Date: 20050414
Citation: 2005 FC 503
Toronto, Ontario, April 14th, 2005
Present: The Honourable Mr. Justice Harrington
BETWEEN:
FATJON HYKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a tale of bad blood between two families, with different politics, fighting over the same piece of land in Albania.
[2] Fatjon Hyka is the third son of an old line capitalist family in Kosova and Albania. Many years ago the homestead was expropriated by the communist regime and ended up in the hands of the politically faithful Gjyshi family. Efforts to get the land back were unsuccessful, but winds of change were in the air. As our story opens all concerned thought that the law might be changed in the near future as a result of which the Hykas might get their land back, or at least monetary compensation.
[3] Young Fatjon says he was kidnapped by the Gjyshi brothers and held for a ransom which was paid. When he was released they said that if they ever had to capture him again, he would be killed as would his brothers, all "sons of the Nationalist Bitch!".
[4] The three Hyka brothers escaped to Canada, at different times, and claimed Refugee status. The two elder brothers were successful. Fatjon was not. This is a review of that decision.
[5] The Board was not satisfied that Fatjon had been persecuted in Albania because of his political opinion. He had alleged that his elder brothers were members of the Republican Party, which he himself was not. This conclusion is unassailable.
[6] The Board did not really come to grips with the land ownership issue. It was of the opinion that the claimant did not provide credible or trustworthy evidence to show that the land had been officially returned to his family. That is quite true. Then since there was no law currently in place which could help the Hykas', as the land reform laws were still in draft form, "any dispute over the land was groundless". Therefore, the panel concluded that the claimant's allegations about the family's current ownership of the land was not credible and that his allegation about his abduction because of the perpetrators intention to keep the land was not credible either. With respect that is a non sequitur. The applicant admitted his family did not own the land. The point was since they would soon be on the verge of being able to pursue a claim it was incumbent upon the Gjyshis to discourage them.
[7] As the kidnappers were masked, the applicant was naturally asked how he recognised the Gjyshis brothers. He said by one of the voices which he had heard recently on the telephone. He had not actually seen them for seven years. The panel considered it impossible for the claimant to recognise someone by his voice, whom he only saw once seven years ago. This ignores the fact that he had heard them over the phone, and the evidence of Fatjon's mother that one of the brothers had a distinctive stutter. Hearing and seeing are two different things.
[8] In considering the need of protection the claimant "adduced no other evidence". There was in fact considerable evidence from one of his brothers, and the transcripts of their own refugee hearings had been filed as exhibits. In addition, his mother testified.
[9] Consequently, there was other evidence. If there was reason to discard it, that reason should have been given.
[10] A review of the jurisprudence can start and stop with the decision of Evans J., as he then was, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) 1998 F.C.J. No. 1425 where he said that the Court may infer that the Board made an erroneous finding of fact "without regard to the material before it" to use the language of 18.1 of the Federal Courts Act "from the agency's failure to mention in its reasons some evidence before it, that was relevant to the finding and pointed to a different conclusion from that reached by the agency".
[11] Did the Board forget about the evidence? Did the Board think the mother was called in the shore up a weak case? The Respondent says that the mother's testimony raises more questions than it answers. All the more reason her evidence should have been discussed.
ORDER
The application for judicial review of the decision of the Immigration and Refugee Board of Canada, Refugee Protection Division, dated 14 May 2004, RPD File Number T-A-2-02276 is granted. The matter is referred back to the Board for redetermination before a differently constituted panel. There is no question of general importance to certify.
"Sean Harrington"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4904-04
STYLE OF CAUSE: FATJON HYKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 13, 2005
REASONS FOR ORDER
AND ORDER BY: HARRINGTON J.
APPEARANCES BY:
Michael Crane For the Applicant
Gordon Lee For the Respondent
SOLICITORS OF RECORD:
Michael Crane
Barrister & Solicitor
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent