Date: 20040723
Docket: IMM-5687-03
Ottawa, Ontario, July 23rd, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
LEONIDHA GUCI
TEUTA GUCI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Leonidha and Teuta Guci are a married couple, both of whom are citizens of Albania. They seek judicial review of a negative decision of the Refugee Protection Division of the Immigration and Refugee Board. The Board rejected the couple's refugee claims, finding that they had deliberately embellished their stories so as to qualify as refugees. The Board also found that the Gucis' alleged fear of persecution was not objectively well-founded.
[2] The applicants allege that the Board erred in making findings of fact regarding both their credibility and the objective well-foundedness of their fear of persecution. These findings, they say, are not supported by the evidence that was before the Board.
The Applicants' Allegations
[3] Both Mr. and Mrs. Guci claim a fear of persecution in Albania because of Ms. Guci's involvement with the Democratic Party, and because of her past employment with the Albanian State Security force or "SHIK". They further claim to fear Ms. Guci's Catholic family, who allegedly disapproves of Ms. Guci's marriage to a member of the Greek Orthodox faith.
[4] Ms. Guci states that she was politically active in the Democratic Party in Albania from the early 1990's, with the exception of a period in 1995 and 1996, when she went to work as an inspector in the financial fraud section of SHIK.
[5] Ms. Guci's job duties at SHIK did not bring her into contact with the general public, and she was not required to make any arrests. Rather, she described her work as being "on paper".
[6] After leaving SHIK. Ms. Guci resumed her political activities. In 1997, she was with her brother at a Democratic Party protest, when her brother was murdered in front of her. Ms. Guci states that her brother's killers were members of the Socialist Party.
[7] Through her work with the Democratic Party, she came to know Azem Haidari, the Party leader. Ms. Guci describes Mr. Haidari as an advisor and mentor. Following Mr. Haidari's assassination in 1998, Ms. Guci attended his funeral. A few days later, she says that she was summoned to report to the police. Instead of reporting to the police, Ms. Guci fled to Greece because she knew that the police treated Democratic Party members badly.
[8] Ms. Guci met Mr. Guci in Greece in January of 1999. Mr. Guci had himself fled Albania in 1990. The couple subsequently married, and had a daughter. Mr. Guci is a member of the Greek Orthodox faith, whereas Ms. Guci's family is Roman Catholic. Ms. Guci says that her family objected to the marriage, and that, as a result, she lost their support. Mr. Guci puts it more strongly, asserting that his wife's family has actually threatened to kill them if they returned to Albania.
[9] In 2001, Mr. and Mrs. Guci came to Canada. Their daughter is currently living with Mr. Guci's parents in Albania.
The Board's Decision
[10] The Board found that Ms. Guci was an active member of the Democratic Party from 1991, until her departure from Albania in 1998, with the exception of the period when she was working for the SHIK. The Board further accepted that the couple's decision not to try to stay in Greece did not show that they lacked a subjective fear of returning to Albania. The determinative issues for the Board were Mr. and Ms. Guci's credibility and whether they had established a well-founded fear of persecution, should they return to Albania.
[11] Given that Mr. Guci had not lived in Albania since 1990, the Board found that the only basis on which he could possibly fear persecution was through his relationship with his wife. As a result, the focus of the Board's attention was on Ms. Guci's situation.
[12] With respect to Ms. Guci's fears arising out of her past employment with SHIK, the Board noted that her period of employment lasted less than one year, and that her work did not bring her into contact with members of the public. During the time Ms. Guci worked for SHIK, the Democratic Party was in power in Albania. As a result, any irregularities that Ms. Guci may have observed would have involved misbehaviour on the part of Democratic Party appointees.
[13] The Board noted that the Socialist Party is now in power in Albania, and that the Socialists would have no reason to fear that Ms. Guci could have information that could compromise them. As a result, there would be no reason for the government to want to silence her.
[14] Insofar as Ms. Guci's alleged fear arising out of her involvement with the Democratic Party was concerned, the Board considered the documentary evidence concerning political detainment and killings of Democratic Party members in Albania. The Board also considered the affidavit of Dr. Bernd Fischer, an expert on Albanian affairs. The Board found that there was no evidence to indicate that there are frequent widespread detentions leading to persecution, cruel and inhuman treatment, torture or risk to life of Democratic Party members in Albania. Those at risk of persecution tended to be high-profile Party members and journalists.
[15] The Board found that Ms. Guci was neither a high-profile Party member nor a journalist. The only possible reason why she might be targeted for persecution was because of her alleged failure to respond to the summons to appear in 1998. However, the Board noted that Ms. Guci had not produced the summons. Further, she did not have any information that would suggest that the authorities were still looking for her. As a result, the Board found that there was no serious possibility that anyone in Albania would be interested in Ms. Guci because of her failure to respond to the summons five years previously.
[16] The suggestion that the couple was also at risk from Ms. Guci's family was rejected by the Board, who drew a negative inference from what it said was the Gucis' failure to make any mention of this concern in either of their narratives.
[17] Finally, the Board observed that the Port of Entry notes record Mr. Guci as stating that his reasons for coming to Canada were "economic", and that he was coming to Canada to find a job. According to the Board, the notes indicate that Mr. Guci claimed that his father had been persecuted in Albania, but that he himself had not been. Further, the Board states that the notes make no mention of any fear of persecution on the part of Mr. Guci by reason of Ms. Guci's political activities or her work with SHIK. Nor is there any mention of any fear of Ms. Guci's family.
[18] Ms. Guci's Port of Entry notes say nothing about her political involvement, her employment with SHIK or her fear of her family. The Board did not accept the Gucis' explanation as to why there was a conflict between their Port of Entry notes and their testimony before the Board. The Board concluded that the Gucis had significantly embellished their claims so as to enable them to qualify as refugees.
[19] As a result, the Board rejected the claims, finding that the Gucis would not face a serious possibility of persecution, or a risk to life or of cruel and unusual treatment or punishment, if they returned to Albania.
Issues
[20] The Gucis submit that the Board erred in law in making findings of fact relating to their credibility and the objective well-foundedness of their fear of persecution, which findings were not supported by the evidence, or were made without regard for the evidence before it.
Standard of Review
[21] The disputed findings are findings of fact. As such, the standard of review is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
Are the Board's Credibility Findings Sustainable?
[22] I will deal first with the Board's credibility findings. As has often been observed, the Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction.
[23] It is clear that the Board was very troubled by the evolution in the Guci's story from their initial interview at the Port of Entry, to the story recounted in their PIF's, to their testimony before the Board. It is true that Mr. Guci did say at the Port of Entry that "everyone" was persecuted in his wife's family. However, the Board was quite correct in observing that no mention was made by Mr. Guci of any fears that he might have had relating specifically to his wife's political or employment activities, or to any threats from Ms. Guci's family. Mr. Guci attributes this omission to difficulties with the interpreter at the Port of Entry.
[24] I have reviewed the transcript, and have considered Mr. Guci's explanation for these discrepancies, including his explanation with respect to his initial claim that he was coming to Canada for economic reasons. In my view, it was reasonable for the Board to have made a negative credibility finding in this regard.
[25] I am also satisfied that it was open to the Board to draw a negative inference from Ms. Guci's failure to mention the immediate source of her fear at the Port of Entry, or to mention her fear of her family in her PIF. She does say in her PIF that her marriage caused her to lose the support of her family. With respect, losing the support of one's family, and having them want to kill you are two very different things.
[26] I also do not accept the Guci's submission that it was incumbent on the Board to confront them with its credibility concerns. There is no duty to put obvious discrepancies and inconsistencies in the stories of represented claimants to them in the course of their refugee hearings: Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (T.D.) (Q.L.), distinguishing Gracielome v. Canada (Minister of Employment and Immigration), (1989), 9 Imm. L.R. (2d) 237 (F.C.A.).
Was the Guci's Fear of Persecution Objectively Well-founded?
[27] The Board's finding that the Guci's alleged fear of persecution was not objectively well-founded is also not patently unreasonable.
[28] Ms. Guci testified that she discovered wrongdoing on the part of members of the Democratic Party while she was employed at SHIK. She said that she reported this wrongdoing after she left, although she does not know what, if anything, was done about her allegations. As to why she fears persecution because of her former employment with SHIK, Ms. Guci stated: "Because I know people, I know as a fact that people got murdered, people who worked for SHIK."
[29] Dr. Fischer does say in his report that many SHIK agents who served in the previous regime had been killed. The Board accepted that Dr. Fischer was an expert in Albanian affairs. That does not mean, however, that it had to accept everything that he said. Much of Dr. Fischer's report is taken up with a very general discussion of country conditions in Albania. While he does comment specifically about the Guci's claims, it is clear that he has no first-hand knowledge of their situation, and is reliant entirely upon what he has been told about their experiences in Albania.
[30] Further, Dr. Fischer offers no explanation as to who these people were, what they had done while at SHIK, or when or why they were killed. Nor is there any evidence cited to support his statement. It is clear from the decision that the Board considered Dr. Fischer's report. The Board was entitled to weigh this evidence, along with other available information as to country conditions in Albania, and the explanation offered by Ms. Guci as to the nature of her work at SHIK. Having done so, I cannot conclude that the Board's finding with respect to the risks posed by Ms. Guci's past employment with SHIK were patently unreasonable.
[31] Similarly, based upon Ms. Guci's own description of the nature of her responsibilities while she was a member of the Democratic Party, it was reasonably open to the Board to find that she did not fit the profile of party members who would be targeted by the Socialist regime.
[32] With respect to fear allegedly arising out of Ms. Guci's failure to respond to the police summons in 1998, it does not appear that Ms. Guci was ever formally served with the summons. She testified that she was told about the summons by a friend who worked for the City Attorney's office in Layja. Ms. Guci did not produce a copy of the summons for her refugee hearing. Further, she has no information as to whether the authorities were still looking for her. In these circumstances, the Board's finding that there is no serious possibility that anyone in Albania would be interested in Ms. Guci because of her failure to respond to a summons from several years before is not patently unreasonable.
[33] Finally, the Board did not accept the Guci's assertion that they feared Ms. Guci's family. In this regard, the Board found that neither claimant had raised this issue in his or her narrative. The Board was clearly in error on this point, as Mr. Guci did indeed state in his PIF that his wife's family had threatened to kill them if they returned to Albania.
[34] However, I am not persuaded that this error, by itself, is sufficiently material to warrant the decision being set aside, especially in light of the other inconsistencies in the record with respect to the alleged threats on the part of Ms. Guci's family.
Conclusion
[35] Despite the very able submissions of counsel for the Gucis, I am not persuaded that there is any error here that would warrant the decision of the Board being set aside. For these reasons, the application is dismissed.
Certification
[36] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious questionof general importance is certified.
____________________________________
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5687-03
STYLE OF CAUSE: LEONIDHA GUCI ET AL v. MCI
DATE OF HEARING: July 14, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER: Madam Justice Mactavish
DATED: July 23, 2004
APPEARANCES BY:
Mr. D. Clifford Luyt FOR THE APPLICANT
Mr. John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. D. Clifford Luyt
Barrister & Solicitor
Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario.
M4P 1L3 FOR THE APPLICANT
Mr. John Provart
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6 FOR THE RESPONDENT