Date:
20121220
Docket:
IMM-5058-12
Citation:
2012 FC 1531
Ottawa, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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NAIM CEKAJ
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of a Senior Immigration Officer
(the Officer) dated April 16, 2012 refusing his application for a Pre-Removal
Risk Assessment (PRRA). For the reasons that follow the application is
granted.
Facts
[2]
The
applicant arrived in Canada on January 1, 2008 with his wife and two
daughters. He claimed refugee protection but the Refugee Protection Division
(RPD) denied his application on August 12, 2010. The applicant stated that he
would be at risk in Albania because of a blood feud. He claimed that his
father accused the patriarch of the Shabaj family of corruption. In response,
members of the Shabaj family shot at him and his brother. His brother was
injured and hospitalized.
[3]
The
RPD decided that the applicant lacked credibility due to inconsistencies in his
testimony. This Court dismissed his application for leave and judicial review.
[4]
The
applicant applied for a PRRA. The Officer issued a negative decision on April
16, 2012. The applicant was directed to report for removal from Canada on June 4, 2012. A stay of removal was granted on May 30, 2012.
Decision Under
Review
[5]
The
PRRA Officer decided that the applicant’s fear was not linked to a Convention
ground and that his application failed under section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27
(IRPA).
The Officer proceeded to review the application under section 97 of the IRPA.
[6]
The
Officer explained that a PRRA is not an appeal of a negative refugee decision
but rather an assessment of any new facts or evidence. The applicant provided
various documents that pre-dated the refugee decision, including newspaper
articles, Central Election Commission documents and medical reports. The
Officer decided that this evidence could not be considered because it could
have been presented at the refugee hearing.
[7]
The
Officer determined that three documents that met the criteria of being new
evidence and could be considered. He described a letter from the Committee of
Nationwide Reconciliation (the CNR), which confirmed its attempts to mediate
the feud. The Officer noted that the CNR did not state that the applicant’s
family had also sought assistance from other non-governmental organizations and
religious bodies.
[8]
Next,
the Officer considered a statement from an elder involved in the attempted
mediations. The elder stated that the applicant’s family had sought assistance
from authorities. The Officer considered this letter to be vague and gave it
little weight. The Officer also gave little weight to a letter from the
applicant’s brother which explained that the family was in hiding. The Officer
considered it to be vague and discounted it as it came from an interested
party.
[9]
The
applicant had also provided country condition evidence which the Officer
considered unhelpful in establishing that the applicant faced a personalized
risk of harm.
[10]
The
Officer concluded that the determinative issue was the availability of adequate
state protection in Albania. The Officer referred to evidence that blood feud
killings had decreased and that a special police unit and criminal court had
been established to respond to the issue of blood feuds.
[11]
The
Officer emphasized that the applicant must seek protection in Albania, if protection might reasonably be forthcoming. The Officer concluded that state
protection was adequate and therefore dismissed the application.
Issue
[12]
The
Officer’s conclusion on state protection is reviewed on the standard of
reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[13]
Blood
feuds arise from violations of honour and are based on tribal tradition and
customary law. They have resurfaced in Albania, particularly in the north, in
the last twenty years as the country transitioned from communism to democracy.
[14]
The
determinative issue for this application is the availability of state
protection. Democratic countries are presumed to be capable of providing
protection for their citizens: Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689. However, as this Court set out in Sow v Canada (Minister of Citizenship and Immigration), 2011
FC 646, a decision maker must look beyond the mere existence of free and fair
elections and also consider the strength of the country’s institutions,
particularly the independence of judiciary, the professionalism of the police
force and the existence of an independent defence bar, to name but a few
indicia of a democratic state. These are far more relevant to the issue of
state protection than the existence of a democratically elected government.
[15]
The
applicant has not himself sought protection in Albania. Therefore, the
question is whether state protection would reasonably be expected to be
forthcoming having regard to the applicant’s particular circumstances.
[16]
The
applicant provided evidence that his family sought the assistance of the CNR
and various community elders. The CNR is the leading non-governmental
organization working to resolve blood feuds in Albania. It has the support of
the Albanian and work with other conflict resolution groups. Despite its
expertise the CNR has not been successful in mediating a resolution of this
blood feud.
[17]
The
Officer failed to give any meaningful consideration to this critical evidence;
rather the Officer noted that the applicant’s family did not seek help from
Catholic peace ambassadors, priests and the Albanian Human Rights group. The
Officer did not explain why these organizations or individuals might have success,
where the CNR and three elders have not. The Officer appears to have ignored
evidence that the CNR already works closely with Catholic officials.
[18]
In
my view, the Officer’s treatment of the evidence cannot be characterized as
justified, transparent or intelligible. The Officer displayed a pattern of
rejecting evidence for reasons that do not withstand scrutiny. It appears that
the Officer employed standardized phrases, such as considering the evidence
vague, without actually engaging with the content of the evidence in question.
[19]
Consider,
for example, the notarized letter from a community elder, which the Officer
dismissed as vague. The elder provided details regarding the beginning of the
feud and the family’s request for assistance from the CNR. The elder explained
that he, along with two other elders, made several attempts at reconciliation.
The elder also mentioned, without detail, that the family sought assistance
from state authorities. However, lack of detail on this one issue does not
justify rejecting the letter entirely. The letter could have probative value
in demonstrating that the applicant faces a risk and that many attempts at
reconciliation have failed.
[20]
There
is also an undated letter from the applicant’s brother. Again, the Officer
considered it to be vague. The letter does lack details about the specific
nature of any threats and so it is not useful for that purpose. Regardless,
the Officer should have considered whether the letter had probative value to
demonstrate that the applicant’s family was in hiding. The letter contains
numerous details on that issue. Additionally the Officer’s dismissal of the
letter because the applicant’s brother is interested in the outcome of the
application is not, on its own, a basis to reject evidence. By their very
nature all claims for protection require the evidence of those most closely
affected.
[21]
Finally,
the Officer asserted that the applicant’s country condition evidence did not
assist his claim because it did not demonstrate that the applicant faces a
personalized risk. Country condition evidence is not tendered to demonstrate
the personalized nature of a claim. Rather, it is relevant to the question of
whether the applicant could reasonably expect state protection.
[22]
To
provide a few examples, the United States Department of State report, dated
April 8, 2011 explains that, “[p]olice corruption and impunity persisted” in
Albania. This report also notes that, “Police officers did not enforce the law
equally and an individual’s political or criminal connections often influenced
enforcement of law.” The latter conclusion is repeated in the United Kingdom
Border Agency report dated January 2012. The documentary evidence also notes
that widespread corruption, political pressure and intimidation prevent the
judiciary from functioning independently.
[23]
The
Officer placed substantial weight on the fact that the applicant’s father had
received help from the police to control the crowd at a political rally. This
example has only minimal relevance. Crowd control at a political rally is
markedly different from managing a blood feud.
[24]
There
is also evidence that, while it is illegal to maintain a blood feud, there is
no law to protect intended victims. The applicant and his family may have to
wait until a crime is committed against them before the police have any
authority to act. This evidence was relevant and squarely challenged the
Officer’s instance that the applicant and his family had “various avenues to
seek state protection”.
[25]
Counsel
for the Attorney General correctly drew attention to the UK Home Office
Operational Guidance Note of January 2012 which contained a more positive
conclusion as to the current ability of Albania to offer protection to victims
of blood feuds:
In general, the Albanian Government is able and
willing to offer effective protection for its citizens who are the victims of a
blood feud; however, there may be individual cases where the level of
protection offered is, in practice, insufficient. The level of protection
should be assessed on a case by case basis taking into account what the
claimant did to seek protection and what response was received.
UK
Operational Guidance Note on Albania, Tribunal Record at 122
(Page 8 Respondent’s further Memorandum of Argument)
[26]
Reference
was also made to the Report of Philip Alston, UN Special Rapporteur that the
statistics with respect to blood feuds were inflated, and that the true extent
of the problem was more likely closer to the statistics of the Albania government. UNHCR Refworld – Albania – Statistics on Blood Feuds – October 2010.
[27]
This
evidence, while compelling, does not save the decision in light of the errors
noted. As the UK Operational Guidance Note indicates, there may be individual
cases where the protection is insufficient. In this context, the error in
rejecting the evidence with respect to the applicant’s particular situation
takes on greater significance.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to Citizenship and Immigration
Canada for reconsideration before a different Pre-Removal Risk
Assessment officer. There is no question for certification.
"Donald J.
Rennie"
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