Date: 20050120
Docket: IMM-5527-03
Citation: 2005 FC 69
Ottawa, Ontario, this 20th day of January, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SAZAN COBO
(a.k.a. SAZAN TAFIL COBO)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] 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 (the "Board"), dated June 16, 2003, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requested an order setting aside the Board's decision and referring his claim back for re-determination.
Background
[3] The applicant, Sazan Cobo, is a citizen of Albania who claims a well-founded fear of persecution on the basis of his political opinion and membership in a particular social group, namely, his family that is perceived to have anti-government political opinions.
[4] The applicant was born in Fier, Albania. He stated that his family has been persecuted for their political beliefs for generations. The applicant stated that during the Communist regime, his grandfather was arrested and jailed, and he died in jail. Further, the applicant alleged that when he was very young, his family was sent to a labour camp, where his parents were forced to perform hard labour.
[5] The applicant stated that his father was involved in the Legality Party, which supported a return of the King and the monarchy to Albania. The applicant stated that after high school, he also supported the Legality Party, later became a member and worked as an election observer.
[6] The applicant alleged that in July 1996, he and his father, who had worked his way up to being area chairman of the Legality Party, were arrested, detained and badly beaten. The applicant also stated that his brothers were arrested and tortured.
[7] After being threatened again, the applicant stated that he discussed with his father the possibility of leaving Albania, and in August 1996, fled to Greece. While in Greece, the applicant stated that the political situation in Albania deteriorated and his father was arrested and beaten a number of times.
[8] In the narrative portion of his Personal Information Form ("PIF"), the applicant stated that his father was killed on April 7, 2001. Within a few days, the applicant's three brothers left Albania and went to Greece. Later in that month, the applicant stated that he was threatened in Greece by two people who spoke Albanian.
[9] The applicant alleged that he was afraid for his life and, using a false Greek passport, fled to Canada. The applicant arrived in Toronto on May 5, 2001 and made a refugee claim. When interviewed at the airport by an immigration officer, the port of entry notes indicated that the applicant stated that he had no problems with the authorities in Albania and that he had come to Canada for economic reasons.
[10] On May 21, 2003, the Board held a hearing into the applicant's claim.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[11] In a decision dated June 16, 2003, the Board determined that the applicant was neither a Convention refugee nor a person in need of protection within the meaning of IRPA.
[12] The basis for the Board's negative decision was its view that the applicant seriously lacked credibility, which completely undermined his claim.
[13] First, the Board noted that the applicant's port of entry interview contradicted his later testimony regarding his reasons for coming to Canada. When interviewed upon his arrival in Canada, the applicant made no mention of an alleged fear of persecution based on his political beliefs and in fact stated that he had no problems with the authorities in Albania. In his PIF narrative and during his testimony before the Board, the applicant alleged a fear of persecution and stated that during his entry interview, he did not feel safe telling the whole truth and at the time only thought to tell of his economic reasons for leaving Albania. The Board was not satisfied with the applicant's explanation for this discrepancy, and used it as a basis for its negative credibility finding.
[14] Second, the Board found the applicant lacked credibility because of discrepancies regarding the date and circumstances of his father's death. The Board noted that not only did the applicant omit the alleged circumstances of his father's death from his statements to the immigration officer at the port of entry, the applicant listed his father's date of death as 1998, not 2001, in his application for Convention refugee status dated May 29, 2001.
[15] Further, the Board put no weight on the death and hospitalization certificate presented by the applicant to establish that his father died in 2001. The Board rejected the certificate based on it being printed on letterhead of the pre-1991 governmental regime, coupled with the easy availability of fraudulent or illegally obtained documents in Albania. In short, the Board did not believe that the applicant's father died for political reasons in 2001 as alleged, but instead accepted that he died in 1998 for reasons unrelated to politics.
[16] The Board concluded that it was the applicant's own political profile that was most relevant to whether he would be at risk if returned to Albania, and not his grandfather's profile (too far in the distant past) nor his father's (since the Board concluded that he died for non-political reasons three years before the applicant's departure for Canada).
[17] The applicant provided inconsistent information regarding the timing of his membership in the Legality Party and was unaware of basic information regarding party politics in Albania, which led the Board to conclude that the applicant was not a member of the Legality Party, or if he was, it was only for a brief period of time when he was in Albania prior to his departure for Canada in 2001.
[18] Another reason for finding the applicant's claim was not credible was his behaviour in travelling back and forth between Greece and Albania at least ten times between 1996 and 2001. In the Board's view, this behaviour was inconsistent with a genuine fear of persecution in Albania.
[19] On this basis, the Board concluded that the applicant had provided insufficient credible or trustworthy evidence on which to establish his claim.
[20] This is the judicial review of the Board's decision.
Applicant's Submissions
[21] The applicant submitted that the Board erred in rejecting his explanations of the discrepancies between his port of entry interview and his later testimony without providing reasons for doing so. Before the Board, the applicant had testified that he did not mention to his port of entry interviewer that he feared being persecuted in Albania because he did not feel safe telling the whole truth. Only later, after talking to others in Canada and learning it was safe to explain everything, did he reveal his complete reasons for leaving Albania. In the applicant's view, it is not sufficient for the Board to simply state that it is not satisfied with his explanation and must set out adequate reasons for rejecting his testimony (see Petlyuchenko v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1294 (QL), 2002 FCT 982).
[22] The Board's negative credibility determination was partly based on discrepancies regarding the date and circumstances of the applicant's father's death. The mail-in application form listed the date of death as 1998 although the applicant later testified and stated in his PIF that his father died in 2001. The applicant explained that he did not feel safe telling the immigration officer at the port of entry about his father's assassination and offered a death certificate to corroborate the date of his father's death. The applicant submitted that the Board erred by failing to give adequate reasons for rejecting this evidence and making a negative credibility finding even though the applicant offered a plausible explanation for the discrepancies.
[23] The applicant submitted that the Board failed in its duty to give its reasons for rejecting his claim on the basis of credibility in clear and unmistakable terms (see Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.), 101 N.R. 372).
[24] The applicant further submitted that the Board erred by failing to confront him with the discrepancy in the date of his father's death and failing to ask him why it was listed as 1998. Citing Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.), [1991] F.C.J. No. 1271 (QL), the applicant argued that the Board is obliged to provide a claimant with the opportunity to clarify the evidence and explain apparent contradictions between their oral testimony and the PIF.
[25] The applicant argued that if the Board was suspicious of the hospitalization and death certificate filed by the applicant, it should have made efforts to verify the authenticity of the document. The applicant contended that the Board erred in rejecting the hospital record in the absence of evidence external to the document that it was false. In support of this argument, the applicant cited Ratheeskumar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1697 (QL), 2002 FCT 1232; and Chidambaram v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 81 (QL), 2003 FCT 66.
[26] The applicant submitted that the Board erred in failing to refer to various documents which confirmed the political activities of himself and his father, as well as the date of his father's death being April 7, 2001. While the Board is not required to mention every piece of evidence it considers, the applicant argued that it is obliged to at least comment on documentation that supports the applicant's position and give reasons for rejecting it (see Dirie v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 1 (T.D.), [1998] F.C.J. No. 1426 (QL); and Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (T.D.), [1993] F.C.J. No. 497 (QL)).
[27] It is further submitted that by failing to consider the documents which confirmed the applicant's and his father's political activities, the Board erred in law by failing to consider and assess the totality of the evidence before it (see Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (C.A.), 98 N.R. 312).
[28] The applicant submitted that the Board made an unreasonable assessment of the evidence in concluding that he had provided inconsistent evidence regarding his membership in the Legality Party simply because he amended the date stated in his PIF from 1994 to 1996. Such an innocent mistake, in the applicant's view, should not undermine the merit of his claim.
[29] The applicant argued that the Board erred in concluding that his conduct in travelling between Greece and Albania between 1996 and 2001 to carry documents for the Legality Party was inconsistent with a genuine fear of persecution. The applicant stated that his strong political convictions led him to take such risks, that he took precautions and only stayed for short periods of time in Albania. Since the applicant provided a reasonable explanation for his conduct, and did not re-avail himself of the state's protection, the applicant argued this was not sufficient to deny his claim (see M.B.K. v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 374 (T.D.)(QL)).
[30] Furthermore, the applicant disputed the respondent's interpretation of the Board's statement that travelling between Greece and Albania was inconsistent with a genuine fear of persecution. In the applicant's view, the Board's reasoning related to re-availment, not, as the respondent argued, the applicant's failure to claim refugee protection in Greece. Alternatively, the applicant argued that if the basis of the Board's finding was his failure to claim protection in Greece, it erred by ignoring his PIF narrative statement that he did not seek protection in Greece because that government was deporting Albanians who sought such protection.
[31] In sum, the applicant argued that the Board made too many errors for this Court to conclude that they were not central to the issues in this case and, relying on Katalayi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1494 (T.D.)(QL), argued that his claim should be sent back to the Board for re-determination.
Respondent's Submissions
[32] The respondent submitted that the Board was entitled to rely on the inconsistencies between the port of entry notes and the applicant's later written and oral statements to assess his credibility (see Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 963 (T.D.)(QL)). The Board, in the respondent's view, properly took into account the significance of the inconsistencies, considered the applicant's explanations and did not rely excessively on the inconsistencies in drawing its negative inference.
[33] The respondent submitted that the applicant had not explained why he listed the date of his father's death as 1998 in some documentation, even though he was given the opportunity to explain this inconsistency to the Board. In the respondent's view, it was open to the Board to base its negative credibility finding, in part, on this issue.
[34] The respondent further submitted that it was open to the Board to conclude that no weight should be placed on the applicant's father's death certificate, since on its face, it was printed on outdated letterhead. This fact, combined with the documentary evidence regarding the availability of fraudulent documents in Albania provided a sufficient basis for the Board's conclusions. The respondent argued that the Board was not obliged to seek outside evidence or further verify the authenticity of the document, contrary to the applicant's submission.
[35] The respondent argued that the applicant provided no evidence to counter the Board's conclusion that the evidence was contradictory regarding the applicant's membership in the Legality Party.
[36] The respondent submitted that the Board's finding that the applicant's travel between Greece and Albania was inconsistent with a subjective fear or persecution was based on his failure to claim refugee protection in Greece on at least one of those occasions. While the applicant's failure to claim elsewhere is not itself determinative of his claim, it does add further support to the Board's decision to reject the applicant's claim.
[37] In sum, the respondent argued that based on the evidence before it, the Board's conclusions were reasonable and that the intervention of this Court is not warranted.
[38] The respondent requested that this application for judicial review be dismissed.
Issue
[39] Did the Board err in finding that the applicant was not credible?
Relevant Statutory Provisions
[40] Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
|
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
. . . |
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;
. . . |
|
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. |
Analysis and Decision
[41] Preliminary Issue: Standard of Review
The standard of review of the Board's negative credibility finding in this case is a highly deferential one. In Boye v. Canada (Minister of Citizenship and Immigration) [1994] 83 F.T.R. 1 at paragraph 4, Jerome A.C.J. stated:
The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it.
[42] And in Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), Décary J.A. emphasized at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review . . .
[43] I am of the opinion that the standard of review to be applied in this case is that of patent unreasonableness.
[44] Issue
Did the Board err in finding that the applicant was not credible?
There is no doubt the applicant's statements in the port of entry interview regarding why he left Albania differs from those in his PIF and his oral testimony before the Board. At the port of entry, the applicant did not mention the alleged persecution in Albania, his political involvement, his father's alleged assassination, nor his fear of harm if returned to Albania.
[45] The applicant submitted that he gave a plausible explanation for his failure to mention these facts at his port of entry interview. When questioned about his port of entry statement that he came to Canada for economic reasons, the applicant stated at page 13 of the hearing transcript:
CLAIMANT: Besides the political reasons I had, I had economic reasons, as well, and I said - this was the only thing I said. I didn't speak about my real reason, it was political reason, but I said just economic, for economic reasons.
COUNSEL: So, what is your main reason for coming to Canada?
CLAIMANT: It's political reason which makes me stay here and not to return to my country.
COUNSEL: So, why did you mention economic reasons?
CLAIMANT: It was the only idea which came to my mind at that moment.
And at pages 33 to 34 of the hearing transcript, the Refugee Protection Officer questioned the applicant about why he failed to mention his political reasons for coming to Canada if that was his reason:
RPO: . . . What was your reason for being there [at the airport in Toronto]?
CLAIMANT: For political reasons.
ROP: Then why didn't you just say it?
CLAIMANT: I thought that it would cause problems if I would say it. I had no idea.
RPO: What problems did you think it would cause?
CLAIMANT: What came to my mind was that if I had told about my father's death (inaudible) if would cause problems. That was what came to my mind first.
RPO: What kind of problems did you think it would cause?
CLAIMANT: To send me back to Albania, for example.
RPO: Why did you think they were going to send you back?
CLAIMANT: If I had told them the truth.
RPO: But what would cause Canada to send you back if you told the truth?
CLAIMANT: I don't know. It was - I have no other reason, but it was the first thing that came to my mind. So . . .
RPO: Why would you come to Canada, if telling the truth would cause you to be sent back to Albania?
CLAIMANT: I don't know. I have no idea about it.
[46] The applicant also testified that his mailed-in application form did not give all of the information either and that his PIF was the first document that told his true story. The applicant's testimony at page 35 of the hearing transcript identifies when he started telling the whole truth:
RPO: At what point do you decide to start telling everything?
CLAIMANT: After meeting people, coming into contact with people and hearing what was happening here, two months or maybe more, a little bit more after this, after I was - after the period I stayed in shelter, then I made up my mind to speak with the same person [the interpreter the applicant had hired to help with document preparation] to tell him about my real story.
[47] The Board did not accept the applicant's explanation for the late disclosure of the real reason for his coming to Canada. The Board, after summarizing the applicant's explanations for the discrepancies, stated at page 2 of its decision:
. . . The panel was not satisfied with the explanation for the discrepancy between the Port of Entry notes and his testimony.
[48] I am of the view that the Board's bare statement that the Board "was not satisfied with the explanation" does not provide a satisfactory explanation for not accepting the applicant's explanation, especially when this formed the cornerstone of the Board's negative credibility finding. In Petlyuchenko, supra, Campbell J. stated at paragraph 8:
In addition, I find it difficult to understand how a test of knowledge on a single fact such as "the number of Jews who perished in the Holocaust" can impugn the otherwise unchallenged testimony of an Applicant. It is agreed that, in a situation such as the one in the present case where effectively the CRDD says that the Applicant is lying, the CRDD must give cogent reasons for reaching this conclusion. In my opinion, the CRDD's decision is devoid of this requirement. Making a finding that a statement is "highly improbable" or "surprising", without detailing the evidence relied upon, is not sufficient.
[49] As in that case, the Board, in the case at bar, disbelieved the applicant's explanation but provided no reasoning or basis for that conclusion. I would note that the Board is entitled to reject an applicant's explanations, but it must provide its reasoning for doing so which it did not do in this case, and consequently, made a reviewable error.
[50] The application for judicial review is therefore allowed and the matter is referred to a differently constituted panel for re-determination.
[51] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[52] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a differently constituted panel for re-determination.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
January 20, 2005
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5527-03
STYLE OF CAUSE: SAZAN COBO
(a.k.a. SAZAN TAFIL COBO)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 4, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Alesha Green
FOR APPLICANT
Matina Karvellas
FOR RESPONDENT
SOLICITORS OF RECORD:
Robert Gertler & Associates
Toronto, Ontario
FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT