Date: 20050727
Docket: IMM-5804-04
Citation: 2005 FC 1035
Ottawa, Ontario, this 27th day of July, 2005
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
BRAHIM AGALLIU
HANKO AGALLIU
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Sometimes, little errors in a written decision represent no more than a lack of final polishing. Other times, they are symptomatic of inadequate care on the part of the decision-maker. This is a case of the latter.
[2] Mr. Brahim Agalliu claimed refugee protection in Canada on grounds of political persecution in Albania arising from his association with the National Front. A panel of the Immigration and Refugee Board heard his claim and dismissed it for want of sufficient reliable evidence.
[3] Mr. Agalliu argues, first, that the Board failed to render an impartial and independent decision and, second, that it failed to give proper consideration to the evidence he supplied in support of his claim. He asks for a new hearing.
[4] I agree with Mr. Agalliu's second argument and will allow this application for judicial review.
I. Issues
1. Did the Board fail to render an impartial and independent decision?
2. Was the Board's decision in keeping with the evidence before it?
II. Analysis
A. Did the Board fail to render an impartial and independent decision?
[5] The Board issued a ten-page decision dismissing Mr. Agalliu's claim. Near the bottom of page 8, after a quotation from an expert on Albania, a Professor Austin, the following query is set out in bold-faced type: "Ftn. 14 - Kate, what is footnote 14?".
[6] Mr. Agalliu argues that this strange passage in the reasons indicates that the decision-maker (apparently known as "Kate") had help in drafting her reasons. Accordingly, her analysis and conclusions may have been influenced by someone who did not hear his case.
[7] The Board member's assistant says that she had been asked to move a subsequent footnote forward to the place where the query appeared, but failed to do so in the final version of the reasons. The assistant's evidence is that an administrative error occurred which resulted in the reasons being issued without a proper footnote 14, but including her query to the Board member.
[8] A further problem is that the proposed footnote 14 did not refer to the correct source for the quotation the Board was relying on anyway. However, I would not conclude from any of this that the Board member did not impartially and independently decide Mr. Agalliu's claim. Rather, it appears to me that there was a failure to put the finishing touches on the written reasons. If this had been the only problem with the decision, there would be no reason to overturn it. A lack of final polishing is not a basis for judicial review. However, there were other problems.
B. Was the Board's decision in keeping with the evidence before it?
[9] Mr. Agalliu argues that the Board failed to analyze the documentary evidence adequately and discredited his version of events without a proper explanation. Having reviewed the record and the Board's reasons, I agree with Mr. Agalliu's submissions. I note the following:
(i) the Board cited a 2003 report on Albania from the U.S. Department of State, but it was the 2004 report that was actually before the Board;
(ii) the Board relied on the "Human Rights World Watch Report 2003"(meaning Human Rights Watch World Report 2003) for the proposition that there was no political persecution in Albania when, in fact, the report contains references to state authorities' efforts to suppress political criticism in the media;
(iii) the Board cited a report called Albania: Save the Nation 2003 (meaning Albania: State of the Nation 2003) in support of its conclusion that political tensions in Albania had calmed, yet the report also referred to the fact that political feuding had paralyzed the Albanian government in 2002;
(iv) the Board characterized the opinions of three experts on Albania as contradicting Mr. Agalliu's allegations of political persecution, yet the opinions contained references to significant political violence in Albania;
(v) the Board concluded that Mr. Agalliu would not have been targeted for persecution because he was not politically active to an extent that would have attracted the attention of the Socialist Party or the police. But Mr. Agalliu provided proof that he had been a member of the National Front, a letter from a party leader corroborating his allegations of persecution, and medical reports confirming his injuries from beatings. The Board failed to consider whether Mr. Agalliu might have been persecuted on the basis of his perceived political affiliation, even if he was not particularly active or high profile.
(vi) the Board concluded that it was unlikely that the police would exact reprisals against Mr. Agalliu for having reported a break-in at his store by Socialist Party members. The Board did not explain why this was implausible, except to suggest that it was inconsistent with Mr. Agalliu's evidence that the police had discouraged him from laying charges in the first place. The Board did not elaborate on why this was inconsistent.
[10] Clearly, the Board's reasons disclose a number of superficial errors - in footnotes, and in references to the documentary evidence. However, the Board's other errors and its failure to explain its conclusions adequately disclose more fundamental problems. I am persuaded that the Board overlooked significant evidence and did not fully address the nature of Mr. Agalliu's allegations. Taken together, these errors lead me to conclude that the Board's decision was out of keeping with the evidence before it. I must, therefore, allow this application for judicial review and order a new hearing before another panel of the Board.
[11] Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed and a new hearing before another panel of the Board is ordered;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5804-04
STYLE OF CAUSE: BRAHIM AGALLIU, HANKO AGALLIU v. MCI
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: June 24, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: July 27, 2005
APPEARANCES BY:
Mr. D. Clifford Luyt FOR THE APPLICANTS
Ms. Matina Karvellas FOR THE RESPONDENT
SOLICITORS OF RECORD:
CZUMA RITTER FOR THE APPLICANTS
Toronto, ON
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, ON