Ottawa, Ontario, October 25, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Apostol Mile is a citizen of Albania who claims status in Canada as a Convention refugee and a person in need of protection. He fears, he says, that if returned to Albania he would be targeted for persecution by supporters of the Socialist Party as a result of his membership and profile in the Albanian Democratic Party ("ADP"). His claim for status in Canada was rejected by the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "Board")
because it did not find Mr. Mile's testimony to be credible and found documents relied upon him to be fraudulent. He brings this application for judicial review of that decision.
THE GIST OF MR. MILE'S CLAIM
[2] Mr. Mile testified that he became interested in politics while in school. In 1993, two years after he graduated, he became a member of the ADP. He continued to be involved in politics until 1997 when a fellow ADP member was murdered. Mr. Mile's father insisted at that time that he give up his political activities, and he did.
[3] However, in October of 2000, Mr. Mile rejoined the ADP. Shortly before the election in June of 2001, Mr. Mile and six other ADP members were attacked by armed men and beaten with guns. Mr. Mile "escaped the worst beating", but was terrified. In the year that followed, Mr. Mile was often stopped by corrupt, pro-Socialist Party police for "trumped up traffic charges".
[4] Mr. Mile rose in the ranks of the ADP. The regional leader of the ADP, Mr. Fatos Dardha, suggested that he run for the position of head of a small district council. Subsequently, Mr. Mile ran for the ADP in a local election in 2003.
[5] Mr. Mile says that around this time the police harassment became worse. In July of 2002 the police stopped him and took away his driver's licence permanently. Mr. Mile says that on August 15, 2002, he was attacked by the secret police, blindfolded, beaten and psychologically tortured for five days. His father was contacted and forced to pay $20,000 U.S. for his release. After his release, there was another threat and request for a further payment of $20,000 U.S. Believing that members of the ADP were never going to be left alone while the Socialist Party was in power, Mr. Mile arranged to leave Albania. He arrived in Canada with a false Canadian passport and immediately made a claim for refugee protection.
THE DECISION OF THE BOARD
[6] The first problem identified by the Board was that there was no proof as to the identity of the murderer of Mr. Mile's friend and fellow ADP member in 1997. The Board stated that while Mr. Mile said that the murderer was "probably a member of the Socialist Party" he could not prove it. The Board was critical of this, saying that Mr. Mile "gave no reason for identifying the culprit as a Socialist Party member" and that this was "mere speculation and conjecture" on Mr. Mile's part.
[7] The next problem identified by the Board concerned Mr. Mile's testimony about the beating of himself and six other ADP members. In his Personal Information Form ("PIF"), Mr. Mile stated that he had "escaped the worst beating". At the hearing, when asked if he was beaten at that time Mr. Mile responded "no". The Board found that this indicated a discrepancy: escaping "the worst beating", the Board reasoned, indicated that Mr. Mile was beaten to some extent. Hence, the Board believed there to be a direct contradiction between the two accounts.
[8] The Board also found problems with Mr. Mile's testimony about his kidnapping. The Board was unwilling to assume that the use of a two-way radio indicated that the kidnappers were members of the police. Many criminals, the Board speculated, would have such radios, therefore Mr. Mile's identification of the kidnappers as corrupt police workers was again mere speculation.
[9] Furthermore, in his PIF Mr. Mile had said that, in regard to the second demand for ransom, the kidnappers had spoken to him, whereas in his oral testimony he said that the kidnappers had also spoken directly to his father. When asked why this had not been mentioned in his PIF, Mr. Mile said that he was told to only give a short version of his story and that he could fill out the details at the hearing. The Board rejected this explanation, stating that the fact that the kidnappers had spoken directly to his father was a "significant event" which should have been mentioned in his past.
[10] Of most concern to the Board about the evidence with respect to Mr. Mile's kidnapping was his evidence that the kidnappers had let him go before actually ensuring that the ransom had been paid. The Board reasoned that it would have made far more sense for the kidnappers to ensure that the ransom was paid and then kill Mr. Mile, thus accomplishing both their financial and political objectives.
[11] The Board found another contradiction between Mr. Mile's testimony and his PIF. In his PIF he had stated that he had received another threat and demand for further $20,000 U.S. before he left the country. In his oral testimony, however, he said that the kidnappers had gone to his father's house and demanded more money from his father.
[12] Regarding the documentary evidence, the Board found the majority of it to be untrustworthy. Albanian journalists, it found, are easily bribed, and their reporting is often based largely on a rumour and speculation. A newspaper article, dated August 22, 2002, that described Mr. Mile's kidnapping was found to be a forgery, since "some of the letters of the sentences have been cut off" and "the type is [...] noticeably different [from] the type on the other articles appearing on the same page". This same criticism, that the type did not match, was made of a different newspaper article describing an incident in which Mr. Mile's father was beaten by three people wearing masks.
[13] A certificate signed by Mr. Fatos Dardha was also given no weight because the Board found that it was prepared after Mr. Mile had come to Canada, and had been made expressly for the purpose of supporting his refugee claim. A transcript of a videotaped interview with Mr. Dardha was also given no weight because the Board had found the certificate from Mr. Dardha to be not credible. The RPD refused to watch the videotape and did not deal with it in its reasons.
THE STANDARD OF REVIEW
[14] In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at paragraph 38, the Supreme Court of Canada recently reaffirmed that, pursuant to paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, findings of fact may only be set aside if made in a perverse or capricious manner, or without regard to the material before the tribunal. The standard of review in respect of issues of credibility is patent unreasonableness.
[15] Application of the most deferential standard of review reflects that, as the body charged with making findings of fact and credibility, and as the body which has the opportunity to observe firsthand the demeanour of witnesses, the Board's findings of fact and credibility are not to be interfered with lightly. As Mr. Justice Joyal wrote in Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81, decisions of the Refugee Board must be read as a whole and analyzed in the context of all of the evidence before it in order to decide if the Board's conclusions are patently unreasonable.
[16] As to what constitutes patent unreasonableness, a patently unreasonable decision is one where the defect is apparent on the face of the tribunal's reasons. See: Canada(Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 57. A decision that is patently unreasonable is one that is so flawed that no amount of curial deference can justify letting it stand. See: Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 at paragraph 52.
APPLICATION OF THE STANDARD OF REVIEW TO THE DECISION OF THE BOARD
[17] With respect to the Board's analysis of Mr. Mile's testimony, its first concern was that Mr. Mile was simply speculating when he identified the murderer of his friend to be a member of the Socialist Party. However, Mr. Mile testified that his friend had been killed and dragged by a car through a village, and that someone who knew the murderer advised him that the murderer belonged to the Socialist Party.
[18] The Board's concerns about inconsistencies between Mr. Mile's testimony and his PIF regarding:
- escaping "the worst beating", as opposed to not being beaten;
- whether the kidnappers spoke just to Mr. Mile, or to both Mr. Mile and his father; and
- whether the kidnappers' demand for more money was communicated directly to Mr. Mile, or to his father (Mr. Mile testified when this inconsistency was put to him that calls were made by the kidnappers to both him and his father. This explanation was not dealt with by the RPD).
focussed largely upon matters of detail as opposed to direct contradiction or inconsistency. This Court has repeatedly cautioned that the RPD is not to engage in a microscopic examination of peripheral matters. It is not every kind of inconsistency or implausibility in a claimant's evidence that reasonably may support a negative overall finding of incredibility.
[19] On the evidence before it, the Board engaged in speculation when it concluded that many people in Albania have two-way radios and stated "I suspect many highly sophisticated criminals use two-way radios for safety purposes as lookouts, to warn of any appearing danger".
[20] It was not patently unreasonable for the RPD to find it implausible that Mr. Mile's kidnappers, who took Mr. Mile in order to receive payment of a ransom, would release Mr. Mile before ensuring that the ransom had been paid. This finding is fully in accordance with logic and common sense.
[21] The two newspaper articles were rejected after the Board noted that some sources reported that it is easy to "pay off" a journalist to place a false story in almost any Albanian newspaper. However, the newspaper articles were not rejected on that basis. They were rejected as being forgeries because the articles were written in a font that differed from some, but not all, other articles in the newspaper and because, in the Board's view, some of the letters of some of the sentences were cut-off. This latter finding was in error. A review of the text of other articles shows that the alleged word fragments (for example "e", "qe" and "do") are found elsewhere in complete texts and so are not fragments at all. It is not obvious from the photocopies of the articles which appear in the tribunal record that the use of different fonts is indicative of forgery, as opposed to newspaper practice. The original newspapers which were in evidence before the RPD were not before the Court.
[22] The certificate signed by Mr. Dardha which confirmed Mr. Mile's political history, candidacy, kidnapping and reason for leaving Albania, and which bore the stamp of the party, was rejected because it was prepared after Mr. Mile left Albania and because it was prepared for the purpose of supporting his claim. This, however, does not by itself make the information contained in the certificate false. Rule 7 of the Refugee Protection Division Rules, SOR/2002-228 ("Rules) requires a claimant to provide acceptable documents establishing elements of his or her claim. If acceptable documents are not provided, a claimant must explain why they were not provided and what steps were taken to obtain them. In view of this obligation it was, in my view, perverse to reject a document on the sole ground that it was obtained in order to support a claim for refugee status.
[23] Having improperly rejected Mr. Dardha's certificate, the Board's rejection of the certificate cannot properly be used by the RPD in order to justify rejection of the transcript of the interview with Mr. Dardha where he discussed Mr. Mile's situation.
[24] The Board failed to mention the videotape tendered before it, which contained the soundtrack of an interview with Mr. Dardha, played over a videotape showing Mr. Mile meeting with the president of the Democratic Party. The videotape, which Mr. Mile testified was broadcast on Albanian television, bore the logo of the broadcaster in the lower right-hand portion of the screen. This videotape was highly relevant to establish Mr. Mile's political profile and involvement, yet no explanation was provided by the Board for its failure to view the videotape and deal with it in its reasons. While the Board member told Mr. Mile's then counsel that he did not intend to view the videotape, I am not prepared to place any weight on counsel's failure to object at that time because, without deciding the point, I am not satisfied that counsel can waive a panel's failure to exercise its jurisdiction to have regard to the evidence before it. Moreover, when counsel failed to object to the Board's decision not to view the video, it may well be that counsel reasonably assumed that the Board did not need to view the video because it accepted the evidence of Mr. Mile's political involvement.
[25] Reading the decision of the RPD as a whole, and analyzing it in the context of all of the evidence before the RPD, I conclude that with the exception of the Board's plausibility finding about Mr. Mile's pre-ransom payment release, the Board's credibility findings were flawed for the reasons set out above. The cumulative effect of these errors is that the Board's conclusions are so flawed that, to use the words of the Supreme Court of Canada in Ryan, cited above, no amount of curial deference can justify letting the decision stand.
[26] The application for judicial review is therefore allowed.
[27] Counsel posed no question for certification, and I am satisfied that no serious question of general importance arises on this record.
ORDER
[28] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board, dated February 18, 2005 is hereby set aside.
2. The mater is remitted for redetermination before a differently constituted panel of the Refugee Protection Division.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1601-05
STYLE OF CAUSE: APOSTOL MILE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: OCTOBER 5, 2005
APPEARANCES:
ELIZABETH A . WOZNIAK FOR THE APPLICANT
MELISSA R. CAMERON FOR THE RESPONDENT
SOLICITORS OF RECORD:
CRAGG WOZNIAK FOR THE APPLICANT
HALIFAX, NOVA SCOTIA
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA