CITIZENSHIP AND IMMIGRATION
Status in Canada
Convention Refugees
Judicial review of Immigration and Refugee Board, Refugee Protection Division decision applicants not Convention refugees, persons in need of protection—Married couple aged 69, 61, Albanian citizens—Allege persecution due to son’s political beliefs, membership in social group, family persecuted under former regime—When movement for democracy began, son was Democratic Party, Youth Forum organizer—Son persecuted when power shifted to Socialist Party (SP), fled to Greece—Applicants claim masked men broke in, threatened to dynamite house, telephone solicitor demanded $2,000 donation to SP—Board criticized female applicant for “obfuscations”—Board found son went to Greece for economic reasons only—Criticized failure to present son’s DP Youth Forum membership card—Found applicants in default of Immigration and Refugee Protection Act (IRPA), ss. 100(4), 106, Refugee Protection Division Rules (RPD Rules), s. 7 with regard to such failure, documentation of son’s involvement with DP—Also pointed to inconsistency in police records, female applicant explained Albania not having rigorous record-keeping infrastructure but this explanation found not credible—Board concluded documentation not supporting claim as to membership in formerly persecuted family, noted country conditions materials revealed former persecution victims no longer at risk in Albania—Board also found only prominent Youth Forum members killed or attacked—Board decision turned on credibility—Minister relied on IRPA, s. 106 (failure to establish identity) which goes to credibility but applicants’ identity not here at issue and application of irrelevant provision to make finding against applicants error of law— Could not be used to criticize applicants’ failure to produce son’s identity documents as not refugee claimant in Canada, not before Board—Board either confused as to provision’s meaning or attempting to widen scope of s. 106 by connecting it to IRPA, s. 100(4), RPD Rules, s. 7, which it lacks jurisdiction to do—S. 106 is freestanding provision relating solely to claimants’ credibility as to own identity— Misapplication of IRPA provision pure question of law, so cases holding Board’s determination as to validity of identity documents reviewable according to patent unreasonableness standard inapplicable—Court concerned by following statement, found in increasing number of RPD decisions: “The panel prefers the Board’s documentary evidence to that of the claimant because it is gathered from a number of objective sources who have no interest in this or any refugee claim”—Appears to reverse presumption of truth of claimant’s sworn testimony set out in Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.)— While strong contradiction between claimants’ testimony, country conditions might give rise to “reason to doubt”, use of statement without proper analysis of contradictions not in accordance with law—Use of statement would render all refugee claim hearings absurdity: if evidence considered suspect because proffered by one having interest, no use in holding hearing—Here, however, statement qualified by sentence connecting it to more detailed analysis of why evidence problematic, so “reason to doubt” made out with some force—Board’s credibility findings can be disturbed only if patently unreasonable and, Board having given lengthy, extensive explanation of findings of fact on credibility, these could not be overturned without re-weighing evidence—Court satisfied applicants failed to establish facts as to fear of persecution, tried to hide fact son, said to be main reason for persecution, returned to Albania—Application denied—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72(1), 100(4), 106—Refugee Protection Division Rules, SOR/2002-228, s. 7.
Kosta v. Canada (Minister of Citizenship and Immigration) (IMM-7715-04, 2005 FC 994, Teitelbaum J., order dated 19/7/05, 14 pp.)