BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of a member of the Refugee Protection Division of the Immigration and Refugee Board dated September 17, 2004, wherein it was determined that the Applicant was not a Convention Refugee and not a person in need of protection under the provisions of sections 96 and 97(1)(a) of the Immigration and Refugee Protection Act (IRPA).
[2] Counsel for both parties acknowledges that, in respect of the findings made by the Board, the standard of review is that of patent unreasonableness. For the reasons set out herein, I find that the decision was patently unreasonable, that it should be quashed, and that the matter should be sent back to the Board for determination by a different member.
[3] The Applicant is an Albanian Citizen born in 1969 and qualified to practice as a medical doctor in that country. She fled Albania in 2001 and resided with friends in the United States for seven months before entering Canada and claiming refugee status in July 2002. She fled Albania and does not wish to return because she had been raped and beaten by a person to whom she had been betrothed under certain Albanian customs. She did not wish to marry him and to return would make life there unbearable.
[4] A number of purported findings made by the member, collectively, lead to the conclusion that the member had failed to come to understand the issues of the case and made patently unreasonable findings and conclusions. These include:
1. The failure to offer any substantiation as to why the member found that the alleged failure of the Applicant to claim refugee protection in the United States when she was there for seven months, as set out in the first paragraph under "Analysis" at page 1 of the Reasons, was "determinative" of the claim. At no time during the hearing was the Applicant advised by the Member that the Member had concerns as to this issue. Given the new procedural regimen as to who puts questions to an Applicant and in what order people are allowed to put questions, the Applicant was afforded no opportunity to know that this issue was material or to provide such details as would be pertinent to a full and proper determination.
While an Applicant bears the initial burden as to putting forth her best case, the Member has a responsibility to advise as to issues or concerns and afford an opportunity to address these issues.
2. Failure to give full and proper consideration to the Applicant's evidence, corroborated by medical reports and statements of witnesses, that the Applicant had been beaten and raped. The Member overlooked the robust evidence as to this event and became distracted by insignificant detail such as whether she "went" to a hospital or "was taken" by persons who found her and whether she was seen by a gynaecologist or other doctors. The essential evidence is there and corroborated, she was beaten and raped. She can't go back.
3. Failure to understand correctly the culture of rural Albanian society in which the Applicant found herself. The Member proceeded on the basis that such society was governed by a set of clearly codified laws, the Kanun, understood and practiced by all in that society. The evidence shows that there is no one Kanun, and that the Applicant and her family did not strictly adhere to every stricture that may have been written. The copy of one version presented to the Applicant by the Board at the hearing itself was done so without reasonable notice.
4. Failure to appreciate that the Applicant, having been beaten and raped by her "betrothed" could never return to a normal life as a medical doctor in Albania.
[5] The Member appears to have been distracted by irrelevant details, such as when did the Applicant become aware of her betrothal, what was the significance of a gold (not copper) ring, and how long she remained at the hospital after her injuries were diagnosed and treated. The member simply dismissed without any sound reasoning, documents such as medical reports and witness statements. The Member appears to have found a newspaper report written some two years after the event as to why this medical doctor left the area, she was beaten and raped, more credible than the applicant's own testimony. The Members Report, in short, obfuscates the essential facts with less relevant detail, resulting in a patently unreasonable finding.
[6] The application for judicial review will be allowed. There is no order as to costs. There is no question for certification.
"Roger T. Hughes"
JUDGE
Toronto, Ontario
September 12, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9013-04
STYLE OF CAUSE: MIRELA BETA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 30, 2005
APPEARANCES:
Geraldine MacDonald FOR THE APPLICANT
Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
Geraldine MacDonald
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.