Date : 20050719
Docket : IMM-7281-04
Citation : 2005 FC 999
OTTAWA, Ontario, this 19th day of July, 2005
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN :
PETRO VERO
ARSIDA PETRO
Applicants
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
TEITELBAUM, J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board") dated July 28, 2004 in which the applicants were found not to be Convention refugees or persons in need of protection.
[2] Petro Vero (the "principal applicant") is a 47 year old Albanian national who alleges a well-founded fear of persecution on the basis of his political affiliations with the Democratic Party of Albania. His daughter, Arsida Vero (the "minor applicant"), who is presently 18 years of age, bases her claim for protection on her family's involvement with the Democratic party and an alleged abduction attempt.
[3] At the hearing, counsel for Petro Vero stated, if I understand him correctly, that although he was not abandoning the judicial review of the Board's decision, he would not make any oral submissions with regard to Petro Vero.
[4] I can well understand his reasons for not making any submission. With regard to Petro Vero's claim for refugee status, I would be unable to find any legal reason to send the matter back for a new hearing.
[5] Counsel for the applicants made submissions only in relation to Arsida Petro, who at the time of the hearing before the Board was a minor and, in effect, asked that the case before me be separated.
[6] Before the Board, the applicants had claimed that their family has long been affiliated with the Democratic party and have faced persecution by both the communist and socialist regimes. They also claim persecution by members of a neighbouring family, who are supporters of the Socialist Party. In 1993, the neighbouring family was ordered to return previously confiscated land to the applicant and his family. The applicants allege that following this transfer, they were subject to repeated attacks from the neighbours. In 1995, the principal applicant was beaten by masked men and his new home was burned to the ground. The principal applicant's wife was attacked and his brother was shot and injured. Furthermore, in 2003, the minor applicant was the victim of an abduction attempt which the applicants believe was orchestrated by the neighbours.
[7] The main issues submitted to me by counsel for the applicants relate to Arsida Petro. The issues as I understand them are:
1. Was there a breach of procedural fairness in that the minor applicant was removed from the hearing room and not provided with a summary of the evidence she missed?
2. Did the Board err in its assessment of the alleged abduction attempt?
[8] During the course of the refugee hearing, counsel for the applicants asked that the then 16 year old minor applicant be removed from the hearing room. The Board member agreed to exclude the minor applicant because she had repeatedly interrupted the proceedings despite being instructed to remain quiet. The applicants now claim that this resulted in a breach of procedural fairness because the minor applicant missed the portion of her father's testimony dealing with the alleged abduction and no summary of the testimony was provided to her before she was called back to testify.
[9] I am satisfied that no breach of procedural fairness occurred. Although an applicant should not normally be excluded from the hearing room, there was cause to do so in the present case. The minor applicant had interrupted the proceedings on a number of occasions and was warned that she would be excluded if she continued to cause disruptions. More importantly, it was her own counsel who asked for her to be excluded. The principal applicant, who was the designated representative for his daughter, did not object to his daughter's exclusion. Moreover, when the minor applicant returned to the hearing room to testify, neither counsel nor her designated representative requested that a summary of the father's testimony be provided. I am satisfied that not only was the exclusion justified but the applicants' conduct at the hearing amounted to a waiver of their rights with respect to the exclusion and it is not open to them to raise the issue on judicial review.
[10] In their personal information forms and testimony, the applicants claimed that members of the neighbouring family had attempted to abduct the minor applicant. The Board dismissed this claim because there was no credible evidence to link the alleged event to the neighbours. However, the Board also noted that, based on the documentary evidence, trafficking of women and children is a serious problem in Albania. As a result, the Board found that if the abduction attempt had occurred, it was likely a random criminal act that would not fall within the scope of sections 96 and 97 of IRPA. Moreover, because the minor claimant had lived safely in another part of the country for most of her life, if not all of her life, it was unlikely that she would be at risk of abduction throughout Albania.
[11] The applicants submit that the Board erred in its alternative assessment of the abduction attempt. They state that the targeting of young women for the purpose of trafficking is clearly an act of persecution on Convention grounds (gender and age) and therefore falls within the ambit of section 96 of IRPA. Moreover, they challenge the adequacy of the Board's finding that the minor applicant would be safe in other regions of the country.
[12] I agree with the applicants that the Board's analysis with respect to the risk of abduction for the purpose of trafficking is incomplete and problematic. In particular, the Board does not make a determination as to whether the abduction attempt occurred, it does not explain why such an act would not fall within the definition of Convention refugee and it does not fully assess whether the minor applicant would have an internal flight alternative in Albania.
[13] Notwithstanding the fact that the applicants had failed to put forward, as a claim, the risk of abduction for the purposes of trafficking of the minor applicant, the Board itself mentions this fact in discussing the documentary evidence and should have, in its decision, explained why such an act would not fall within the definition of Convention refugee and it fails to fully assess the internal flight alternative in Albania.
[14] Counsel for the Applicants has submited the following question for certification:
"In the case of a claimant who was a minor and who was excluded from the hearing (at the request of counsel, and after a warning by the Refugee Division that the claimant risked being excluded from the hearing) because the claimant was being disruptive, is the Refugee Division required to provide a summary of the evidence to the claimant that was given while the claimant was excluded from the hearing before the claimant testifies?"
[15] In that I have allowed the judicial review for the Applicant Arsida Petro, I see no reason to certify the above stated question.
ORDER
The application for judicial review is allowed for the applicant Arsida Petro and the matter is returned for a new hearing before a different Board.
The application for judicial review is denied for the applicant Petro Vero.
« Max M. Teitelbaum »
JUDGE
OTTAWA, Ontario
July 19, 2005
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : IMM-7281-04
STYLE OF CAUSE : Petro Vero, Arsida Petro v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 11, 2005
REASONS : The Honourable Mr. Justice Teitelbaum
DATE OF REASONS: July 19, 2005
APPEARANCES :
Mr. Michael Crane FOR THE APPLICANTS
Mr. Kevin Lunney FOR THE RESPONDENT
SOLICITORS OF RECORD :
Michael Crane
Barristers and Solicitors FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT