Date: 20040112
Docket: IMM-4965-03
OTTAWA, Ontario, this 12th day of January, 2004
Present: THE HONOURABLE MR. JUSTICE MICHAEL KELEN
BETWEEN:
HEKTOR CARKU
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated May 22, 2003 wherein the Board determined that the applicant is not a Convention refugee or a person in need of protection.
FACTS
[2] The applicant is a 26 year old citizen of Albania who claims a well-founded fear of persecution on the basis of political opinion and membership in a particular social group-namely an activist family that is viewed as being anti-government. He claims to be an active member of the Democratic Party ("DP"). He alleges that his political activities and those of his father have made him a target of a particular police officer in Albania, who assaulted him and threatened his life. He believes that if he returns to Albania he will face persecution at the hands of the Socialist Party and its supporters, and that state protection is unavailable to him.
[3] The applicant left Albania for Canada on March 11, 2002 and immediately made a refugee claim upon arrival. Upon appearing before the Board his claim was rejected on grounds of credibility.
[4] With respect to an alleged serious assault which caused the applicant to flee from Albania, the Board did not believe that the assault occurred and stated at pages 4 and 5 of its reasons:
Both in an interview and in a written declaration in the Albanian language by the claimant himself, the claimant has failed to mention the attack which he orally alleged at his hearing was the reason why he fled Albania at the time that he did.
[...]
I reject the claimant's explanation in this regard and reject all the explanations the claimant has provided with respect to the absence of crucial information in the documentation...I find that, if the claimant had been subject to the serious attack of about a month before his alleged flight from Albania, that incident would have been mentioned emphatically and prominently in any dealings the claimant had the opportunity to have with Canadian immigration officials who were specifically interested in knowing about the claimant's reasons for coming to Canada and seeking its protection.
[5] The Board concluded at page 5 of its reasons:
I do not have any credible or trustworthy evidence on which to determine that the claimant has been subject to any forms of mistreatment in Albania owing to any political profile since 1998 [...]
ANALYSIS
[6] At the hearing I asked whether the applicant had produced corroborative evidence to prove the alleged serious assault which hospitalized him for three days, and precipitated his flight to Canada and refugee claim. There was no reference to such a document in the Board's decision, or in the parties' memoranda. I was surprised to find that there is a report of a medical examination by a forensic expert of the Romanian Ministry of Justice conducted at the request of a lawyer for the applicant's father, which confirmed the assault, the wounds, the hospitalization required from the assault, the account of facts surrounding the assault and the general circumstances of the case.
[7] This medical report directly contradicts the Board's finding that the claimant had not been "subject to a serious attack about a month before his alleged flight from Albania". This medical report is important and relevant evidence. It is not mentioned or analyzed in the Board's reasons. The Court is entitled to infer from the silence that the Board made its key finding without regard to this evidence. It is well established that the Board has the burden to explain this report since it is important, relevant, and contradicts the key finding of fact. See Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 per Evans J. (as he then was). For this reason, this matter must be sent back to be redetermined in accordance with this decision.
[8] The parties and the Court agree that this application does not raise a serious question of general importance for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed and the matter referred back to the Board for a new hearing by a differently constituted panel.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4965-03
STYLE OF CAUSE: Hektor Carku v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 7, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Kelen
APPEARANCES:
Mr. Micheal Crane For the Applicant
Mr. Jeremiah A. Eastman For the Respondent
SOLICITORS OF RECORD:
Mr. Micheal Crane For the Applicant
Barrister & Solicitor
Toronto, Ontario
Mr. Morris Rosenberg For the Respondent
Deputy Attorney General of Canada
Department of Justice
The Exchange Tower
Suite 3400, P.O. Box 36
2 First Canadian Place
Toronto, Ontario
M5X 1K5
FEDERAL COURT
Date: 20040112
Docket: IMM-4965-03
BETWEEN:
HEKTOR CARKU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER