Date: 20000921
Docket: IMM-4185-99
B E T W E E N:
EDMOND BOJAJ
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Edmond Bojaj ("the Applicant") applies for leave and judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the Board") dated August 3, 1999. In its decision, the Board found that the Applicant is not a Convention refugee.
[2] The Applicant is a 19 year old citizen of Albania. He claims a well-founded fear of persecution based on his fear of being murdered in a blood feud involving his family and the Curri family. This feud results from his grandfather's murder of a member of the Curri family. This murder was an act of revenge because the Curri kinsmen had killed the grandfather's first cousin. These events occurred in the village of Grude in Montenegro before World War II and prior to the birth of the Applicant's father.
[3] The Applicant is the only young male of his family residing in Albania. He alleged before the Board that the Curri family is aware of his existence and he fears for his life, that he will be murdered in revenge for this ancient killing. He believes that he would not receive protection in Albania because the police in that country are reluctant to interfere in blood feuds and also because his grandfather was perceived as a person opposing the communist regime.
[4] The causal connection between the Applicant's claim and the grounds set out in the definition for Convention refugee was the determinative issue before the Board. The Board found that the Applicant's fear of revenge and murder is a problem of criminality, not persecution on the basis of a ground enumerated in the Convention.
[5] The Applicant submits that the Board misinterpreted the definition of Convention refugee, specifically in relation to the issues of persecution and particular social group.
[6] In relation to the issue of persecution, the Applicant argues that the Board did not consider the effect of the law of Canon of Leke. This is a traditional law of Northern Albania which forms part of the social, economic, cultural and legal fabric of this state and its policy. The Applicant submits that in failing to consider the effect of the Canon of Leke, the Board erred in law in concluding that a personal vendetta can never amount to persecution.
[7] Secondly, in relation to the issue of particular social group, the Applicant submits that he is part of the social group of family members targeted under the Canon of Leke. He submits that it is an error of law to find that the pursuit of a man under the Canon of Leke does not constitute persecution as defined by the Convention.
[8] The applicable standard rule of review for a decision of the Board is whether it is patently unreasonable. As stated by Pelletier J. in Conkova v. Minister of Citizenship & Immigration1:
| The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. |
[9] In order to determine whether the Board's conclusion in this case is reasonable, it is necessary to examine what behaviour constitutes persecution and what groups are defined as a particular social group.
[10] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, it was determined that "persecution" includes situations where the state is not an accomplice to the persecution but is simply unable to protect its citizens. In such circumstances, the Applicant must provide clear and convincing confirmation of a state's inability to protect, unless the state admits that it is unable to protect the citizen.
[11] The Board did not address this claim in terms of state inability to protect. Rather, it found that fear of revenge and murder is a problem of criminality and not persecution related to a Convention reason.
[12] The definition of "Convention refugee" speaks of a fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. The only Convention reason which would apply in this case is a fear of persecution for reason of membership in a particular social group. Before the Board, the Applicant argued that his fear was based upon the characteristics of his particular social group, namely that he is a "male member of the Bojaj family involved in a blood feud". The question then becomes whether this is a group which falls within the definition of Convention refugee.
[13] Again, reference to the decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward, supra, is helpful. In that decision, the Court considered the meaning to be given to the words "particular social group". At page 739, Mr. Justice La Forest said as follows:
| The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. ... They identify three possible categories: |
| (1) groups defined by an inmate or unchangeable characteristics; |
| (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and |
| (3) groups associated by a former voluntary status, unalterable due to its historical permanence. |
| The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person. |
[14] The Board highlights in its decision the case Rodriguez v. Canada (M.C.I.) IMM-4573-96, September 26, 1997 (F.C.T.D.). In that case, Mr. Justice Heald found that when the primary victim of persecution does not come within the definition of a Convention refugee, any derivative refugee claims based on family group cannot be sustained.
[15] This decision was followed by Mr. Justice Rothstein in Klinko v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 561, IMM-2511-97, April 30, 1998 (F.C.T.D.), where the learned Judge made the following finding:
| Insofar as the family group is concerned (and this social group is the bases for the Convention refugee claim of Andriy as well as Lyudmyla) the panel was correct in concluding that when the primary victim of persecution does not come within the Convention refugee definition, any derivative Convention refugee claim based on family group cannot sustained. Otherwise, as found by the Panel, the anomaly of derivative claims being allowed but primary claims being denied could result. Such a result would not be logical (See: Rodriguez v. Canada (Minister of Citizenship & Immigration), (26 September 1997), IMM-4573-96 (F.C.T.D.) Per Heald D.J. |
[16] In the present case, it appears that the Applicant's grandfather is the primary victim of the alleged persecution. The grandfather committed a murder, not the Applicant. Now the Applicant fears that he will be murdered in a continuing act of revenge for the actions of his grandfather. Having regard to the basis of the decision in Klinko, supra, it would appear that the Applicant cannot now claim refugee status based on a derivative claim of persecution, even though "family" can constitute a particular social group. However, it is not inevitable that "family" will always constitute a particular social group within the definition of Convention refugee.
[17] The Board reached the conclusion that the Applicant's fear of persecution related to an act of criminality, not to one of the reasons included in the definition of Convention refugee. Having regard to the evidence on the record, that conclusion seems to be reasonable. Upon my review of the record and having heard the submissions of counsel, I am not persuaded that there is any reviewable error which would justify the intervention of the Court.
O R D E R
[18] In the result, the application for judicial review is dismissed.
[19] Inquiries were made of counsel whether there was a question for certification arising from this application for this judicial review. Counsel for the Applicant submitted the following question:
| Can young men, targeted for death under the Canon of Leke, form a particular social group in the definition of Convention refugee? |
[20] I am of the opinion that this is a question of sufficient general importance, independent of my findings in this case, to justify certification of a question and the question submitted by counsel is accordingly certified, pursuant to section 83 (1) of the Immigration Act.
"E. Heneghan"
OTTAWA, Ontario
September 21, 2000
__________________
1 IMM-6489-98, 8 March 2000, (F.C.T.D.).
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