Ottawa, Ontario, July 21, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Fatjon Lekaj, a citizen of Albania, claims status as a Convention refugee and a person in need of protection. He says that because of his sexual orientation he faces persecution in Albania at the hands of his father, Muslim men and people in the neighborhood. His claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board (Board) because it found that Mr. Lekaj lacked credibility. Mr. Lekaj brings this application for judicial review of that decision. He says that the Board's credibility findings were perverse and that the Board's decision demonstrates bias.
[2] While I find Mr. Lekaj's allegation of bias to be without merit, I have concluded that a sufficient number of the Board's findings with respect to credibility were made in error so that the Board's decision should be set aside.
[3] The Board's decision was succinctly summarized as follows in the Minister's further memorandum of argument:
5. In determining that the Applicant's claim was not well-founded, the Panel made the following findings regarding the evidence:
(a) The Panel found the issue of credibility to be determinative.
(b) The Panel noted that the Applicant failed to list his repeated trips to Macedonia and Montenegro in his PIF [Personal Information Form].
(c) The Panel found that while it was not determinative of the claim, his failure to claim refugee status while in transit in Italy and France was inconsistent with someone who genuinely feared for [his] safety.
(d) The Applicant's testimony that he attended meetings of the Gay Organization of Albania was found not credible as his involvement with this organization was not mentioned in his PIF. Moreover, the Panel found that if the only time the Applicant left his self-imposed confinement was to meet with this group in a park then it would be mentioned in his PIF.
(e) The Applicant was found not credible because he gave 2 different answers when asked when, and by whom, he was first beaten for being homosexual.
(f) The Panel found that since the Applicant did not claim he could not understand the interpreter at the CIC Etobicoke office, the omissions from the Immigration officer's notes were due to the Applicant's failure to mention he had been beaten and hospitalized.
(g) The Panel found that the Applicant did not know what a gay bar was because he testified that a gay bar is a place where women are not allowed to enter and he referred to bars for straight people as 'normal' bars.
(h) The Panel found that the Applicant [was] not credible because he claimed he frequented the gay district of Toronto about once a week, however he was not geographically familiar with the area.
(i) The Panel found that if the Applicant had a long-term relationship with Blendi then this would have been specifically mentioned in his PIF. The Panel found the Applicant added this relationship on the day of the hearing as an embellishment to bolster his claim.
(j) The Panel found that if the Applicant's father had spoken in religious confidence that his son was gay and this confidence had been broken then this would have been specifically mentioned in his PIF.
(k) The Panel found the Applicant used stereotypical references to describe himself in his PIF narrative and in his testimony. The Applicant claimed to have a certain appearance and mannerisms but the Panel did not observe any such attributes in the Applicant.
(l) The Panel noted that the Applicant's own supporting documents demonstrate that young men from Albania falsely claim to be gay in order to immigrate to other countries.
(m) The Panel found that the supporting medical documents submitted by the Applicant did not contain addresses, telephone or fax numbers which are common features on Albanian documents. Further, she noted that fraudulent documents were easy to obtain in Albania. The Panel gave no weight to these documents.
(n) Having considered all the evidence the Panel found the Applicant not to be a Convention refugee or a person in need of protection.
[4] The Board's credibility findings are findings of fact. Thus, they can only be interfered with by the Court on judicial review if they were patently unreasonable, or otherwise affected by a reviewable error.
[5] My concerns with the Board's findings are as follows.
The omission from the statement given by Mr. Lekaj at the Etobicoke office of Citizenship and Immigration Canada
[6] The Board drew an adverse inference from Mr. Lekaj's failure to advise the immigration officer who interviewed him that he had been beaten and hospitalized in Albania. Mr. Lekaj testified that he did provide that information to the officer.
[7] In considering this testimony the Board acknowledged that Mr. Lekaj gave his statement to the officer through an interpreter, and recognized that the interpreter had since been tested and found, by the Immigration and Refugee Board, to have had difficulty translating. The question was raised whether the interpreter's difficulties were in understanding English or Albanian. In that circumstance, it was patently unreasonable for the Board to rely upon the fact that Mr. Lekaj could understand the interpreter in order to conclude that her interpretation of his statement into English was sufficiently complete and accurate that any omission in the officer's notes was his omission and not the result of an incomplete or inaccurate translation into English.
The conclusion that Mr. Lekaj did not know what a gay bar was
[8] This finding was based upon references in Mr. Lekaj's testimony to some bars as being "normal" bars, and that women were "not allowed" into some bars in Toronto. The Board found that it "is common knowledge that public facilities such as restaurants or bars are not allowed to discriminate based on sex or sexual orientation in Canada".
[9] Mr. Lekaj's use of the phrase "normal" ought to have been considered in the context that he was testifying in Albanian through an interpreter. Thus, the Board was required to consider whether in the Albanian language there is a word for gay or homosexual which is not pejorative, and to consider what alternatives a native Albanian speaker would have when referring to heterosexuals. In the absence of such consideration the Board erred by applying North American logic to Mr. Lekaj's use of the word "normal".
[10] Similarly, Mr. Lekaj's view as to who is "allowed" in a bar may well have been informed by societal or cultural norms other than the Board member's view of the legal impact of the Charter. The Board did not pursue this with Mr. Lekaj, but simply seized upon his observation that in Toronto some bars (including the one he named) are only for men, and women are not allowed to enter.
[11] For these reasons, the finding that Mr. Lekaj did not know what a gay bar is was patently unreasonable.
Mr. Lekaj's knowledge of the "gay district" of Toronto
[12] The Board's only reason for its conclusion that Mr. Lekaj was not geographically familiar with Toronto's gay district is that Mr. Lekaj used the College subway station instead of the (closer) Wellesley station to get to the Black Eagle. This is an inadequate basis upon which to conclude that Mr. Lekaj was not familiar with the gay district.
The lack of reference to a long-term relationship with Blendi in Mr. Lekaj's PIF
[13] Mr. Lekaj testified that from spring of 1998 until October of 1999 he was in a relationship with a person named Blendi. The Board drew an adverse inference from Mr. Lekaj's failure to mention this in his PIF.
[14] In Mr. Lekaj's PIF he stated that in 1998 he was in a relationship with a classmate, and that in the winter of 2000 "[m]y friend Blendi had been beaten and abused and fled Albania". In my view, the omission seized upon by the Board was of questionable materiality in view of the information that Mr. Lekaj provided in his PIF concerning Blendi. The omission does not provide a sufficient evidentiary basis for the Board's conclusion that the relationship with Blendi was added as an embellishment to bolster the claim.
The omission of any reference in Mr. Lekaj's PIF to his father's religious confidence being broken
[15] The Minister conceded that Mr. Lekaj did not testify that his father told people in religious confidence that Mr. Lekaj was gay. It follows that no adverse inference should have been drawn from the failure of Mr. Lekaj to reference this non-existent event in his PIF.
The Board's failure to observe any distinctive mannerisms
[16] The Board wrote:
The panel notes that the claimant used stereotypical references to himself in his narrative and oral testimony. For example, he noted when he went to complain to the police: "They looked at me and decided by my mannerisms that the names were correct." At the local government office: "The man I was talking to looked at me and determined why I had been attacked." "I stayed indoors so that people would not see my mannerisms and attack me. The panel does not usually comment on demeanor, as cultural differences can affect the manner in which people present themselves. However, because the claimant included his appearance and mannerisms in his narrative, the panel noted that the claimant had no distinctive mannerisms of any kind in the hearing room and presented himself as any typical young man.
[footnote omitted]
[17] In my view, no weight can be given to the Board's observation. As my colleague Mr. Justice Teitelbaum wrote in Herrera v. Canada (Minister of Citizenship in Immigration), 2005 FC 1233, the application of stereotypical considerations based on appearance and mannerisms is not a proper basis upon which to impugn the credibility of a claimant.
The Board's reference to other false claims
[18] By referring to the fact that Mr. Lekaj's own supporting documents referred to the fact that some Albanian men made false claims to be gay the Board considered an irrelevant factor. It was obliged to consider Mr. Lekaj's claim on its own merit.
Conclusion
[19] These errors are central to the Board's credibility findings. A review of the findings not tainted by reviewable error leads me to conclude that it would be unsafe to dismiss this application for judicial review. In this regard, I note that there was some confusion surrounding Mr. Lekaj's testimony as to when he was first beaten (an inconsistency relied upon by the Board). The relevant extract from the transcript is as follows:
And the first time you were beaten by anybody that you remember in Albania because of being gay, do you remember what year and when in the year it was approximately?
A. In 2001.
Q. Okay.
And do you remember what part of 2001?
A. January.
Q. Okay.
And who beat you on that occasion for being gay or ---
MEMBER: Excuse me for - - I didn't hear what part of 2001.
REFUGEE PROTECTION OFFICER: January, I believe.
MEMBER: Thank you.
REFUGEE PROTECTION OFFICER: Sorry. January 2001 -- sorry - - 2... - - I thought it was 2000.
What did he say?
No, I am sorry. Let's - - let's start all over.
REFUGEE PROTECTION OFFICER TO CLAIMANT:
Q. When was the first time you were actually physically beaten by anyone in Albania for being gay; first the year if you remember?
A. In 2000.
Q. Okay.
[20] While the Board drew an adverse inference from the discrepancy in dates, it is clear that there was some confusion about what was said.
[21] For completeness, with respect to the issue of bias, the test for bias as set out by the Supreme Court in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, and R. v. S. (R.D.), [1997] 3 S.C.R. 484, is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would the informed person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. A high standard of proof is required.
[22] Mr. Lekaj has not satisfied me that the errors made in the assessment of evidence by the Board would lead any informed person to the view that the Board would not decide the issues fairly.
[23] Counsel for the Minister posed no question for certification and Mr. Lekaj's counsel posed no question if the matter was determined on this basis. I agree that no question of general importance arises on this record and no question will be certified.
JUDGMENT
[24] THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division dated September 26, 2005 is hereby set aside.
2. The matter is remitted for redetermination by a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6277-05
STYLE OF CAUSE: FATJON LEKAJ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 14, 2006
APPEARANCES:
JEFFREY GOLDMAN FOR THE APPLICANT
MARIA BURGOS FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEFFREY GOLDMAN FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA