OTTAWA, Ontario, July 13, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
KLIDIS SHAKBARI
JACQUELINE SHAKBARI
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated September 6, 2005 in which the Board found that the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the "IRPA"). The Board found that the primary applicant, Orjeta Shkabari, lacked credibility and therefore denied her claim for refugee status. The remaining applicants are the minor children of the primary applicant and their claims are based on that of their mother; since the principal applicant's claim was denied, her children's dependant claims were also denied.
[2] The principal applicant (the "PA"), Orjeta Shkabari, is a citizen of Albania. The applicant Klidis Shkabari is her minor son and a citizen of Albania. The applicant Jaqueline Shkabari is the PA's minor daughter and is a citizen of the United States by birth. The applicants claim refugee protection on social grounds, as they fear persecution at the hands of a family which allegedly declared a blood feud with them in Albania.
[3] The PA alleges that a man called Halil Shkjau, who is a bank robber and an arsonist, extorted money from her husband and her father in law. Shkjau extorted money from the PA's family three times in 1999. The first two times, the money was paid. However, on the third occasion, the PA's father in law protested. Shkjau allegedly pointed a gun at the PA's father in law, a fight ensued and Shkjau ended up getting shot. Shkjau was not seriously injured but a blood feud was declared against the PA's family.
[4] In the ensuing feud, the PA alleges that her husband left Albania. She adds that she was abducted, and raped, by Shkjau in September 1999. She left Albania with her son.
[5] In 2000, the PA, her husband, and her son filed refugee claims in the United States. The claims, which were made on political grounds, were rejected. The PA's daughter was born in the US in 2002 and the whole family came to Canada in 2004 and made refugee claims.
[6] Since the PA's husband had filed a claim for refugee protection in Canada in 1999 and subsequently abandoned the claim, he was deemed ineligible to continue his claim. The PA's claim and the claims of her children are the subject of the present judicial review application.
[7] The applicants were found not to be Convention refugees or persons in need of protection. The Board found that the PA and her son had not established credible or trustworthy evidence of a well-founded fear of persecution, or of a danger of torture, or of a risk to life or of cruel or unusual treatment or punishment. The PA's testimony was found to lack credibility and the Board rejected her claim due to her impugned credibility. The Board noted that no evidence was advanced to support the minor female claimant's claim against the US.
[8] The Board found that there was a lack of credible and trustworthy evidence with respect to the alleged blood feud, rape, and the potential resumption of the blood feud, if the applicants were returned to Albania.
[9] The PA submitted a forensic medical report to support her rape claim. The Board did not find the medical report reliable. The Board iterated that there is widespread document fraud in Albania and found internal inconsistencies between the PA's story and the report.
[10] The Board found that the PA omitted to mention that she was examined by a forensic expert. The report states that the doctor was a forensic expert. The Board went on to state that the report did not mention any stitching, which the PA claims she required. The Board also found that the report stated that the PA was examined at a hospital, while she claims she was examined at her home.
[11] The medical report also mentions that there was an investigator involved, while the PA's testimony was that there was no police involvement.
[12] The Board found further inconsistencies between the PA's testimony and the report. The report stated that the PA was attacked by two men, while she testified that she was attacked by three men (she claims that Shkjau was assisted by two men).
[13] The PA was confronted with the inconsistencies between her story, and the report. She explained that the doctor who attended at her house merely used a standard form to fill in the report. The Board concluded that the use of a standard form did not account for the discrepancies with respect to the investigator, the forensic examination, and the number of people involved in the attack.
[14] The Board concluded that the medical report was not a reliable document, due to the inconsistencies, and drew a negative inference on the PA's overall credibility.
[15] The Board also found inconsistencies between the PA's story and the two attestations she submitted to substantiate her allegations of the blood feud. The Board found that the organization which the PA alleges attempted to resolve the blood feud, the Peace Reconciliation Missionaries of Albania, did not exist in 1999. However, the PA testified that the organization attempted to resolve the blood feud in April of 1999, with no result. Evidence showed that the organization was not founded until 2004.
[16] The claimant explained that the man who founded the organization, Mustafa Daija, was the vice-chairman of another organization in 1999, who attempted to broker peace for the PA's family. The Board did not find the PA's explanation to be credible. The Board found that there was no evidence to link the two organizations and that there was no evidence to link Mr. Daija to both organizations.
[17] The Board concluded that the two attestations provided by the PA were fabricated to embellish her claim.
[18] The Board then briefly dealt with the psychological report submitted by the PA. The Board concluded that the psychological report was to be given little weight, as the factual foundation for the PA's claim was found to lack credibility.
[19] The Board drew a further negative inference regarding the PA's credibility, when she admitted to lying during her claim in the US. She admitted that she supported her husband's fabricated story in support of the family's US refugee claim.
[20] The Board concluded that the PA was not a credible witness and that her claim for refugee protection must be dismissed. The applicant now appeals to this Court.
[21] The applicants submit a number of issues, but the basic consideration is whether the Board's decision is reasonable. This Court will focus on whether the decision was made in a perverse and capricious manner, without due regard to the evidence before the Board.
[22] The applicants do raise issues concerning procedural fairness. The applicants requested an opportunity to have the two attestations verified as documents and the Board refused the request, finding that the verification would hold up the process. The applicants argue that the refusal is a breach of procedural fairness.
[23] The applicants then argue that there was a breach of Guideline 7 of the Chairperson's Guidelines, which deals with the preparation and conduct of a hearing and the order of questioning.
[24] The applicants put forth two main arguments: (i) the argument for procedural fairness, and (ii) the argument that the Board's decision was unreasonable. I am of the opinion that the Board did not violate procedural fairness and came to a reasonable conclusion on the facts. A reasonable decision will not be interfered with by this court and, accordingly, the application for judicial review should be dismissed.
[25] With respect to procedural fairness, I will deal with each of the arguments raised by the applicants. First, I will discuss the Board's refusal to have the documents verified and, second, I will deal with the Guideline 7 argument.
[26] As regard the Board's refusal to have the documents verified, I am of the opinion that the refusal does not amount to a breach of procedural fairness. It is trite law that the onus is on the applicants to make out a claim for refugee protection. The applicants submitted the attestations, and the Board considered the two documents. Contrary to what counsel for the applicants suggest, the Board did not reject the evidence but rather found inconsistencies between the attestations, and the situation in Albania. Essentially, the Board fully considered the attestations, and did not consider them to be credible documents. The Board's conclusion on the documents was reasonably open to it, and the refusal was legitimate. The applicants' argument is basically a thinly veiled attempt to have the evidence weighed in a different manner by this court. This court has stated, time and time again, that the Board is responsible for factual findings and such findings will not be interfered with, if the findings are reasonable. In the present case, the findings with respect to the documents are reasonable.
[27] With respect to the Guideline 7 argument, I am aware that there is jurisprudence from this Court both to the effect that the guideline constitutes a fetter on the Board's discretion and that it does not. However, that is not the issue before me. The question in the present case is whether the Board has correctly interpreted the exceptional circumstances under paragraph 23 of the guideline.
[28] With respect to the credibility finding itself, I am of the opinion that the Board's decision in the present matter was reasonable. Martineau J. noted the following with respect to credibility and subjective fear in R.K.L. v. Canada(Minister of Citizenship and Immigration)[2003] F.C.J. No. 162, at paras 7-8:
¶ 7 The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
¶ 8 Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
[29] In the present matter, I am of the opinion that the Board took into consideration all of the documentary evidence and gave clear reasons for finding the PA not to be credible. The Board carefully analysed each of the documentary pieces of evidence, as well as the PA's testimony, and found inconsistencies, implausibility, and discrepancies. The Board then came to a reasonable conclusion.
[30] As Martineau J. noted in RKL supra, this Court will not substitute its decision for that of the Board, when the Board's decision is reasonable. In the present case, I am of the opinion that the Board's decision was reasonable and the application for judicial review should be dismissed.
[31] At the end of the hearing of this application, counsel for the applicants proposed the two following questions which he felt should be certified, dealing primarily with the interpretation of Guideline 7:
Question 1
To claim exceptional circumstances under paragraph 23 of Guideline 7 for the Refugee Division, is the issue whether the claimant might not be able to understand and properly answer questions because, for example she or he is intimidated by an unfamiliar questioner (and that is only the example given in the Guideline) or whether the claimant can present evidence that the Refugee Division would be insensitive?
Question 2
Does "exceptional circumstances" under paragraph 23 of Guideline 7 for the Refugee Division relate only to the example provided or very limited and similar circumstances or are there no restrictions on "exceptional circumstances"?
[32] The respondent was provided an opportunity to comment on the proposed questions and applicants' counsel was then given an opportunity to reply.
[33] Having reviewed the questions and given careful consideration to the submissions of the parties, I am not satisfied that the questions meet the test for certification. First, they raise no serious question of general importance. Second, I agree with the respondent's submission that the Court of Appeal has confirmed that guidelines are policy statements and do not have the force of law. Further, there is no evidence before the Court that the applicants suffered any unfairness as a result of the order of questioning and, accordingly, the proposed questions would not be determinative of the appeal.
JUDGMENT
THIS COURT ORDERS THAT the application for judicial review is dismissed. No question of general importance is certified.
Deputy Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5916-05
STYLE OF CAUSE: Orjeta Shkabari, Klidis Shkabari, Jacqueline Schkabari v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Mr. Michael Crane Toronto, Ontario
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| Mr. John Provart Toronto, Ontario
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SOLICITORS OF RECORD:
| Michael Crane Barrister & Solicitor
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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