Date: 20010824
Docket: IMM-554-00
Neutral citation: 2001 FCT 949
BETWEEN:
YLBER HIDRI, MIMOZA HIDRI and FATJONA HIDRI,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
MacKAY J.:
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, against a decision rendered by the Convention Refugee Determination Division (CRDD) (the "Board") on January 19, 2000, finding that the applicants were not Convention refugees under the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicants seek an order setting aside the decision of the CRDD and remitting the matter to the Board for reconsideration by a differently constituted panel.
Background
[3] The applicants, Ylber Hidri, his wife and daughter, are citizens of Albania who base their claims for Convention refugee status on political opinion and membership in a particular social group. They arrived in Canada on June 4, 1999. The claims of Mimoza Hidri and Fatjona Hidri are dependent on the claim of the principal applicant, Ylber Hidri.
[4] The principal applicant grew up under communist rule. His grandfather was imprisoned for 12 years for publicly opposing the regime, and in 1991, the principal applicant was imprisoned for seven days following participation in a political demonstration. During that time he was beaten, deprived of food and forced to sleep on a concrete floor. In 1992, he joined the Democratic Party and actively participated in its activities.
[5] In 1996, the applicant and his family lost a substantial amount of money in a pyramid scheme, a loss they, and other members of the Democratic Party, publicly blamed on the Socialist Party. As a result of this open condemnation, in 1997, Mr. Hidri began to receive threats warning against the continuation of his participation in anti-Socialist propaganda. On complaining to the police, the applicant was warned that he could be killed if he persisted in the pursuit of his claims. Finally, one whom the applicant claimed was his cousin, Besnik Hidri, a government official appointed by the Democratic Party, and his father, the applicant's uncle, were murdered, allegedly by members of the Socialist Party. Fearing the same fate, Mr. Hidri fled to Canada with his family.
[6] The principal applicant asserts that a number of facts were ignored by the CRDD. Among these is an occurrence on December 31, 1998, when the applicants' home was raked by gunfire. Moreover, Mr. Hidri believes the death of his alleged uncle, Besnik Hidri's father, who was shot on January 27, 1999, not in December as found by the Board, was ideologically motivated, for he too had been receiving threats of a political nature.
Decision of the CRDD
[7] The CRDD rejected the applicants' claim on the basis that there was no credible or trustworthy evidence on which a determination of Convention refugee status could be rendered.
[8] The CRDD concluded that although the applicant was basing his claim on the grounds of affiliation with a persecuted political opinion and social group, namely the Democratic Party, and his family, he failed to establish that he was, in fact, a member of a persecuted family. It was found that although there is evidence that two men, with a family name common to the applicants', were assassinated, apparently because of their affiliation with the Democratic Party, there was no credible independent evidence presented to link the alleged relatives with the principal applicant.
[9] Moreover, the CRDD concluded that the source of the financial resources furnished by Mr. Hidri's father for travel to Canada was not plausible. In light of the political state in Albania, the Board found it improbable that the applicant's father could have recovered his land, which had earlier been seized by the government, and then sold it to assist his son as the applicant claimed. That claim concerning the applicant's father's ability to finance the travel to Canada was found to be inconsistent with the applicant's allegations of financial and personal loss.
[10] The CRDD also found that the failure of the applicant to provide a birth certificate for his now seven year old daughter to establish her place of birth, led the Board to question whether the applicant and his family were in Albania during the time material to his claim, when the daughter was born.
[11] Finally, the principal applicant's credibility was impugned by several general factors: lack of general knowledge of the political system in Albania; lack of documentary evidence to establish his association with the Democratic Party; lack of knowledge or credible information regarding the Party itself; and, an inability to establish membership in a persecuted family. These led the CRDD to question the applicant's alleged involvement in the Albanian political arena, and his credibility as a whole.
Submissions of the Parties
[12] The applicants submit that the Board failed to consider the evidence in its totality and that the reasons of the Board reflect a misunderstanding about the basis of their claim, for only persecution on the basis of political opinion is expressly addressed. In neglecting to consider the evidence of persecution of the applicants on the basis of their membership in a particular social group, it is urged that the Board ignored crucial evidence.
[13] The respondent submits that the CRDD did not fail to comprehend the totality of the applicants' claims; rather, in this case, the claims of fear of persecution based on political opinion and membership in a particular social group, namely a persecuted family, are inextricably linked and both are founded on the same facts. Thus, where the CRDD found a lack of credibility in relation to one claim, that finding, by necessary implication, related to both claims. In these circumstances, the respondent contends it is not necessary that the claims be addressed separately.
[14] Moreover, it is the respondent's position that the principal applicant failed to establish that he was a member of a persecuted family. Although the murders of Besnik Hidri and his father were acknowledged by the Board, it found no credible independent evidence connecting those two men with the principal applicant, to support his oral testimony of a familial relationship.
[15] Further, the applicants urge that where the CRDD relies on inferences that seem to be "common sense", it has an obligation to advise the applicant of those inferences and to provide an opportunity to rebut or explain the inapplicability of those inferences. The Board did not do this with respect to its inferences and conclusion about the source of the financial resources for the travel to Canada, despite the fact that this was used to impugn the principal applicant's credibility. It is the applicants' position that this constitutes a reviewable error [Nkrumah v. Canada (MEI) (1993), 65 F.T.R. 313 (T.D.)].
[16] The applicants rely on Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, in claiming that any person affected by the decision of an administrative tribunal has a right to a fair hearing. Thus, if there is a violation of procedural fairness the impugned decision is to be set aside and a new hearing ordered. An applicant need not demonstrate that unfairness actually worked to their detriment, only that it might have done so [Kane v. University of British Columbia, [1980] 1 S.C.R. 1105 at 1116].
[17] In the respondent's view, the Board's discussion of the reacquisition and sale of land by the applicant's father to finance the applicants' travel to Canada is irrelevant. This was not the sole basis of its conclusion about the principal applicant's credibility. The Board's ultimate determination was that the story of the father's ability to assist in the financing of the trip to Canada was inconsistent with the applicant's allegations of financial and personal loss and with the country conditions in Albania, and this served to undermine the applicants' general credibility.
[18] The applicants urge that the Board required them to meet a standard of proof well beyond that of the civil balance of probabilities, when it maintained that it was not "convinced" of the applicants' allegations. In quoting from the Federal Court of Appeal decision in Chichmanov v. Canada (MEI),[1992] F.C.J. No. 832 at para. 4, the applicants contend that by applying the phraseology "we are not convinced", "the Board placed upon the [applicant] a burden of proof that was too high. ... In doing so, the Board committed an error which ... was fatal to the validity of its decision." Furthermore, in asserting that it was not "convinced", the evidence was not examined from the perspective of the alleged agents of persecution, as the applicants submit is proper [Re Inzuzna and Minister of Employment and Immigration (1979), 103 D.L.R. (3d) 105 at 109 (F.C.A)].
[19] In finding that there was "no evidence" of the principal applicant's relationship to Besnik Hidri and his father, it is the position of the applicants that the Board committed a reviewable error of law, for it failed to assess the testimony of the principal applicant with respect to his familial relationship with the murdered men. "It was the Board's duty to assess this evidence and decide if it amounted to evidence of a well-founded fear of persecution": _[Olearczyk v. MEI (1989), 8 Imm. L.R. (2d) 18 at 19 (F.C.A.)].
[20] The respondent contends that the Board did not require an improper burden of proof by requiring the applicants to "convince" it of their claims. It is urged this terminology was related to the factual allegations, not to the threshold that had to be met. It is asserted that when the complete context of Chichmanov, supra, is considered, the correct test to be applied by the CRDD is whether there is more than a minimal or mere possibility that an applicant would face persecution if returned to the country from which he or she fled. If the likelihood of this occurrence cannot be sufficiently established, the Board is correct in determining that the applicants do not qualify as Convention refugees.
[21] Finally, the respondent submits that the Board found the principal applicant lacks basic knowledge of the Albanian political environment and, more importantly, of the activities and membership expectations of the Democratic Party. It is the respondent's position that the evidence adduced supports the CRDD's finding that the applicants' claim was not based on credible evidence and they are not Convention refugees.
Analysis
[22] In my opinion, the applicants have failed to establish that the Board made findings of fact which were patently unreasonable upon which its decision was based. Although the Board did misstate certain facts, the ultimate determination was not dependent on them. Moreover, despite any errors, I am not persuaded the Board failed to consider the totality of the evidence adduced.
[23] In considering the evidence before it, the Board determined that no evidence had been presented to support the assertion that Mr. Hidri was related to the assassination victims. Clearly, the applicant's oral testimony constitutes evidence and it must be considered in determining whether a well-founded fear of persecution exists. In Olearczyk, supra, the Court noted that where the Board found the applicant's oral testimony to be credible it could not dismiss it as "no evidence". In this case, the Board was not persuaded that the principal applicant's evidence about his familial relations was credible in the absence of any corroborating evidence.
[24] Ignoring credible evidence is an error of law. However, if the Board does not believe that an applicant is credible, then oral testimony may be disregarded. In the instant matter, the applicant's testimony was found not credible generally on the basis of unexplainable inconsistencies and a general lack of knowledge regarding basic information on which the claims were based. The information was impugned because of the applicant, not vice versa. Therefore, because the oral testimony was not credible and was ultimately disregarded, and there was no other evidence of a familial relationship with a persecuted family available for consideration, the Board did not err in a patently unreasonable manner in finding there was no familial relation established.
[25] The Board's discussion of the source of travel finances obtained by the applicant was simply among the inconsistencies found by it in the applicant's testimony. The applicant submitted that this inconsistency was not put to him by the Board for explanation, and, it is urged that, the Board should have done so. In reviewing this allegation in conjunction with the test established in Kane, supra, in my opinion no violation of procedural fairness occurred. Rather, on review of the evidence presented orally and in the applicant's PIF, I am satisfied that a reasonable person, observing the circumstances, would not determine the applicants' right to procedural fairness had been violated. Whether or not the principal applicant was given an opportunity to rebut the particular inference by the Board, that inference was not the only basis on which the principal applicant was found to lack credibility.
[26] With respect to the standard of proof associated with the term "convinced", recent decisions of the Court assert that such terminology, in itself, is not indicative of the more stringent burden of proof "beyond a reasonable doubt". In discussing the burden of proof that must be established by an applicant, Prothonotary Hargrave found in Aghaee v. Canada (MCI), [1997] F.C.J. No. 910 at para. 17 (T.D.):
To summarize, the burden on [the applicant], to convince a court to overturn the findings of the Immigration and Refugee Board, is a very difficult one. The Court will be reluctant to interfere with the determination of such a specialized tribunal and all the more so when the issue is that of [the applicant's] credibility as a witness. (emphasis added)
[27] Similar wording to that utilized by Prothonotary Hargrave is also used by Mr. Justice Teitelbaum in Ji v. Canada (MCI), [2001] F.C.J. No.1136 at para. 29 (T.D.): "... the applicant has failed, and the onus is on him, to convince the visa officer on the issue ..".. In Kazimirovic v. Canada (MCI), [2000] F.C.J. No.1193 (T.D.), Mr. Justice Campbell commented at paras. 9-10:
... because the Applicant was not believed, the visa officer found that the Applicant had not discharged the statutory burden upon him. The Applicant argues that the visa officer's credibility finding is a finding of law, and is thus reviewable on the standard of correctness. I do not accept this argument.
In effect, the visa officer found that the Applicant's story defies common sense, and , therefore, makes it impossible to grant his application. While it is true that "common" sense might not be common for everyone, I can certainly understand how the visa officer could readily and reasonably come to the credibility finding made. In my opinion, there is no issue of law engaged here. The burden rested with the Applicant to convince the visa officer of his qualifications to enter Canada, and having given what she considered to be an unbelievable story ... he simply failed to discharge it. (emphasis added)
[28] In each of these decisions the civil burden of proof was applied, and it was on that standard that each applicant was expected to "convince" immigration officials that they ought to be permitted to enter or remain in Canada. As in this case, the applicants there failed to convince the respective immigration tribunals on a balance of probabilities. It cannot be assumed that using the word "convince" automatically connotes a higher burden of proof without a careful examination of the contextual basis of the decision.
[29] On reading the reasons of the CRDD in this case and reviewing the materials that were before the Board, I am satisfied that the civil standard was applied and the applicants merely failed to meet that threshold. The Board was not presented with a believable story, in part due to the lack of credibility of the principal applicant as found by the Board. It was simply unable to find that the claim was probable in light of the evidence adduced. I do not find that the Board rendered an unreasonable decision by applying an incorrect burden of proof.
Conclusion
[30] Based on the foregoing analysis and the evidence that was adduced before the CRDD, I find it reasonable that the applicants do not qualify as Convention refugees. On a balance of probabilities, the applicants have failed to satisfy this Court that they were denied procedural fairness, nor that they were subjected to a more stringent burden of proof than required.
[31] The Board made a finding of credibility that was adverse to the applicants, and this Court is loathe to interfere with such a determination of fact without evidence of patently unreasonable considerations. The applicants have not been persuasive in their argument of such an occurrence, nor that the Board's decision would have been different had the credibility finding not been what it was. It is for these reasons that I find the Board's decision reasonable and would dismiss this application
for judicial review.
Questions for Certification
[32] Subsequent to the hearing of this application for judicial review, the applicants submitted two questions for certification pursuant to s-s. 83(1) of the Immigration Act.
Is it open to the Court on judicial review to supply additional reasons to rectify deficiencies in the reasons of the Refugee Division?
Is the Refugee Division permitted to make any finding of fact on the standard of being "convinced"?
[33] In order for a question to be certified it must meet the test outlined in MCI v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.), which requires that it be of "broad significance or general application" and that it be "determinative of the appeal". With respect to the first question, although it may be capable of application beyond the circumstances of the matters herein, a response would not be determinative of an appeal. Neither party has requested this Court to rectify or expand on any apparent deficiencies in the reasoning of the CRDD, and, in my opinion, the Court has not done so. As the question does not appear to arise from the circumstances before me, I decline to certify the first question.
[34] As for the second question and the application of "convinced" as a burden of proof, the word alone does not establish a standard, nor is it indicative of a standard more stringent than the balance of probabilities. It is possible for one to be convinced on either the civil or criminal standards of proof. In my opinion, this question would not dispose of an appeal of this matter, nor is it a question of general application. Thus, I will not certify it.
Order
[35] An order goes dismissing this application. The proposed questions are not certified.
(signed) W. Andrew MacKay
______________________________
JUDGE
OTTAWA, Ontario.
August 24, 2001