Ottawa, Ontario, June 16, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Olsi Kule, (the applicant or claimant) a national of Albania, in this judicial review application, seeks to quash the July 18, 2005 decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the tribunal) who rejected his refugee claim under section 96 and his claim for protection under section 97 of the Immigration and Refugee Protection Act, (the Act).
[2] The tribunal found the applicant not to be credible because of inconsistencies between his PIF narrative, his Point of Entry statement (POE) and his testimony.
[3] The basis of his refugee claim and his need for protection is his fear of persecution by the supporters of the Socialist Party (SP) who in 1997 formed the government in Albania. In particular, the applicant fears a Mr. Ferro and his friends who in early 1997 demanded money from his father, a businessman, who rejected such demands and rejoined his family in Greece. Mr. Ferro, it was alleged, had connections with the Albanian mafia and was also a supporter of the SP who was granted a patronage appointment to a regional government position.
[4] The perceived political opinion stems from the activities of his father as a well-known supporter of the Democratic Party who defeated the Communist Regime in 1992 but, as noted, lost power in 1997.
[5] The applicant also states that he requires Canada's protection because he fears torture and fears the risk of cruel and unusual punishment from the Albanian police who have links with Mr. Ferro and his Albanian mafia connections.
[6] Counsel for the applicant raised two grounds for setting aside the tribunal's decision.
[7] First, he argued the tribunal demonstrated a reasonable apprehension of bias on the issue of her specialized knowledge of matters in Greece and, in particular, how people of Albanian origin were treated in Greece particularly with respect to obtaining temporary status in Greece and on the issue of their deportation from that country.
[8] Second, he argued the tribunal's credibility finding was flawed.
[9] In my view the applicant is entitled to succeed. It is apparent to me the tribunal erred on the issue of credibility by making a fundamentally inconsistent finding which developed in the following manner.
[10] The tribunal began its discussion of the applicant's credibility by contrasting the applicant's written statement at Point of Entry and his Personal Information Form (PIF).
[11] At POE, the applicant wrote the following in the Greek language after describing the nature of his father's business in Greece exporting fruit to Albania. The extract is at volume 1 page 123 of the Certified Tribunal Record:
"After a while, certain individuals appeared on the scene (so-called friends) who wanted him to help expand his business to other areas in Albania such as .... In reality, however, all they were doing was selling him "protection". They were demanding between 1.5 million and 2 million drachmas, and usually set the payment schedule for every four or five months. The names of these "protection friends" were ... and Edmond Ferro....
The threats that my father was subjected to had to do mostly with kidnapping (me or my brother). On the other hand, our age did not allow us to leave Greece without our parents.
This state of affair continued for several years..."
[12] With respect to his PIF, the tribunal found "the claimant introduced a new, "politicized" aspect of his claim. The tribunal wrote:
He states that his father was a D.P. supporter and that the individuals targeting him were members of the Socialist Party. He elaborates further that his father's business partner was his brother Kostantin Kule, who was also threatened. He alleges that Kostantin Kule's son was killed by the protection racket in 1997. He further states that these perpetrators were given high posts in the Socialist Government and continue to threaten the claimant's father and family. These versions were put to the claimant. His reply was that at the Port of Entry he was told to write "a short story" and that is why the political elements of the story were not elaborated. I do not find this explanation to be reasonable. In this regard, I find that the claimant's narrative is not credible for the reasons stated above. I find the claimant's first narrative to be more accurate of the circumstances surrounding the claimant and I believe it. As Mr. Justice Martineau's obiter dictum in the Lubana decision noted: "A person's first story is usually the most genuine and therefore the one to be believed the most." [Emphasis mine]
[13] After considering the documentary evidence with respect to Albania concerning the applicant's perceived political opinion and considering the claimant's fear of persecution because of his membership in a particular social group, namely part of an anti-Communist family, the tribunal dismissed his Convention refugee claim on the grounds that it could not find any persuasive or credible evidence for the two points the applicant was advancing.
[14] The tribunal went on to consider whether Mr. Kule was a person in need of protection under section 97 of the Immigration and Refugee Protection Act (the Act).
[15] The tribunal identified that the applicant "alleged that Mr. Ferro and his mafia friends would harm him because of his father's perceived wealth." It stated as follows:
In light of my findings concerning credibility and the consequent impact on the overall credibility and thrustworthiness of the claimant's evidence, there is insufficient credible and trustworthy evidence before me that could permit a finding that the claimant is personally at risk in Albania.
[16] The tribunal went on to dismiss his claim for a person in need of protection in accordance with the provision of section 97(1)(a) and (b) of the Act.
[17] It is plain and obvious the credibility findings of the tribunal are inconsistent. On the one hand, the tribunal found credible his written statement at POE and believed it. This statement identified Mr. Ferro as the source of the protection scam and the continuing threat to him. On the other hand, the tribunal did not find Mr. Kule credible in respect of his section 97 claim.
[18] For these reasons, the tribunal's decision must be set aside.
[19] I need not consider counsel for the applicant's alternative ground of a reasonable apprehension of bias. Nor do I need to consider what was perhaps a fundamental flaw in the interpreter's instructions to the applicant at POE in terms of writing up his story.
[20] At page 430 of the CTR, counsel for the applicant indicated that the interpreter who was at POE "the Board is aware of this particular interpreter and that this person has been found to essentially be incompetent. The Presiding Member stated "I am aware of that."
ORDER
THIS COURT ORDERS that this judicial review application is allowed, the tribunal's decision is set aside and the matter of the applicant's claims under section 96 and 97 of the Act are remitted to the Immigration and Refugee Board for re-consideration by a differently constituted tribunal.
No certified question arises as the Court's decision turns on its unique facts.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4993-05
STYLE OF CAUSE: OLSI KULE v. MCI
REASONS FOR ORDER AND ORDER: LEMIEUX J.
APPEARANCES:
| Jeffrey Goldman Toronto, Ontario |
|
| Alison Engel-Yan Toronto, Ontario |
SOLICITORS OF RECORD:
| Jeffrey Goldman Barrister and Solicitor |
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |