Date: 20100514
Docket: IMM-4020-09
Citation: 2010 FC 533
Ottawa, Ontario, May 14,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
DRITAN PRIFTI
ELONA PRIFTI
FRANCESKO PRIFTI
JASON PRIFTI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicants seek judicial review of a decision by a Pre-Removal Risk Assessment
(PRRA) Officer’s decision which held that they had not rebutted the credibility
findings by the Immigration and Refugee Board (Board) and that state protection
was available to them. The Applicants feared persecution due to a blood feud in
Albania.
II. BACKGROUND
[2]
The
Applicants are a husband, wife and two children. The adults are citizens of Albania whereas the
children are citizens of the U.S. The adults do not have status in the U.S.
and the PRRA was based upon an assumed return to Albania.
[3]
Elona
Prifti had been promised in marriage by her parents to Judmir Ndreu. However, Elona
married Dritan in a civil marriage in 2000.
[4]
The
jilted prospective groom, Ndreu, was extremely upset and threatened Elona’s
family promising to kill them unless they sent her to marry him. The Applicants
claim that in 2000 Albania was not a stable country and police protection
was not available.
[5]
In
April 2001, Elona was at home alone when Ndreu broke into the house and raped
her. This was reported to the police who then arrested Ndreu. Shortly
thereafter Ndreu was released and no charges were laid.
[6]
Elona
claimed that although she had evidence from a local hospital concerning her
rape, she did not give the evidence to the police because she did not trust
them.
[7]
It
was the Applicants’ contention that Elona was raped to make her less desirable
to Dritan. The Ndreu family is from northern Albania where the
vendetta code of the “Code of Lek Dukagjini” is followed.
[8]
Dritan
and later Elona went to the U.S. where their children were born. In 2006,
not being eligible for permanent resident status, the family came to Canada.
[9]
The
Applicants applied for refugee status. The Board did not find the Applicants
credible and rejected the contention that Elona’s rape and refusal to marry
Ndreu resulted in a blood feud. The Board also rejected Elona’s claim that the
police would take no action. As an alternative, the Board concluded that even
if the Applicants were credible, there was state protection in Albania. Leave for
judicial review was denied.
[10]
In
the PRRA application the Applicants submitted additional evidence including a
letter from the National Committee of Reconciliation (Committee), an NGO
established to deal with blood feuds. The Applicants had contacted the Committee
to see if it could settle the blood feud with Ndreu’s family. The Committee’s
letter outlined the Applicant’s story, that Elona’s family and the Committee
had approached the Ndreu family without success.
[11]
The
Committee’s letter goes on to state that the Applicants and their families are
in danger in Albania and outlined
the acute problem with blood feuds in that country.
[12]
The
PRRA Officer held that there was no nexus to a Convention ground and made other
comments directed at s. 96 of the Immigration and Refugee Protection Act.
The Officer then, having accepted that the Applicants were in fact the subject
of a blood feud contrary to the Board’s finding, went on to hold that the
presumption of state protection had not been rebutted. The Officer rejected the
Committee’s letter holding that there was no explanation of why it had not been
submitted earlier.
[13]
Justice Shore issued a
stay of deportation. The learned Justice had concerns about the PRRA decision;
however, his comments must be taken in the light of the test for an injunction.
III. ANALYSIS
[14]
It
is agreed that the standard of review for a PRRA decision generally is
reasonableness. However, failure to conduct a proper analysis is an error of
law subject to the correctness standard of review.
[15]
While
not put to the Court directly, there is a glaring inconsistency in the PRRA
decision. The Officer rejected the Committee’s letter, held that the Applicants
had not rebutted the Board’s credibility finding and yet the Officer accepted
that the Applicants were subject to a blood feud.
[16]
On
that ground alone, the decision does not meet the “range of possible acceptable
outcomes” described in Dunsmuir v. New Brunswick, 2008 SCC 9.
[17]
The
analysis of state protection is seriously flawed. In assessing risk, the
decision maker must outline the risk against which the presumption of state
protection is assessed. Having erred in or been inconsistent about risk, the
state protection analysis is flawed.
[18]
The
Officer’s rejection of the Committee’s letter as “new evidence” ignores the
ratio in Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385. The letter was relevant
because it was “capable of proving or disproving a fact that is relevant to the
claim of protection”. The letter was new evidence in that it was “capable of …
contradicting a finding of fact by the RPD (including a credibility finding)”. Therefore,
the rejection of the letter was an error of law. There was no analysis of the
“new evidence” criteria.
[19]
There
are other errors in the decision, the above two being the most egregious.
IV. CONCLUSION
[20]
Therefore,
this judicial review will be granted, the PRRA decision quashed and the matter
remitted for a new determination before a different officer.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the PRRA decision is quashed and
the matter is to be remitted for a new determination before a different
officer.
“Michael
L. Phelan”
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