Date: 20040930
Docket: IMM-2748-03
Citation: 2004 FC 1340
Ottawa, Ontario, this 30th day of September, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
NIKO BEGOLLARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board"), dated March 19, 2003, in which the applicant was found not to be a Convention refugee or a person in need of protection. The applicant seeks an order setting aside this decision.
Background
[2] Niko Begollari is a citizen of Albania, born April 16, 1959. He claims to have a well-founded fear of persecution by reason of his political opinion as a member and active supporter of the Democratic Party ("DP"). In addition, he claims to be a person in need of protection because he would be subjected to a danger of torture, or to a risk to his life, or to cruel and unusual treatment or punishment should he return to Albania.
[3] The applicant alleges that he joined the DP in 1995. He later opened a clothing manufacturing business and donated T-shirts bearing the party name and the name of its candidates, and banners and other items that assisted in promoting the DP. The applicant also claims that he and his wife made significant financial contributions to the DP.
[4] The applicant alleges that he began to experience problems because of his involvement with the DP in early 2000, when the police beat him and threw two bombs at his car and home. In late 2000, the applicant, along with other DP members, was allegedly detained by the police, beaten, and threatened with further harm if they remained active members. The applicant also alleges that other events occurred, including his shop being vandalized, threatening phone calls, beatings, and merchandise disappearing from his truck. At the hearing, the applicant testified that he also experienced problems before 1999 as a result of his involvement with the DP.
[5] A hearing was held on March 11, 2003, to decide the applicant's claim. In its reasons dated March 19, 2003, the Board rejected the applicant's claim for refugee protection, and concluded that his assertions that he was a major supporter and active member of the DP were not credible. The Board further found that the documentary evidence regarding Albania established that someone of the applicant's profile would not face a serious possibility of persecution upon return to Albania.
[6] At the outset of the hearing, the Board identified the determinative issues as being credibility and the applicant's political identity as a member and active supporter of the DP.
[7] In addition to his oral evidence, the applicant gave the Board a DP membership book, receipts evidencing financial contributions to the DP, and photographs linking him to the party. The applicant testified that while enroute to Canada, the DP membership book he had received when he joined in 1995, among other things, was stolen, and that his father had later acquired the replacement DP membership book that was submitted to the Board. The applicant explained that his father had no difficulty in obtaining the book, and that he had probably spent no more than ten minutes at the DP office when it was being prepared for him.
[8] The Board found several problems with the DP book. First, at the time when the book was allegedly reissued, the DP had stopped using it and had replaced it with a membership card.
The Board found that the applicant was unable to explain why his father had been given an obsolete book rather than the card that was already in use at that time.
[9] Second, the applicant claimed that he joined the party in 1995, although the book lists the date he became a member as April 1996. However, the Board accepted the applicant's explanation that the DP's office and records had previously burnt down and that the clerk who issued the book probably guessed the date the applicant joined.
[10] Third, the applicant could not explain why the date of issue of the book was July 1996, when his evidence was that his father got it after the applicant came to Canada in June 2001.
[11] Fourth, the applicant could not explain why, if the entries in the book were made in a ten minute period, there were three different kinds of ink used to show the monthly membership fees he allegedly paid. The Board did not find it plausible that the clerk making the entries changed pens twice during the process of issuing the book. As a result of these inconsistencies, the Board gave the book little weight.
[12] Additionally, the applicant submitted receipts evidencing DP contributions totalling approximately $125 US. The Board did not find these financial contributions sufficient to cause the applicant and his family to be perceived as major DP supporters.
[13] Finally, the Board examined whether the applicant had a well-founded fear of harm if he was to return to Albania. After examining documentary evidence concerning the country conditions in Albania, the Board concluded that, although there had previously been some persecution and ill treatment of DP supporters, it was mostly journalists and high profile party officials that were targeted. Considering the fact that the applicant was neither a journalist nor an official of the DP, that his involvement through modest financial contributions was minimal and that some contributions were in kind, and that there was possible membership and attendance at some DP rallies and meetings, the Board found that his evidence that he and his family were repeatedly targeted and persecuted was not credible.
[14] In conclusion, the Board found the applicant not to be a Convention refugee, as he did not have a well-founded fear of persecution in Albania on a Convention ground. The Board also found that he was 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, and that there were no substantial grounds to believe that his removal to Albania would subject him personally to a danger of torture.
Issue
[15] Did the Board make a reviewable error?
Relevant Statutory Provisions
[16] Subsection 96(1) of the Immigration and Refugee Protection Act, S.C. 2001, C. 27 ("IRPA") states 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;
. . . |
Analysis and Decision
[17] The applicant submitted that the Board applied the wrong test in deciding that the applicant was not a Convention refugee. The respondent submitted that the proper test was applied by the Board. The Board stated at page five of its decision:
I further find that, should this claimant now return to Albania and resume his previous level of political involvement, on the balance of probabilities, there is no serious possibility he would be persecuted or personally subjected to a danger of torture or to a risk to his life or to a risk of cruel and unusual treatment or punishment.
[18] This Court has stated that the phrase "well-founded fear" contained in the definition of a Convention refugee has two components; the first being a subjective fear of persecution felt by the applicant and the second, an objective component. In Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), the Federal Court of Appeal stated at page 134:
. . . This Court as well as the Supreme Court of Canada has made reference in a number of cases to the subjective and objective components necessary to satisfy the definition of Convention Refugee. The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. . . .
[19] In Immigration Law and Practice, Lorne Waldman, Immigration Law and Practice, Vol. 1, looseleaf (Markham, Ont: Lorne Waldman, 1992), Mr. Waldman stated at § 8.57:
(b) Standard of Proof is to a Balance of Probabilities
§ 8.57 The CRDD will also err if it imposes too high of a standard of proof on the claimant. The claimant need only satisfy the tribunal on a balance of probabilities that the fear of persecution is well-founded. Moreover, the test of well-founded fear is a purely objective one. The tribunal is charged with assessing those aspects of the claimant's evidence that it determines credible to determine whether or not there is any objective basis for the fear of persecution. In making this decision, the CRDD is required to determine whether there is more than a mere possibility of persecution. . . .
And at § 8.60.1:
§ 8.60.1 Based on the jurisprudence from the Federal Court to date, the following principles relevant to the test can be drawn:
(i) The test for the well-foundedness of a claimant's fear of persecution is purely objective.
(ii) A claimant need not show a probability of persecution, that is, that persecution would be more likely than not, in order to satisfy the test. The claimant need only show "good grounds", a "reasonable chance" or "serious possibility".
(iii) The test requires the claimant to show the existence of more than a mere or minimal possibility of persecution. The threshold is a mere possibility and anything more than a mere possibility is a serious possibility. Indeed a finding that there is a 'mere risk' would be sufficient to justify a finding that the claimant has a well founded fear of persecution.
(iv) The standard of proof to be applied is such that it is not necessary for the decision-makers to be convinced that the claimant's fear is objectively well-founded. Rather, the decision-makers must only be satisfied on a balance of probabilities that the fear is well-founded. Therefore the Board will err if it requires the claimant to "convince" it or to establish that it is "likely" that persecution will occur.
[20] The Federal Court of Appeal in Ponniah v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 359 (T.D.) (QL), stated at pages 2 to 3:
In Adjei, MacGuigan J.A. for the Court said:
It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not. Indeed, in Arduengo v. Minister of Employment and Immigration (1981), 40 N.R. 436 (F.C.A.), at page 437, Heald J.A. said:
Accordingly, it is my opinion that the board erred in imposing on this applicant and his wife the requirement that they would be subject to persecution since the statutory definition supra required only that they establish "a well-founded fear of persecution". The test imposed by the board is a higher and more stringent test than that imposed by the statute.
The parties were agreed that one accurate way of describing the requisite test is in terms of "reasonable chance": is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?
We would adopt that phrasing, which appears to us to be equivalent to that employed by Pratte J.A. in Seifu v. Immigration Appeal Board (A-277-82), dated January 12, 1983, not reported):
. . . [I]n order to support a finding that an applicant is a Convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution"; what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act. [Emphasis added].
What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
An applicant, according to Adjei, does not have to prove that persecution would be more likely than not. He has to establish "good grounds" or "reasonable chance" for fearing persecution.
"Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50% chance (i.e. a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is "good grounds".
If the claimant, as the Board said, "... may face slightly more than a mere possibility..." of persecution, he had crossed the lower limit and had made his case of "good grounds" or a "reasonable chance" for fearing persecution.
[21] I have reviewed the test stated by the Board and because of the manner in which it is stated, I cannot determine whether the Board applied a "balance of probabilities" test to the objective component of a "well-founded fear of persecution or a test based on good grounds"; stated another way, a reasonable chance or serious possibility of a fear of persecution. If the test used to determine the objective basis of the applicant's fear of persecution was the balance of probabilities, this was an error. Since I cannot determine from the decision which test was used, the application for judicial review must be allowed and the decision of the Board is quashed.
[22] Neither party wished to propose a serious question of general importance for certification.
ORDER
[23] IT IS ORDERED that the application for judicial review is allowed and the matter is referred back to a different panel for reconsideration.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
September 30, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2748-03
STYLE OF CAUSE: NIKO BEGOLLARI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 1, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Michael Crane
FOR APPLICANT
Alison Engel
FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT