Date: 20040504
Docket: IMM-3797-03
Citation: 2004 FC 657
BETWEEN:
SHKELZIME ALIBALI,
IRIDA ALIBALI,
IRIS ALIBALI,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Shkelzime Alibali and her two daughters are from Shkoder, Albania. Ms. Alibali is the principal applicant and the designated representative for her daughters. She claims to be a Convention refugee and to be a person in need of protection based on imputed political belief (her deceased husband's political beliefs) and also on the basis of membership in a particular social group - family (her in-laws have threatened her life and are trying to take custody of her children). The Refugee Protection Division of the Immigration and Refugee Board (RPD) dismissed the claim. For convenience, I will refer to the principal applicant as the applicant in these reasons.
FACTS
[2] The applicant's husband was a pharmacist and a member of the Legality Movement Party. Ms. Alibali was a mechanical engineer at a local factory. She claims that her husband worked as a border patrol reservist. On two occasions (January, 1998 and March, 2000), she maintains that he stopped smugglers who had connections to the government (Socialist) party. He reported the smugglers to the police and informed his own party. Ms. Alibali alleges that after the first report, he was shot and hospitalized for twelve days. Following the second incident, he was shot and hospitalized. After he made a speech to the Legality Party linking the government to the Mafia, his pharmacy was burned down in April, 2000. He died on May 2, 2000.
[3] Ms. Alibali alleges that on April 15, 2000, while home alone, she was beaten and sexually assaulted by men who also threatened to kill her family. She claims to have gone to the hospital and to have reported the sexual assault to the police. As a consequence, the assault became public knowledge and her in-laws believed that she was an adulteress. When her husband died, they refused to allow her to stay on their property and, as believers in the Kanun of Lek, an ancient Albanian honour code, they sought custody of her children. They refused to let her see the children after a kidnapping attempt in September, 2000, that Ms. Alibali claims they orchestrated to discredit her.
[4] In October, with the help of a cousin, Ms. Alibali states that she was able to obtain her children and escape to Tirana. Her friends set up a meeting with a smuggler and she left Albania with her children on November 21, 2000. She arrived in Canada on December 3rd and made a refugee claim two days later. Since their arrival in Canada, she has heard that her in-laws want her dead so that she can no longer shame them.
[5] The RPD rejected the claim on the basis that there was insufficient credible or trustworthy evidence upon which a positive decision could be made. The board found the applicant lacked credibility because of the many implausibilities, omissions and inconsistencies in her evidence. Specifically, the board found that:
- her testimony wavered on whether she would be killed by her in-laws if returned to Albania;
- she failed to produce corroborating evidence about the attack on her husband, although she stated that it was reported in the newspapers;
- she continued to return her children to the in-laws' home even after she suspected they had been behind the attempted kidnapping;
- she was unable to explain why the in-laws would try to kidnap the children when the Kanun law was on their side and she was unable to explain how she was able to leave Albania with the children even though the in-laws were disputing her custody;
- her evidence on when she decided to flee Albania was uncertain;
- it was unlikely that her husband would have been willing to or permitted to work for a Socialist-controlled body;
- the personal information form (PIF), testimony, and port of entry (POE) records were confusing in regard to her husband's duties as a 'reservist';
- she did not know which department her husband worked for;
- she claimed that she was not given an interpreter at the POE though this would be against normal practice.
ISSUES
[6] There are only two issues:
(1) Did the RPD err in its credibility findings because it relied on assessments of the evidence that were demonstrably flawed?
(2) Did the RPD err in failing to take into account the written reply submissions before it?
ANALYSIS
[7] The applicant takes issue with nearly all of the above noted findings. Having reviewed the record, including the transcript of the hearing, I agree that the board erred in concluding that Ms. Alibali continued to return the children to her in-laws after the kidnapping. There is nothing in the evidence to suggest that this was so.
[8] Regarding the finding that it was inconsistent that her in-laws would attempt to kidnap the children when they had a clear right to them under the Kanun law, Ms. Alibali testified that her in-laws also needed to prove that she was an unfit mother in order to obtain documents under the court process and that if she was found to be of good character, her in-laws would also be responsible for her. The RPD noted her evidence, but found that it did not provide a reasonable explanation in the face of her statement that her in-laws had a clear right to the children under the Kanun law. My review of the transcript (tribunal record, pp. 289-291) leads me to conclude that the board's finding was open to it.
[9] Ms. Alibali submits that the finding that she gave inconsistent testimony with respect to when she decided to leave Albania is also unreasonable in light of the fact that she was responding to different questions when she gave different dates. Moreover, the questions were about events before she left Albania. Again, a review of the transcript (tribunal record, pp. 294, 297-309) reveals that the principal applicant's testimony was not consistent regarding when she took steps to arrange to leave Albania and, thus, the board did not err in its conclusion.
[10] Regarding the finding that it was implausible that an opposition party supporter would be allowed or wish to volunteer for the border patrol while the Socialist government he actively opposed was in power, the submission is that the finding is unreasonable because the evidence was clear that the border patrol was run by the municipal government and that government was not run by the ruling party, but by the Democratic party. With respect to the finding that the PIF, the testimony and the POE records were confusing in relation to her husband's duties as a reservist, and the fact that she did not know which department her husband worked for, Ms. Alibali submits that her evidence was that her husband was a reservist who worked for City Hall, not the police, and that he responded as needed. Initially, he responded to a call in 1997, by the temporary government to intelligentsia in Albania, to manage the political situation.
[11] Again, a review of the transcript, the PIF and the POE notes reveals that the applicant's evidence was confusing in this respect. While her husband's initial involvement may have been explained, Ms. Alibali's testimony was not at all consistent regarding his continued service. She stated that he became an employee of City Hall, but vacillated with respect to when he took his exams and when he became an employee. She indicated that it was as early as 1997 or 1998, but then stated it might have been 2000. Although there was some consistency in her oral evidence that he was not part of the police, she described him as a police officer and as a reservist with the police in the POE notes, the PIF, and to a more limited extent in her oral evidence. In my view, the board's conclusion was not unreasonable in this respect.
[12] Regarding her lack of knowledge with respect to the department her husband worked for, she submits that she was describing an ad hoc, volunteer position that was not her own and that the Guidelines on Women Refugee Claimants state that panels should bear in mind that spouses may not always have detailed knowledge of their husband's activities or documentation related to them. The difficulty with this position is that it was Ms. Alibali who stated that her husband was a volunteer, but at the same time an employee. It was she who stated that her in-laws did not favour her because of the non-traditional position she occupied and the non-traditional nature of the marriage. She gave no indication that her husband kept information from her. In these circumstances, in my view, the board was entitled to draw the conclusion that it did.
[13] Last, Ms. Alibali takes issue with the comments of the RPD in relation to interpretation and the fact that there was no interpreter at the POE. I agree that it was not open to the RPD to note the "customary practice of immigration officials at ports of entry to provide interpretation services to persons claiming refugee protection, either in person or by telephone interpretation, unless a claimant states that he or she does not require interpretation" without so advising the applicant. However, the context in which this issue arises is in relation to the inconsistencies between the PIF, the POE notes, and the oral testimony. Ms. Alibali attempted to explain the POE inconsistencies by stating that it must have been a misunderstanding because there was no interpreter. When questioned as to whether she had requested interpretation, she could not remember. It was not unreasonable for the board to conclude that if Ms. Alibali had required interpretation, she would have asked for it and it was open to the board to note the inconsistencies.
[14] Although the RPD did err in some respects, I do not find that those errors were central to its decision. The majority of the findings with which Ms. Alibali takes issue were open to the board. Although she has provided alternate findings that the board might have made, that is not the test. It is for the applicant to demonstrate that the board's findings of fact are patently unreasonable. She has failed to do so.
[15] I note that no issue is taken with respect to the finding that Ms. Alibali's testimony wavered on whether she would be killed if returned to Albania and that she failed to provide corroborating evidence of the circumstances of her husband's death, although it allegedly had been reported in the newspapers. Additionally, Ms. Alibali makes no reference to the following statement of the RPD:
What is crucial in the claims is the alleged political profile of her deceased husband. Based on all the evidence and representations, I am not satisfied with the credibility of the allegations that the former husband either had the political profile alleged or the involvement as border patrol or reservist.
[16] No issue has been taken with respect to that finding. Since all of Ms. Alibali's allegations arise out of her husband's alleged activities, it seems to me that it was incumbent upon her to at least challenge this finding. She has not. What the applicant seeks is to have me reassess and reweigh the evidence. That is not my function. The board found that Ms. Alibali's evidence was contradictory, inconsistent, and implausible. It is entitled to decide adversely with respect to credibility on the basis of contradictions and inconsistencies in the story and it is entitled to rely on criteria such as plausibility, rationality and common sense in so doing.
[17] Ms. Alibali also submits that it is significant that in its reasons the RPD referred to counsel's and the refugee protection officer's submissions, but failed to note counsel's reply. The argument is that the board could not have decided as it did if it addressed all of the submissions in the reply. Thus, Ms. Alibali suggests that she was denied legal representation.
[18] The submissions of counsel cannot be relied upon as evidence. The decision of the board must ultimately be based upon the evidence. The reasons do indicate that the post-hearing submissions of counsel were considered. I do not infer, as Ms. Alibali does, that the failure to specifically refer to the "reply" necessarily means that the reply was not considered by the board. Moreover, to be successful, the applicant must still demonstrate error with respect to the findings that are central to the board's conclusion that the principal applicant was not credible. As noted, she has failed in this regard. Ms. Alibali was not denied the right to legal representation.
[19] Counsel did not suggest a question for certification. No question is certified.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed. No question is certified.
< < Carolyn Layden-Stevenson > >
Judge
Fredericton, New Brunswick
May 4, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3797-03
STYLE OF CAUSE: SHKELZIME ALIBALI ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 22, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY: Mr. Jeffrey Goldman
For the Applicants
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD:
Jeffrey Goldman
Barrister & Solicitor
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent