Date: 20020604
Docket: IMM-709-01
Neutral citation: 2002 FCT 639
BETWEEN:
ARDIT HYSNI BALLA
LINDITA LIKA
KLEA BALLA
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Ardit Hysni Balla (the principal applicant), his wife Lindita Lika and his daughter Klea Balla are Albanian citizens who left Albania on September 25, 1999. Using falsified Greek passports they travelled by car to Greece, by boat to Italy, by air to Denmark and on to Canada where they arrived on October 4, 1999 and claimed refugee status. The refugee claims hearing took place on November 14, 2000, before the Convention Determination Division of the Immigration and Refugee Board (CRDD). On January 30, 2001, the CRDD determined that the applicants were not Convention refugees. The applicants seek judicial review of the CRDD decision and request that the decision be quashed and sent back for redetermination before a differently constituted panel.
[2] The principal applicant claims a well-founded fear of persecution based on political opinion. The claims of his wife and daughter are based on his claim. The CRDD determined that the applicant's fear of persecution did not arise by reason of any ground enumerated in the definition of Convention refugee. In short, there was no nexus and as a result, the CRDD concluded that neither the applicant nor his family would be persecuted upon return to Albania.
[3] The applicant is in his early thirties. From January, 1997 until August 10, 1999 he was an inspector with the Financial Police of Albania. It was his duty to inspect shipments of goods to ensure that they did not contain illegal products and to ensure that the appropriate taxes and duties were calculated and paid to the Albanian government.
[4] The applicant supported the Democratic party from its inception and became a party member in 1994. His political involvement was limited to attendance at political rallies and support of the party. The Democrats were in power when the applicant obtained his employment as an inspector. After the government changed in June, 1997 the applicant kept his job as an inspector but his supervisor was replaced by a prominent supporter of the Socialist party.
[5] In July, 1999, in the course of his employment, the applicant and a co-worker, Agron Beluli, found large quantities of contraband consisting of alcohol and tobacco in a truck purportedly transporting fresh fruits and vegetables for the company A & S Import & Export. The applicant and Mr. Beluli submitted a written report regarding the discovery of the contraband to head office.
[6] One week after filing the report, the applicant and Mr. Beluli were called to a meeting with their supervisor, Xhemal Veseli. Mr. Veseli asked the men to withdraw the report. They declined taking the view that the report was accurate and that it was their duty to file it. Mr. Veseli told them to reconsider because a very important member of the Socialist Albanian government, a member of Parliament, was connected to the company A & S Import & Export. Despite this information, they did not agree to withdraw their report.
[7] Shortly after this meeting, the applicant began to receive threatening telephone calls at home. The calls were intermittent and came from different people whose voices were unknown to the applicant and his wife. The callers threatened that if the applicant did not withdraw the report, he, his wife and daughter would disappear. When the applicant spoke with Mr. Beluli he learned that he, too, was receiving similar calls. The two men resolved to see the file through to completion, including any court process. The applicant reported the telephone calls to the police but nothing came of the investigation.
[8] On August 9, 1999 the applicant and Mr. Beluli were dismissed from their employment on grounds of poor performance and failure to execute the orders of supervisors. Predictably, both men felt they had been fired because of their failure to withdraw the report. After their dismissal, the threatening calls continued and cars without license plates followed the applicant and his wife. Several times, the cars tried to cut them off, nearly causing accidents. On September 10, 1999 the incidents involving the cars were reported to the police. While driving home from the police station, a car hit the rear of the applicant's automobile and sped away. The police attended at the scene and completed a report. Another threatening telephone call followed that evening.
[9] On September 15, 1999 Mr. Beluli telephoned the applicant and informed him he had been badly beaten by masked men who called him a "dirty Democrat" and told him not to testify at the court hearing. Mr. Beluli told the applicant that he no longer intended to testify and advised the applicant to reconsider his position.
[10] On September 20, 1999 at approximately 2:30 a.m., while the applicant and his family were sleeping, there was an explosion in the applicant's home. The police attended, believed it was a bomb and questioned the applicant regarding who might have planted it. The applicant was too afraid to relay any information about the contraband report. The police, already aware of other difficulties the family was experiencing, had not been informed by the applicant that these difficulties might be related to the filing of the report. The police investigation regarding the explosion was inconclusive.
[11] The applicant had earlier approached the Democratic party for protection. The party insisted that the applicant expose the corruption but also cautioned him and told him that the Democratic party could not protect him from the Socialists. After the bomb attack, the applicant and his wife were terrified and felt if they did not leave Albania, they would be killed. The applicant then sought assistance from his uncle and the latter made arrangements with smugglers to facilitate the family's passage out of Albania.
[12] The CRDD concluded that the applicant's fear was not based on political opinion and that his allegation that responsibility for the various acts lay with the Socialist party was speculative. It determined that the perpetrators of the illegal smuggling were criminals and that the applicant's report had implicated them. The CRDD found that the applicant, an ordinary member of the Democratic party with no official position or profile, would not attract the attention of members of the Socialist party. While acknowledging the existence of widespread corruption in Albania, it noted the government's establishment of a commission charged with fighting corruption at all government levels.
[13] The applicants allege various errors by the CRDD including misinterpretation of the definition of "Convention refugee", erroneous findings of fact, imposition of a higher standard of proof than the balance of probabilities and breach of fairness by failing to provide the applicant an opportunity to submit explanations and clarifications in relation to any doubts it may have had with respect to the applicant's evidence. The respondent says that the crux of the matter is that the applicant failed to establish a nexus between his fear of persecution and one of the enumerated grounds within the definition of "Convention refugee".
[14] Despite the capable submissions and arguments of the applicants' counsel, I agree with the respondent's position. "Convention refugee" is defined in Section 2 of the Immigration Act, R.S.C. 1985, c. I-2:
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_: a) 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_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
|
[15] An applicant must fear persecution on the basis of one of the grounds set out in the definition. Such persecution must be directed toward an applicant specifically or as a member of a targeted group. Here, the acts against the applicant began after he refused to withdraw a written report of illegal activity. The decision of the CRDD repeatedly states that the applicant failed to establish a link between the alleged persecutory acts and the enumerated ground "political opinion". The following statements are illustrative:
The claimant produced no persuasive evidence that the socialist party was personally [sic] implicated in this organization.
In his testimony the claimant stated that Mr. Zabit Brokaj, the defence adviser to the Prime Minister was a very good friend of Mr. Veseli, the claimant's boss. In fact the panel was told that Mr. Veseli got this job when the Socialists came to power. However, the claimant was unable to provide a link between the company and Mr. Brokaj's involvement in the company.
There is no evidence to show that Mr. Brokaj was involved in this organisation [sic] in spite of a history of previous corruption. Besides this defence adviser, there appears to be no other known political involvement.
If the involvement in this project [anti-corruption commission] is at such a high level and the commitment was made public then surely the claimant cannot justify his statement that because the government official was involved in the corruption he was in serious danger. Even if we accept that Mr. Brokaj was involved with the company, which we do not, he is one person in the government against all the others who were part of the commission.
He [the applicant] has failed to credibly establish a link between this corrupt act and the government.
[16] The Refugee Division, a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony, to gauge the credibility of an account and to draw the necessary inferences. As long as the inferences drawn by the tribunal are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[17] The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The burden is on persons who seek refugee status to establish that their claims are well founded in accordance with the applicable legal principles: Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2002 (T.D.). The issue here is the CRDD's assessment of the evidence, a matter clearly in its expertise: Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.).
[18] Having extensively reviewed the affidavit of the applicant, the documentation contained in the Application Record and the submissions of counsel, I cannot find that the CRDD misinterpreted the definition of "Convention refugee", made erroneous findings of fact or imposed a higher standard of proof than the balance of probabilities. Regarding the alleged breach of fairness, the ". . . finding that evidence is implausible is a conclusion based on assessment of its likely veracity in all of the circumstances. That conclusion may only be reached after the hearing is over, all the evidence has been submitted and the panel has opportunity to consider it. . . ." A panel does not err or fail to ensure procedural fairness if it concludes there were implausibilities in the applicant's evidence without first bringing them to the attention of the applicant and providing opportunity for him to respond: Sarker v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 284 (per MacKay J.).
[19] It is the jurisdiction of the CRDD to determine the existence of the nexus between the harm feared and one of the Convention grounds: Leon v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1253 (T.D.); Rivero v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1517; Vetoshkin v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 921 (T.D.); Mia v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 620 (T.D.). Here, the determination of the CRDD was reasonably open to it and the intervention of the Court is not warranted. If I am wrong in this conclusion, the applicants fail, in any event, on the issue of state protection. In this respect, the CRDD noted:
The police were not advised by the claimant about the investigation and the problems he had to face as a result of the report he had filed.
[20] An applicant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the applicant not to have sought the protection of his home authorities. Absent some evidence of a state's inability, the claim should fail, as nations should be presumed capable of protecting their citizens: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[21] The applicant reported the telephone calls, the car incidents and the explosion to the police. However, he did not disclose his suspicions that those incidents were related to the filing of the report nor did he inform the police of the existence of the report. Moreover, the police responded to and investigated the incidents. In the particular circumstances that existed here, the fact that the investigations were not conclusive does not support a finding that the police were unwilling or unable to protect the applicants, particularly when they were not provided all of the information.
[22] The application for judicial review is dismissed.
___________________________________
Judge
Ottawa, Ontario
June 4, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-709-01
STYLE OF CAUSE: Ardit Hysni Balla et al. v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 30, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
DATED: June 4, 2002
APPEARANCES:
Ms Marjorie Hiley for the Applicant
Ms Neeta Logsettyfor the Respondent
SOLICITORS ON THE RECORD:
Ms. Marjorie Hileyfor the Applicant
Barrister and Solicitor
Toronto, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada