Ottawa, Ontario, February 27, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] If a first instance tribunal finds a claim, on its core issues, not to be credible on the basis of irreconcilable internal inconsistencies of the Applicant’s own testimony and personal documents, then there is no choice, but, for the Federal Court, to dismiss an application for judicial review.
JUDICIAL PROCEDURE
[2] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered on October 19, 2005, wherein it found the Applicant to be neither Convention refugee nor a person in need of protection pursuant to section 96 and subsection 97(1) of the IRPA.
BACKGROUND
[3] The Applicant, Mr. Arif Haxhiaj is 31 years old. He was born in the village of Rakosh, in the Istog region of Kosovo, and is of Albanian descent. He has a wife and a son still in Kosovo.
[4] Mr. Haxhiaj claims refugee protection on the basis of his political opinion, and in particular, his affiliation with the Democratic League of Kosovo (LDK).
[5] In March 1996, the Applicant refused to answer a call-up notice to serve in the Yugoslavian army.
[6] In the spring of 1998, he volunteered to help local Albanian residents, and assisted those who had lost their homes during skirmishes between the Serbian authorities and the Kosovo Liberation Army (KLA) in 1998.
[7] In January 1999, the Applicant refused to join the KLA and remained hidden in order not to be forcibly taken by the KLA. As the Applicant could not be found, the KLA took his car as punishment.
[8] In March 1999, Mr. Haxhiaj escaped to Albania where he remained until June 1999 when the United Nations forces occupied Kosovo.
[9] By mid-2000, the Albanian people were deeply divided along political lines. The Applicant always supported the LDK. In the summer of 2000, an LDK executive tried to encourage him to join the party and head the youth forum in the Applicant’s region. Mr. Haxhiaj was almost persuaded to join the LDK when a prominent candidate of that party was kidnapped and killed by the Democratic Party of Kosovo (PDK).
[10] After this incident, the Applicant decided not to officially join the LDK; however, he decided to use his popularity to promote the LDK by distributing flyers, driving people to meetings, and speaking at community gatherings. Because of his activities, Mr. Haxhiaj was threatened during the election campaigns of 2000 and 2001.
[11] In 2001, he was attacked by extremists resulting in injuries to his head and back.
[12] After the elections in 2002, the Applicant received threats that his wife could be killed if he did not leave Kosovo. Mr. Haxhiaj was afraid to contact the police as they were closely connected to the PDK.
[13] In May 2003, the street was barricaded in front of his house. In August 2003, a white sheet with a message ordering the Applicant to leave Kosovo was found draped over the Applicant’s front door. Following this incident, Mr. Haxhiaj went into hiding.
[14] In September 2003, the Applicant’s brother was robbed of 1200 euros by assailants who mistook him for Mr. Haxhiaj.
[15] In January 2004, Mr. Haxhiaj fled Kosovo and entered Canada with false documents. He immediately claimed refugee protection.
DECISION UNDER REVIEW
[16] The Board determined that the narrative of the Applicant was implausible and contradictory. The Board made a negative finding of credibility concerning the testimony and evidence given by the Applicant. Due to the Board’s determination that Mr. Haxhiaj’s testimony and evidence lacked credibility, the Applicant was found not to have established an affiliation with the LDK, nor to have suffered mistreatment in that regard. Furthermore, the Board found that the Applicant did not provide credible evidence to show that there was inadequate state protection in Kosovo. Ultimately, the Board determined that the Applicant was neither a Convention refugee pursuant to section 96 of the IRPA nor a person in need of protection as per subsection 97(1) of the IRPA.
ISSUES
[17] 1) Did the Board make a patently unreasonable finding of fact?
2) Did the Board fetter its discretion while conducting the examination of the Applicant’s testimony?
STATUTORY SCHEME
[18] Section 96 of IRPA reads as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. |
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
[19] Subsection 97 (1) of IRPA states the following:
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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STANDARD OF REVIEW
[20] In a matter of credibility, the proper standard of review is that of patent unreasonableness. The Board is a specialized tribunal and has complete jurisdiction to assess an Applicant’s credibility on the basis of implausible testimony, contradictions and inconsistencies in the evidence. Where the Board’s inferences and conclusions are not so unreasonable as to warrant the Court’s intervention, its findings are not open to judicial review, whether or not the Court agrees with the inferences or conclusions drawn. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at para. 14; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL), at para. 4).
[21] In respect of the alleged breach of procedural fairness, the proper standard of review is correctness. As such, the Court must examine the particular circumstances of the case in order to determine whether the decision-maker respected the principles of procedural fairness. If the Court determines that a breach of procedural fairness occurred, it must return the decision to the first instance decision-maker for a redetermination. (Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565, [2005] F.C.J. No. 693 (QL), at para. 9; Canada (Attorney General) v. Fetherston, 2005 FCA 111, [2005] F.C.J. No. 544 (QL); Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL), at para. 15; Demirovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560 (QL), at para. 5; Trujillo v. Canada (Minister of Citizenship and Immigration), 2006 FC 414, [2006] F.C.J. No. 595 (QL), at para. 11; Bankole v. Canada (Minister of Citizenship and Immigration), 2005 FC 1581, [2005] F.C.J. No. 1942 (QL), at para. 7).
ANALYSIS
[22] Mr. Haxhiaj argues that the Board erred on two points:
(1) Did the Board made a patently unreasonable finding of fact?
(2) Did the Board fetter its discretion while conducting the examination of the Applicant’s testimony?
1) Did the Board make a patently unreasonable finding of fact?
[23] Although the counsel for the Applicant, Mr. Gregory Lyndon, was passionate, informative, poignant and point-specific with respect to events in the former Yugoslavia and their aftermath, the Board’s decision is not patently unreasonable as, from the evidence before the Board, it was reasonable to conclude that Mr. Haxhiaj’s testimony was filled with internal inconsistencies.
[24] In Aguebor, above, the Federal Court of Appeal states that the Court has recognized limits in regard to a Board’s determination on a credibility finding. Moreover, the Court ruled in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, at paragraph 5, that sworn testimony of the Applicant is presumed true, unless there is a valid reason to doubt its truthfulness. The Board, in the present case, had credibility concerns in regard to contradictions and inconsistencies between the Applicants’ material evidence and testimony. In addition, the Board found certain statements of Mr. Haxhiaj’s testimony to be implausible, giving rise to enough reason to rebut the presumption. Furthermore, the Applicant had failed to explain the contradictions, inconsistencies and implausibility raised by the Board in a satisfactory manner. Contrary to the Applicant’s assertions, the Board did hear the Applicant’s explanations for the numerous inconsistencies in his evidence; nevertheless, the Board was ultimately unpersuaded by those explanations. The findings made by the Board outline the various inconsistencies, contradictions and implausibility in the Applicant’s documentary evidence and testimony:
(1) The Applicant based his claim on the grounds of membership in a particular social group and political opinion, and alleged that he had a well-founded fear of persecution because of his refusal to answer a call-up notice to serve in the former Yugoslavian Army in 1996 (according to his PIF) and 1999 (according to his testimony) and because he was actively involved in the LDK; however, according to his PIF narrative, the Applicant was not threatened and attacked until after 1999 when he “refused to join the KLA” and “decided to use [his] popularity to promote the LDK”. (Decision of the Board, at page 3, PIF narrative, at page 2, Transcript of the hearing, at page 12)
(2) In order to corroborate his assertions, Mr. Haxhiaj submitted a certificate from the LDK’s branch in Istog. The LDK certificate indicated that the Applicant was an active member of the LDK since 1994, whereas Mr. Haxhiaj did not refer to any of his activities for the LDK until 2000 in his PIF narrative. When confronted with this inconsistency, the Applicant replied that in 1994 he arranged private homes for Albanian students. The Board did not find this explanation satisfactory as he had stated in his PIF that he “volunteered to organize public works programs for young adults and helped develop “private schools” to educate children without any reference to his affiliation with the LDK in 1994 or the involvement of the LDK in his volunteer work in assisting youth. No other evidence was provided to prove his affiliation with the LDK. (Decision of the Board, at page 5, PIF narrative, at pages 1-2, Transcript of the hearing, at pages 24- 26, 44-46)
(3) The LDK’s certificate indicated that the Applicant has been an LDK member since 1994, whereas the Applicant stated in his PIF narrative that he “decided not to officially join the LDK” in 2000. When questioned about this inconsistency, Mr. Haxhiaj explained that he had never joined the LDK and that it was not necessary to be a member of the LDK to perform the duties of a member. This explanation was found unsatisfactory. (Decision of the Board, at page 5, PIF narrative at page 2, Transcript of the hearing, at page 44)
(4) The Board drew a negative inference regarding the credibility of both the Applicant’s allegations about his political affiliation and the reliability of the LDK’s certificate, especially, since, Mr. Haxhiaj amended his PIF narrative on September 11, 2005 by inserting “I never applied for, nor received, a membership card. I was perceived by all concerned to be a member of the LDK.” (Decision of the Board, at page 6, amendment of PIF narrative, at page 2)
(5) The LDK’s certificate indicated that the Applicant was “selected as a member in the directing board such as the LDK Youth Forum for the last two mandates: the first mandate dating from 1997-2002 and the second mandate from 2002-present; however, Mr. Haxhiaj only referred to his participation to the youth forum in the summer of 2000 on one occasion in his PIF narrative. When questioned about this inconsistency, the Applicant replied that he represented the youth forum in the LDK. This reason was not found satisfactory. (Decision of the Board, at pages 7-8, Transcript of the hearing, at page 24)
(6) The Board found it implausible that Mr. Haxhiaj would continue with his second mandate as a member of the LDK youth forum, directing board from 2002 until present if he did not attend LDK meetings or participate in activities for the LDK after 2003. (Decision of the Board, at page 8)
(7) The Board found inconsistencies in the fact that, although the Applicant alleges he was threatened and assaulted, none of these events were referred to in the LDK’s certificate. When questioned about this inconsistency, Mr. Haxhiaj responded that he complained to the LDK executive in his village, but he did not know whether the executive reported these events to the LDK branch in Istog. The Board did not find this explanation satisfactory. (Decision of the Board, at pages 8-9, Transcript of the hearing, at pages 42-43)
(8) Mr. Haxhiaj alleged in his PIF narrative that he did not approach the police for help because the police was connected to the PDK; however, currently Kosovo was under the administration of the UNMIK. As testified by the Applicant, the LDK won local elections and national elections under the UNMIK and the LDK was presently the party in power in Kosovo. The Board found the allegation that the police in Kosovo was closely connected with the PDK not credible.
[25] As such, the Board did not err in bringing to the forefront the inconsistencies in the evidence before it, and thus concluding negatively as to the credibility of the Applicant. In fact, Justice James Hugessen of the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. No. 571 (F.C.A.) (QL) states the following:
...unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence.
[26] Consequently, the conclusion of the Board was reasonable and the intervention of the Court is not justified.
2) Did the Board fetter its discretion while conducting the examination of the Applicant’s testimony?
[27] In this case, Mr. Haxhiaj failed to establish that the Board breached the principles of procedural fairness in applying Guideline 7 - Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division.
[28] The Federal Court has considered the question as to whether the application of Guideline 7 is inconsistent with procedural fairness on numerous occasions. In Thamotharem, above, at paragraphs 45-53, 91-92, Justice Edmond Blanchard determined that the duty of fairness does not require that an Applicant be questioned by his counsel before any other participant in the context of the adjudication of refugee claims.
[29] Furthermore, in Thamotharem, above, at paragraph 135, Justice Blanchard determined, from the evidence before him, that Guideline 7 fetters the discretion of Board members. Given this conclusion, Justice Blanchard determined that the applicant’s right to procedural fairness was violated because the independence of the decision-maker, due to the application of Guideline 7, was compromised, and as such, the decision rendered by the Board was unlawful. Having arrived at such a conclusion, it was unnecessary to consider the merits of the Board’s decision in that case.
[30] It should be emphasized that the finding in Thamotharem, above, turned on the language used in the Guideline and the extrinsic evidence as to how the Guideline should be interpreted and applied by Board members before the Court. It was not at all based on the facts of the particular case. It should also be noted that Thamotharem, above, is presently before the Federal Court of Appeal.
[31] That being said, in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (QL), Justice Richard Mosley distinguished Thamotharem, above, and held that based on the evidence presented before him, it was not established that the discretion of the Board members to determine the procedure to be followed in the refugee proceedings before them had been fettered by the implementation of Guideline 7:
[171] There is considerably more evidence before me as to the manner in which Guideline 7 is actually being applied by RPD members than there was before my colleague in Thamotharem. On that evidence in these proceedings, I am not satisfied that the applicants have demonstrated that the discretion of RPD members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7.
[32] There is no evidence that the Commission fettered its discretion. Firstly, the Applicant failed to object to the Refugee Protection Officer’s (RPO) asking him questions prior to his interrogation by his counsel. Secondly, in reading the Board’s reasons and the transcript of the hearing, it is apparent that Mr. Haxhiaj’s narrative was fully understood. Thirdly, Mr. Haxhiaj’s counsel had a meaningful opportunity to correct the RPO’s interpretation of the evidence by asking his client’s questions, by arguing that the RPO had misframed and misrepresented evidence, and by making submissions rebutting the Board’s arguments.
CONCLUSION
[33] For all the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified.
Obiter
The documentation of the country condition package was not addressed by the first instance tribunal due to the internal inconsistencies in the refugee claim itself; however, the Applicant may be in grave danger, if returned to his country of origin, based on the country condition package, but that is for the Pre-Removal Risk Assessment (PRRA) officer to eventually decide in his determination which may, per the decision of the PRRA officer, require an oral hearing.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6780-05
STYLE OF CAUSE: ARIF HAXHIAJ v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 15, 2007
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Mr. Gregory J. Lyndon
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Ms. Rhonda Marquis
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SOLICITORS OF RECORD:
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Gregory J. Lyndon Barrister & Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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