Date: 20030220
Docket: IMM-755-02
Neutral citation: 2003 FCT 206
BETWEEN:
YLLDES ZALOSHNJA
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated January 14, 2002, wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant is a 70-year-old citizen of Albania. She claims to have a well-founded fear of persecution by reason of her membership in a particular social group, namely family, and her political opinion, as perceived by the state.
[3] The central issue for the Board was credibility. The Board found that there was insufficient credible evidence to make a determination of Convention refugee. The gravity of the lack of credibility was such that the Board concluded that the applicant had fabricated the allegations to advance her refugee claim.
[4] The Board noted that the applicant's allegations in her oral testimony and the narrative portion of her PIF were significantly different from her allegation in the Port of Entry ("POE") notes. The POE notes indicated the following:
She is coming to claim refugee status because her husband died six months ago of cancer of the liver. He got the tumour as a result of being scared by gunfire - source boys were playing with a gun - it went off and scared her husband into having a tumour - stated this is her conclusion and not medical opinion.
Application Record at 7.
[5] However, the applicant's testimony and PIF alleged that her husband was shot to death by two masked men on March 15, 2000, because of his political involvement.
[6] The Board was entitled to base an adverse credibility finding on discrepancies between POE notes and the applicant's testimony at a refugee hearing.
[7] The Board committed no error by admitting the POE notes. Subsection 68(3) of the Immigration Act, R.S.C. 1985, c. I-2, indicates that the Board is not bound by technical rules of evidence and may base its decision on evidence adduced at the proceedings that it considers credible or trustworthy. This Court has held that POE notes fall within this category. (Parnian v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 142).
[8] The applicant further argues that the Board improperly exercised its discretion by refusing to require the immigration officer at the POE to be summoned for the purpose of cross-examination. I disagree. There was no duty on the Refugee Division to call the immigration officer. If the applicant believed that cross-examining the officer would assist her claim, it was up to her to call him as a witness. Rule 25(1) of the Convention Refugee Determination Division Rules (SOR/93-45) specifically direct claimants to make an application in writing if they wish to summon a witness. The burden of proof is on claimants to substantiate their claims and to call whatever evidence and witnesses they require.
[9] The applicant's story was full of contradictions, omissions and discrepancies. The Board gave numerous examples. This overall lack of credibility affected the weight given to the documents submitted, with the result that the Board gave no probative value to all the documents submitted by the applicant. In reaching this conclusion, the Board was mindful of the documentary evidence which indicated that manufactured and forged documents were readily available in Albania.
[10] The Board concluded that this lack of credibility extended to all relevant evidence emanating from the applicant, and rendered suspect her entire testimony with respect to the alleged incidents that caused her departure to Canada.
[11] As a result, the Board found that the applicant had failed to establish that there was a reasonable chance or serious possibility that she would be persecuted if she were to return to Albania, and as such, was not a Convention refugee.
[12] The Board set out clear reasons to support its adverse credibility finding. The applicant has failed to show that the Board's decision is perverse or capricious.
[13] For all these reasons, this application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.C.
Toronto, Ontario
February 20, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-755-02
STYLE OF CAUSE: YLLDES ZALOSHNJA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, FEBRUARY 20, 2003
REASONS FOR ORDER BY: TREMBLAY-LAMER, J.
DATED: THURSDAY, FEBRUARY 20, 2003
APPEARANCES BY: Mr. Norris Ormston
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: Ormston, Bellissimo, Younan
Barristers & Solicitors
900 - 1000 Finch Avenue West
Toronto, Ontario
M3J 2V5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030220
Docket: IMM-755-02
BETWEEN:
YLLDES ZALOSHNJA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER