Docket:
IMM-2457-11
Citation:
2012 FC 211
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario,
February 14, 2012
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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SHPENDI SHAHINI
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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
ORDER AND ORDER
[1]
Shpendi
Shahini, a citizen of Albania, has lived a troubled life since his arrival in
North America twelve years ago. In August 2000, with a false Slovenian
passport, he went to Detroit, United States, with the intention of claiming
refugee status on the ground that he was persecuted because of his political
opinion. His cousin, Erjon Shahini, went there a few weeks before him. They
both used false passports provided by an agent named Nikolin Marku, a fellow
Albanian. Although Mr. Shahini and his cousin were supposed to give the
false passports back to him once they were on American soil, they decided to
keep them. According to them, these documents were the best evidence of their
dates of entry into the United States and would be of great use to them when
they claimed asylum.
[2]
In
retaliation, Mr. Marku threatened them with death. On October 27,
2000, Erjon was murdered. According to the death certificate issued by the City
of Detroit, Erjon was found dead inside a vehicle on Wesson Avenue after a shot
was fired at 1:20 a.m., in Detroit, Michigan. It was a homicide.
[3]
Fearing
for his life, Mr. Shahini got rid of the false passport instead of giving
it to Mr. Marku. Although he considered himself to be at risk, he remained
in the United States, a place he felt was safer than Albania.
[4]
Later
he was refused refugee status in the United States. He appealed this decision
but was unsuccessful. However, he continued to live in the country.
[5]
In
November 2007, one of the people involved in Erjon’s murder, Artan Marku,
had boasted in Albania that he had assisted in committing the murder. Then,
Erjon’s brother, Eli Shahini, killed him to get revenge. Consequently, a blood
feud developed between the Shahini and Marku families that is not limited by
national borders.
[6]
Despite
everything, Mr. Shahini believes himself to be relatively safe in
Michigan, at least until two Albanians asked about him in April 2008, in a
coffee shop frequented by Albanians. He then fled to Canada to file a refugee
claim.
THE DECISION OF THE
PRESIDING MEMBER OF THE RPD
[7]
In
his oral decision at the hearing, the presiding member of the Refugee
Protection Division (RPD) of the Immigration and Refugee Board of Canada, rejected
Mr. Shahini’s refugee claim for various reasons, all to the effect that he
lacked credibility. He found that the fact that he claimed refugee status only
in May 2001, when he arrived in the United States in August 2000, was
a determinative point. He was also concerned with the reason that he got rid of
his false passport.
[8]
Mr. Shahini
never made any statements to the American police about the threats he received.
However, his cousin, who speaks English, made one for him and also obtained
documents through access to information requests. The presiding member addressed
the fact that Mr. Shahini did not file any documents from official
American sources to clarify the circumstances surrounding the death of his
cousin or any news clippings. The presiding member then referred to applicants
who were able to provide this kind of evidence during a similar murder in 2003.
[9]
Although
Mr. Shahini filed several attestation letters from the Nationwide
Reconciliation Committee of Albania, the presiding member expressed concerns as
to their authenticity because of the possibility of purchasing these kinds of
documents in Albania and the level of corruption in that country.
ISSUE
[10]
In
this case, there is only one issue. The question is whether the decision is
reasonable. In my view, it is not and, therefore, I will allow the application
for judicial review.
ANALYSIS
[11]
In
this case, no weight can be given to Mr. Shahini’s delay in claiming
refugee status in the United States. Although the presiding member does not believe
his explanations that he had the right to file an asylum claim within one year
of arriving in the United States and that he wanted to save money to hire a
lawyer, the grounds of this asylum claim are completely different from those of
his claim filed in Canada. When Mr. Shahini claimed asylum in the United
States on the ground that he was subject to persecution because of his
political opinion, he made no mention of the blood feud between the Shahini and
Marku families, a blood feud that had not yet occurred.
[12]
The
presiding member is of the view that this crime should be solved and that it is
not enough to produce an official report on the homicide, in which the
murderers are not identified. How can we even be aware that a crime has actually
been solved? As to the failure to produce news clippings, it is not a given
that every murder in Detroit will appear in the headlines of every newspaper. Further,
the City of Detroit is called “Murder City” for a good reason. The Nationwide
Reconciliation Committee sent various attestation letters about the conflict
between the two families. The presiding member is not satisfied with the fact
that some of them make no mention of Artan Marku’s murder in 2007. In my view,
this is immaterial; in fact, the information that the Committee has is only
hearsay. What is fundamental is that the Committee did try to persuade the
Marku family to end the blood feud and that it refused.
[13]
There
is no need to describe the history of blood feuds in Albania. These blood feuds
are ancient, barbaric and are based on an unfortunate notion of honour and
revenge. If the information found in the attestation letters are true, then it
is clear that Mr. Shahini will be at risk should he return to Albania.
[14]
The
presiding member nevertheless found that these attestation letters were not
authentic since it is possible to purchase them in Albania. However, there is
evidence in the record that proves otherwise, given the security features these
letters contain. The presiding member referred to the response to information
request ALB103570.E found in the National Documentation Package on Albania,
dated October 29, 2010. This document states the following about
attestation letters:
Several sources indicate that it may be
possible to purchase attestation letters about involvement in blood feuds in
Albania (Research Associate 15 Sept. 2010; Professor 15 Sept. 2010;
Honorary Research Fellow 22 Sept. 2010). The Honorary Research Fellow at
Roehampton University stated that “endemic corruption” persists in Albania,
making it impossible to rule out the possibility that such letters could be
purchased (ibid.). The Professor at IPFW similarly noted that “almost anything
can be bought or sold” in Albania, particularly documentation (15 Sept.
2010). He recalled hearing that the CNR has complained about the existence of
false attestation letters (Professor 15 Sept. 2010). However, the
Chairman of the CNR stated that it is “impossible” to buy an attestation letter
from his organization because each is signed by the Chairman and identified by
a unique code and protocol number (CNR 13 Sept. 2010).
[Emphasis added]
[15]
It
is overly simplistic, and even superficial, to assume that the attestation
letters are not authentic. Given that there is information in the National
Documentation Package on Albania that appears to completely contradict his
finding, the presiding member should have explained why he did not give
probative value to these letters (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), 157 FTR 35, [1998] FCA No 1425 (QL)). He
could have also assuaged his doubts by submitting the letters for scientific
analysis.
ORDER
FOR THE
FOREGOING REASONS,
THE COURT
ORDERS that
1.
The
application for judicial review of the decision by a member of the RPD of the IRB
dated March 21, 2011, that the applicant is not a “Convention refugee” or
a “person in need of protection” under sections 96 and 97 of the Act, is
allowed.
2.
The
decision of March 21, 2011, is set aside and the matter referred back for
redetermination before another RPD member.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
Certified true
translation
Catherine Jones,
Translator
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