Date: 20040308
Docket: IMM-4634-03
Citation: 2004 FC 347
Ottawa, Ontario, March 8, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MURAT DACI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Murat Daci is a 28-year old citizen of Albania whose claim to refugee status is based upon his alleged fear of persecution arising out of his own political activities. He also bases his claim on a second Convention ground: that is his membership in his politically active family. The Refugee Protection Division of the Immigration and Refugee Board rejected his claim, finding that he did not provide credible evidence with respect to his alleged experiences of persecution based upon his own political beliefs.
[2] Mr. Daci seeks to have that decision set aside, asserting that the Board only considered part of his claim, failing to address the aspect of his claim that dealt with his membership in a particular social group. He also asserts that the Board's findings of credibility were patently unreasonable.
BACKGROUND
[3] Mr. Daci alleges that both he and his family have suffered persecution in Albania at the hands of the former Communist government and the current Socialist government. Mr. Daci's maternal grandfather was executed as an enemy of the Communist government, and his family was interned. In addition, Mr. Daci, his father and his brother were all members of the Democratic Party. Mr. Daci described the persecution that he says they suffered as a result of their involvement in that party.
[4] Mr. Daci's brother, Riza, was employed with the Democratic Party during the 1997 elections, but was replaced when the Socialist Party came to power after the election. Riza was allegedly threatened by the authorities and fled to Germany. The uncontroverted evidence before the Board was that Riza has since been accepted as a refugee in Germany. Several of Mr. Daci's other brothers have also allegedly been subjected to threats or physical violence as a result of their membership in the family.
[5] Mr. Daci says that he was involved in the 1997 election campaign on behalf of the Democratic Party. While working at a polling station, he observed irregularities in voting, which he reported to his superiors. After the elections, Mr. Daci was stopped by police, threatened, and warned to cease his political activities.
[6] Mr. Daci further claims to have been detained and beaten while campaigning in local elections in 2000. These beatings caused him to have been hospitalized for two weeks. Nine days after his release from hospital, he was given money by his brother, which allowed him to leave the country. Mr. Daci arrived in Canada on August 22, 2000 and made his refugee claim shortly thereafter.
DECISION OF THE BOARD
[7] The Board characterized Mr. Daci's claim as asserting that he had a well-founded fear of persecution based upon his political opinion. It then rejected Mr. Daci's claim, finding that he was not a Convention refugee, as he did not have a well-founded fear of persecution in Albania based upon a Convention ground. The Board also found that he was not a person in need of protection, as his removal to Albania would not subject him to a risk to his life or to cruel and unusual treatment or punishment.
[8] Only Mr. Daci's evidence as to his personal identity was accepted. The Board noted a number of inconsistencies in Mr. Daci's testimony, as it related to the timing of his membership in the Democratic party, his inability to produce certain documents and his description of the individuals responsible for his beating. As a result, the Board did not accept that Mr. Daci was himself a member of the Democratic Party, or that he had been subject to persecution because of his political beliefs. Accordingly, the Board dismissed his claim.
ISSUES
[9] Mr. Daci raises two issues on this application:
1. Did the Tribunal err in misconstruing the nature of his claim, in that it failed to consider whether he had a well-founded fear of persecution based upon his membership in a particular social group? and
2. Was the Board's assessment of his credibility patently unreasonable?
ANALYSIS
[10] I am satisfied that the decision of the Board should be set aside because the Board failed to give any consideration to the aspect of Mr. Daci's claim relating to his membership in a particular social group - that is, his politically active family.
[11] A review of the Board's reasons discloses that the Board identified the claim as one based only on allegations of persecution arising out of Mr. Daci's own political opinion. The Board went on to consider, in some detail, Mr. Daci's testimony as it related to his allegations of persecution based upon his own political opinion. While the Board was prepared to accept Mr. Daci's evidence with respect to his personal identity, it did not accept his testimony as it related to his allegations of past persecution resulting from his own political views. The Board's reasons for rejecting this evidence are clearly set out in the Board's decision.
[12] Nowhere in the Board's decision, however, is there any mention of the substantial body of evidence adduced by Mr. Daci with respect to the persecution allegedly encountered by the various members of Mr. Daci's family - in particular his brother Riza - nor is there any consideration of whether Mr. Daci himself might be at risk of persecution as a result of his relationship to his family members.
[13] It was open to the Board to accept or reject Mr. Daci's claim that he was at risk of persecution based upon his membership in his family group. However, given that this evidence was central to this aspect of Mr. Daci's claim, the Board could not simply ignore it.
[14] In light of my conclusions on this issue, it is not necessary for me to deal with the question of the Board's credibility assessment.
CERTIFICATION
[15] Neither party has suggested a question for certification, and accordingly none will be certified.
O R D E R
THIS COURT ORDERS that:
1. For the reasons set out above, this application is allowed, and Mr. Daci's refugee claim is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish" Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4634-03
STYLE OF CAUSE:
BETWEEN:
MURAT DACI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 25, 2004
REASONS FOR ORDER AND ORDER : The Honourable Madam Justice Mactavish
DATED: March 8, 2004
APPEARANCES:
J. Norris Ormston FOR PLAINTIFF / APPLICANT
Urszula Kaczmarczyk FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Ormston, Bellissimo, Younan FOR PLAINTIFF/APPLICANT
Barristers & Solicitors
Deputy Attorney General of Canada FOR DEFENDANT/
Department of Justice RESPONDENT