Date: 20040915
Docket: IMM-5511-03
Ottawa, Ontario, this 15th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
MARSIDA SALIAJ
FATJON SALIAJ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to s. 72 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Panel") dated June 20, 2003 ("Decision"). In the Decision the Panel determined that the Applicants were not Convention refugees.
BACKGROUND
[2] The Applicants are brother and sister and are citizens of Albania. They claim to have a well founded fear of persecution at the hands of the Socialist Party by reason of their political opinion as supporters of the Democratic Party and their membership in a particular social group, namely, a family of Democratic Party supporters. The Female Applicant also bases her claim on gender.
[3] The Applicants allege the following:
Their father was a Democratic Party member who was appointed secretary of the DP for the Apollonia neighbourhood in Fier in 1996. As a result of his political activities, the family received threats;
On May 23, 1998, the Female Applicant became a member of the Youth Forum for the DP. She organized meetings and talked to people about the Socialist/Communist threat;
On July 12, 1998, secret police searched their home, destroying their belongings. The father was detained for 24 hours;
Everyone in the family received threats on the streets from Socialists;
Their father was arrested after a protest about the killing of Azen Hajdari and detained for two days;
On August 7, 1999, two individuals attacked the Male Applicant and his friend. They constantly mentioned his father was a DP activist;
SP supporters attacked their father on November 27, 1999;
The Male Applicant was not a DP member but spoke to friends about the DP during the election campaign for local elections in October 2000. The Female Applicant was also active during the campaign;
Their father was appointed chairman for the elections commission for their neighbourhood. Three days before the election, the family received a note telling their father to co-operate with the SP and manipulate the elections. On September 28, 2000, unknown persons kidnapped the Female Applicant. They threatened to kill her if her father did not co-operate with the SP. Her father agreed and she was released the next day;
Their father feared for the safety of his children and made the Applicants leave Albania on October 12, 2000. They arrived in Canada on the same day and they made their claims for refugee status.
DECISION UNDER REVIEW
[4] The Panel determined that the Applicants did not have a well-founded fear of persecution for a Convention ground in Albania. It also found that the Applicants were not persons in need of protection. It found that the Applicants' evidence was not credible and their claim lacked an objective basis.
ISSUES
[5] The Applicants raise the following issues:
Did the Panel err in law by making an adverse finding of credibility based on an unwarranted implausibility finding concerning the behaviour of the Female Applicant prior to her abduction?
Did the Panel err by ignoring the Applicants' uncontradicted evidence?
Did the Panel err in fact by ignoring documentary evidence that others had been kidnapped for political reasons?
Did the Panel err in failing to define what sort of profile would attract persecution?
ARGUMENTS
Applicants
No Evidence of Politically Motivated Kidnapping
[6] The Panel concluded that it was unlikely the Female Applicant had been kidnapped because there were no other reported instances of politically motivated kidnapping.
[7] This was an important finding because the Panel seems to have premised its credibility finding on that particular issue.
[8] The Panel does not otherwise impugn the Applicants' credibility. There is no comment on the consistency of their evidence, their demeanor, whether any contradictions existed or the authenticity of their supporting evidence
[9] The Applicants say that the Panel was wrong in fact on this issue.
[10] The Panel states as follows in its reasons:
The documentary material does not contain any reports of politically motivated disappearances...On the balance of probabilities, I find that it is a reasonable assumption that if SP supporters were kidnapping children to intimidate politically active DP parents into co-operating with the SP, there would be some report of these activities either in the media or in the various NGO reports. I reach this conclusion despite the serious interference with media freedoms referred to by counsel.
Reasons at pages 5-6
[11] The Applicants point out that, in fact, a Amnesty International report that was before the Panel does provide an example of a political kidnapping. The Panel ignored this evidence and premised its conclusion on a mistake of fact.
[12] In Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114 (C.A.) the Federal Court of Appeal said, per Hugessen J.A., that the "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
[13] In this case, however, there was evidence of both kidnapping and other politically motivated violence. The Panel seems to have ignored that evidence.
[14] Indeed, the Applicants say there was evidence before the Panel that ordinary DP Members (not high-ranking DP officials) were being beaten in Albania for their political opinions:
In March police arrested Gjon Gjonaj, a resident of Lezhe and a DP supporter, and detained him for verification purposes in the Rreshen police station predetention center; Gjonaj later was found dead in his prison cell. The police insisted that Gjonaj had committed suicide with a knife he possessed, which the police had not detected. A group of government medical and legal experts confirmed that Gjonaj's death was by suicide; however, his family members and the DP dismissed this explanation.
There was no further action taken to investigate the 2000 killing of a DP activist in Vlora following a party rally, or to investigate the allegations that more than 21 DP members, supporters, local government officials, and former national party officials were killed from 1997 to 1999. The DP accused the Government of failing to investigate these crimes adequately, noting that no suspects had been tried for the killings. The Government completed its investigation into the 1998 murder of DP leader Azem Hajdari, and during the year, police arrested several individuals believed to have played a role in his killing; their trial remained ongoing at year's end.
Exhibit E: US Department of State Report on Human Rights pg 1-2
TORTURE AND ILL-TREATMENT OF OPPOSITION ACTIVISTS AND JOURNALISTS
The cases described below almost all concern members or supporters of the Democratic Party, which is particularly strong in the north of the country. Like past governments, the present authorities are often reluctant to accept that human rights cannot be implemented without granting those with opposing views the same guarantees and protection as those who share the convictions of the ruling party. In addition to the injury to victims, the effect of such intolerance has damaging wider repercussions on political life, perpetuating grievances and divisions...
In November and part of December 2000 there were daily demonstrations in Tirana by supporters of the Democratic Party and other opposition parties in protest at alleged rigging of the elections. On a number of occasions demonstrators threw stones and other objects at police and public buildings and there were also incidents when incendiary objects were thrown. Most observers have stated that police generally showed restraint during the actual demonstrations, sometimes in the face of considerable provocation. However, as the demonstrations ended and participants dispersed from the centre of town, police arrested considerable numbers of demonstrators (reportedly over 1,000 during this period), and there were many reports that during arrest and detention at Tirana police stations police beat and otherwise ill-treated detainees, many of whom appear to have been identified as likely Democratic Party supporters by the place of birth shown on their ID-cards and their northern accents. There were demonstrations and arrests in other towns, including Korça.
Exhibit D: Amnesty International Report: Torture and Ill Treatment an End to Impunity pp. 1, 9-13
[15] The Applicants say that it should not matter what form the torture takes or how the harm is inflicted.
[16] They also say that the notion that the documentary evidence must mention kidnapping specifically is too extreme. The Applicants are not required to show examples of others that have been treated in an identical manner, but only in a similar manner.
[17] The Applicants say it is perverse to suggest that human rights abusers are confined to a prescribed manner of abuse. It is at their discretion to use kidnapping, even if it is only on one occasion.
[18] The Decision is premised on the finding that there is no documentary evidence of kidnapping in Albania, so that the Female Applicants' abduction could not have happened. The Panel overlooked the contradictory evidence and committed a reviewable error.
Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
Mahmood v. Canada (Minister of Citizenship and Immigration) 2001 FCT 270 (T.D.)
[19] The Applicants say that the Panel's finding on this issue was wrong in fact and in law.
Unfairly Impugning the Applicants - the Plausibility that the Applicant was Abducted
[20] The Panel found it unlikely, given the threat from the SP, that the Female Applicant would be left alone with her mother at home.
[21] The Female Applicant testified that she and her mother were indeed at home. However, the door was locked. They were inside. In the circumstances, they took adequate precautions.
[22] Although the Panel thought that they might have taken further or different precautions, that does not mean that what they did was inherently unreasonable or irresponsible.
[23] The Applicants submit that the mere fact that the Female Applicant was alone with her mother in a locked house is not grounds to disbelieve that they were threatened.
[24] The Panel did not believe that the Female Applicant would go out to get her mother medication when her mother became ill.
[25] The Female Applicant testified that she had not expected her mother's condition to dramatically worsen that day. When it did get worse, it created an emergency that compelled her to go out.
[26] The Applicants submit that it is not implausible that people become sick or that medical emergencies occur.
[27] It was, therefore, not implausible that the Female Applicant, when confronted by a medical emergency, would be compelled to go out and find medication.
[28] The Panel termed it a "co-incidence" that the Female Applicant would be kidnapped when she went out.
[29] However, if one accepts that the SP was threatening to abduct her, it is not unreasonable to infer that she was kidnapped because the threat was genuine and because the SP was looking for an opportunity to act on its threat.
[30] This is a case, say the Applicants, where the Panel made no adverse finding as to the father's political profile and all incidents of past persecution.
[31] The Panel did not specifically doubt that the Applicants were threatened in the past or that the father was beaten so badly that he lost his eye.
[32] The only specific adverse finding of credibility that the Panel made was with respect to whether, after all these things happened, the Female Applicant was abducted.
[33] The Panel did not find that the evidence was inconsistent, or that the Applicants manifested an inappropriate demeanor, or that the evidence on this point was contradicted by any other specific evidence.
[34] In the absence of inconsistencies, contradictions or an inappropriate demeanor, there was no basis to reject the Applicants' testimony.
[35] The Applicants argue that the Panel's assessment of implausibility is superficial and highly subjective and constitutes an error that is open to review. See Anwar v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1077 (T.D.); Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.); Nikolai v. Canada (Minister of Citizenship and Immigration 2001 FCT 55 (T.D.); Yukselir v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 180 .
[36] The Applicants also say they did not behave unreasonably by confining themselves in a locked house when threatened. Further, the Female Applicant did not behave unreasonably in going out to get medication when her mother became very ill. There was nothing inherently implausible in their testimony.
Ignoring Evidence of the Applicants' Father's Political Profile
[37] The Applicants point out that their father was not an ordinary activist. He held senior positions in the DP.
[38] The Panel suggested that only more prominent activists were persecuted. The Panel erred because it gave no examples of what kind of profile would merit persecution.
[39] The Applicants say that their father certainly had a higher profile than that of the average activist. The average activist is not elected to any executive position in the DP.
[40] The documentary evidence before the Panel described the persecution of "activists," or "members" and a secretary. These individuals did not have a higher profile than that of the Applicants' father.
[41] The Applicants say that the lack of explanation by the Panel as to what constitutes a "high profile" is a reviewable error. The Panel's failure to distinguish between the Applicants and the cases cited constitutes an error. The Applicants believe that the Panel's distinction between their case and those it saw as being at risk was arbitrary.
Conclusion of the Applicants
[42] The Applicants say that the Panel erred in fact. The Panel found there was no evidence of politically motivated kidnapping in the documents. In fact, there was such evidence.
[43] The Panel also erred in law. The Panel should not have required evidence of other kidnapping. The absence of such evidence was not grounds upon which to impugn the Applicants' credibility. The evidence of a milieu in which opposition activists were being beaten, unlawfully arrested and even killed was sufficient to support the possibility the Female Applicant was kidnapped.
[44] The Panel erred in fact and law by impugning the Applicants' credibility. Their evidence was not contradicted. To the contrary, it was supported by the facts.
[45] The Panel also erred in fact and law when it considered the Applicants' political profiles. The Applicants' father was not an average member. He had a political profile. The Panel suggested that only those with a higher political profile are persecuted. Yet, the Panel ignored evidence that activists with a similar of lesser profile than their father were persecuted. Further, the Panel did not define what profile would have placed them at risk. This makes the Decision arbitrary.
Respondent
[46] The Respondent says that the Applicants feared persecution at the hands of supporters of the SP because of their father's affiliation with the DP. They alleged that their father was a DP member and secretary. As to their own political profile, the Male Applicant has never been a member of the DP, but the Female Applicant was an active member of the Youth Forum for the DP. They asserted that the family was harassed because of their association with the DP. They also alleged that, in September 2000, unknown persons kidnapped the Female Applicant to force her father, who was appointed chairman for the local election commission, to co-operate with the SP and manipulate the elections.
[47] The Panel considered the Applicants' evidence in its entirety and found issues that placed its truthfulness in doubt. In its reasons, the Panel specifically addressed the September 2000, alleged kidnapping, which was the key allegation. It was after this kidnapping that the parents concluded that the Applicants would not be safe in Albania and decided to send them overseas. The Panel found, on a balance of probabilities, that the alleged kidnapping did not occur for the following reasons:
(a) the objective evidence was silent about the kidnapping of children or family members by the SP to intimidate rival DP members and supporters;
(b) the Applicants' own evidence was that the family was too protective to put the female Applicant in a situation where she would be forced to leave her house a day after a threat to her and her brother's safety was made.
[48] Regarding the standard of review for a credibility finding, Mr. Justice Décary in Aguebor stated as follows:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gouge 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 our intervention, its findings are not open to judicial review
Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) at para. 4.
[49] This Court has also held that there must be an obvious error to set aside a credibility assessment:
The Court will not overturn the Refugee Division's assessment of credibility unless there is an obvious error by the Division. The fact that a contrary conclusion would be no more reasonable than the one at which the Refugee Division arrived does not assist the plaintiff. The fact that the Court doubts the Division's decisive on one point or another does not authorize it to substitute its opinion for that of the Division.
Stoica v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1466 (T.D.).
[50] The Respondent submits that it was reasonably open to the Panel to disbelieve the allegation of kidnapping, particularly in view of the absence of references in the documentary evidence about the use of this intimidation tactic by the SP and its supporters.
[51] The Applicants argue that the Panel was wrong in concluding that there was no objective evidence to corroborate the allegation of kidnapping. The Respondent submits that the documentary evidence quoted by the Applicants does not corroborate their story of kidnapping. The evidence establishes, at best, that the police and the authorities sometimes illegally detain and harass DP members and supporters.
[52] It was reasonable for the Panel to expect some reference in the documentary evidence regarding the use of kidnapping by the SP as an intimidation tactic. In Gomez-Carrillo, Gibson J. examined whether the panel in that case erred when it gave greater weight to the silence of the documentary evidence than to the sworn testimony of the applicant and the opinions of three experts:
...it is of note that the absence of reference to persecution of military deserters in the aftermath of a civil war in a nation where civil rights abuses were so notorious in the early years of this decade, and where monitoring and reporting of human rights abuses continues to be extensive, is a matter, I am satisfied, that the Tribunal was entitled to take note of and to rely on to rebut the presumption in favour of the sworn testimony of the Applicant.
Gomez-Carrillo v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1396 (T.D.) para. 13.
[53] Adopting the reasoning in Gomez-Carrillo, Blais J. has held that it was not patently unreasonable for an RPD panel to reject a claimant's story of persecution where it was reasonable to expect to find references in the documentary evidence that supported the applicant's claim (Bodokia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 390(T.D.), para. 25).
[54] The Respondent further submits that the assessment of objective evidence is a matter within the Panel's mandate. In Conkova, Pelletier J. had he following to say on this issue:
... The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise. The view which the CRDD took of the evidence was one which could reasonable be taken, just as the opposing view could also reasonably be taken. The evidence, as is so often the case, is ambiguous and equivocal. Some elements support the applicants' position, others undermine it. The CRDD's task is to consider all the elements (which does not require that specific mention be made of every piece of evidence which is reviewed) to weigh it and to come to a conclusion. As long as its conclusion is not one which is wrong on its face it is not patently unreasonable (emphasis added).
Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, (T.D.), para. 5.
[55] This Court has also held that an applicant cannot "dissect" the evidence and use only specific portions in isolation to confirm his/her point of view (Juarez-Yarleque v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 57 (T.D.), paras. 31-33).
[56] The Respondent submits that it was reasonably open to the Panel to find the allegation of kidnapping implausible. It based its finding on the objective evidence and the Applicants' own testimony about the measures that their parents had taken to protect them since 1997. It also noted that the Female Applicant left the house a day after the threat was made to her and her brother's safety. The Respondent submits that these are sufficient reasons for concluding that the kidnapping did not occur.
[57] The Respondent also submits that the Panel was entitled to make plausibility findings based on its understanding of believable human conduct. Sharlow J., in Gonzalez, had the following to say on this issue:
[27] In my view, it was open to the CRDD to assess the plausibility of the applicant's conduct as it did, by considering her story, and the manner in which it was told and tested in the course of the hearing, against the backdrop of other evidence and its own understanding of human behaviour. The comments of O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R 354 at 357 (B.C.C.A) reflect my view:
In short, the real test of the truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a reasonable and informed person would readily recognize as reasonable in that place and in those conditions
[28] I see nothing in the Giron case that is inconsistent with this conclusion. In this regard, I refer to the comments of Décary J.A. in Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A) at 316-17:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division 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 our intervention, its findings are not open to judicial review
[29] From this it is clear that determinations as to the plausibility of human conduct are within the jurisdiction of the CRDP. If evidence relevant to the question is offered, for example in the form of an expert report of a psychologist or sociologist, the CRDD is obliged to consider it along with the other evidence before it. However, I do not accept that such evidence is required in every case, or in this case.. .(emphasis added).
Gonzalez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 805 (T.D.) at paras. 27-29.
[58] The Applicants argue that the Panel ignored their father's political profile. The Respondent submits that the Panel was aware of the father's profile. It summarized the father's political involvements at pages 1 and 2 of the reasons for the Decision. In any event, the father's political profile had limited relevance to the case. At issue was the Applicants' fear of persecution, not the risk the father was facing (De Busto v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 262 (T.D.) at para. 4).
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Panel?
[59] In Aguebor at 316-17, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:
4. There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division 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 our intervention, its findings are not open to judicial review. ...
[60] It is now well settled that this Court should not seek to reweigh evidence before the Panel simply because it would have reached a different conclusion. As long as there is evidence to support the Panel's finding of credibility and no overriding error has occurred, the Decision should not be disturbed.
[61] Although the Panel says that it "considered the claimant's evidence in its entirety and found certain instances that caused [it] to doubt its truthfulness with respect to material aspects of their claims," the Decision does not reject the claims on the basis of a general lack of credibility but focusses, instead, on the kidnapping incident and the well-foundedness of the Applicants' fears "given their own political profiles and also as children of a DP activist."
[62] As regards the kidnapping incident involving the Female Applicant, the Panel concluded that, on a balance of probabilities, "I find that the principal claimant was not kidnapped on September 28, 2000. I base my findings on her testimony describing the event and on the documentary material before me."
[63] The reasons given for the finding that the Female Applicant was not kidnapped are referred to in the Decision:
1. the Female Applicant's testimony lacked the detail of a genuine event;
2. the kidnapping was implausible given her family's protective attitude towards her;
3. the documentary material did not contain any report of politically motivated disappearances.
[64] The Panel correctly cited Pedro Enrique Juarez Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at p. 305 for the preposition that "when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness." The Panel found, however, that there were reasons to doubt the kidnapping incident and gave its reasons for doing so in clear terms.
[65] The Applicants attack each of the three reasons offered by the Panel. First of all, they invite the Court to review the record and determine that there was adequate detail to sustain a genuine event. As regards the implausibility finding based upon the family's protective behaviour, the Applicants argue that "it is not implausible that people get sick or that medical emergencies occur" so that it was not implausible that the Female Applicant, when confronted by such an emergency would be compelled to go out.
[66] As regards the Panel's reference to a dearth of objective evidence regarding politically motivated disappearances, the Applicants say that this is too narrow a focus and the Panel should have taken into account what evidence there was of police ill-treatment and of the fact that there was a report of a specific incident where a DP member had been taken handcuffed in a van to a field and beaten by the police. In other words, there was evidence of a politically motivated kidnapping.
[67] Each of the grounds can, it is true, be questioned in this way. I have read the Female Applicant's account of the kidnapping in the Transcript and it does seem generic in some ways. The implausibility aspect is, once again, not groundless, and the documentary evidence, although referring to abuses, is not really strongly supportive of the Female Applicant's account of what had happened to her. It seems to me that the Panel did not reject or overlook evidence; it merely said that it could not find in the reports "politically motivated disappearances" that supported the kind of experience the Female Applicant claimed she had been subjected to. The Applicants cite the Tonin Kolthi example in the Amnesty International Report, but this report is not about a "disappearance"; it is about police brutality.
[68] I realize that it is possible to reach a different conclusion to the one reached by the Panel on this issue. However, the important thing is that all of the grounds for not believing the kidnapping incident have to be considered cumulatively. When this is done, and recognizing the fact that an assessment of the plausibility of the Female Applicant's own testimony is completely within the jurisdiction of the Panel, (see Aguebor) then as far as the objective evidence is concerned, this case falls squarely within the situation described by Pelletier J., in Conkova, supra, at para. 5. The evidence, as is so often the case, is ambiguous and equivocal.
[69] Having reviewed what the Panel did in the case at bar, I cannot say that its conclusion regarding the alleged kidnapping was patently unreasonable, even though I recognize that it is possible to take issue with it in some ways and that a different conclusion would not have been unreasonable.
[70] But the Applicants go further and say that no adverse credibility findings were made in the Decision as regards other aspects of the Applicants' testimony, yet the Panel still found that there was no well-founded fear of persecution and they were not persons in need of protection from the stated risk.
[71] In my opinion, the reason why a general adverse credibility finding was not required to come to this conclusion is evident in the Decision. The Panel looks at "the claimants' risk given their own political profiles and also as children of a DP activist" as well as "the documentary material concerning the treatment of DP members and their families, in particular with respect to the October 1, 2000 elections, the June/July 2001 general elections and as well other current reports from a variety of independent and reliable sources."
[72] The conclusions are as follows:
After considering the totality of the evidence, I find that there is not a serious possibility that the Socialist government or the police will persecute the claimants because of their political opinion or their membership in a particular social group, namely, a DP family if they returned to Albania.
...
I considered other risks to the claimants in particular, their evidence about the living conditions in Albania. The documentary material also provides information about human rights abuses, economic difficulties and other problems in Albania. I can appreciate why a parent might want their children to leave Albania. However, in the circumstances of this case, I find that the risks described are not personal to the claimants. They are generalized risks. Accordingly, I find that the claimants are not persons in need of protection in that their removal to Albania would not subject them personally to a risk to their lives or to a risk of cruel and unusual treatment or punishment. Further, I find that the claimants are not persons in need of protection in that there are no substantial grounds to believe that their removal to Albania will subject them personally to a danger of torture.
[73] Having rejected the kidnapping incident, the rest of the evidence as a whole did not support the claims.
[74] In other words, there was no need to make a general non-credibility finding. The Panel weighed all of the evidence and, in accordance with Aguebor and Stoica, and a host of other cases, I cannot find that the Panel's conclusions were so unreasonable as to warrant the intervention of this Court.
[75] I can appreciate that there is ample scope for disagreement concerning what the evidence suggests about the fate of the Applicants and, as the Panel itself said "I can appreciate why a parent might want their children to leave Albania," but the decision as to whether the Applicants qualify either as Convention refugees or as persons in need of protection required the Panel to consider all the evidence, to weigh it, and to come to a conclusion. Looking at the Decision as a whole, I am of the view that the Panel did not base its conclusions upon unwarranted implausibility findings, and did not ignore uncontradicted evidence or documentary evidence that others had been kidnapped for political reasons. Also, in my opinion, the Panel took careful note of the political profiles of both Applicants and their family. This was not an easy decision to make on the facts of this case but, in the end, I cannot say that the Panel got it wrong to the extent necessary to justify the interference of this Court.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed.
2. There is no question for certification.
"James Russell"
JFC
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5511-03
STYLE OF CAUSE: MARSIDA SALIAJ et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY JUNE 21, 2004
REASONS FOR ORDER
AND ORDER BY: RUSSELL, J.
DATED: September 15, 2004
APPEARANCES BY: Mr. David Yerzy
For the Applicants
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Mr. David Yerzy
Barrister & Solicitor
14 Prince Arthur Ave., Suite 108
Toronto, Ontario
M5R 1A9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040915
Docket: IMM-5511-03
BETWEEN:
MARSIDA SALIAJ et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER