Date : 20050126
Docket : IMM-1380-04
Citation : 2005 FC 117
BETWEEN :
PASHKO MALI,
AGLINE MALI, and
KRESHNIK MALI,
by his litigation guardian, PASHKO MALI
Applicants
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001 c. 27 ("IRPA") of a decision by a panel of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated January 21st 2004, wherein the Applicant was found not to be a Convention refugee, or person in need of protection.
[2] The applicant, Pashko Mali, is a forty-four-year-old citizen of Albania.
[3] He claims to have a well-founded fear of persecution at the hands of the socialist government, and the police, by reason of his political opinion as a supporter of the Democratic Party ("DP"). In addition, he claims to be a person in need of protection, because he would face a danger of torture or to a risk to life or to cruel and unusual treatment in Albania.
[4] The applicant's wife and minor son are basing their claim on their membership in a particular social group - the applicant's family, alleging to be persecuted for his activities on behalf of the DP in Albania.
[5] The applicant alleges that his family has a long history of opposition to communism. His father was held as a long term political prisoner under the Communist regime. He says he joined the DP in 1991, and became heavily involved in various activities, including demonstrations, attending meetings, and the distribution of pamphlets against the Socialist Party ("SP"). The applicant alleges that, in January 1995, he was appointed to be the DP chairman for Torovic, by the DP Council in Lezhe and, in November 1996, he attended as a delegate at the DP congress in Tirana..
[6] Following the 1997 election, the governing SP took revenge against those individuals who opposed them. His area had elected a DP member, but the SP had won the regional general election. He was called to the police station in 1997, detained, and warned not to continue his involvement with the DP.
[7] Following the assassination of the DP vice-chairman Azem Hadjari, on September 12, 1998, the applicant claims that he addressed a memorial service in Torovic, and accused the SP of murder. He was once again arrested, badly beaten, and warned to cease his political involvement with the DP.
[8] He was appointed the deputy-chairman of the polling center for the local October 2000 election. The chairman of the center was from the SP. He was approached prior to the election, and offered a bribe by the SP to fraudulently help them win the election. He refused, and, on election day, while counting ballots, the lights were turned off and he again was beaten, placed in a police car, and taken to an election center in Balldre, where the ballots were subsequently counted.
[9] The next day, October 16, 2000, the applicant received a call-up notice to report to the police in Lezhe. He was advised by the DP Chairman that, if he reported to the police, he would be physically eliminated. The DP chairman advised that the SP were cracking down on anyone with too much knowledge of the SP election manipulations. He knew that if he did not report to the police, they would come and arrest him.
[10] He took his wife and children, and hid them in Hot, at the home of his in-laws.
[11] His wife's father, who lived in Detroit, in the United States, died, and the applicant's wife was able to obtain a visitor's visa to attend the funeral.
[12] On April 3, 2001, the applicant was able to obtain a false US visitor's visa, for himself and son. He left Albania that same day. The applicant applied for asylum in the United States, and was given a hearing date but left the US before the claim was decided, and travelled to Canada, to claim for refugee protection. He believed that there was no chance of success in the US application. The applicant, his wife, and his minor son made their refugee applications in Windsor, Ontario, on January 2, 2002.
[13] The applicant claims that, if he should return to Albania, the police, and Socialist government will persecute him, and he could be subjected to risk of torture, risk to life, or cruel and unusual punishment. He notes that the SP was re-elected in 2002, and is in power today.
[14] The Board found that the applicant is not a convention refugee, as he does not have a well-founded fear of persecution on Convention grounds in Albania; that he is not a person in need of protection, in that his removal to Albania would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, or to torture.
[15] The Board's decision is hinged on the applicant's credibility. The Board accepts that the applicant is a member of the DP, but does not find that the applicant has provided credible or trustworthy testimony to substantiate that he has a high profile as a political activist.
[16] The Board wrote that, while sworn testimony is presumed to be truthful (see Maldonado v Canada (Minister of Employment and Immigration) [1980] 2 F.C. 302 (FCA) at 305), the applicant's testimony contained contradictions, inconsistencies, and omissions. The applicant tendered as evidence attestations outlining his position as chairman of the local cell of the DP.
[17] The applicant testified that, in 1995, he was appointed as the Chairman of the Malecaj chapter of the DP. According to the tribunal, the numerous attestations do not confirm this fact. The Board finds it unreasonable that the applicant did, in fact, hold a significant position as chairman of his local DP chapter. If he had held such a position, the Board finds that the position would have been included in at least one of the supporting letters.
[18] The attestations outline the applicant's participation in a rally, in Shkoder, in 1992, where he and many other DP members were allegedly beaten. However, they do not outline the alleged arrest, detention, and physical abuse the applicant claims he suffered in 1998, nor do they outline the beating he allegedly suffered on October 15th 2000 at the election center. They also fail to mention the call-up notice from the police, which the applicant alleges he received. When the applicant was questioned as to why the omitted information was not contained in the letters of attestation, he had no explanation, other than that he had simply asked them [the attestants] for a short certificate.
[19] The Board finds that, since the 1992 beating was mentioned, it would be reasonable to believe that the more current beatings, in 1998 and in 2000, would also be referred to. The Board concluded that the 1998 and 2000 beatings were not included because they did not occur.
[20] The Board finds that, on the balance of probabilities, the applicant was not sought after by the police or SP members, and the allegations were an embellishment to bolster his claim. As a result, the Board determined that the applicant was a member of the DP, but one who would not attract the attention of the SP, or the police, as he alleges.
[21] The Board examined the documentary evidence on country conditions in Albania and found that the documents do not support the allegations of violence directed at members of the DP considering the applicant's low political profile. The documentary evidence, preferred by the Board, indicates that the SP is not currently preoccupied with pursuing perceived enemies. According to Professor Austin, "the SP is currently too concerned about governing and answering to the international community to spend a great deal of time harassing political opponents". Nevertheless, the Board accepts in its decision the point made by Professor Fischer that, while political violence has declined, it is still a significant factor in Albania. Professor Austin also notes that violence may be perpetrated by lower level authorities.
[22] The Board concluded that the resulting question is whether the applicant has been involved in activities such as to make him susceptible to any such violence; that the applicant was not involved in political activities such as would make him susceptible to political violence as alleged. The documentary evidence indicates that, if the applicant were returned to Albania, there is not a serious possibility that he would suffer persecution because of his political opinion.
[23] The applicant submits four issues:
(a) the Board disregarded the statements of DP member that stated that the applicant was the chairman of his local DP branch;
(b) the Board rendered a decision without regard to the evidence before it, with respect to perceived omissions in the statements of DP members;
(c) the Board rendered its decision without regard to the evidence with respect to the police search for the applicant after his departure in April 2001; and
(d) the Board rendered its decision without regard to the evidence by finding that the applicant faced no other risk factors as a result of his membership in the DP.
[24] The applicant submits that the statements of his DP colleagues do confirm that he was the chairman of his local chapter of the DP. The letters from Xhemal Muho Malecaj, Lek Lelcaj, and Lek Metohija state that the applicant was elected chairman of the local cell of the Democratic Party (Application Record pp 66, 70, 74). The applicant argues that the Board's finding, that he did not hold the position of chairman, is perverse.
[25] The applicant argues that the Board found that the position of chairman was a significant position. The Board also finds that a person holding a significant position in the DP is at serious risk of harm in Albania. The applicant submits that the Board's error, in finding that he does no hold a significant position - that of chairman - constitutes an erroneous finding by the Board, and is fatal to the Decision.
[26] The applicant notes that the Board accepted the documentation submitted pertaining to his DP membership and as a result "the panel has no reason to doubt the authenticity of the documents, and ... accepts that the male claimant is a member of the DP." However, the Board determined to ignore the documents. The Board's reasons state that the documents do not verify his position as chairman of his local chapter, nor do they mention three events: the beatings and detainment in 1998; the abuse during the October 2000 elections; and that he had been called in by the police.
[27] Counsel argues that the applicant held a significant position in the DP which cannot be contradicted. The fact that the letters do not specifically mention that he was abused during the October 2000 election it is clear that he had problems as a result of the election; the evidence was that SP-DP conflicts generally involved physical abuse. He further points out that all letters confirm that the police had pursued the applicant following the October 2000 election.
[28] The applicant further submits that the time lapse between his departure from Albania and the time the police came looking for him was misconstrued. The Board found that the police ignored the applicant for seventeen months. His oral testimony was that he heard from his brother, seventeen months later, but that the police had been looking for him since 2001. The conclusion decision by the Board was not in accordance with the facts.
[29] Finally the applicant argues that his profile as chairman suggest that the SP would have an interest in the applicant and this is supported by the documentary evidence.
[30] The Decision turns on the final finding that the applicant did not have a significant high profile within the DP to place him at risk. The Board wrote that, "the panel finds it unreasonable that if the claimant did in fact hold the significant position as Chairman of his local DP chapter, it would have been included in the attestations, which were allegedly written by other members who knew him well."
[31] The applicant referred to the documentary evidence; that the attestations do, indeed, confirm his status as chairman of his local chapter of the DP. The Board completely misconstrued and the finding is flawed.
[32] The Board was satisfied that a person with a significant position in the DP would be at risk in Albania and that the position of Chairman of the local chapter of the DP is significant. As examples, they cite from the documentary evidence Professors Austin and Fischer and I quote:
"The SP is currently too concerned about governing and answering to the international community to spend a great deal of time harassing political opponents."
[33] A further example in their decision at page 4 where the Board wrote:
"The male claimant presented many documents to corroborate his membership in the DP. The panel has no reason to doubt the authenticity of these documents and, on the balance of probabilities, accepts the male claimant was a member of the DP."
[34] A further example of contradiction to be found in the decision also, I quote at page 5:
"The claimant testified that in 1995 he was appointed the Chairman of the Malecaj chapter of the DP. The numerous attestations tendered do not confirm this."
[35] It is evident from the documentary evidence as well as the letters of attestation that the applicant did hold the position of Chairman of his local DP chapter and there is no doubt that he would have been a high profile political activist and subject to repercussion. The Board completely ignored this evidence, though accepting the veracity of the submitted documentation. This is an erroneous determination without having proper regard to the evidence before it.
[36] The Court should not interfere with the Decision, unless there has been an overriding error, made by the Board (Orduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1421 (F.C.T.D)). I find that the Board made significant overriding errors principally by ignoring the evidence of the applicant's position as Chairman of his local DP chapter, a fact which was affirmed in the attestations. The fact that high profile political activists are at risk in Albania is supported by the documentary evidence and affirmed by the Board.
[37] The application is allowed and the matter submitted to a differently constituted panel for consideration.
JUDGE
OTTAWA, Ontario
January 26, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1380-04
STYLE OF CAUSE: PASHKO MALI, AGLINE MALI and KRESHNIK
MALI by his litigation guardian, PASHKO MALI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 12, 2005
DATED: January 26, 2005
APPEARANCES:
Daniel Kingwell For the Applicants
A. Leena Jaakkimainen For the Respondent
SOLICITORS OF RECORD:
Mamann & Associates
Barristers & Solicitors
Toronto, ON For the Applicants
John H. Sims, Q.C.
Deputy Attorney General
of Canada For the Respondent