Date: 20100625
Docket: IMM-5610-09
Citation: 2010 FC 698
Ottawa, Ontario, June 25,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MARK NDOCI
JESIKA NDOCI
Applicants
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), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the Board)
where the Board found that the Applicants were not Convention refugees nor
persons in need of protection.
[2]
The
application for judicial review shall be allowed for the following reasons.
Factual Background
[3]
The
principal Applicant, Mark Ndoci, is a citizen of Albania. The minor Applicant,
his daughter, is a citizen of the United States of America (US). The principal
Applicant claims that he fears returning to Albania as his family is involved
in a blood feud with the Leci family. He claims that the feud began in 1943
when his grandfather murdered a member of the Leci family.
[4]
The
principal Applicant claims that he was shot by a member of the Leci family in
July 1997. He then spent ten days in the hospital recuperating but did not
report the incident to police. He also claims that we was beaten unconscious by
Ndoc Leci in 1999 but did not report the incident to police.
[5]
In
April 2001, the principal Applicant and his wife left Albania for the US where they
made a claim for protection based on the blood feud and other grounds. That
refugee claim was denied, as was the subsequent appeal. The minor Applicant was
born in the US in 2004.
After a deportation order was issued, the principal Applicant and his family
were smuggled into Canada and made a claim for refugee protection.
[6]
The
principal Applicant and the minor Applicant’s claims were heard jointly. Their
claim was disjoined from that of the principal Applicant’s wife. The decision
rendered by the Board with regard to the principal Applicant and the minor
Applicant is the subject of this judicial review.
Impugned Decision
[7]
The
Board first finds that there is no nexus to a Convention ground in the case of
a blood feud and that the claim will only be assessed under section 97 of the
Act. The Board identifies credibility and state protection as the determinative
issues of the claim.
[8]
The
Board identifies inconsistencies in the principal Applicant’s story in which it
grounds the negative credibility finding. At the outset, the documentary
evidence states that many people are confined to their homes for safety reasons
when they are involved in a blood feud. The Applicant himself stated that he
was confined in order to avoid the Leci family. However, the evidence shows that
the principal Applicant was employed as a painter from 1996 to 2001. The
principal Applicant testified that he would regularly leave the village at
night, disguised in women’s clothing, in order to buy groceries in a
neighbouring town. The Board does not find this testimony credible. It also
finds that, if the Leci family were in pursuit of the principal Applicant and
enquiring about his whereabouts or watching his home, he would have quickly
been detected. Therefore, the Board finds that the Applicant was not in self
confinement.
[9]
The
Board makes further adverse findings based on the principal Applicant’s claim
in the US. It is
stated that his cousin took him to the hospital after the 1997 shooting.
However, in his testimony, he stated that he did not know how he got to the
hospital. Also, in his US claim he testified that the attackers in
1999 were anonymous but in the current claim he identified Ndoc Leci as his
attacker. Finally, he did not provide any information on the date and manner in
which the blood feud began. The Boards writes that when asked to explain, the
principal Applicant stated "it was there".
[10]
With
regard to state protection, the Board finds that the documentary evidence
confirms the existence of blood feuds in Albania. The Board
cites the UK Operational Guidance Note which describes the measures taken by
the Albanian government to discourage blood feuds and the legal mechanisms
available. The Board notes that there is an opinion stating that the government
does not deal with blood feuds effectively and that there is inconsistent
evidence about the sentences imposed for blood feud murders. In the end, the
Board finds that the principal Applicant can seek state protection and that the
state is making serious efforts with regard to blood feuds. The Board concludes
that the principal Applicant failed to rebut the presumption of state
protection.
[11]
As
for the minor Applicant, no evidence was presented with regard to the US, thus her
claim is denied.
Questions At Issue
[12]
The
Applicants raise two issues in this case:
a. Is the
Board’s finding with regard to credibility unreasonable?
b. Is the
Board’s finding with regard to the availability of state protection
unreasonable?
Analysis
Standard of Review
[13]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme
Court of Canada established that, in determining the appropriate standard of
review, the Court can look to past jurisprudence and ascertain whether it has
already determined a satisfactory standard of review (para. 62). This Court has
held that the Board’s decisions on both credibility and state protection should
be reviewed on a standard of reasonableness (Aguirre v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] F.C.J.
No. 732 at para. 14; Guzman v. Canada (Minister of
Citizenship and Immigration), 2008 FC 490, [2008] F.C.J.
No. 624 at para. 10). Accordingly, both questions at issue will be held to a
standard of reasonableness and the Court will only intervene if the decision
does not fall within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir at para. 47).
Is the Board’s finding
with regard to credibility unreasonable?
Parties’ Positions
[14]
The
principal Applicant argues that the Board’s findings with regard to his
credibility are unreasonable and there was no reason to disbelieve him. The
Board found that, if the Leci family were in pursuit of the principal Applicant
and enquiring about his whereabouts or watching his home, he would have quickly
been detected on his trips to buy groceries. He contends that he never said
that the Leci family was constantly enquiring about his whereabouts or watching
his home. As for the inconsistencies with regard to his US claim, the principal
Applicant claims that he testified that he had explained the origins of the
blood feud during his asylum interview. The Applicants submit that the Board
erred by making these findings.
[15]
The
Applicants argue that the errors were exacerbated by the Board’s reliance on
the decision of the US immigration judge and the dismissal of the
immigration appeal in finding inconsistencies between the Canadian claim and
the US claim. They
emphasize that these decisions are very brief and do not accurately represent
the entire story. They submit that it was unreasonable to rely on these
decisions instead of the written submissions for the US claim.
[16]
The
Applicants further submit that the Board erred by ignoring a large body of
evidence that supports the claim including a video of a news report from Albania
and a newspaper article covering his shooting in 1997, letters from
reconciliation organisations confirming that the families are in a blood feud,
the testimony of a third party in support of the claim, and a medical
certificate.
[17]
The
Respondent advances that the credibility findings were not unreasonable and
were very well motivated by the Board. The Respondent emphasizes the many
inconsistencies were identified and it was fair to rely on evidence from the US claim.
[18]
The
Respondent submits that the evidence not mentioned by the Board simply confirms
that the principal Applicant was shot in 1997, which was not questioned by the
Board, but does not confirm that he is actually at risk due to a blood feud.
Thus, there was no reason to mention it.
Analysis
[19]
The
principal Applicant has tried to explain some of the inconsistencies in his
testimony and faults the Board for using the decision of the US immigration
judge in making negative credibility findings, but neither one of these grounds
can succeed. The transcript shows that the principal Applicant did testify that
the Leci family was watching him and his home (Certified Tribunal Record at
pages 365 to 367). As for the use of the decision of the US immigration
judge, the decision is contained in the Tribunal Record and provides a detailed
summary of the principal Applicant’s testimony in those proceedings, the
evidence presented by him and the reasons for the decision (pages 291 to 300).
I do not find that the reliance on this piece of evidence is unfair to the
principal Applicant and was in error.
[20]
The
Applicants argue that the decision is unreasonable as the Board ignored
evidence that confirmed that the principal Applicant was shot as a result of
this blood feud in 1997. There is of course a presumption that the Board
directed itself to the totality of the evidence in making its findings (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35).
[21]
However,
I find that there is an error here, particularly with the Board’s failure to
mention two letters, one dated October 16, 2007 and the other dated September
3, 2008, from the Pan-National Reconciliation Committee which confirm that the
Ndoci family is involved in a blood feud with the Leci family and that efforts
at reconciliation have failed. These letters also state that the feud has
gotten worse since March 2006 when a member of the Ndoci family murdered a
member of the Leci family. This evidence is specific to the principal
Applicant’s claim and should have been analysed by the Board and an explanation
provided as to why the negative credibility finding was made despite these
letters.
Is the Board’s finding
with regard to the availability of state protection unreasonable?
Parties’ Positions
[22]
The
Applicant submits that the Board erred and made selective use of the
documentary evidence on state protection. The Board points to the issue paper
titled Albania: Blood feuds (May 2008)
which was part of the national documentation package and was not analysed by
the Board.
[23]
The
Respondent submits that the decision is reasonable as the facts show that the
principal Applicant did not make any attempt to seek state protection and
cannot rebut the presumption of state protection.
[24]
The
Respondent further underlines that, in the alternative, the Board found that
adequate state protection exists and that finding is reasonable. The Respondent
points to the Board’s acknowledgement of blood feuds in Albania and other
pieces documentary evidence mentioned by the Board and argues that the Board
did not make selective use of the evidence and acknowledged items contrary to
its own finding.
Analysis
[25]
In
its decision, the Board does reference to the issue paper Albania: Blood
Feuds and notes that Mr. Marku has opined that the government is unable to
deals with blood feuds or offer effective protection and that there is
inconsistent evidence concerning the harshness of sentences imposed for blood
feud murders.
[26]
While
the Board does mention the issue paper, it does not discuss the portions that
detail the problems of blood feuds, the increased blood killings due to
ineffective law enforcement and lack of faith in state punishment and the
ineffectiveness of convictions. While it is open to the Board to prefer one
piece of evidence to another, it was required to acknowledge this contradictory
evidence and explain why it preferred the UK Operational Guidance Note on which
it relied. The issue paper was directly relevant to the issue of state
protection and the Board erred by not providing some analysis of this evidence
that runs contrary to its finding.
[27]
Neither
party has submitted a question for certification nor does one arise.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed. The matter is
remitted back for redetermination by a newly constituted Board. No question is
certified.
“Michel
Beaudry”
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