Date: 20060629

Docket: IMM-6935-05

Citation: 2006 FC 827

Ottawa, Ontario, June 29, 2006

Present: The Honourable Mr. Justice Shore

BETWEEN:

PERPARIM METUKU

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]       The questions of weighing and assessing the evidence clearly fall within the panel’s jurisdiction. The applicant is asking this Court to do something that it cannot do in the context of an application for judicial review, namely to weigh and reassess the evidence that was before the panel:

After a careful review of the evidence and of the Refugee Division’s decision, I am in no way able to conclude, as the appellant wishes me to do, that certain findings of fact made by the Refugee Division were perverse, capricious or without regard to the evidence. I entirely concur in the Judge’s opinion that the evidence could reasonably serve as a basis for the Refugee Division's findings of fact. What the appellant is actually asking this Court to do is what we cannot do on an application for judicial review, that is, to reassess the evidence.

 

(As specified recently by Mr. Justice Pierre Blais in Komenan v. Canada (Minister of Citizenship and Immigration), 2005 FC 1342, [2005] F.C.J. No. 1641 (QL), at paragraph 17.)

 

 

NATURE OF THE LEGAL PROCEEDING

[2]       This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated October 24, 2005, according to which the applicant is not a Convention refugee or a person in need of protection.

 

FACTS

[3]       This is a decision which involves a large number of details because of the applicant’s exceptional situation, as he was represented by more than one lawyer at various stages of this case—for the preparation of the case and for the first and second hearing before the Board. It is also necessary to give some explanations about the situation of one of the lawyers to show the distinction between his status and his preparation in connection with his client (the applicant). It is important to ensure that all the details about this situation are well understood to distinguish between what has been done in connection with the applicant and the consequences for the case before the Board, if any.

 

[4]       The applicant, Perparim Metuku, a citizen of Albania, alleged that he is a Convention refugee within the meaning of section 96 of the Act and a person in need of protection within the meaning of section 97 of the Act, because he would be subjected to a danger of torture, or to a risk to his life or to a risk of cruel and unusual treatment or punishment.

 

[5]       Mr. Metuku made a claim for refugee protection because he alleged that this family was involved in a vendetta with the Frangu family, who live in the same village.

 

[6]       The vendetta allegedly began in 1946, when the two families lost land after the Communist regime came to power. Destan Frangu supposedly killed the applicant’s paternal grandfather, Hasan Metuku, without just cause. Hasan Metuku had also lost his land at the hands of the communists.

 

[7]       In 1997, after several people had been murdered in both families, the claimant’s parents asked the authorities for help. The police supposedly told them that they could do nothing for them and to settle the vendetta according to the Kanun, the customary law of the region.

 

[8]       In July 2001, with the help of the Reconciliation Association and the village elders, the two families exchanged their word of honour (the Besa) not to engage in further aggression. This commitment is renewable annually. Following this agreement, on August 15, 2001, Mr. Metuku and his younger brother purchased a counter at the market in Tirana, which they transformed into a small grocery store.

 

[9]       On January 1, 2004, the Besa was not renewed, and the two families shut themselves up in their respective homes to protect themselves from each other. In February 2004, the Frangu brothers allegedly tried to kill Mr. Metuku and his young brother, Gazmir. Mr. Metuku’s parents went to police station number 2 in Tirana to bring an official complaint of attempted murder against the brothers Albert and Kasem Frangu. The authorities answered that they could not intervene when a vendetta is involved.

 

[10]     On the first Sunday of September 2004, Mr. Metuku allegedly asked the Reconciliation Association and the village elders to publicly declare that he did not want to be part of the vendetta, because he refused to kill and was afraid of being killed. Mr. Metuku’s father then got up in front of the assembly and hit Mr. Metuku in the face.

 

[11]     That same evening, Mr. Metuku allegedly began preparations to leave Albania. He left the country by ship on November 13, 2004. He arrived in Canada on November 15, 2004, and claimed refugee status the next day.

 

The pre-hearing conference of June 16, 2005

[12]     For the purposes of his claim for refugee protection, Mr. Metuku was represented by lawyer Jeffrey Nadler, who appeared with him before the Board on June 16, 2005, for the hearing.

 

[13]     However, on June 9, 2005, Mr. Nadler and five accomplices were formally charged by the Royal Canadian Mounted Police (RCMP) with misrepresentation and production of false documents in support of claims for refugee protection in Canada. The RCMP press release reporting these charges was submitted in evidence before the Board by refugee protection officer Christian Jadue and was mailed to Mr. Metuku prior to June 16, 2005.

 

[14]     On June 16, 2005, considering the very serious nature of the information in the RCMP press release submitted in evidence, the panel member decided it was necessary to begin with a pre‑hearing conference to determine what Mr. Nadler’s intentions were and to advise him of how she intended to proceed.

 

[15]     At this pre‑hearing conference, which only Mr. Nadler and Mr. Jadu attended—but after the Mr. Metuku’s exhibits were introduced in evidence in his presence—the panel member advised Mr. Nadler that the Board would, first of all, give the Minister the opportunity to intervene and, second, ask the Minister to conduct an appraisal of Mr. Metuku’s documents to verify their authenticity. It was at this point that Mr. Nadler mentioned his concerns and decided to suggest to his client to proceed with the assistance of a different lawyer.

BY THE PRESIDING MEMBER (addressing Counsel)

 

…

 

A          No, no, no. There is more than . . . to it. I was . . . It said I was arrested, it says that . . . other things about forgery documents and stuff. I have nothing to do with that. They lumped me and that’s my position and that I will maintain it, and I know that, because I know what . . . I know how I practice. But the press did their own thing. But regardless, it’s not about me, it’s about him. And one of the concerns I had was . . . Well, I had the obligation, I performed my obligation, but if his documents are going to be expertised at the CIC, or inviting CIC to make . . . then it’s not fair for my clients, because I don’t think they’ve . . . with all frankness, I don’t think that they’d be getting the same treatment with another Counsel. They wouldn’t be going through the same thing with another . . . with alternate Counsel. And I think it’s incumbent upon me to ask him to seek alternate Counsel. It really is, because it’s not his fault.

 

-           It’s not . . . it’s not my objective here today at all. I think CIC will most likely proceed with verification of those documents.

 

A.        But if . . .

 

-          I’m just trying to save time.

A.         Right, I understand that. But if it . . . if I wasn’t . . . see, the thing is, if I wasn’t Counsel today . . . if I wasn’t Counsel today, you would not proceed with that because A-6 would not have been produced. 

 

-          Maybe, maybe not. I mean . . .

 

A.        Well . . .

 

-           . . . there’s other cases that . . . where we proceed with verification of documents. I mean . . .

 

A.        I’ve no . . . okay, but . . .

 

-          . . . Me Jadue is . . . is (inaudible) to corroborate that. It’s not just . . .

 

A.         I understand, Ms. Panagakos, but I feel that I’m going to ask him to seek alternate Counsel. I don’t feel I’m effective anymore at this time until I clear myself . . . .

 

 

[16]     As mentioned by the panel member, she decided it would be useful to have the documents appraised before the hearing to save time, as this was the usual procedure in any case. 

 

[17]     In addition, the refugee protection officer stated that, even before the RCMP press release was issued, he had intended to request that the Board have some of the documents appraised. In fact, Mr. Jadu stated the following at the pre‑hearing conference:

BY PRESIDING MEMBER (addressing Refugee Protection Officer)

 

Q.        Me Jadue, do you have any observations on this issue?

 

A.         Before the . . . the issues of A-6, I had the intention to proceed with a verification of P-6, I think, the letter from the Nationwide Reconciliation Committee. It seems that Ottawa might have a letter of that president, and I just want to verify the . . . the city of the signature. That was one of my intentions, not regarding what happened with Me Nadler. I’ve seen in one Ref Info that they have a letter as a reference attached . . . not an attachment, but reference to the Ref Info that they might have a letter from this president, so I would probably ask them to verify P‑6, with your permission, of course. That will be . . . I would have suggested that to the Panel even if we had Me Nadler or not. This is . . .

 

[18]     In fact, the Board’s paper file showed that an information sheet dated January 13, 2005, had raised the issue of the reliability of the documents.

 

[19]     Finally, after having heard the respective submissions of Mr. Nadler and Mr. Jadue, the member decided to order an appraisal of the authenticity of Mr. Metuku’s documents by the Canada Border Services Agency and send notice to the Minister to allow the Minister to intervene in the case. The member ended the pre‑hearing conference by asking Mr. Nadler to have his client enter the hearing room and to let him know him beforehand of his decision to advise him to retain the services of a different lawyer to represent him.

 

[20]     The transcript shows that Mr. Nadler decided to withdraw from his client’s case and that Mr. Metuku was duly advised of the Board’s decision to have the authenticity of his exhibits appraised. Mr. Metuku advised the Board that he entirely agreed with its decision.

 

[21]     The member ended the pre‑hearing conference of June 16, 2005, by postponing the hearing sine die without Mr. Metuku having testified on the merits of his claim for refugee protection. Accordingly, on June 16, 2005, the member noted in the pre‑hearing conference record that she did not hear the case and that it was postponed until the appraisals were received from CIC.

 

The hearing on the merits on October 24, 2005

[22]     The hearing on the merits of Mr. Metuku’s claim for refugee protection was held on October 24, 2005. Mr. Metuku was now represented by Céline Bouchard.

 

[23]     Right at the outset of the hearing, that is, during the usual examination of the list of exhibits filed at the hearing, counsel for Mr. Metuku’s stated that she had an application to make. The member asked her to wait until the examination of the exhibits was completed:

[translation]

BY PRESIDING MEMBER (addressing counsel)

 

Q.        Are those your documents or Mr. Nadler’s?

 

A.        Mr. Nadler’s.

 

-          Well. So that was P-1 to P-5.

 

A.        That’s exactly it.

 

…

 

BY COUNSEL (addressing the member)

 

-           Well, it’s because there is another . . . I want to raise another point in connection with that.

 

A.         Well, you’ll do it after.

 

-           O.K., alright.

 

A.         After we’ve finished, note all your points there.

 

-           Yes, yes, everything is noted.

 

A.         O.K., good.

 

 

[24]     Following the examination of the exhibits submitted in evidence, counsel for Mr. Metuku stated having one preliminary application, that is, a postponement sine die of Mr. Metuku’s hearing until the completion of Mr. Nadler’s criminal trial. On this point, Ms. Bouchard alleged that [translation] “it is quite possible that the panel may come to a conclusion today which may in six months . . . be contrary” concerning the documents submitted by Mr. Metuku and sent by the Board for expert appraisal.

 

[25]     Before rendering her decision, the member openly wondered about two points concerning the soundness of the application for postponement and invited counsel to answer these questions.

 

[26]     First of all, the member questioned counsel for Mr. Metuku about how certain she was that Mr. Metuku’s personal documents, which were appraised by the Canada Border Services Agency, were actually part of Mr. Nadler’s trial:

[translation]

BY THE PRESIDING MEMBER (addressing counsel)

 

Q.        Thank you. O.K. First of all, are you sure that the documents we are speaking about today were submitted at Mr. Nadler’s trial?

 

A.         I . . . I am unable to answer that, but I cannot answer either affirmatively or negatively, because I do not know.

 

-           Don’t know, O.K.

 

A.         However, I assume that if Mr. Nadler was arrested, it was because they searched his files, they have to look for evidence in . . .

 

-           That’s understandable, but . . .

 

A.         I think so, and . . .

 

-           Mr. Nadler had many cases, and we are not certain that the case in which you are making your application for postponement is part of his case.

 

A.        O.K. 

 

 

[27]     Secondly, the member reminded counsel for Mr. Metuku’s that Mr. Metuku had categorically testified under oath to the effect that all his documents had been mailed to him directly from Albania by his mother and that there was no reason to doubt his statements:

[translation]

-          That is one. Secondly . . .

 

A.        Alright.

 

-          . . . your client was asked under oath . . .

 

A.        O.K.

 

-           . . . if the exhibits he submitted were alright, he stated: “It was my mother who went to get them, and as far as I am concerned these exhibits are authentic”.

 

A.         O.K.

 

-           Well then, if these exhibits are authentic, and your client says so, I don’t see what you’re worried about.

 

 

[28]     The member directly referred to the following statements given by Mr. Metuku at the start of the hearing:

[translation]

BY THE PRESIDING MEMBER (addressing claimant)

 

Q.        One last thing as far as the exhibits filed are concerned, Mr. Metuku, are they . . . are you the person who submitted these exhibits?

 

A.         Yes.

 

Q.        Yes? Are these authentic exhibits?

 

A.         It was his mother who brought them.

 

-           Yes, yes, the exhibits that are there.

 

A.         Yes.

 

. . .

Q.        Now, are these authentic exhibits? Are they valid exhibits? Are they true exhibits or are they . . . fabricated exhibits?

 

A.        Him, he . . . I know that they are 100% true.

 

-          Good, there you are.

 

. . .

 

BY THE RPO (addressing claimant)

 

Q.        What is the foundation or basis of your knowledge?

 

A.         He knows, he knows that his mother went to offices and asked. That is his knowledge, but he doesn’t know anything more than that.

 

. . .

 

Q.        So, you asked your mother to go to the office to obtain authentic documents. Is that right?

 

A.        Only my mother could do it.

 

-          O.K. So . . . pardon me?

 

A.        It was only his mother . . .

 

-          O.K.

 

A.        . . . who could make the request.

 

Q.        So, besides your mother, there was no other intermediaries before you received them. Is that it?

 

A.        No, only the mother.

 

Q.        O.K. So, when you received it, it was given to counsel for translation only?

 

A.         He had it translated by Mr. Sherefi (phonetic) and brought it to . . . counsel was translating.

 

Q.        O.K. And nothing was changed in the documents you received from your mother?

 

A.        It’s 100% sure that it was his mother who sent it.

 

-          Alright, that’s . . . that’s what we wanted to know.

 

 

[29]     The refugee protection officer underlined the fact that there was no reason for the Board to wait until Mr. Nadler’s criminal trial was over, because the fact that Mr. Metuku’s former counsel did not handle the documents was not at all in doubt. In addition, he noted that, because the Board must act as informally and quickly as considerations of fairness and natural justice permit (subsection 162(2) of the Act), it would not be fair to Mr. Metuku to wait for the end of Mr. Nadler’s trial, considering this trial would have no effect on Mr. Metuku’s claim for refugee protection.

 

[30]     In spite of the fact counsel for Mr. Metuku mentioned at the beginning of the hearing that she had only one preliminary application, she made a second one in reply to the statement made by the refugee protection officer. The hearing transcript shows that the second preliminary application made by counsel for Mr. Metuku consisted of several questions to the member and challenged the practices applied by the Board to the appraisal of the documents and the fact that a member was to hear the case.

 

[31]     The member tried to explain to counsel for Mr. Metuku that his hearing would be held before a different member from the first, because the case was never before the first member, considering that Mr. Metuku had not testified. Accordingly, the hearing did not proceed on June 16, 2005.

 

[32]     Furthermore, the transcript of the hearing shows that immediately after the panel member dismissed the two preliminary applications made by counsel for Mr. Metuku, counsel made a third, impromptu application after her reply submission consisting of questions. This exasperated the member, as is shown by the transcript of the hearing:

[translation]

BY COUNSEL (addressing the presiding member)

 

-          I’m sorry, but I have a third application to make.

 

A.         No, that’s enough. Listen, this is becoming obstruction.

 

-           No, but . . .

 

A.         I just gave you . . .

 

-           No, this is not obstruction.

 

A.         Excuse me, I just rendered my decision.

 

-           Sir, I think that I am entitled to make a third application.

 

A.        Yes, yes, but listen here, proceed.

 

-          Yes, but listen . . .

 

Q.        Go ahead.

 

Q.        Please, will you let me make my third application?

 

A.        What is your third application? The first two were dismissed.

 

. . .

 

-           The third application is to file documents. I know . . . it’s documents . . . let me . . . you’ll refuse it if . . .

 

A.         Yes, I . . . I’ll let you continue.

 

-           . . . these are documents which are . . .

 

A.         These are documents which were not filed within the time limit.

 

Q.        Yes, but these are documents which come from your . . . your Service. That doesn’t matter? Alright, that’s fine. So the answer is no?

 

A.        That’s it.

 

-          Alright, thank you.

 

A.        Thank you very much.

 

[33]     Thus, because the time limits specified under the Board’s Rules had not been respected, the member dismissed the third preliminary application presented by counsel for Mr. Metuku for permission to file in evidence additional exhibits on the morning of the hearing.

 

IMPUGNED DECISION

[34]     Following the hearing, the Board rejected Mr. Metuku’s claim for refugee protection because of significant problems noted with the exhibits and because of Mr. Metuku’s lack of credibility. In addition, the Board concluded there was no credible basis for the claim.

 

ISSUES

[35]     There are three issues in this case:

1.         Did the Board breach procedural fairness or natural justice in dismissing the preliminary applications made at the hearing by counsel for Mr. Metuku?

2.         Did the Board err in its assessment of Mr. Metuku’s credibility and of the evidence he submitted?

3.         Did the Board err in concluding there was no credible basis for the claim?

 

ANALYSIS

            Legislative framework

[36]     Under section 96 of the Act, a refugee is a person who fears being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion:

 

[37]     Subsection 97(1) of the Act reads as follows:

 

[38]     Under subsection 107(2) of the Act, the Board must specify in its decision that there is no credible basis when it determines that no credible evidence that could support a decision favourable to the claimant was submitted:

 

            Standard of review

[39]     When issues concerning the breach of procedural fairness or natural justice are raised, this Court must examine the particular circumstances of the case to determine whether the administrative tribunal actually did respect procedural fairness and natural justice. If it determines that there was a breach, the Court must return the case to the administrative tribunal in question (Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL), at paragraph 15; Demirovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560 (QL), at paragraph 5; Trujillo v. Canada (Minister of Citizenship and Immigration), 2006 FC 414, [2006] F.C.J. No. 595 (QL), at paragraph 11; Bankole v. Canada (Minister of Citizenship and Immigration), 2005 FC 1581, [2005] F.C.J. No. 1942 (QL), at paragraph 7).

 

[40]     As far as matters of credibility or assessment of evidence are concerned, the standard of review is that of patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), [1993] F.C.J. No. 732, at paragraph 4; Thamotharem, supra, at paragraph 16; Umba v. Canada (Minister of Citizenship and Immigration), 2004 FC 25, [2004] F.C.J. No. 17 (QL), at paragraph 31; Kathirgamu v. Canada (Minister of Citizenship and Immigration), 2005 FC 300, [2005] F.C.J. No. 370 (QL), at paragraph 41; Trujillo, supra, at paragraph 12; Chowdhury v. Canada (Minister of Citizenship and Immigration), 2006 FC 139, [2006] F.C.J. No. 187 (QL), at paragraph 12; N’Sungani v. Canada (Minister of Citizenship and Immigration), 2004 FC 1759, [2004] F.C.J. No. 2142 (QL), at paragraphs 6 and 12; Bankole, supra, at paragraph 6).

 

            The soundness of Mr. Metuku’s preliminary objections

[41]     On the whole, the facts noted in the transcript of the hearing and cited in the respondent’s memorandum show that all of Mr. Metuku’s allegations are inaccurate and should be rejected.

 

[42]     At the pre‑hearing conference, the member did not withdraw from Mr. Metuku’s case. The minutes of the pre‑hearing conference on June 16, 2005, and the comments made by the member and the refugee protection officer at the hearing on October 24, 2005, are clearly to that effect.

 

[43]     It is incorrect to claim, as Mr. Metuku did, that [translation] “without having spoken to the claimant, Ms. Panagakos decided to send the documents in the applicant’s record to Immigration Canada for an appraisal of authenticity”. The transcript of the hearing of June 16, 2005, shows that the member personally advised the applicant of her decision at the end of the pre‑hearing conference. Mr. Metuku appeared to agree with this decision.

 

[44]     In his memorandum, Mr. Metuku stated that [translation] “the Board, considering that Jeffrey Nadler was the applicant’s lawyer, took for granted that all the documents . . . and finally the claim itself had no credibility”. This is wrong, because the Board explicitly mentioned not questioning Mr. Metuku’s sworn testimony to the effect that he had directly received all his documents by mail directly from his mother, without Mr. Nadler handling them at all. The member’s comments at the hearing show that the negative decision results directly from the expert appraisal made by the Canada Border Services Agency, without any consideration of the fact that Mr. Nadler previously represented the applicant. Furthermore, the transcript of the pre‑hearing conference shows that the Board already had doubts about the authenticity of Mr. Metuku’s documents, even before criminal charges were brought against Mr. Nadler.

 

[45]     In his memorandum, Mr. Metuku submitted that at the beginning of the hearing, [translation] “Ms. Bouchard interrupted the member and asked to be allowed to make some applications. Member Prévost was irritated by this preliminary application and stated being ready to proceed immediately”. However, the transcript of the hearing showed that the member courteously told counsel for Mr. Metuku to make a list of her applications in order to present them right after the beginning of the hearing. Following that, after the beginning of the hearing, counsel for Mr. Metuku’s was allowed to present what she qualified as being an application. Her application was transformed into a second, impromptu application in the form of questions about the Board’s practice and finally into a third application after the two preliminary applications were dismissed. It was in this concrete context that the member stated that counsel’s conduct amounted to obstruction.

 

[46]     In his memorandum, Mr. Metuku stated that the three applications made by his counsel were valid. However, according to the facts, it seems that these applications were unfounded, and it was therefore reasonable for the Board to dismiss them.

 

[47]     As far as the first objection is concerned, there is no need to postpone Mr. Metuku’s hearing sine die until Mr. Nadler’s criminal trial is over, considering that Mr. Metuku testified under oath—and the Board believed him—that his evidence had not been tampered with or handled by Mr. Nadler. Moreover, what is even more important is the fact that counsel for Mr. Metuku was unable to say whether his documents were actually part of the documents that led to the charges against Mr. Nadler and were filed at the trial.

 

[48]     As far as the second objection is concerned, there is no procedural error, considering that Mr. Metuku’s Board hearing was held before a second member because the first member did not hear the case.

 

[49]     As far as the third and last application is concerned, the Board was entitled to refuse the filing of the evidence in the record on the morning of the hearing, as the documents had not been filed within the specified time limit.

 

[50]     On the basis of the preceding, Mr. Metuku had a fair hearing. The Board was not biased in its handling of his claim for refugee protection.

 

[51]     In fact, the test for assessing impartiality is that of an informed person, viewing the matter realistically and practically and having thought the matter through. The grounds for an apprehension of bias must be serious, especially when, as in the case at bar, an administrative tribunal is involved. A serious allegation cannot be founded on mere suspicions (Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at paragraphs 40‑41 (Mr. Justice Louis‑Philippe de Grandpré, dissenting); R. v. Valente, [1985] 2 S.C.R. 673, at paragraphs 11‑12.)

 

The assessment of Mr. Metuku’s evidence by the Board

[52]     As far as the assessment of the evidence submitted by Mr. Metuku and the shortcomings in connection with this evidence are concerned, there are two grounds invoked. First of all, Exhibit M‑1 (the results of the expert appraisal of the documents) filed in the record on August 21, 2005, shows that several key exhibits in connection with the claim for refugee protection have characteristics associated with forgery. Results were inconclusive for the other documents because there are no specimens for comparison purposes (Reasons for Decision, at page 2).

 

[53]     Secondly, as far as the article filed as Exhibit P-13, dated Saturday, March 19, 2005, is concerned, the Board was of the opinion that a false article was placed on page 11, reproduced on the page by video camera and transferred onto newsprint. The poor reproduction of the pictures on pages 11, 13 and 14 shows that this is a second generation of characterized by diffuse points of excessive size, giving a poor image quality. This proves that the reproduction was done from photographs of this newspaper, not from originals (Reasons for Decision, at page 2).

 

[54]     It is a little bit late for Mr. Metuku to challenge the results of the expert appraisal conducted by the Canada Border Services Agency. When he received the results of the appraisal before the hearing, Mr. Metuku did not deem it necessary to have his documents re‑appraised. Finally, what he is trying to do is to have this Court substitute its opinion for that of a government agency which has the required expertise. 

 

[55]     It should be noted that the conclusions of the Canada Border Services Agency, according to which some of Mr. Metuku’s documents have characteristics generally associated with forgery, did not concern just any incidental document, but several key exhibits connected with Mr. Metuku’s claim for refugee protection.

 

[56]     It should also be noted that Rule 7 of the Refugee Protection Division Rules specifically mentions that a claimant for refugee protection must provide acceptable documents establishing identity and other elements of the claim. In this case, it is obvious the Board decided that several of the documents submitted by Mr. Metuku were unacceptable, and this could lead it to draw a negative inference in connection with Mr. Metuku’s claim for refugee protection.

 

[57]     Moreover, it must be stressed that the negative inference which the Board had to draw in connection with Mr. Metuku’s exhibits did not concern a secondary fact, because in its decision the Board mentioned that the shortcomings concerned several key exhibits in Mr. Metuku’s claim.

 

[58]     As stated by Mr. Justice Yvon Pinard in Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1329 (QL), at paragraph 3, when a claimant is not considered to be credible on an issue which is central to his claim, this may lead to the rejection of the claim because there is no sufficiently credible fact to support his claim for refugee protection:

It is settled that with respect to credibility and weighing the facts, it is not for this Court to substitute itself for the Refugee Division, particularly since it is a specialized tribunal, where, as in the instant case, the applicant has failed to prove that the decision is based on an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before the tribunal. As the Federal Court of Appeal held in Sheikh v. Canada, [1990] 3 F.C. 238, 244, the perception that an applicant is not credible on a fundamental element of his claim in fact amounts to a finding that there is no credible evidence sufficient to justify the refugee claim in question.

 

(See also: Sheikh v. Canada (Minister of Citizenship and Immigration), [1990] 3 F. C. 238 (F.C.A.), [1990] F.C.J. No. 604 (QL), at paragraphs 7‑9; Rez v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 618 (QL), at paragraph 9; Bessekri v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 45 (QL), at paragraph 3; Kondratiev v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1376 (QL), at paragraph 6; Tsafack v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 506 (QL), at paragraph 3.)

 

[59]     Finally, as far as the appraisal of the newspaper article filed as Exhibit P-13 is concerned, it is obvious that Mr. Metuku is trying to obtain a re‑appraisal of the exhibit in question from this Court, although the Board had the original document before it.

 

[60]     However, Mr. Metuku’s dissatisfaction with the assessment of the evidence made by the Board cannot warrant intervention by this Court. In fact, as Mr. Justice Pierre Blais underlined recently in Komenan v. Canada (Minister of Citizenship and Immigration), 2005 FC 1342, [2005] F.C.J. No. 1641 (QL), at paragraph 17:

The questions of weighing and assessing the evidence clearly fall within the panel’s jurisdiction. The applicant is asking this Court to do something that it cannot do in the context of an application for judicial review, namely to weigh and reassess the evidence that was before the panel:

 

After a careful review of the evidence and of the Refugee Division’s decision, I am in no way able to conclude, as the appellant wishes me to do, that certain findings of fact made by the Refugee Division were perverse, capricious or without regard to the evidence. I entirely concur in the Judge’s opinion that the evidence could reasonably serve as a basis for the Refugee Division's findings of fact. What the appellant is actually asking this Court to do is what we cannot do on an application for judicial review, that is, to reassess the evidence that was before the Refugee Division.

 

 

[61]     As far as the objective documentary evidence concerning the vendetta to which Mr. Metuku referred in his memorandum is concerned, because he was not deemed to be credible, the objective documentary evidence is of no help to him in this case. In fact, it is relevant to refer to the recent statement by Mr. Justice Yves de Montigny in Kazadi v. Canada (Minister of Citizenship and Immigration), 2005 FC 292, [2005] F.C.J. No. 349 (QL), at paragraph 20:

Finally, I cannot conclude these reasons without saying something about the documentary evidence on the situation in the Democratic Republic of Congo submitted by the applicant's counsel, which he emphasized at length at the hearing. That evidence cannot in itself be of any help to the applicant. Even if the situation in a given country may be particularly difficult, especially in terms of human rights or of safety in general, the personal situation of the applicant must also be such that he fears (objectively and subjectively) persecution, torture, or threats. It is precisely this link between the general situation in the DRC and the applicant that is missing, given the little credibility that the Board assigned to his story (Rahaman v. M.C.I., [2002] 3 F.C. 537 (F.C.A.); Canada (Secretary of State) v. Jules, [1994] F.C.J. No. 835 (F.C.) (QL)).

 

[62]     Moreover, this statement is similar to what Mr. Justice Michel Beaudry wrote in Sahiti v. Canada (Minister of Citizenship and Immigration), 2005 FC 364, [2005] F.C.J. No. 450 (QL), at paragraphs 19‑20:

The application of these two criteria is well explained by the comments of Rouleau J. in Ahmad v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 995 (T.D.) (QL), at paragraph 22:

 

Thus the assessment of the applicant's fear must be made in concreto, and not from an abstract and general perspective. The fact that the documentary evidence illustrates unequivocally the systematic and generalized violation of human rights in Pakistan is simply not sufficient to establish the specific and individualized fear of persecution of the applicant in particular. Absent the least proof that might link the general documentary evidence to the applicant's specific circumstances, I conclude that the Board did not err in the way it analyzed the applicant’s claim under section 97. [Emphasis added]

 

That said, although the current situation in Kosovo does not provide perfect protection, that is not enough to show a well-founded fear of persecution. In fact, the objective evidence must be linked to the applicants’ specific circumstances. In the case at bar, the applicants claimed they feared the KLA military group because of their refusal to join its ranks during the war. The Panel evaluated the effect of these changes in relation to the applicants’ specific circumstances. The independent documentation expressly indicated that this organization was dissolved after 1998. In the Panel’s view, since the war was over and Kosovo was under international administration, things had changed appreciably in Kosovo and the situation was such that the reasons for the applicants’ fear had ceased to exist. The Panel member also found that the applicants’ ethnic group—Albanians—was currently the majority group in Kosovo . . . .

 

            The finding of no credible basis

[63]     Finally, with regard to the finding that there was no credible basis for the claim within the meaning of subsection 107(2) of the Act, assuming that Mr. Metuku did actually file before the Board certain documents that were possibly valid, this does not make the conclusion that there was no credible basis unreasonable. The following excerpt from the Federal Court of Appeal judgment in Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537, 2002 FCA 89, [2002] F.C.J. No. 302 (QL), at paragraphs 29‑30, supports this argument:

However, as MacGuigan J.A. acknowledged in Sheikh, supra, in fact the claimant's oral testimony will often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim. Because they are not claimant‑specific, country reports alone are normally not a sufficient basis on which the Board can uphold a claim.

 

On the other hand, the existence of some credible or trustworthy evidence will not preclude a “no credible basis” finding if that evidence is insufficient in law to sustain a positive determination of the claim. Indeed, in the case at bar, Teitelbaum J. upheld the “no credible basis” finding, even though he concluded that, contrary to the Board’s finding, the claimant's testimony concerning the intermittent availability of police protection was credible in light of the documentary evidence. However, the claimant's evidence on this issue was not central to the Board’s rejection of his claim.

 

[64]     The last paragraph above clearly shows that Mr. Metuku’s claim to the effect that [translation] “by simply studying the list of exhibits and the Board’s binder of evidence regarding Albania (vendettas) and by taking into consideration the claimant’s testimony, it is obvious that he had a strong case in support of his application” is mistaken.

 

CONCLUSION

[65]     In this case, the Board did not breach procedural fairness or natural justice by dismissing the preliminary applications made by counsel for Mr. Metuku. These applications were properly considered by the member, who was warranted in dismissing them as he did.

 

[66]     Furthermore, the Board’s conclusion about Mr. Metuku’s credibility and that of the document he submitted in evidence was reasonable. It is up to the Board to determine the credibility of testimony and of the evidence submitted in support of a claim for refugee protection. This Court will not interfere with this decision.

 

JUDGMENT

 

1.         The application for judicial review is dismissed;

2.         No serious question of general importance is certified.

 

 

“Michel M.J. Shore”

Certified true translation

Michael Palles

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-6935-05

 

STYLE OF CAUSE:                           PERPARIM METUKU v.

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

 

PLACE OF HEARING:                    MONTRÉAL, QUEBEC

 

DATE OF HEARING:                      June 21, 2006

 

REASONS FOR JUDGMENT BY: THE HONOURABLE MR. JUSTICE SHORE

 

DATED:                                             June 29, 2006

 

 

 

APPEARANCES:

 

Éveline Fiset	FOR THE APPLICANT
Mario Blanchard	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

ÉVELINE FISET Montréal, Quebec	FOR THE APPLICANT
JOHN H. SIMS Q.C.                                                                          POUR LA PARTIE DÉFENDERESSE Deputy Attorney General of Canada	FOR THE RESPONDENT