Dockets: IMM-1726-10
IMM-2002-10
Citation:
2012 FC 215
Toronto, Ontario, February 15, 2012
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
Docket: IMM-1726-10
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LUC GJOKAJ
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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Docket:
IMM-2002-10
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LUC GJOKAJ
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Applicant
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and
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MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 26 (the Act) of a negative decision
of Pre-Removal Risk Assessment Officer (Officer), dated February 10, 2010 (
IMM-1726-10). The applicant also seeks judicial review of the decision dated
April 12, 2010, of an Enforcement Officer (Enforcement Officer) (IMM-2002-10), not
to defer the applicant’s removal pending the outcome of the applicant's
judicial review in IMM-1726-10. These matters were heard the same day in
Toronto.
[2]
For
the reasons that follow, the applications shall be dismissed.
Background
[3]
The
applicant is a citizen of Albania. He fears, if returned, he would be at
risk due to a family blood feud.
[4]
He
alleges that his cousin, Rrok Gjokaj, killed a man named Ndue Rakaj (Ndue) in
2001. As a result, the Rakaj family vowed to kill all the males in Gjokaj
family. The applicant states that he was forced to live in hiding for seven
years. During this time, multiple reconciliation committees tried to resolve
the blood feud, to no avail.
[5]
The
applicant entered Canada using false documentation in October 2008; an
exclusion order was issued against him, making him ineligible to file a refugee
claim. He later filed a Pre-Removal Risk Assessment (PRRA) application. The
applicant asserts that five of his cousins also fled Albania to Canada due to the blood feud, and all of them made refugee claims that were accepted by the
Refugee Protection Division of the Immigration and Refugee Board (Board). The
Personal Information Form (PIF) for three of the applicant’s cousins, and proof
of the positive determinations of their claims, were included in the
applicant’s PRRA submissions.
Officer’s
Decision
[6]
The
Officer accepted the existence of a blood feud, but found insufficient evidence
that the applicant himself would face more than a mere possibility of
persecution. She noted that the applicant’s cousins had been deemed Convention
refugees, but found that these positive decisions in and of themselves were
insufficient to grant the applicant protection. The Officer stated that,
without written reasons for those positive decisions, it was impossible to know
what evidence was considered by the Board in reaching its decision.
[7]
The
Officer noted the factors to be considered in assessing an allegation of risk
due to a blood feud, including:
a. If
the feud conforms to the classic principles of blood feuds;
b. The
history of the feud, including number of people killed;
c. The
past and likely future attitude of authorities to the feud;
d. The degree
of commitment of the opposing family to continuing the feud;
e. The
time elapsed since the last killing;
f. The
person’s position within the family as a potential target;
g. The
prospect of eliminating the feud, including through a reconciliation
organization.
[8]
She
found that the applicant had not provided details as to what happened to his
cousin Rrok (the catalyst for the feud) and his family, or several other family
members who would be targets in the feud and no evidence regarding any
attempted attacks since the feud began in 2001.
[9]
The
Officer noted that the applicant provided one letter from a reconciliation
organization called The Peace Missionaries Union of Albania (PMUA), but she accorded
the letter little weight because it had few details regarding what had
transpired in the past nine years. She wrote that there was little evidence of
the functionality of the PMUA since its leader had been murdered, and it did
not have an established office or a telephone number.
[10]
The
Officer also noted that the PMUA was only created in 2005, and there was no
evidence of efforts for reconciliation between 2001 and 2005. She drew a
negative inference from the fact that only one letter was provided, when
supposedly multiple reconciliation organizations were involved.
[11]
She
further found that the applicant had not presented evidence of the police
response to the feud and that it would be reasonable to expect some evidence of
this kind, since Ndue was murdered, and one of the applicant’s cousins alleged
that his brother was murdered in his PIF.
[12]
Finally,
the Officer reviewed the documentary evidence, which stated that murders from
blood feuds had reduced significantly in recent years in Albania.
Request to Defer
Removal
[13]
The
applicant was served with a direction to report on April 7, 2010.He submitted a
request to defer his removal on the grounds that he faced risk if returned to
Albania and also that he had a pending application for leave and judicial
review of his negative PRRA’s decision.
[14]
In
the letter of refusal, the Enforcement Officer noted that Canada Border
Services Agency (CBSA) has an obligation under section 48 of the Act to carry
out removal orders as soon as reasonably practicable. The letter stated that he
did not consider deferral to be appropriate in this case.
[15]
The
Enforcement Officer also noted that an application for leave and judicial
review of a PRRA decision is not itself an impediment to removal. The Enforcement
Officer quoted from Operational Enforcement Manual ENF 10, sections 11.1 and
11.2, that there are no statutory or regulatory stays of removal for litigating
against a negative PRRA or a negative H&C decision.
[16]
The
applicant subsequently sought a stay of removal from this Court pending the
outcome of the judicial review of his PRRA decision and the refusal to defer
removal. On April 14, 2010, Justice Hughes granted a stay of removal.
Justice Hughes noted the decision in Shpati v. Canada (Minister of
Citizenship and Immigration), 2010 FC 367, which addressed similar issues
to this application, and therefore concluded that there was a serious issue to
be tried.
[17]
These
applications were subsequently adjourned upon request of the applicant, pending
the outcome of the appeal in Shpati.
Issues
[18]
The
applications before the Court raise the following issues:
a. Was
the Officer’s decision reasonable in regards to the applicant's PRRA
application?
b. Did
the Enforcement Officer err in refusing to defer removal pending the outcome of
the applicant’s judicial review of the PRRA’s decision?
Standard of
Review
[19]
The
applicant does not make submissions regarding the standard of review.
[20]
The
respondent submits that the Officer’s decision is to be reviewed on a standard
of reasonableness, and the Officer is owed deference in the weight given to the
evidence before her (Cabral De Medeiros v. Canada (Minister of Citizenship
and Immigration), 2008 FC 386 at paragraph 15). The Court agrees, and thus
the Officer’s decision will be upheld as long as it satisfies the requirements
of justification, transparency and intelligibility, and falls within the range
of possible, acceptable outcomes which are defensible in respect of the
facts and the law (Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph
47).
Analysis
Was the Officer’s
decision reasonable in regards to the applicant's PRRA application?
Applicant’s
Arguments
[21]
The
applicant submits that it was erroneous for the Officer to recognize the
existence of a blood feud, but go on to conclude that the positive
determinations of the applicant’s cousins’ refugee claims were insufficient to
find that the applicant needed protection. Since the Officer accepted that
there was a blood feud, the applicant argues that the positive decisions in his
cousins’ claims should have been enough to find he too needs protection.
[22]
The
applicant relies on the Court’s decision in Maimba v. Canada (Minister of Citizenship and Immigration), 2008 FC 226, to submit that the objective risk
of harm must still be assessed based on the documentary evidence, even if it is
found that a claimant lacks credibility.
[23]
The
applicant argues that the concerns raised by the Officer regarding the
degree of commitment of the Rakaj family to the blood feud, the time elapsed
since the last killing, and Rrok’s circumstances, were all irrelevant in light
of the positive determination for the applicant’s cousins. The applicant also
underscores that she erroneously implied that the cousins’ claims may have
been based on their affiliations with the Democratic Party – the applicant
notes that their claims clearly state their fear was based on membership in a
social group and not political opinion.
[24]
The
applicant submits that the Officer erred by making findings that had no support
in the evidence: Abarajithan v. Canada (Minister of Employment and
Immigration), [1992] FCJ 54 (QL) (CA). He argues it was an error to
focus on the time elapsed since the last murder, since the documentary evidence
shows that male family members will retreat into self-confinement during a
blood feud, and thus it may continue despite a lack of incidents. The applicant
also takes issue with the Officer’s emphasis on his position within his family,
as there was no evidence he would be at greater risk if he had a close
relationship with Rrok, and the applicant had indicated that he would be one of
the few male members left in the country, making him a target.
[25]
The
applicant further underscores that the Officer was overly microscopic in its
assessment of the PMUA letter, according little weight to it because it
contained insufficient details. He also impugns her finding that there was
insufficient evidence of his relation to Rrok or that the police would not be
able to assist him. The applicant asserts there was evidence before the Officer
regarding both these issues. The applicant also argues she confused Albania’s willingness to address the blood feud problem with its ability to protect.
[26]
The
applicant says that the Officer’s reasons are inadequate, and it is not
possible to discern the basis for her negative decision.
Respondent’s
Arguments
[27]
The
respondent submits that the Officer identified and applied the appropriate
factors to consider when assessing a claim of risk arising from a blood feud.
Based on those factors, the Officer concluded that there was insufficient
evidence that the applicant faced more than a mere possibility of persecution. This
finding was reasonably open to her and the decision should be upheld.
[28]
The
respondent notes that each refugee claim must be decided on its own merits, and
therefore a positive determination in another claim, even of a relative, is not
determinative (Bakary v. Canada (Minister of Citizenship and Immigration),
2006 FC 1111; Mantilla Cortes v. Canada (Minister of Citizenship and
Immigration), 2008 FC 254; Noha v. Canada (Minister of Citizenship and
Immigration), 2009 FC 683). Because there were no written reasons for those
decisions, and because the facts of the cousins’ claims were different from the
applicant’s claim, the respondent submits it was reasonable for the Officer to
assess the applicant’s claim on its own merits.
[29]
The
respondent adds that the Officer properly considered the evidence of the
Rakaj family’s continued interest in the applicant’s family, the evidence of
attempts at reconciliation, and the documentary evidence of police response to
blood feuds. Thus, the respondent argues, the Officer’s decision was based on
review of the relevant evidence, and her inferences based on that evidence were
reasonably open to her.
[30]
The
respondent further submits that the Officer’s reasons set out her findings of
fact and the principal evidence upon which those findings were made, and
therefore they are sufficient to understand the basis for her decision (Townsend
v. Canada (Minister of Citizenship and Immigration), 2004 FCT 371.
Analysis
[31]
After
a careful review of the evidence in this file and the written and oral
representations by the parties, the Court finds that the Officer’s decision
cannot be qualified as unreasonable. The Officer’s conclusions are acceptable outcomes
which are defensible in respect of the facts and the law Dunsmuir
para 47.
[32]
The
mere fact that the applicant’s relatives were granted refugee protection does
not in itself mandate a positive decision in his PRRA application. Each case
must be assessed on its own merits (Noha v. Canada (Minister of Citizenship
and Immigration), 2009 FC 683) para 102). Since the applicant did not
provide any written reasons for the decisions, it was reasonably open to the Officer
not to treat those decisions as determinative, because it is impossible to know
the basis for those positive determinations.
[33]
The
facts in the cousins’ claims were different from the applicant’s claims, and
contrary to the applicant’s assertion, his cousins’ PIF narratives show that
they did allege fear based on political opinion in addition to the fear due to
the blood feud. Thus, it was wholly reasonable for the Officer not to make a
positive decision solely based on these other determinations, but rather to
asses the applicant’s claim on its own merits.
[34]
Because
most of the applicant’s other arguments stem from his argument about his
cousins’ claims, they too cannot be accepted. The applicant has asserted that
the factors considered by the Officer – the time elapsed since the last
killing; the absence of information about the status of other family members or
the Rakaj family’s continued interest in the feud – are irrelevant, because the
Officer accepted the existence of a blood feud and the cousins were accepted as
refugees because of the same feud.
[35]
However,
according to the UNHCR document relied on by the Officer in her analysis, the
mere presence of a blood feud in a family is insufficient to find that an
individual in that family requires protection; rather, it will depend on a
number of factors. The Officer considered those factors, and when they were
applied to the applicant’s circumstances, most of them supported the conclusion
that the applicant did not face more than a mere possibility of persecution.
Thus, the Court cannot find that the Officer considered irrelevant factors or
made unreasonable inferences based on the evidence.
[36]
The
rest of the applicant’s arguments relate to the weight accorded to the
evidence, and thus do not constitute valid grounds for setting the decision
aside. It was reasonably open to the Officer to attribute little weight to the
PMUA letter, given the evidence that this organization’s functionality was
questionable. It was also open to her to consider the fact that the applicant
alleged that several reconciliation organizations had gotten involved in the
blood feud, but no evidence was submitted except for this single letter from
PMUA.
[37]
Therefore,
the Court finds that the Officer's decision was reasonable, and furthermore her
reasons adequately disclosed the basis for her conclusions.
Did the
Enforcement Officer err in refusing to defer removal pending the outcome of the
applicant’s judicial review of the PRRA’s decision?
[38]
In
IMM-2002-10, the applicant seeks to set aside the decision of the Enforcement Officer
not to defer removal pending the outcome of his judicial review on his PRRA's
negative decision (IMM-1726-10).
[39]
The
applicant’s submission that an Enforcement Officer has a duty to defer removal
pending an application for leave and judicial review of a negative PRRA
decision has now been conclusively rejected by the Federal Court of Appeal in
Canada (Minister of Public Safety and Emergency Preparedness) v. Shpati,
2011 FCA 286, Justice Evans dismissed the argument that the mootness of an
application for judicial review of a PRRA decision warrants deferral of removal:
[34] … in order to attempt to reduce
uncertainty in the law, it is appropriate for this Court to address the issue
raised in the certified question: does the potential mootness of the pending PRRA
litigation warrant deferral of removal?
[35] In my view, the answer to this
question is no. If it were otherwise, deferral would be virtually automatic
whenever an individual facing removal had instituted judicial review
proceedings in respect of a negative PRRA. This would be tantamount to implying
a statutory stay in addition to those expressly prescribed by the IRPA, and
would thus be contrary to the statutory scheme.
[40]
The
applicant suggests that the facts in the present case are not the same as in Shpati
because the applicant in Shpati had the opportunity to be heard by a Board.
[41]
The
Court notes that in the case at bar, an exclusion order was issued against the
applicant because when he came to Canada he used false documentation.
[42]
The
Court agrees with the respondent that para 51 and the answer to the certified
question no 1 in Shpati confirm the reasonableness of the Enforcement Officer’s
decision not to defer removal pending the applicant' s an application for leave
and judicial review of his PRRA negative decision.
[43]
Therefore,
the Court's intervention is not warranted.
[44]
The
parties did not propose a question for certification and none arise.
JUDGMENT
THIS
COURT ORDERS that the
applications in IMM-1726-10 and IMM-2002-10 be dismissed. No question is
certified.
“Michel
Beaudry”
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