Date: 19980421
Docket: IMM-1376-97
BETWEEN:
SOFIKA BOJAXHI
SUADA BOJAXHI
SANPAULO BOJAXHI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
[1] The applicants seek judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated March 13, 1997, wherein the Board determined that the Applicants were not Convention refugees.
[2] At issue in this application is whether the Board expressed a finding that the adult applicant's testimony was credible in clear and unmistakable terms.
[3] Sofika Bojaxhi (the "adult applicant"), a citizen of Albania, has been a member of the Communist Party of Albania, now known as the Socialist Party, since at least 1939, though she has had no involvement in the activities of the Party for many years. Prior to her leaving Albania, she had been the vice-chair of a branch of a national veterans' association. She claims to fear persecution in Albania due to her membership in the Socialist Party. Her concerns have arisen as a result of her having been questioned numerous times by the local police following the arrest of the chairperson of her local branch, also a Socialist Party member, for alleged misappropriation of funds.
[4] Suada Bojaxhi and Sanpaulo Bojaxhi (the "minor applicants") claim fear of persecution in Albania due to their grandmother, the adult claimant's, membership in the Socialist Party. They claim to have suffered harassment in the school yard relating to their grandmother's political affiliation, and Sanpaulo Bojaxhi has alleged that he was the subject of an attempted kidnapping, also as a result of his grandmother's membership in the Socialist Party.
[5] It is well-settled that the Board must express findings of credibility in clear and unmistakable terms: Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.); Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.). In the case before me, the Board's reasoning concerning the credibility of the adult applicant appears to have been contradictory.
[6] At page 5 of its reasons, the Board states:
| The adult claimant alleges that she herself is being persecuted in order to discredit the Socialist Party. The panel does accept her testimony as credible in this regard. The evidence was that although she maintained her membership in the Communist Party now flying the colours of the Socialist Party, she held no position in the Party, nor did she participate actively in the party or in elections since shortly after the second world war. Her only activity was with a veterans' organization of which she was the vice-chairperson in one of twenty or thirty of the areas within the country. |
[7] At pages 4-5, the Board acknowledges that while there is documentary evidence that the Democratic Party in power in Albania targets high-profile former communists, it does not consider the adult applicant a likely member of this class. It goes on to indicate, however, that there is also evidence that the Democratic Party has, on many occasions, utilized state authority to harass and imprison other members of the Socialist Party.
[8] Later on in its reasons, the Board details how it does not accept the majority of the evidence of the adult applicant, calling into question discrepancies between her PIF and oral testimony, her ability to leave Albania with her own passport, despite her being sought by the police, and explaining in more detail why her long-dormant activities with the Communist, now Socialist, Party do not place her in the class of persons most likely to be the target of the current Albanian regime.
[9] On their face, the Board's findings concerning the credibility of the adult applicant are contradictory, and thus do not satisfy the requirement that findings of credibility be expressed in clear and unmistakable terms. As such, the Board has made an error in law, in that its findings concerning the credibility of the adult applicant were perverse.
[10] The Respondent submits that the contradiction is a result of a "slip" or minor error in drafting. As such, in the above-quoted caption, the word "not" should have been placed after the word "does" and before the word "accept". In light of the Board's statements, made later-on in its reasons, that it did not accept the adult applicant's credibility, the Court should regard the omission of "not" in the above-referenced caption as "a mere slip of the tongue" which should not render the Board's decision invalid: Leung v. M.E.I. (1990), 12 Imm. L.R. (2d) 43 (F.C.A.).
[11] I cannot accept this argument. The case mentioned in support of the respondent's argument is distinguishable from the case before me. In Leung, the Board stated the test for determination of a Convention refugee incorrectly on one occasion, using "would" where it apparently meant to use "might", but stated the test correctly both earlier and later in its reasons. Judicial review of the Board's decision was nonetheless allowed because the Board was found to have misapplied the test, as stated properly. Here, the Board was not enunciating a test incorrectly, which it elsewhere stated correctly. Moreover, it has also been found that where the Board has "slipped" in its statement of the test for determination of a Convention refugee, and that slip can be said to have gone to the heart of its findings, it may be fatal to the decision: Osei-Yeboah v. Canada (IMM-1020-93, 24 March 1994, F.C.T.D.); Losolohoh v. Canada (IMM-2324-94, 4 January 1995, F.C.T.D.).
[12] It should be recalled that the Board has the authority to amend its reasons, once issued, where there has been a "slip" in drafting, or where there has been an error in expressing the manifest intention of the Board in drafting its decision: Chandler v. Alberta Association of Architects. [1989] 2 S.C.R. 848 at 861; ment'd: Camacho-Souza v. Canada (IMM-406-93, February 28, 1994, F.C.T.D.). Where an apparent "slip" or drafting error goes to the heart of a decision, and the Board has not taken steps to make the amendments required to correct the problem, it is not the role of the Court to infer that such changes ought to have been made. The wording of the Board's reasons should be taken at face value, regardless of whether they express an inconsistency which results in a reviewable error: Canada v. Singh (IMM-408-96, October 18, 1996, F.C.T.D.).
[13] As regards the Board's findings concerning the minor applicants, the Board appears to have erred in finding that a kidnapping had occurred, but in determining that it was not motivated by reason of Communist / Socialist Party affiliation. The Board indicated that there was no evidence that the kidnapping was motivated by reason of any Communist Party affiliation, but failed to provide reasons as to why it rejected the claim that the kidnapping was politically motivated. When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness: Okyere-Akosah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.).
[14] The only evidence mentioned by the Board which could be used to refute the claim that the kidnapping was politically motivated, i.e. that there are many instances of kidnapping in Albania to support prostitution or the illicit trade in body parts, came from a witness whose evidence the Board determined should be given little credence. In this regard, the Board must be particularly sensitive to making findings of credibility concerning the evidence of minors who have spoken through interpreters, lest the exaggerations and embellishments of the interpreter reflect too harshly upon the evidence of those for whom he or she is charged to speak.
[15] Accordingly, the application for review shall be granted, and the matter returned to a differently constituted panel of the Board for rehearing and reconsideration.
[16] The parties did not propose a question for certification.
OTTAWA, ONTARIO B. Cullen
April 21, 1998. J.F.C.C.