Ottawa, Ontario, March 15, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Myrto seeks judicial review of the negative decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board in which the RPD concluded that he was not a Convention refugee or a person in need of protection. I have determined that his application should succeed.
[2] The board's decision rests on two foundations: credibility and state protection. The respondent maintains that the finding on state protection is dispositive. Generally, such a position would prevail. In the circumstances of this matter, I am not persuaded that it is so.
[3] Mr. Myrto, a citizen of Albania, claimed to be a Convention refugee or a person in need of protection because of political opinion. He allegedly came from a politically active family, joined the Democratic Party (DP) Youth Forum in March 1996, and worked with his father (also a member of the DP) on the elections. He stated that he had been attacked by supporters of the Socialist Party, had been arrested, detained, threatened, beaten and hospitalized.
[4] The respondent maintains that the board conducted a thorough review of the documentary evidence and determined that the country conditions did not support a finding that Mr. Myrto was at risk on the basis of his membership in the DP. As the RPD put it, "[t]he panel looked at the claimant's profile". The difficulty is that there are some significant errors in the credibility findings made by the board. As a result, I am unable to determine whether, absent the errors, the board would have regarded Mr. Myrto's profile in the same way.
[5] The most significant error is in relation to the board's perception of the letter of attestation from the DP. The RPD accorded little weight to this document. Unquestionably, the weighing of evidence is within the purview of the board. However, the board's basis for according the attestation little weight in this case is flawed. The respondent conceded at the hearing that the RPD clearly erred in finding an inconsistency between the letter and Mr. Myrto's personal information form (PIF). The RPD noted an omission from the PIF when the information, in fact, was there. Additionally, there was significant confusion surrounding a second alleged inconsistency as well as some internal inconsistency in the board's reasoning in relation to that issue.
[6] Further, there is a vague reference to discrepancies between the port of entry (POE) notes and the PIF with respect to the chronology of events. No detail or specificity is provided. Mr. Myrto's counsel claims that he cannot discern the nature of the inconsistencies to which the board refers. They are not clear to me either. It does not appear, from the transcript, that the inconsistencies were put to Mr. Myrto. Again, it is clearly open to the RPD to rely on inconsistencies to arrive at a negative credibility determination. However, it is essential that its findings be expressed clearly and unmistakably: Hilov. Canada(Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[7] Mr. Myrto also takes issue with the board's failure to refer to two significant pieces of corroborative evidence, specifically a newspaper article that described the persecution he had experienced in Albania and a police summons indicating that the police were actively searching for him. There is no doubt that Mr. Myrto considered these documents to be highly relevant to his claim. While there is a presumption that the board has considered all of the evidence, the more important the document, the greater the obligation to refer to it specifically: Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.).
[8] Insofar as the medical and psychological reports are concerned, the board was entitled to accord them little weight and it provided justifiable reasons for doing so.
[9] Because there were errors that, in my view, could have significantly impacted the board's conclusion regarding Mr. Myrto's profile, the finding of state protection is compromised and it is for that reason that it cannot be regarded as dispositive. Consequently, the application will be allowed.
[10] Counsel did not suggest a question for certification and none arises.
JUDGMENT
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted to a differently constituted Refugee Protection Division for determination.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2601-05
STYLE OF CAUSE: TOFIK MYRTO v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 9, 2006
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| David P. Yerzy
|
|
| Ms. Nicole Butcher |
SOLICITORS OF RECORD:
| David P. Yerzy Barrister and Solicitor Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |