Pelushi v. Canada (Minister of Citizenship and Immigration)

Pelushi v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-10-04
Neutral citation
2004 FC 1365
File numbers
IMM-8617-03
Decision Content
Date: 20041004
Docket: IMM-8617-03
Citation: 2004 FC 1365
Toronto, Ontario, October 4th, 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
EDA PELUSHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Eda Pelushi (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated September 29, 2003 and signed by the Registrar on October 3, 2003. In its decision, the Board determined the Applicant not to be a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The Board did not address the application of section 97, that is a "person in need of protection".
[2] The Applicant is a citizen of Albania. She claimed Convention refugee status on the basis of her perceived political opinion as the result of membership in a particular social group, that is as a member of a family where her father was an active member in the Democratic Party. She also alleged risk as being the target of trafficking for the purpose of prostitution.
[3] The Applicant gave evidence about incidents of physical harm to her brother, as well as evidence about two attempts to kidnap her. The Board made no credibility findings, either positive or negative, relating to her evidence but based its negative determination upon the conclusion that the Applicant had failed to establish an objective basis for her claim or a connection with a Convention refugee ground.
[4] The Board concluded that the Applicant was not at risk of kidnapping in consequence of her family's political profile. At the same time, it found that kidnapping was a widespread problem in Albania. In my opinion, the Board should have considered whether the Applicant was at personal risk of being targeted for kidnapping.
[5] In the absence of a finding as to the credibility of the Applicant concerning the kidnapping attempts against her, it is not possible to say that the Board properly considered the Applicant's claim. In this regard, I refer to Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) wherein Justice Evans made the following comments at page 41:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312 (T.D.).
[6] It is not the role of this Court to weigh evidence submitted. On that basis, the application for judicial review is granted and the matter is remitted to a differently constituted panel of the Board for redetermination. There is no question for certification arising.
ORDER
This application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for determination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8617-03
STYLE OF CAUSE: EDA PELUSHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 30, 2004
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: OCTOBER 4, 2004
APPEARANCES BY:
Michael Romoff For the Applicant
Catherine Vasilaros For the Respondent
SOLICITORS OF RECORD:
Michael Romoff
Barristers & Solicitors
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20041004
Docket: IMM-8617-03
BETWEEN:
EDA PELUSHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER