Federal Court Decisions

Date: 20060927

Docket: IMM-3966-05

Citation:  2006 FC 1144

Ottawa, Ontario, September 27, 2006

PRESENT:     The Honourable Madam Justice Heneghan

BETWEEN:

JOAN BENDI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               Mr. Joan Bendi (the “Applicant”) seeks judicial review of the decision made by the Immigration and Refugee Board, Refugee Protection Division (the “Board”) on June 10, 2005. In its decision, the Board determined that the Applicant is not a Convention refugee nor a person in need of protection, as defined by the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”), sections 96 and 97.

[2]               The Applicant is a citizen of Albania. He based his claim of fear of persecution upon his political opinions and activities.

[3]               The Applicant claimed that his family had a long history of being persecuted by the Communist regime in Albania, including denial of education and seizure of property. Following the political changes in Albania in the early 1990’s, the Applicant worked in Germany for approximately six years as an engineer. He then returned to Albania and began his own business, an information agency, that transmitted news articles to media agencies.

[4]               In 1998, the Applicant became a member of the Democratic Party (the “DP”). In addition to his party membership, he supported the party through his business by “spreading its message”. He claimed that the governing Socialist Party (the “SP”) began making life difficult by imposing high taxes on his business and interfering with his phone lines. These difficulties existed between the years 1998 and 2001.

[5]               In 2001, the Applicant and his then fiancée faced increasing difficulties before the general election of that year. On June 15, 2001, tax authorities, SP officials and the police came to his office and accused him of running a political campaign from his office. The Applicant was assaulted and injured, but he did not seek medical treatment. When he reported the incident to the DP, he was told that the Party could not protect him.

[6]               Shortly after the election, the Applicant’s fiancée was assaulted by unknown individuals. The Applicant and his two brothers intervened and were injured. None of them sought medical attention in their home city of Tirana because they feared that the SP would look for them in the hospital. The Applicant took his fiancée to a hospital outside Tirana where she stayed for five days. Upon their return to Tirana, they discovered that the Applicant’s office had been destroyed. There was a notice in the office that suggested that the damage had been caused by SP supporters. When the Applicant tried to file a police report, he was told that “people who play with government and fire get burned”. He believed that the police were complicit in the attack.

[7]               On July 4, 2001, there was an explosion at the home of the Applicant’s fiancée. They decided to leave Albania. The Applicant married his fiancée on July 20, 2001 and she arrived in Canada in September of that year. She made a refugee claim that was denied.

[8]               In Albania, the Applicant re-established his business but in January 2002, he was denied a renewal of his business licence and ordered to vacate his office. He refused to do so. In February 2002, police arrived at his office and removed all of his equipment. The Applicant did not work after this incident but he continued to support the DP.

[9]               The Applicant, fearing for his safety, obtained a visitor’s visa for the United States and flew to that country on May 30, 2003, with the intention of engaging a smuggler to bring him to Canada. He was unable to contact the smuggler and did not want to claim refugee protection in the United States. He decided to return to Albania on June 1, 2003.

[10]           Between his return to Albania and October 2003, the Applicant experienced no problems. However, prior to the election scheduled for October 12, 2003, he was detained and beaten by the police on October 10. He was told that all Democrats would be killed. He was not seriously injured and was released on the following day. He continued to prepare for the election.

[11]           As Vice-Chairman of the Tirana Election Commission, the Applicant was required to sign the voting reports. He refused to do so on the basis of irregularities and what he described as manipulation on the part of the SP. Other DP members who refused to sign the reports were threatened by the SP. A representative of the SP held a press conference and said that the names of all Election Commission members who refused to sign the reports would be given to the police. The Applicant kept a low profile after this to avoid the authorities. He wanted to leave Albania as soon as possible.

[12]           On June 1, 2004, the Applicant obtained another visa for the United States. He arrived in the United States on June 18, 2004 and crossed the border at Windsor, Ontario on June 20, 2004. He claimed refugee protection in Toronto on the following day.

[13]           The Board accepted the Applicant’s identity as an Albanian citizen but expressed concerns about his identity as the operator of a news agency and a political activist. The Applicant produced the registration certificate for his company, JON-I Ltd. The Board noted that this certificate was valid for ten years from April 13, 1993, meaning that it would expire on April 12, 2003. It was also noted that the permitted uses included retail wholesale, import and export, but not news agency. The Board found it implausible that the Applicant would be permitted to operate a business outside the

scope of the certificate and determined that he had fabricated the story of the eviction from his office by the police in order to “explain the sunset of his certificate”.

[14]           The Board’s finding with respect to the breadth of the business registration certificate apparently influenced its ultimate conclusion about the well-foundedness of the Applicant’s claim.

[15]           The Board gave little weight to the Applicant’s evidence that his clients were members of the foreign press. It concluded that he failed to provide credible or reliable evidence that he operated a news agency. It accepted his evidence that he was a member of the DP but did not find that he was a political activist, as he claimed to be.

[16]           The Board also considered the question of re-availment and concluded that the Applicant had re-availed himself of the protection of Albania when he returned to that country from the United States in June 2003. This showed a lack of a well-founded fear of persecution.

[17]           The Board found that the Applicant had failed to provide credible evidence about material elements of his claim.

[18]           In reviewing the Board’s decision, the Court must identify the applicable standard of review by conducting a pragmatic and functional analysis, see Sketchley v. Canada (Attorney General) (2005), 344 N.R. (F.C.A.). That analysis requires consideration of four factors, that is the presence or absence of a privative clause, the relative expertise of the tribunal, the purpose of the legislation and the nature of the question.

[19]           Decisions of the Board are not protected by a strong privative clause; see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The Board has relative expertise in assessing applications for protection pursuant to the Act. The broad purpose of the Act is to regulate the admission of persons, including refugees, into Canada and the Act confers broad discretion to the Board in determining such claims.

[20]           The key element is the nature of the question. In this case, the focus is on the Board’s conclusion that the Applicant had failed to establish his claim, that is a fear of persecution on the basis of political opinion and activism. That is a matter of reviewing the evidence and reaching a factual determination. Such a determination attracts a high degree of deference.

[21]           Upon balancing the four factors, I conclude that the appropriate standard of review is patent unreasonableness.

[22]           The Board based its rejection of the Applicant’s claim largely upon its assessment of his business registration certificate. It concluded that since that document did not refer to the operation of a “news agency”, the Applicant had been untruthful in saying that his business had been a means through which he engaged in political activities. It relied on this conclusion to make other negative credibility findings against him.

[23]           I am not satisfied, on the basis of the record, that the Board fairly dealt with the business registration certificate. If the Board erred in this regard, that error may have tainted its subsequent conclusions concerning the general credibility of the Applicant and of the well-foundedness of his claim. In Abdullahi v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 31 (T.D.) (QL), the Court said the following at paragraph 4:

… Once the Court has concluded that the Board’s decision is based on a substantial error, which if it had not been made might have caused the Board to decide otherwise, that decision should be quashed and referred back for re-consideration by another panel of the Board.

[24]           In the result, this application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted panel. There is no question for certification arising.

ORDER

            The application for judicial review is allowed. There is no question for certification arising.

“E. Heneghan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-3966-05

STYLE OF CAUSE:                          JOAN BENDI and THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      July 11, 2006

REASONS FOR ORDER

AND ORDER :                                  HENEGHAN J.

DATED:                                             September 27, 2006

APPEARANCES:

SOLICITORS OF RECORD: