Date: 20050728
Docket: IMM-6001-04
Citation: 2005 FC 1044
Ottawa, Ontario, this 28th day of July, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
FATMIR SHAHAJ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Shahaj is a citizen of Albania. He applied under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") for judicial review of a decision by a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated June 11, 2004, wherein he was found not to be a Convention refugee or a person in need of protection. These are my reasons for concluding that his application should be granted and the matter remitted for a fresh determination by a differently constituted panel.
[2] Mr. Shahaj claims to be a target of a blood feud between his family and another family from his village, the Kongjinajs, that extends back to the 1930s. While it was dormant during the Communist era, Mr. Shahaj says that it has been revived in recent years. He and his brothers lived most of their adult lives in Greece. In December 1999, he claims that his older brother Bejkush was attacked in Korinthos, Greece in front of his wife and children by two members of the Kongjinaj family and subsequently died from his injuries. The applicant was then called home to Albania, where he learned of his brother's death.
[3] Mr. Shahaj claims that he had some narrow escapes from the Kongjinajs while he remained in Albania and in March 2000 he left for Greece again. He moved frequently while in Greece, until he was called home again in December 2001 because of his father's prostate cancer. He returned to Greece, then moved to Germany in May 2002 to make money to come to Canada. He arrived in Canada in July 2003 and claimed refugee status at the port of entry.
[4] The Board found that the applicant's claim was inconsistent, implausible and embellished and doubted that the applicant's family is involved in a blood feud with the Kongjinaj family.
[5] In relation to a death certificate and corroborative affidavit sworn by Mr. Shahaj's sister-in-law, the Board found:
With respect to his brother's death, the panel concluded that despite the death certificate and the affidavit of Violetta Shahaj, there was valid reason to doubt and to reject the claimant's allegation that his brother was killed as a result of an ancient blood feud. The death certificate lists only the cause of death. It was left to Violetta Shahaj's affidavit to provide context. In the panel's view, she cannot be said to be a person uninterested in the outcome of the claimant's hearing, and therefore, her evidence must be seen to be suspect in the sense referred to by Sopinka, J., in R. v. Lavallee. In addition, the panel did not have the opportunity to test the credibility of her statements and for these reasons; it gave little weight to her affidavit. [sic]
[6] Findings of fact made by the Board can be reviewed only if they are erroneous and made in a perverse or capricious manner or without regard for the evidence, i.e., on a standard of patent unreasonableness: Liang v.Canada (MCI), [2003] F.C.J. No.1904.
[7] The statement that "[t]he death certificate lists only the cause of death" with respect to the applicant's brother Bejkush suggests that the Board did not give sufficient consideration to the nature of that death. The word "Homicide" is highlighted in the translation of the death certificate and the box on the certificate corresponding to cause of death (translated as "Homicide") has an X in it in the original. The fact that the death was a homicide was not analysed in light of the other evidence. This was in my view a material error.
[8] The Board further erred in relying on R. v. Lavallee [1990] 1 S.C.R. 852 for the proposition that less weight should be given to the affidavit of Mr. Shahaj's sister-in-law. Lavallee dealt with what was at that time novel expert opinion evidence in the context of a criminal prosecution, not with corroborative evidence from family members in an immigration proceeding. The comments by Justice Sopinka at page 900 of Lavallee, alluded to by the Board, cautioned against the reception of such opinion evidence unsupported by a sufficient factual foundation. There were no expert opinions introduced in this case, and consequently Justice Sopinka's statement of the law in relation to them had no application to the sister's affidavit.
[9] Further, the Board indicated it also gave little weight to the sister's affidavit because "it did not have the opportunity to test the credibility of her statements." If the Board was suggesting by that comment that her evidence could be discounted merely because she was unavailable for cross-examination, it erred. As stated by the Federal Court of Appeal in Fajardo v. Canada (Minister of Employment and Immigration) (1993) 157 N.R. 392 (F.C.A.), it is not for the Refugee Division to impose on itself or claimants evidentiary fetters from which Parliament has freed them.
[10] I am also satisfied that the Board ignored the explanation given by the applicant as to why his uncle was not targeted. He explained that the uncle is not part of the Shahaj family line and was not related to the applicant's Shahaj grandfather, but shared a mother with his father. The Board erred in assuming that the uncle was a blood relative in the face of the applicant's logical and clear explanation.
[11] The applicant submitted that the Board made material errors with respect to other aspects of his evidence. The Board seems to have drawn a negative inference from the fact that his younger brother had escaped the feud when the applicant's evidence was that he had fled the country. The Board questioned why the applicant's father was not targeted and suggested that his explanation changed when this was raised. A document purporting to be a standard form used by a Reconciliation Committee seeking to mediate an end to the blood feud was found to be unreliable because of a questionable inconsistency on its face and because of the endemic nature of corruption and the prevalence of false documents in Albania. While I may not have reached the same conclusions, these findings were reasonably open to the Board on the evidence.
[12] The Board may well have arrived at the same result had it not made the errors described above. However, I am satisfied that the cumulative effect of the errors rendered the decision patently unreasonable. No amount of curial deference can justify letting it stand.
[13] Accordingly, the application is granted. No question for certification was proposed and none is certified.
ORDER
THIS COURT ORDERS that the application is granted and the matter is remitted to the Board for redetermination by a differently constituted panel. No question is certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6001-04
STYLE OF CAUSE: FATMIR SHAHAJ
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 25, 2005
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: July 28, 2005
APPEARANCES:
Micheal Crane FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEAL CRANE FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario