecution related to their son to be not credible, the Board went on to consider the claim of membership in a formerly persecuted family. It found the documentation did not support this claim, and noted that the country conditions materials found that former victims of persecution were no longer subject to risk in Albania.
[14] The Board also found that political conditions in general are improving in Albania. The Board noted here that the son was only likely to lose a job for DP membership if he was working for the government, not in the private company where he had been employed, and while prominent members of the Youth Forum have been killed or attacked, ordinary members are not.
[15] The Board found against the Applicants, mostly on the grounds of negative credibility and lack of acceptable evidence.
[16] The initial Memorandum of the Applicants focuses on two issues:
1) Did the Board display bias in its zeal to find instances of contradiction in the Applicants' testimony and evidence?
2) Did the Board err in law by finding the Applicants in default of ss. 100(4) and 106 of IRPA and Rule 7 of the Rules?
[17] The Applicants argue that the Board was unusually zealous in seeking to find instances of contradiction in the Applicants' testimony, conducting a "microscopic" evaluation of the evidence in contravention of Attakora v. Canada (Minister of Employment and Immigration), (1989), 99 NR 168.
[18] The Applicants also argue that their age, lack of sophistication and the fact that they are speaking through an interpreter should have been taken into account in evaluating their testimony. (Owusu-Ansah v. Canada (Minister of Employment and Immigration), (1989), 8 Imm. L.R. (2d) 106 (FCA))
[19] The Applicants add that the Board erred in focusing on the fact that the Applicants' son did not make a refugee claim in Greece when the Applicants never claimed that he did, and finding an "error" in the PIF statement that the son was in Greece when it was written before he returned to Albania, and the facts had changed by the time of the hearing. The Applicants note that they did not attempt to hide the fact that their son was back in Albania and provided a reasonable explanation of the different accounts of this.
[20] The Applicants submit that it was not unreasonable for the PIF to contain only the "significant" aspects of their troubles, and that it is not supposed to be a minute description of the whole case for a claim (Bains v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1144 online: QL, Singh v. Minister of Employment and Immigration, (1993) 69 F.T.R. 142)
[21] The Applicants also argue that it was unfair and superfluous to demand the son's Youth Forum identity card when the Applicants had already provided what they claimed to be a genuine letter of attestation from the head of the Youth Forum about the son's role as an observer.
[22] Finally, the Applicants argue that the Applicants testified as to the nature of their documents to the best of their ability, and it was unfair to cite them as failing to meet s. 100(4) of IRPA and Rule 7 of the RPD Rules when there was only a limited number of questions they could answer about someone else's documents, those of their son. They also submit that s. 106 of IRPA is improperly applied, since it pertains to the identity documents of the claimants, and that it was used here with regard to documents that (i) did not pertain to identity and (ii) related to the Applicants' son.
[23] The Applicants' Further Memorandum focuses entirely on credibility and the need to consider the evidence as a whole, and appears to argue that the decision was "perverse" and therefore patently unreasonable, although there are no explicit submissions on the standard of review. The only additional case law cited is Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302, noting that there a presumption of truth of the sworn testimony of the claimant, and Bosiakali v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1381, noting that the evidence should be assessed as a whole and treated in a consistent manner.
[24] The Respondent has only submitted one Memorandum. The Respondent analyses the inconsistencies in the Applicants' testimony, noting in particular that the Applicants did state in their PIF that the son claimed refugee status in Greece. (The Applicants answered a question about whether their relative had ever requested refugee status in another country by listing their son and stating his claim in Greece was "pending".)
[25] Section 106 of IRPA is as follows:
| CLAIMANT WITHOUT IDENTIFICATION
Credibility 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.
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ÉTRANGERS SANS PAPIER
Crédibilité |
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| 106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer. |
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[26] This section, as is clear from its title, pertains only to the identity documents of the claimants. While a failure to establish identity under s. 106 would go to credibility (see P.K. v. Canada, 2005 FC 103), the identity of the Applicants has not been challenged and is not at issue here. The application of an irrelevant provision to make a finding against the Applicants would appear to me to be an error of law. It certainly cannot be used, as it was in this Decision, to critique the Applicants' failure to produce identity documents relating to their son, who is not a refugee claimant in Canada and was not before the Board.
[27] This finding on the part of the Board appears to be due to either confusion as to the meaning of the provision, or to an attempt to widen the scope of s. 106 by connecting it to s. 100(4) of IRPA and Rule 7 of the RPD Rules, something the Board does not have the jurisdiction to do. Section 100(4) is the section which states that the onus of proving a refugee claim is on the claimant, and Rule 7 concerns the requirement to provide documents establishing both "identity and other elements of the claim." Section 106 is a freestanding provision relating solely to the claimants' credibility regarding the establishment of their own identity.
[28] While the Federal Court jurisprudence states that a standard of patent unreasonableness is applicable to the Board's determinations of the validity of identity documents (Gasparyan v. Canada (Minister of Citizenship and Immigration), 2003 FC 863) and a standard of reasonableness is applicable to the Board's determinations of identity (Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587), it does not appear to me that either of these standards is applicable. The misapplication of a provision of IRPA would be a pure question of law. However, the application of a provision where it does not apply is not reasonable either, so I do not believe the standard of review changes the final outcome.
[29] The Applicants raises the issue of the Maldonado presumption of truth in their Further Memorandum. I think this particular case is relevant to one statement in the Board's decision which echoes a statement I have seen in an increasing number of RPD decisions:
The panel prefers the Board's documentary evidence to that of the claimant because it is gathered from a number of objective sources who have no interest in this or any refugee claim.
[30] Counsel for the Applicant informs me he agrees with the statement. I am satisfied that the statement is problematic for two reasons. First, it appears to me to negate, if not reverse, the Maldonado presumption:
When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness...
[31] This statement was based on a Federal Court of Appeal case called Villarroel v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 210, where Pratte, J.A. mentioned in a footnote that determining sworn testimony to be untrue without some reason for doubting the claimant would be an act of arbitrariness.
[32] While a strong contradiction between the claimant's testimony and the country conditions might give rise to a "reason to doubt", the use of this statement without proper analysis of any contradictions would seem to me to not accord with the law.
[33] Secondly, the unqualified use of this statement renders all refugee claim hearings an absurdity - if evidence is considered suspect because it is proffered by those with an interest, then there is no point in having a hearing. The legislative scheme puts the onus on the refugee claimant to prove their case. If there is what appears to be a prima facie presumption that any proof they offer is invalid, then no refugee can prove their case no matter what they produce.
[34] Justice Snider made this point in Coitinho v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1269 online: QL, as follows:
¶ 7 The Board goes on to make a most disturbing finding. In the absence of stating that the Applicants' evidence is not credible, the Board concludes that it "gives more weight to the documentary evidence because it comes for (sic) reputable, knowledgeable sources, none of whom have any interest in the outcome of this particular refugee hearing". This statement is tantamount to stating that documentary evidence should always be preferred to that of a refugee claimant's because the latter is interested in the outcome of the hearing. If permitted, such reasoning would always defeat a claimant's evidence. The Board's decision in this case does not inform the reader why the Applicants' evidence, when supposed to be presumed true (Adu, supra), was considered suspect. Further, this reasoning cannot even stand on the facts of this case.
[35] In the case before the Court, the statement is qualified with a sentence connecting it to a more detailed analysis of why the evidence was problematic, so it would appear that the "reason to doubt" has been made out with some force. However, I find the wider trend to be of concern.
[36] The test for a reasonable apprehension of bias, which the Applicants have not cited, was laid out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, by de Grandpré J., as follows:
[T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[37] It was contained in a dissent but has been adopted by the Supreme Court in R. v. Valente, [1985] 2 S.C.R. 673, and applied ever since. The test is quite stringent.
[38] Since the parties have not made any arguments pertaining to this test, but have focussed on the jurisprudence in Attakora, Owusu-Ansah and Bosiakali, I will presume their intent is to argue s. 18.1(d) of the Federal Courts Act- that the Board's decision "was based on an erroneous finding of fact that it made in a perverse or capricious manner."
[39] In this case, while the Board did make numerous credibility findings, the Court may only disturb these findings if they are patently unreasonable. The Board has provided a lengthy and extensive explanation for its findings of fact as to the credibility of the Applicants, and there does not appear to be any noticeable basis on which they could be overturned that would not constitute a re-weighing of the evidence.
[40] In a reading of pages 254 to 264 and pages 247 and 248 of the Tribunal Record, I am satisfied the Applicants failed to establish the facts relating on how the Applicants feared being persecuted.
[41] As well, the Applicants attempted to hide the fact that their son, who is the main reason for the alleges persecution, returned to live in Albania.
ORDER
The application for judicial review is denied. No question was submitted for certification.
« Max M. Teitelbaum »
JUDGE
OTTAWA, Ontario
July 19, 2005
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : IMM-7715-04
STYLE OF CAUSE : Lluka Kosta et al v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 12, 2005
REASONS : The Honourable Mr. Justice Teitelbaum
DATE OF REASONS: July 19, 2005
APPEARANCES :
J. Norris Ormston FOR THE APPLICANTS
Mr. Kevin Lunney FOR THE RESPONDENT
SOLICITORS OF RECORD :
Ormston, Bellissimo,
Younan,
Barristers and Solicitors FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT