Date: 20050901
Docket: IMM-1316-05
Citation: 2005 FC 1195
Ottawa, Ontario, September 1, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
RUBIN KOTORRI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act), against a decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated February 11, 2005, where the Board determined that the Applicant was not a Convention refugee and a person in needs of protection.
ISSUES
[2] The issues are as follows:
1. Did the Board properly apply subsection 108(4) of the Act?
2. When addressing the issue of compelling reasons, did the Board fail to take into consideration the totality of the evidence adduced before it or did it base its decision on erroneous findings of fact made in a perverse or capricious manner?
[3] For the following reasons the application for judicial review shall be allowed.
BACKGROUND
[4] The Applicant is an 18-year-old citizen of Albania. The Applicant claims a well-founded fear of persecution in Albania in reason of his political opinion and membership in a particular social group, defined as family. He alleges that he will be harmed or killed by the current Socialist Party (SP) government, its supporters or the police.
[5] The Applicant's parents were both politically active with the Democratic Party (DP) in Albania. In 1997, the SP came to power. While living with his family in Elbasan, police officers came to his house to arrest and beat the Applicant's father because of his political affiliations. After this incident, all members of the Applicant's family went to live at his grandmother's place in Tirana. At that time they were renting the second floor of the house to a DP publication known as the "Journal 55". Being a sports fanatic, the Applicant used to write sports columns for that journal.
[6] After the local elections in 2000, the Applicant's family began receiving threatening telephone calls. Once again, police officers arrested and beat his father. After this incident, the journal moved out of the family house. In March 2001, the Applicant's family decided to leave Albania because of problems related to their political affiliations. All of the Applicant's family, with the exception of the Applicant, came to Canada. After his family's departure, the Applicant went to live with his uncle in the village of Ndroq. The Applicant explained that he started to feel depressed and developed emotional and psychological problems because of the separation from his family. It is only in July of 2002 that he returned to Tirana. He testified that there was an improvement of his well-being as he was reunited with his friends. However, he submits that he thought that he was being followed everywhere by the police. The Applicant arrived in Canada in June 2004 and made a refugee claim.
[7] As mentioned above, the Applicant's father, mother and brother came to Canada in 2001 and filed refugee claims. These claims were all dismissed by the Board in 2002. This decision was quashed by consent in a judicial review application and was sent before a newly constituted panel to be reconsidered. In 2003, a newly constituted panel rejected their claims. The leave for judicial review was denied in December 2003. The Applicant has not mentioned the outcome of his family refugee claims in his application.
CONTESTED DECISION
[8] In the first part of its decision, the Board concluded that the Applicant's fear of persecution was not objectively well-founded. The Board outlined past incident where political members of the DP were harassed and intimidated. However, those past incidents were perpetrated against active DP members. In the present case, the Applicant has never been personally active in politics and he never personally encountered problems with the police. Therefore, the Board concluded that there is no serious possibility that the Applicant would be subject to persecution if he was returned to Albania.
[9] The Board based its decision on the absence of corroborating evidence that DP members and supporters are being intimidated, harassed and persecuted by the government into place, its supporters or the police. The Board noted that the recent documentary evidence did not contain reports of politically motivated persecution, detention or disappearances.
[10] In the second part of its decision, the Board took into consideration the exception of "compelling reasons". When dealing with this issue, the Board considered the Applicant's psychological assessment made by Dr. Beverley Frizzell. It accepted Dr. Frizzell's diagnosis that the Applicant suffers from post-traumatic stress disorder. However, it concluded that the mistreatment of the Applicant's father and the invasions of his home by the police on two occasions did not amount to compelling reasons. In addition, based on the documentary evidence, it concluded that the Applicant would have no serious problem in accessing adequate medical and psychological care and services in Albania upon his return.
ANALYSIS
[11] It is well recognized that a refugee claimant bears the onus of proving that he has a well-founded fear of persecution in his country. In order to succeed, it is not enough for him or her to establish that he of she has a subjective fear of persecution in his home state. He or she must also demonstrate that his or her fear is objectively well-founded (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at p. 723). This test was reiterated in Chan v. Canada (Minister of Employment and Immigration, [1995] 3 S.C.R. 593 at paragraphs 119 and 120:
More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen [(1984), 55 N.R. 129 (F.C.A.)], at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
[12] The assessment of changes in circumstances is a question of fact which must be taken into consideration when analysing the objective component of the well-founded fear of persecution. Paragraph 108(1)(e) provides that a claimant is not a convention refugee or a person in need of protection if the reasons for which the claimant sought refugee protection have ceased to exist. Section 108 reads as follows:
| Cessation of Refugee Protection
Rejection
108.(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
(e) the reasons for which the person sought refugee protection have ceased to exist.
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Perte de l'asile
Rejet
108.(1) Est rejetée la demande d'asile et le demandeur n'a pas qualité de réfugié ou de personne ? protéger dans tel des cas suivants :
e) les raisons qui lui ont fait demander l'asile n'existent plus.
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[13] However, if the Board concludes that the changes in circumstances negate the claimant's fear of persecution, he or she may nonetheless be considered a Convention refugee if there are compelling reasons arising out of his or her situation that would justify the non application of section 108 of the Act. The exception of compelling reasons is found in subsection 108(4) of the Act:
Exception
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
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Exception
(4) L'alinéa (1)e) ne s'applique pas si le demandeur prouve qu'il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu'il a quitté ou hors duquel il est demeuré.
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[14] In the present case, the sole issue raised by the Applicant is whether the Board made a reviewable error in finding that the "compelling reasons" exception is not applicable. The appropriate standard of review when dealing with this issue must be determined by the application of the four contextual factors of the pragmatic and functional approach established by the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purpose of the legislation and the provision in particular; and (4) the nature of the question - law, fact or mixed law and fact.
[15] Firstly, the Act does not contain a privative clause. Yet, it is recognized that the absence of such a clause does not indicate a high standard of scrutiny where the other factors suggest a low standard (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 30).
[16] Secondly, the intention behind subsection 108(4) of the Act is twofold: first, to recognize the legitimacy of the psychological hardship that would be faced by the victims of persecution were they to be returned to the country responsible for their maltreatment; and second, to protect the victims of past atrocities (James C. Hathaway, The Law of Refugee Status, Toronto: Butterworths, 1991, at pages 203-204). As mentioned in Pushpanathan, supra, at paragraph 36 where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes. Accordingly, the purpose of this provision calls for some deference.
[17] Thirdly and fourthly, it is widely recognized that the Board's role to assess the documentary evidence and the credibility of the Applicant is part of its primary function. The Board, recognized to be a specialized tribunal, is therefore in a better position than the Court to weigh the documentary evidence in the record and the credibility of an Applicant's testimony (R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL)). This implies a higher degree of deference (Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at paragraph 50)
[18] In Isacko v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1128 (F.C.T.D.) (QL) at paragraph 8, the issue as to whether there are "compelling reasons" in a given case has been considered as a question of fact (Rasanayagam v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1080 (F.C.T.D.) (QL)). It is the Board, with its expertise and experience that is best able to assess whether the Applicant falls within the ambit of the "compelling reasons" provision (Hassan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 630 (F.C.T.D.) (QL)). Questions of fact are recognized to imply more deference. However, the delineation of the concept of "compelling reasons" is a question of law for which the Board has no specific expertise.
[19] Balancing all of these factors, it is my opinion that questions of fact should be reviewed only if patently unreasonable. On the other hand, the standard of review for question of law is correctness.
[20] In the present case, the Applicant submits that the Board erred in determining that there was insufficient evidence to warrant the application of compelling reasons. He contends that the events which brought him in a serious psychological distress are atrocious and appalling. He further submits that the Board failed to analyse the impact that the acts of persecution on his father had on him.
[21] Martineau J, in Suleiman v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1354 (F.C.T.D.) (QL) at paragraph 16 held that there is no rigid test for the exception of "compelling reasons":
[¼] The issue is whether, considering the totality of the situation, i.e. humanitarian grounds, unusual or exceptional circumstances, it would be wrong to reject a claim or make a declaration that refugee protection has ceased in the wake of a change of circumstances. "Compelling reasons" are examined on a case by case basis. Each case is a "cas d'espèce". In practice, this means that each case must be assessed and decided on its own merit, based on the totality of the evidence submitted by the claimants. [¼] [emphasis added]
[22] Martineau J. also added at paragraph 21:
[¼] In the case at bar, it is apparent that the Board erred in inferring that the test in Obstoj, supra, necessitates that the persecution reach a level to qualify it as "atrocious" and "appalling" for the "compelling reasons" exception to apply. This error of law vitiates the subsequent determination made by the Board that the applicants are not Convention refugees.
[23] From the above noted case law it can be said that there is no specific element of evidence that would automatically grant the application of the "compelling reasons" exception. Each case must be assessed on the evidence adduced before the Board.
[24] The same was said by Rouleau J. in Elemah v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1123 (F.C.T.D.) (QL) at paragraph 28:
The Court, in Obstoj, supra, did not establish a test which necessitates that the persecution reach a level to qualify it as "atrocious" and "appalling". Rather, the Board must thoroughly consider all the documentary and oral evidence, including the nature of the incidents of torture and the medical reports provided by the parties in order to assess, as is stated in the legislation, if there are "compelling reasons" not to return him.
[25] In its reasons for decision, the Board held that (pages 5 and 6):
[¼] A claimant will be entitled to Convention refugee status based upon compelling reasons if he or she has suffered such appalling past experience that their experience alone is a compelling reason not to return the claimant, event though he or she may not have any reason to fear further persecution. To establish compelling reasons, the claimant (or a close family member) must have suffered form "atrocious" or "appalling" acts of persecution. Evidence of continuing psychological after-affects is relevant to a determination of the issue, but is not a separate test that has to be met. [emphasis added]
[26] I agree with the Board that the evidence of continuing psychological after-affects is relevant to a determination of the issue, but is not a separate test that has to be met (Jiminez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No.87 (F.C.T.D.) (QL) at paragraphs 32-34). Therefore, it is not because a claimant suffers from post-traumatic stress disorder that the "compelling reasons" exception will automatically apply. The Board must decide each case based on the totality of the evidence.
[27] But it is apparent that the Board erred in inferring that the test in Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.), paragraph 19 necessitates that persecution reaches a level qualified as "atrocious" and "appalling" for the "compelling reasons" exception to apply. I agree like Martineau J. held in Suleiman, supra that such an error of law vitiates the subsequent determination by the Board as it improperly elevated the threshold of persecution beyond what is established by the case law.
[28] Therefore the Court's intervention is justified.
[29] The respondent submits the following question for certification:
What is the balance between subjective factors and in objective factors to be considered by the decision maker when assessing whether compelling reasons exist under subsection 108(4) of the Immigration and Refugee Protection Act?"
[30] The Applicant submits the following question:
Does the proper analysis of section 108(4) of IRPA require that previous persecution be atrocious and appalling in order for compelling reasons to exist and if so is the definition of atrocious and appalling persecution limited to the objective nature of the persecutory act itself or must they decision maker also consider the consequences of the act?
[31] The respondent agrees generally with the Applicant's question but suggests that the question be worded as follows:
Does the proper analysis of section 108(4) of the Immigration and Refugee Protection Act require that previous persecution or other treatment listed in that subsection be atrocious and appalling in order for compelling reason to exist? If so, how does the decision maker properly weigh the objective nature of the persecutory act itself with the subjective consequences to determine if compelling reasons exist?
[32] In view of the result of this case, it is not necessary to certify a question of general importance to the Federal Court of Appeal. The question proposed by the respondent concerning the balance between subjective and objective factors is a question of facts to be determined by the decision-maker on a case by case analysis. As to the question submitted by the Applicant (or the one modified by the respondent), it has been answered by the case law.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The matter is remitted to a newly constituted Board for redetermination.
3. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1316-05
STYLE OF CAUSE: RUBIN KOTORRI
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 16, 2005
REASONS FOR ORDER
AND ORDER : BEAUDRY J.
DATED: September 1, 2005
APPEARANCES:
D. Jean Munn FOR APPLICANT
Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners, LLP FOR APPLICANT
Calgary, Alberta
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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