Date: 20040426
Docket: IMM-1281-03
OTTAWA, Ontario, this 26th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ABDYL RRUKAJ
ARMANDO RRUKAJ
Applicants
- 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 (the "Board") dated January 31, 2003, which determined that the applicants are not credible Convention refugees or persons in need of protection.
FACTS
[2] The applicants are citizens of Albania. The principal applicant, Abdyl Rrukaj, is 44 years old. His 15 year old son, Armando Rrukaj, relies on his claim. The applicant alleges a well-founded fear of persecution at the hands of the Albanian police and the ruling Socialist Party (SP) because of his political opinion. The applicant claims that he served in the Albanian army as a career officer from 1982 until 1989 when he was dismissed by the Communist government for expressing support for free elections and democratic goals. He claims that he joined the Democratic Party (DP) in 1990 and was actively involved in organizing and participating in demonstrations to promote democracy. He alleges that during a demonstration, which he organized in 1991, his brother was killed by sniper fire.
[3] The applicant claims that after the DP came to power in 1992, he returned to his military career and served as a captain until he was again dismissed when the SP regained power in 1997. The applicant alleges that, in addition to being arbitrarily dismissed from his military career, he faced persecution at various times in form of threats from the police, beatings, interrogations, and detention. He claims that during his term as vice-chair of the local election committee for the DP, he was taken to an unknown location by the police, severely beaten and ordered not to take part in the elections, or else he would be killed. He alleges he fled Albania for Greece on September 15, 2000. He arrived in Canada on December 24, 2000.
[4] After the Board heard the applicant's claim it concluded that the claimant was not a credible or trustworthy witness, and found that the claimant had not suffered persecution for his political opinion. At page 17 of its reasons, the Board states:
[...]
I have found the claimant not to be a credible or a trustworthy witness with respect to his allegations at the POE. I have found the claimant not to be credible or trustworthy with respect to his allegations of persecution because of his political opinion as a high profile member of the DP. I have found the claimant not to be a member of the DP. Therefore, on a balance of probabilities, I find that the claimant has not suffered persecution for his political opinion as he has claimed. ...I find there is no serious possibility that the claimant would face persecution based on any of the Convention refugee grounds if he returns to Albania. Therefore, I find the claimant not to be a Convention refugee.
[...]
[5] The Board reached the above conclusion because it noted several inconsistencies, omissions, and implausibilities within the applicant's evidence, as summarised below:
(1) the Port of Entry ("POE") notes indicate that the applicant claimed to have written an anti-government article in 1996 which led him to flee to Greece in 1998, but the applicant testified that he was subject to persecution by the police in Albania in 1999 and 2000;
(2) it was implausible that the applicant would have been persecuted for writing an article in 1996, because Albanian laws protect freedom of speech, and the press and media are active and unrestrained;
(3) the applicant's explanation for not attempting to obtain documents confirming his termination from the military was unreasonable, because the Albanian military keeps proper documents, and the applicant was instructed to obtain documents to support his claim;
(4) the applicant failed to mention, in his Personal Information Form ("PIF"), significant persecutory events concerning his brother that allegedly took place in 2000, even though the PIF directs claimants to include such incidents, and the applicant in fact mentioned such an incident that occurred in 1991;
(5) the applicant produced a DP membership card issued recently, but stated that he had been a member since 1991, and the applicant failed to produce his original membership card;
(6) the applicant's DP membership card and certificate of attestation were allegedly signed by the Party Chair of the DP Skhoder Branch, but bore two different signatures, which the applicant could not explain;
(7) the applicant's certificate of attestation states that the applicant was subject to "pressure and blackmail" but the applicant never alleged blackmail;
(8) the applicant, allegedly a high profile party member, claimed that he reported all persecutory incidents involving the police to the Party Chair of his ward, yet when questioned at his hearing, he was unaware that the DP has an arm called the Democratic Party's Human Rights Forum against Police Brutality, which reports such incidents to Amnesty International;
(9) the "cause of death" line on the death certificate of the applicant's brother is blank, and cannot prove that the applicant's brother died as a result of a political attack;
[6] In addition to the concerns noted above, the Board noted that fraudulent documents are prevalent in Albania and, given the credibility concerns already raised, it concluded that the applicant's party membership card and certificate of attestation were fraudulent.
ISSUES
[7] This application raises three issues:
(1) whether the Board's negative credibility finding based on inconsistencies between his POE, PIF and viva voce evidence is patently unreasonable;
(2) whether the Board erred in law by failing to refer to the translation of a document relating to his membership and activity in the DP ("Minarolli document"); and,
(3) whether the applicant was denied natural justice because he had no opportunity after the hearing to respond to allegations that he was in Greece, not Albania, during material times.
ANALYSIS
Credibility Finding and POE
[8] After reviewing the Board's reasons and Certified Record, I am unable to agree with the applicant. The standard of review applicable to the Board's findings of fact, and assessment of credibility is patent unreasonableness. The Court will not substitute its opinion for the Board's decision unless the Board's decision is clearly wrong. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.). There were a significant number of inconsistencies and implausibilities identified by the Board, and I do not find them to be patently unreasonable, based on the evidence before the Board.
[9] The POE is a credible document. The applicant spoke Greek, and was interviewed by a Greek-speaking Canada Customs Agent. The questions and answers were straight forward and simple. I cannot find a patently unreasonable error in the Board's reliance on this document.
[10] The Board's function includes assessing credibility, and one of the common tools for testing credibility is comparing the applicant's evidence at three different times during the refugee claim process:
(1) the POE notes;
(2) the PIF statement; and,
(3) the oral evidence at the hearing.
If the POE notes contain errors, the applicant has adequate time before the hearing to marshal evidence for the purpose of explaining and correcting the errors. The applicant cannot ignore alleged mistakes in the POE notes, and then when confronted with them at the hearing, expect the Board to adjourn the hearing so that the applicant can obtain allegedly missing but available evidence. The Board hears approximately 25,000 cases a year, and has a tremendous backlog. The applicant must be ready with his evidence on the day scheduled for the hearing.
Natural Justice
[11] The applicant had adequate notice of the hearing, and there is no breach of natural justice for the Board to deny the applicant an opportunity of obtaining and submitting further evidence after the hearing to rebut issues which arose at the hearing, and which should have been anticipated by the applicant.
[12] The allegation that the applicant was in fact in Greece between 1998 and 2000 arose out of the POE notes, which were available to the applicant's counsel in preparing for the hearing. The applicant had 2 years to prepare for his hearing, and cannot claim to have not known the contents of the POE notes until the hearing.
[13] Since I have found that the Board did not err in its negative credibility finding, and did not breach any principle of procedural fairness or natural justice, this application for judicial review must be dismissed.
[14] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1281-03
STYLE OF CAUSE: ABDYL RRUKAJ, ARMANDO RRUKAJ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 21, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES BY: Mr. Daniel L.Winbaum
For the Applicants
Ms. Deborah Drukarsh
For the Respondent
SOLICITORS OF RECORD: Daniel L.Winbaum
Barrister and Solicitor
267 Pelissier Street, Suite 400
Windsor, Ontario
N9A 1G9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20040426
Docket: IMM-1281-03
BETWEEN:
ABDYL RRUKAJ, ARMANDO RRUKAJ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER