Date: 20050624
Docket: IMM-5216-04
Citation: 2005 FC 897
BETWEEN:
MELIHA BELULI
Applicant
and
(CANADA) MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Introduction
[1] These reasons follow the hearing of an application for judicial review of a decision of an Officer in the Canada Border Services Agency made in response to an Application by the Applicant for a Pre-Removal Risk Assessment ("PRRA") wherein the Officer determined:
It has been determined that you would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to your country of nationality or habitual residence.
The decision of the Officer is dated the 5th of April, 2004.
Background
[2] The Applicant is a citizen of Albania, who was active in the political life of that country, on behalf of the Democratic Party. By reason of her political activity, she alleges that she was subjected to threats that extended to members of her family, including her son and daughter. She alleges that she lived in fear. The Applicant sent her son to Italy. On the 20th of June, 1997, together with her daughter, she fled to Greece.
[3] On the 29th of June, 1997 the Socialists were elected to power in Albania. Despite this, the Applicant returned to Albania from Greece on three occasions.
[4] On the 25th of October, 2000, the Applicant arrived in Canada via Italy and the United States. She claimed Convention refugee protection.
[5] The Applicant's claim to Convention refugee protection was denied on the 13th of March, 2002. The Applicant's testimony before the Convention Refugee Determination Division of the Immigration and Refugee Board was determined not to be credible. Judicial Review was sought of the CRDD's decision. Leave to proceed with the Applicant's application for Judicial Review was denied.
[6] In late April, 2002, the Applicant applied for relief as a Post-Determination Refugee Claimant in Canada. That application was converted to an application for a Pre-Removal Risk Assessment on the coming into force of the Immigration and Refugee Protection Act. It is this application that led to the decision here under review.
The Decision under Review
[7] In extensive notes supporting the decision under review, under the heading "Evidence submitted", the Officer lists a substantial range of documentation submitted by or on behalf of the Applicant. For whatever reason, that list makes no mention whatsoever of a "Declaration" of the Applicant's daughter dated at Tirana, Albania, the 2nd of May, 2002. In the result, counsel for the Applicant urged that the Officer erred in overlooking evidence that was properly before her.
[8] Further, while the Officer lists a further "Declaration" from one Blerim Cela bearing the same date, and a "Certificate" from one Bujar Nishani, also bearing the same date, the Officer rather summarily dismisses both those documents. The Officer writes:
The above two documents are dated after the applicant's refugee hearing.
The first document is a declaration from Blerim Cela, former Chairman of the State Supreme Audit during 1992-1997, the time the applicant worked in the same Ministry. The writer provided a letter dated 30 Jan 2001, which was available to the Board for the applicant's refugee hearing. This second letter contains much of the same information as the first, with the exception of the description of the applicant's duties. The first letter does not provide much detail as to the applicant's actual duties, only to say she has "attended qualification professional courses acquiring computer skills and administrative secretarial skills." The second letter goes into much more detail, it describes her job as a "high position", and because of her involvement in the "preparation of many files on corruption", she had good knowledge on the corruption and because of this she received threats. After careful review of both letters I find that the second letter is not new evidence, as the information it contains was before the Board. Even if I were to accept the letter as new evidence, given the apparent exaggeration and inconsistencies in the information in the second letter, I would give little weight to the letter.
I also note in the letter from Blerim Cela that he mentions the mistreatment of some of the Democratic Party members and government officials, but he does not mention his own arrest for "crimes against humanity" and subsequent house arrest from 22 Aug 1999 to 21 Feb 1999. ...
The second document also dated 02 May 2002, is a certificate from the Democratic Party of Albania. The information contained in the letter was also before the Board. The Board accepted that the applicant was a member of the DP. I find that the document is not new evidence.
References in the foregoing quotation to the "Board" are to the Convention Refugee Determination Division of the Immigration and Refugee Board, and more particularly, to the panel that heard the Applicant's refugee claim.
[9] With respect to the foregoing passage from the Officer's notes, counsel for the Applicant urges that the Officer erred in a reviewable manner in failing to find that the two documents of the 2nd of May, 2002 reflect substantial "new" information. Counsel urges that the alternative bases for giving "... little weight" to the first of the two documents are spurious.
[10] By contrast, counsel for the Respondent urges that the only information reflected in the two documents that relates to the period following the Applicant's Convention refugee hearing is so general in nature that it was entirely open to the Officer to conclude that the documents reflected no "new" information relevant to the issues before her.
Analysis
[11] In Toro v. The Minister of Employment and Immigration[1], the court noted that the tribunal the decision of which was there under review failed to have regard to the totality of the evidence properly before it. In the result, the Court determined that the Tribunal erred in law. I am satisfied that the foregoing applies here with respect to the declaration of the Applicant's daughter except that, on reviewing that declaration, I determine that it reflects nothing that would significantly impact on the decision here under review. In the result, I conclude that the error simply does not justify referring the decision under review back to the Respondent for reconsideration and redetermination[2].
[12] With respect to the declaration and certificate that were before the Officer and to which she referred, but which she determined not to constitute "new" evidence, I am satisfied that the Officer's conclusions in this regard were reasonably open to her. While the declaration and certificate were certainly "new" evidence in the sense that they post-dated the Applicant's hearing before the Convention Refugee Determination Division, they reflected no "new" evidence applicable to the particular circumstances of the Applicant. Rather, they primarily constituted updates on evidence that was before the Convention Refugee Determination Division regarding the political situation and its repercussions within Albania.
[13] Finally, while the reference by the Officer to the failure of Mr. Cela to mention his own
arrest for "crimes against humanity" and his subsequent house arrest may have amounted to a fettering by the Officer of her discretion through the taking into account of an irrelevant consideration, I am satisfied that it was nothing more than an argument in the alternative where the main finding of the Officer justifying failure to consider Mr. Cela's Declaration was entirely open to her. In the result, I am satisfied that the Officer made no reviewable error in referring to Mr. Cela's real or alleged misdeeds.
Conclusion
[14] In the result, this application for judicial review will be dismissed.
Certification of a question
[15] These reasons for decision will be circulated to counsel who will have ten (10) days from the date of issuance of the reasons to make written submissions on whether or not this matter raises a serious question of general importance that should be certified. Counsel are invited to consult in advance of providing their submissions.
[16] Following receipt of written submissions, an Order will issue.
Ottawa, Ontario
June 24, 2005
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5216-04
STYLE OF CAUSE: MELIHA BELULI v. MCI
DATE OF HEARING: June 21, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: Gibson, J.
DATED: June 24, 2005
APPEARANCES BY: Mr. Yehuda Levinson
For the Applicant
Ms. Matina Karvellas
For the Respondent
SOLICITORS OF RECORD:
Yehuda Levinson
Levinson & Associates
Barristers & Solicitors
Suite 610
480 University Ave.
Toronto, ON
M5G 1V2
For the Applicant
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent