Docket: IMM-5357-11
Citation: 2012 FC 295
Toronto, Ontario, March 7, 2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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ZEF GJON PEPAJ
GJOVJANA PEPAJ
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Applicants
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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 JUDGMENT AND
JUDGMENT
[1]
This
application and another are closely related. Each deal with members of the
Pepaj family who, in a single decision of a Member of the Refugee Protection
Division of the Immigration and Refugee Board, dated July 15, 2011, were found
to be able to claim refugee protection in Canada. One other member of the
family was found in the same decision to be a person entitled to protection;
thus, her claim was accepted. I will provide the same set of Reasons in both
applications which reasons will deal with both applications before me
IMM-5357-11 and IMM-5359-11.
[2]
In
brief, the Applicants in file IMM-5357-11 are a brother, twenty years old; and
a sister, fourteen years old. They were born in and are citizens of the United
States of America. It was found that they could expect adequate state
protection there. The Applicant in IMM-5359-11 is their eighty year old
grandmother, who was found could expect adequate protection in Albania. The
decision of the under review by this Court, but not part of either of these two
judicial reviews, also found that the mother of the son and daughter, who is
the daughter-in-law of the grandmother, could not expect adequate state
protection in Albania; thus, her claim for refugee protection in Canada was
accepted.
[3]
The
story begins in 1991 when Gjon Pepaj and Valentina Pepaj (whom I have called
the mother) fled Albania and, via Yugoslavia, came to the United
States of America. They obtained permanent resident status there, but never
citizenship. Two children were born to them, Zef Gjon and Gjovjana (Applicants
in IMM-5353-11), in the United States. These children are
citizens of that country. In 1993, a family friend, Paulin Lunaj, was visiting
the Pepaj home at a time when the husband, Gjon Pepaj, was not at home. Paulin
raped Valentina. She shot him dead. She was tried and convicted of manslaughter
and sentenced to two years’ imprisonment in the United States. Back in Albania, the Lunaj
family declared a blood feud on the Pepaj family because Valentina had killed
Paulin.
[4]
Back
to the United
States.
The Pepaj family was being harassed in various ways by those sympathetic to the
blood feud declared by the Lunaj family. Gjon shot dead Gjek Sufaj, whom he
believed was an instrument of the Lunaj family, in the United States during a
church service. He was charged and convicted of first-degree murder and is
serving a life sentence in a Michigan prison. Gjon’s mother,
Gjyste Pepaj, whom I have called the grandmother, came over from Albania to look
after the two children. She stayed about fifteen years in the United
States
and never claimed refugee status.
[5]
Once
the mother, Valentina Pepaj, was released from prison, having served her
two-year sentence in the United States; she, the two children
and the grandmother fled to Canada and claimed refugee protection. The
husband, Gjon, of course, was and is still in prison in the United
States.
[6]
The
claim by the mother, two children and grandmother for refugee protection in Canada came on for
hearing before a Member of the Refugee Board. The claims were heard and
determined together. The Member, in a decision dated July 15, 2011, determined
that the mother, Valentina, could not expect to receive adequate state
protection in Albania – a
principal reason being that she was the one who shot Paulin and the consequent
blood feud. On the other hand, it was determined that the grandmother, Gjyste,
being an elderly woman not directly involved in the events, would not likely be
targeted in the blood feud and could receive adequate protection in Albania. It
was determined that the two children, one now an adult, being United
States
citizens, could expect adequate protection there. The two children, on the one
hand (IMM-5357-11), and the grandmother on the other (IMM-5359-11), have each
sought judicial review of that part of the decision related to them. Although
they all were represented by legal counsel before the Board, they filed their
applications for judicial review in their own names, with no lawyer’s name apparent
on any document. At the hearing before me, however, each of the children on the
one hand and grandmother on the other hand were represented by Counsel albeit
different Counsel. Different Counsel represented the Minister in each
proceeding.
[7]
The
issues in respect of the children Zef Gjon and Gjovjana, on the one hand; and
Gjyste, the grandmother, on the other hand, are the same: Was the Board
Member’s decision as to state protection reasonable? The arguments of Counsel
for each were somewhat different; but in general, they attacked the
reasonableness of the decision respecting their client(s).
[8]
There
was general agreement between Counsel in both applications, that is, both for
the Applicant and the Respondent, as to several matters:
a. the decision
is to be reviewed on a standard of reasonableness;
b. no
certification of a question is required;
c. there is a
presumption that a state is able to afford adequate protection; and
d. the
applicant(s) bear the onus of rebutting the presumption of state protection by
clear and convincing evidence.
AS TO GJYSTE PEPAJ (The
Grandmother)
[9]
The
Member discussed the issue of state protection in Albania in respect of Gjyste
(grandmother) and Valentina (mother) together, as they both could be returned
to Albania. He found that
adequate state protection was available to both of them; but that, in respect
of Valentina (mother), due to her particular circumstances she would be unable
to avail herself of that protection.
[10]
The
Member wrote at paragraphs 104 to 106 of the decision:
[104] Neither the objective evidence
nor the claimants’ own evidence is a clear and convincing rebuttal of the
presumption of adequate state protection. The panel finds that adequate state
protection is available to Gjyste Pepaj and Valentina Pepaj in Albania.
[105] Can Valentina Pepaj, in her
unique circumstances, be reasonably expected to access that state protection?
The claimant is a victim of a sexual assault, during which she shot and killed
her attacker and was subsequently imprisoned. Her family was threatened and
attacked and in response her husband killed another man, and will spend his
life in an American prison. She has struggled with depression and thoughts of
suicide, continues to re-experience the traumatic event, and suffers
significant functional impairment.118 She would return to a
patriarchal society as a “shamed” victim of sexual abuse, without her husband
present to assist her. In those circumstances, it is simply unreasonable to
expect her to be able to actively seek state protection from those who seek to
harm her. Having considered this evidence, as well as the Chairperson’s
Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution,119
I find that, in her particular circumstances, Valentina Pepaj would be
unable to avail herself of the protection of her country.
[106] The two claimants who are
citizens of Albania have not rebutted the
presumption of adequate state protection in that country. The claim of Gjyste
Pepaj, already lacking in objective basis, must also fail on the basis of state
protection. The claim of Valentina Pepaj, which does have an objective basis,
cannot be rejected on the basis of state protection, as the panel finds that
the claimant is unable, in her particular circumstances, to avail herself of that
protection.
[11]
Counsel
for the grandmother, Gjyste, challenged this decision as being unreasonable. It
was argued that the Member failed to have due regard to Gjyste’s oral evidence,
failed to have due regard to the fact that she was an elderly woman, and failed
to weigh properly the expert evidence; particularly that of Professor Standish.
[12]
The
Supreme Court of Canada has recently provided guidance to Courts, such as this
one, as to the approach to be taken in a judicial review of a tribunal’s
decision. Respect is to be given to the decision; the reasons are not to be
examined minutely as to what was not said or to evidence not mentioned. Justice
Abella, writing for the Court in Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62, wrote at paragraphs 15 to 18:
15 In assessing whether the decision
is reasonable in light of the outcome and the reasons, courts must show
"respect for the decision-making process of adjudicative bodies with
regard to both the facts and the law" (Dunsmuir, at para. 48). This means
that courts should not substitute their own reasons, but they may, if they find
it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome.
16 Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees' International
Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R.
382, at p. 391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
17 The fact that there may be an alternative
interpretation of the agreement to that provided by the arbitrator does not
inevitably lead to the conclusion that the arbitrator's decision should be set
aside if the decision itself is in the realm of reasonable outcomes. Reviewing
judges should pay "respectful attention" to the decision-maker's
reasons, and be cautious about substituting their own view of the proper
outcome by designating certain omissions in the reasons to be fateful.
18 Evans J.A. in Canada Post Corp. v.
Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained
in reasons upheld by this Court (2011 SCC 57) that Dunsmuir seeks to
"avoid an unduly formalistic approach to judicial review" (para.
164). He notes that "perfection is not the standard" and suggests
that reviewing courts should ask whether "when read in light of the
evidence before it and the nature of its statutory task, the Tribunal's reasons
adequately explain the bases of its decision" (para. 163). I found the
description by the Respondents in their Factum particularly helpful in
explaining the nature of the exercise:
When reviewing a decision of an
administrative body on the reasonableness standard, the guiding principle is
deference. Reasons are not to be reviewed in a vacuum - the result is to be
looked at in the context of the evidence, the parties' submissions and the
process. Reasons do not have to be perfect. They do not have to be
comprehensive. [para. 44]
[13]
I
have considered Counsel’s arguments and reviewed the decision of the Board
Member and the record before him. I find that the decision is reasonable. He
reasonably considered the relevant evidence, including awareness that Gjyste
was an elderly woman, and weighed the expert reports. He preferred the expert
evidence of Professor Alston. It was reasonable for him to do so.
[14]
I
find no basis for setting aside the Board Member’s decision respecting the
grandmother, Gjyste Pepaj.
AS TO ZEF GJON PEPAJ AND
GJOVJANA PEPAJ (The Children)
[15]
The
Board Member found that Zef Gjon Pepaj and Gjovjana Pepaj (the children) were
both citizens of the United States of America and could
expect adequate state protection there. I repeat part of what he wrote at
paragraphs 107 and 112 to 113 of his decision:
State Protection the United States
[107] Gjovjana Pepaj and Zef Gjon Pepaj
are citizens of the United
States.
They claim that they could not remain in the United States, and cannot return there,
because the authorities there were aware of the blood feud and did nothing to
prevent it.120
…
[112] Not only does the evidence fail
to rebut the presumption of state protection in the United States, but it in
fact supports the presumption. It may be that American authorities did not act
perfectly in every instance, but it is clear that they took the claimants’
problems seriously and acted. What is also clear is that the claimants were
reluctant to vigorously pursue state protection, because they believed that the
state could not protect them from a blood feud.
[113] The panel finds that the U.S-born
claimants can expect adequate state protection in their country of citizenship,
and their claims must therefore fail.
[16]
Counsel
for the children made the same type of arguments as did Counsel for the
grandmother as to the treatment of the evidence by the Board Member. I make the
same finding; the decision of the Board Member was reasonable.
[17]
Counsel
for the children made a further argument relying on the decision of Justice
Teitlebaum of this Court in John Doe v Canada (Minister of Citizenship and
Immigration), 2005 FC 1532, which applied the decision of the Supreme Court
of Canada in Ward v Canada (Minister of Employment and Immigration),
[1993] 2 S.C.R. 689. The argument was that due to the particular circumstances of
this case, in that both parents had shot a person dead, thus provoking a blood
feud that found its way into the United States, the children required a “high
level” of state protection which the United States was unwilling to
provide.
[18]
I
have reviewed the Board Member’s decision, including the paragraphs repeated in
these Reasons, and I find that the decision is reasonable. The Member found
that the United
States
authorities took the claimant’s problems seriously, and acted. Any lack of
protection was due, at least in part, to their reluctance to vigorously pursue
state protection. The United States can provide a level of
protection adequate in the circumstances.
CONCLUSION
[19]
Accordingly,
both applications are dismissed. There is no question to be certified. There is
no special reason to order costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is dismissed;
2.
No
question is certified; and
3.
No
Order as to costs.
"Roger
T. Hughes"
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