Date: 20100331
Docket: IMM-5015-09
Citation: 2010 FC 350
Ottawa, Ontario, March 31, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
ARDIAN
KRASNIQI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), dated September 24,
2009, by the Refugee Protection Division of the Immigration and Refugee Board
(the Board), wherein the Board determined the applicant is not a Convention
refugee nor a person in need of protection pursuant to sections 96 and 97 of
the Act.
Factual Background
[2]
On
May 30, 1997, the applicant, a citizen of Albania, was in a
café in his village of Dragobi with
his cousin Jakup Ismaili. Mr. Hamdi Metaliaj and two or three others entered
the café. Mr. Metaliaj asked Mr. Ismaili to step outside for a
discussion. Shortly after, the applicant heard gunshots outside the café and he
then saw Mr. Metaliaj on the ground.
[3]
The
applicant then spoke to the chief of the village who told him to stay home
until the situation was cleared up. Mr. Hamdi Metaliaj’s family (the Hamdi
family) told the chief of the village they would look for Mr. Ismaili but they
promised that nothing would happen until they contacted the village chief
again.
[4]
On
July 20, 1997, the police charged Mr. Ismaili with murder and an arrest warrant
was issued against him. The applicant never saw Mr. Ismaili again.
[5]
The
applicant had no difficulties for more than four years after the murder of Mr.
Metaliaj. On June 1, 2002, the village chief told the applicant that the Hamdi
family would seek its vengeance. The applicant asked for help from the
Organization for Reconciliation regarding vendettas. The chief of the
organization, Mr. Hoti, told the applicant that the Hamdi family refused all
negotiations.
[6]
On
March 4, 2005, the applicant went to Macedonia with the help of a
smuggler who was unable to obtain false documentation allowing the applicant to
come to Canada. The
smuggler arranged for the applicant to safely return to his home in the village
in Albania the
following day.
[7]
At
6 o’clock in the morning of October 18, 2006, someone shot at the applicant
while he was outside on his property. The applicant at that point decided to
leave the country.
[8]
The
applicant left Albania for Italy on October 25, 2007. He then arrived by
car in France where he stayed for two days before taking a flight to Canada on
October 28, 2007. The applicant requested refugee protection the following day.
[9]
The
applicant fears persecution based on his membership in a particular social
group. The applicant’s refugee claim is based on an alleged fear of persecution
because of a “blood feud” after his cousin shot and killed Mr. Metaliaj.
[10]
The
applicant’s refugee hearing took place on September 1, 2009.
Impugned Decision
[11]
The
determinative issues before the Board were nexus, credibility, state protection
and internal flight alternative. The Board dismissed the applicant’s claim for
asylum for three reasons. First, the Board found the applicant not credible.
Secondly, the Board also concluded the applicant did not rebut the presumption
that Albania would have
been able to protect him had he sought state protection. Thirdly, the Board
found the applicant could avail himself of an internal flight alternative.
[12]
In
Asghar v. Canada (Minister of Citizenship and Immigration), 2005 FC 768,
278 F.T.R. 302, the Court noted that it is established that the fear of
reprisals motivated by vengeance and being the victim of a criminal act are not
equivalent to a persecution ground under section 96 of the Act (see also Rawji
v. Canada (Minister of Employment and Immigration), (1994), 87 F.T.R. 166,
51 A.C.W.S. (3d) 1143; Klinko v. Canada (Minister of Citizenship and
Immigration), [2000] 3 F.C. 327, 251 N”R. 388). In Asghar at
paragraph 24, the Court concluded that “victims of criminal acts therefore do
not belong to a particular social group.” Thus, the applicant’s argument on
this ground was rejected by the Board.
[13]
The
Board noted numerous contradictions and inconsistencies in the applicant’s
testimony and evidence. For example:
a. At the
beginning of the hearing, the applicant confirmed that everything in his
Personal Information Form (PIF) was exact, true and complete. However, when
asked how old his cousin was, he changed his answer, saying he did not know if
he was 50 or 60 and that he had not seen him since 1997;
b. In his
narrative, the applicant said that Mr. Metaliaj came into the café with two
other people. But at the hearing the applicant modified his response and said
that three people came in at the same time.
c. When asked
whether the village chief, Mr. Izat Selimaj, had spoken to the police regarding
Mr. Metaliaj’s murder, the applicant’s first response was “probably yes” and his
second answer was “I don’t know if he went to the police”. When asked to
explain the contradiction, the applicant’s explanation was “Afterward I don’t
know if he spoke to the police”.
d. Asked why the
incident of March 4, 2005, when the applicant went to Macedonia with the
intention of leaving for Canada, including his return to Albania, was omitted
in his PIF. The applicant responded “I didn’t mention it because I went back to
Albania”. The Board
did not accept this explanation for the omission regarding such an important
event.
e. When asked
why he would return to Albania from Macedonia rather
than going to another country and ask for refugee status, the applicant answered
he was scared of staying in Europe. The applicant testified that he trusted
the security of this smuggler person rather than the police because his wife’s
father knew him. However, his return to Albania, where the
situation was even worse, arises serious doubts regarding the applicant’s subjective
fear in returning back to the same house in the same village where he had to
stay within his house for over four years.
[14]
The
Board then found that even if the applicant was credible, there is state
protection available to him. The applicant never asked for protection from the
Albanian police. The Board notes documentary evidence such as the UK Home
Office Border and Immigration Agency Operational Guidance Notes at section
3.6.9 concludes that the Albanian government in general is able and willing to
offer effective protection for its citizens who are the victims of a blood
feud, with the exception of certain individual cases which may exist where the
level of protection is insufficient in practice. The level of protection should
be assessed on a case-by-case basis. In the case at bar, even if the applicant
was credible, the Board found he only approached a non-governmental
organization, the National Committee for Reconciliation. He had never asked for
protection from the authorities, namely the police.
[15]
The
Board rejected the probative value of various documentary evidence, such as
Exhibit P-5, the hospital report for Mehmet Rama, the applicant’s
father-in-law; Exhibit P-6, the letter from the village elder of Valbone, Izat
Selimaj; Exhibit P-7, the letter from the president of the municipality of
Margegaj, Rexhe Buberi; Exhibit P-8, the letter from the president of the
National Committee for Reconciliation, Gjin Marku, which concludes that: “L’État
albanais ne peut pas assurer la sécurité des familles impliquées dans des
conflits de vendetta.” The Board gave little probative value to this sweeping
conclusion.
[16]
The
Board stated a claimant from a democratic country bears a heavy burden when
attempting to show that they should not have been required to exhaust all of
the recourses available to them domestically before claiming refugee status (Hinzman
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 362 N.R.
1). In this case, the applicant’s efforts were simply with the village chief
and through a non-governmental organization, but he never approached the police
authorities of the country.
[17]
When
the Board asked the applicant why he did not file a complaint with the police
authorities in his country or ask one of his family members, a female family
member, to file a complaint on his behalf, the applicant answered that the
police do not guarantee protection to victims of blood feuds.
[18]
The
Board notes that the adequacy of state protection cannot rest on the applicant’s
subjective fear (Martinez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1050, 141 A.C.W.S. (3d) 116) and a claimant cannot
rebut the presumption of state protection in a functioning democracy by
asserting only a subjective reluctance to engage the state (Judge v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1089, 133 A.C.W.S. (3d)
157; Santiago v. Canada (Minister of Citizenship and Immigration), 2008
FC 247, 165 A.C.W.S. (3d) 325). According to the Board, the applicant did not
rebut the presumption of state protection.
[19]
The
issue of a possible internal flight alternative (IFA), which is an integral
part of the “Convention refugee” definition (Rasaratnam v. Canada (Minister
of Employment and Immigration), [1992] 1 F.C. 706, 140 N.R. 138 (F.C.A.)),
was brought up during the hearing. Even if the applicant was credible and even
if there was no state protection, the cities of Shkoder in the north, Korce in
the east and Vlore in the
southwest were mentioned as possible IFAs.
[20]
The
murder of Mr. Metaliaj by the applicant’s cousin at a local event happened over
12 years ago. The Board does not believe that the persecutors would have the
will and the means to seek out and find the applicant throughout Albania, a country
of 3.6 million people. Even when he returned from Macedonia in early
March 2005, the applicant did not consider or try an IFA.
[21]
The
Board found the applicant did not discharge himself of the onus to show that
there is no IFA and, in the particular circumstances of this case, it would not
be unreasonable for the applicant to live in one of the cities mentioned as
IFAs. The applicant would not encounter great physical danger or undergo undue
hardship in travelling there or staying there and it would not jeopardize his
life or safety (Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2000] 2 F.C. 164, 266 N.R. 380). The applicant
has worked as a carpenter and he could work as a carpenter in another city in Albania.
Issues
[22]
This
application for judicial review raises the following issues:
i.
Did
the Board err in finding the Applicant was not credible?
ii.
Did
the Board err in finding that state protection was available to the Applicant?
iii.
Did
the Board err in finding that a reasonable IFA was available to the Applicant?
Standard of Review
[23]
This
Court will only intervene in questions of credibility and assessment of
evidence if the Board based its decision on an erroneous finding of fact, made
in a perverse or capricious manner or if it made its decision without regard to
the material before it (Aguebor v. Canada (Minister of Employment and
Immigration), (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)). Before Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the applicable standard of review was patent
unreasonableness. Since that decision, the standard is reasonableness.
[24]
The
appropriate standard of review for state protection issues is reasonableness (Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, 137
A.C.W.S. (3d) 392 at par. 9-11; Gorria v. Canada (Minister of Citizenship
and Immigration), 2007 FC 284, 310 F.T.R. 150 at paragraph 14 and Chagoya
c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2008 CF 721,
[2008] A.C.F. no 908 (QL) at paragraph 3).
[25]
The
appropriate standard of review for IFA issues was patent unreasonableness (Khan
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 44, 136 A.C.W.S. (3d) 912 and Chorny
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 999, 238 F.T.R. 289). Following Dunsmuir,
the Court must continue to show deference when determining an IFA and this
decision is reviewed according to the new standard of reasonableness.
Consequently, the Court will intervene only if the decision does not fall
within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir at paragraph 47).
Analysis
i.
Did
the Board err in finding the Applicant was not credible?
[26]
The
applicant argues the Board narrowly reviewed the documentary evidence of state
measures against blood feuds in order to justify its negative conclusions in
this case.
[27]
With
respect to nexus and section 96 of the Act, the applicant submits the Board
erroneously compares this case to Ashgar, which involved criminal
threats against a Pakistani citizen from criminals opposed to witness testimony
from the father. However, the applicant submits that in Albania, blood feuds
have been a systematic, endemic problem that is part of the culture which dates
back centuries. The applicant submits he is a victim of a socially acceptable
act and that victims of blood feuds in Albania have been accepted as refugees
in Canada for years.
The applicant argues the Board was incorrect in determining that a victim of a
blood feud would not fall under section 96 of the Act.
[28]
Concerning
the applicant’s confusion about the ages of some of his family members, the applicant
submits that birthdays are not celebrated in Albania and he later
realized that he wrongly estimated his aunt’s age. The applicant submits his
inability to do math should not result in a lack of credibility.
[29]
The
Court finds it was open to the Board to find that the contradictions and
omissions undermined the applicant’s credibility in the case at bar.
[30]
The
Board is in the best position to assess the explanations provided by the applicant
concerning these perceived contradictions and implausibilities. It is not up to
the Court to substitute its judgment of the findings of fact drawn by the Board
concerning the applicant’s credibility (Singh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 181, 146 A.C.W.S. (3d) 325 at par.
36; Mavi v. Canada (Minister of
Citizenship and Immigration), (2001), 104 A.C.W.S. (3d) 925, [2001]
F.C.J. No. 1 (QL)).
[31]
In
this case, the Board’s findings were not unreasonable given the multiple
discrepancies in the applicant’s testimony and evidence. The applicant was
unable to provide adequate answers to several questions from the Board,
including his cousin’s age, the number of people accompanying Mr. Metaliaj at
the café and whether the village chief had spoken to the police about Mr.
Metaliaj’s murder. The Board’s finding can be considered rational and
acceptable with regard to the evidence submitted (Dunsmuir, above at
paragraph 47).
[32]
The
Board noted several important contradictions in the evidence adduced by the applicant
which seriously undermined his credibility. For example, the Board observed
that the applicant’s trip to Macedonia was not mentioned in
his PIF and the Board drew a negative inference with respect to the applicant’s
credibility based on this important omission. The respondent submits that the
Board could reasonably draw this conclusion based on the applicant’s failure to
disclose incidents which lie at the heart of his refugee claim and which go to
his credibility in his previous declarations (Ndlovu v. Canada (Minister of
Citizenship and Immigration), 2003 FC 851, 124 A.C.W.S. (3d) 347; Oloye
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 969, 108
A.C.W.S. (3d) 133).
[33]
The
applicant returned to Albania from Macedonia as he was afraid to
remain in Europe because of its close proximity to Albania. The applicant
did not feel safe in Europe and documentary evidence produced at the hearing
clearly confirms that blood feuds are carried out in other countries in Europe.
The applicant felt that the only place he would be safe would be in his home.
As confirmed by the documentary evidence, the blood feud, rules that are
generally respected by all Albanians, specify that people in their home cannot
be attacked.
[34]
According
to the respondent, the applicant was unable to give a reasonable explanation
for his failure to make a claim for asylum in Macedonia. I agree
with the respondent. This Court has held that the failure to claim refugee
protection in countries, which are signatories of the 1951 Convention or
the 1967 Protocol Relating to the Status of Refugees, undermines a
claimant’s alleged subjective fear and his overall credibility (Prayogo v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1508, 143
A.C.W.S. (3d) 1087 at par. 26; Lopez v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1318, 136 A.C.W.S. (3d) 894 at par. 5).
2. Did the Board
err in finding that state protection was available to the Applicant?
[35]
The
applicant sought help from the National Organization for Reconciliation who
attempted to resolve the situation but the Hamdi family refused all
negotiations. Furthermore, although the Albanian government has made changes to
its laws in order to punish blood feud activity, blood feud activity continues,
including many families imprisoned in their homes for fear of blood feud
reprisals against them (Prifti v. Canada, 2009 FC 868, 83 Imm. L.R. (3d)
266 at par. 10).
[36]
First
and foremost, the respondent notes that the applicant admitted that he never
sought protection from the police. The only organization he allegedly
approached was a non-governmental organization which fights against blood
feuds. Yet, “the more democratic the state’s institutions, the more the
claimant should have done to exhaust all the courses of action open to him or
her” (Kadenko v. Canada (Minister of Citizenship and Immigration), (1996),
206 N.R. 272, 68 A.C.W.S. (3d) 334 (F.C.A.) at par. 5).
[37]
The
respondent submits the issue of availability of state protection is a question
of fact within the jurisdiction and expertise of the Board and, as such, is to
be accorded significant deference (Perjaku). The respondent submits that
the applicant’s argument is a mere attempt to have the evidence reassessed and
reweighed by this Court, but this is not the role of the Court.
[38]
The
Supreme Court of Canada has held that, absent a situation of complete breakdown
of state apparatus, it is generally presumed that a stable is able to protect
its citizens (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at
par. 51). The level of protection that the state must provide is not that of
perfect protection, but that of adequate protection (Canada (Minister of
Employment and Immigration) v. Villafranca, (1992), 150 N.R. 232, 37
A.C.W.S. (3d) 1259; Zalzali, [1991] 3 F.C. 605, 126 N.R. 126 (F.C.A.); Milev
v. Canada (Minister of Citizenship and Immigration), (1996), 64 A.C.W.S.
(3d) 659, [1996] F.C.J. No. 907 (QL)). The applicant’s burden of proof is directly
proportionate to the level of democracy in the state in question (Kadenko).
[39]
In
this case, it was legitimately open to the Board to find, given the present
context, that the applicant had not exhausted all avenues offered by the state.
Furthermore, the Board could reasonably consider as insufficient the applicant’s
explanation in his testimony that he did not go to the police because they do
not assist in blood feuds.
[40]
In
Kadenko, the Federal Court of Appeal noted that it cannot be
automatically determined that a democratic state is unable to protect one of
its nationals because certain local police officers refused to intervene. In
this case, the applicant did not diligently seek his country’s protection
before coming to Canada. Consequently, the applicant did not provide
clear and convincing evidence to rebut the presumption that Albania was able to
protect him.
3. Did the Board
err in finding that a reasonable IFA was available to the Applicant?
[41]
The
applicant argues not only is it impossible to live within Albania if you are
subject to being killed pursuant to a blood feud, but it is even dangerous to
live in another country in Europe, as revenge killings can be carried out even
as far away as England.
[42]
The
applicant argues that although the police and the government are attempting to reduce
and eliminate the extent of blood feuds, this is a very old tradition which is
continuously being carried out in Albania, particularly in small
communities such as the applicant’s village up in the mountains.
[43]
According
to the applicant, the Board did not respect the principles of natural justice
and it erred in failing to show any comprehension of the actual situation in Albania.
[44]
The
test to be applied in determining whether there is an IFA is two-pronged: Is there
another part of the country where there would not be a danger to the applicant’s
life? If yes, would it be objectively unreasonable or unduly harsh to expect
the applicant to move to another less hostile part of the country before
seeking refugee status abroad (Rasaratnam; Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589, 163 N.R. 232
(F.C.A.)). The second prong of the IFA is an objective one: Is it objectively
reasonable to expect the applicant to move to a different part of the country?
[45]
The
Board identified cities and towns where the applicant could have availed
himself of an internal flight alternative. The applicant challenges this
conclusion by simply referring to specific cases where a victim of persecution
was unable to hide. The Court finds that the examples provided by the applicant
to be insufficient.
[46]
Indeed,
in Rasaratnam, the Federal Court of Appeal held that two criteria
applied in establishing an IFA: 1. there is no serious risk of the claimant
being persecuted in the part of the country where there is an internal flight
alternative; and 2. the situation in the part of the country identified as an
IFA must be such that it is not unreasonable for the claimant to seek refuge
there, given all of the circumstances.
[47]
In
Thirunavukkarasu, the Court found there was a very high threshold for
the unreasonableness test, citing Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, 266 N.R. 380 (F.C.A.)
at paragraph 15:
“…It requires nothing less than the existence
of conditions which would jeopardize the life and safety of a claimant in
travelling or temporarily relocating to a safe area. In addition, it requires
actual and concrete evidence of such conditions. The absence of relatives in a
safe place, whether taken alone or in conjunction with other factors, can only
amount to such condition if it meets that threshold, that is to say if it
establishes that, as a result, a claimant's life or safety would be jeopardized…”
[48]
The
Board’s decision was based on the applicant’s testimony as well as on the
documentary evidence in the record. The Board considered the applicant’s
situation and the reasonable possibility that he could relocate to cities such
as Shkoder, Korce and Vlore. The applicant
did not meet his burden of demonstrating that the Board had made a reviewable
error. The Board’s decision is thus reasonable. The outcome falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and in law (Dunsmuir; Khosa). The application for judicial
review is therefore dismissed.
[49]
This
application does not give rise to any serious question of general importance.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard
Boivin”
Email this Content