Date: 20120424
Docket: IMM-6501-11
Citation: 2012 FC 478
Toronto, Ontario, April 24, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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DAJANA TALO; JURGEN TALO; QUAZIME TALO
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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 ORDER AND
ORDER
[1]
The
present Application is a review of the Refugee Protection Division’s (RPD)
rejection of the claims for protection of Dajana Talo, age 16, her
mother Qazime Talo, and her brother Jurgen Talo, age 9, each of whom rely on
subjective and objective fear of return to Albania. In particular, the present
focus is on the rejection of Dajana’s claim.
[2]
Dajana
fears returning to Albania because of prospective risk of being kidnapped and
trafficked. A critical element of her claim is her past experience.
The claimant was approached at
various times while returning home from school beginning when she was 12 years
old (in her thirteenth year) and continuing when she was 13. The men wanted her
to come with them to Italy. In March 2009, the claimant was forced into a car
and raped by two men. As a result, the young girl quit school. She told her
parents that the men were harassing her but did not give information about the
rape. The parents made various police reports based on the information they
had. Due to the continued harassment, the mother, with her children, came to
Canada and made refugee claims.
(Decision, para.7)
Dajana only divulged the rape at the time
of the RPD hearing.
[3]
As
a result of the incidents that form the basis of her claim, Dajana suffers from
post-traumatic stress disorder. The evidence on this point is that of Dr. Pilowsky:
As indicated, Dajana remains
very inhibited particularly as she is quite mistrustful of others, given her past
maltreatment, and feels especially vulnerable in the presence of adolescent or
adult males. She appears to worry about others’ perceptions of her, as she
internalized, at some level, having a degree of responsibility for being a
target for prostitution which fills her with profound humiliation, to the point
she perceives herself as dishonoured and unworthy.
(Application Record, pp. 77-78)
[4]
Since
rape is a gender-based crime, and since Dajana is young and very vulnerable, I
find that the RPD was required to take the greatest of care in evaluating her
claim. In particular, I agree with the argument advanced by Counsel for the
Applicant that the RPD was required to critically analyse the evidence
according to the Chairperson’s Gender Guidelines on the critical issues
of whether state protection is available to Dajana should she be required to
return to Albania, and, most importantly, whether she can reasonably be
expected to access any state protection which is found to exist.
[5]
The
RPD’s engagement with the Gender Guidelines in the decision under review
is limited to this statement:
Even though significant parts
of the claim were omitted from the Personal Information Form (PIF) (Exhibit
C-I) narrative, as per the Chairpersons Gender Guidelines,’ I now accept the
account as recounted in the hearing.
(Decision, para. 6)
As a matter of law, it is not sufficient to
merely mention the Guidelines without demonstrating their application (Evans
v Canada (Minister of Citizenship and Immigration), 2011 FC 444; Yoon v
Canada (Minister of Citizenship and Immigration), 2010 FC 1017). Counsel
for the Applicants argues that a proper evaluation of Dajana’s prospective risk
in Albania would result from applying the concept expressed in Guideline 4, Part
3:
When considering whether it is
objectively unreasonable
for the claimant
not to have sought the protection of the state, the decision-maker should
consider, among other relevant factors, the social, cultural, religious, and
economic context in which the claimant finds herself. If, for example, a
woman has suffered gender-related persecution in the form of rape, she may be
ostracized from her community for seeking protection from the state.
Decision-makers should consider this type of information when determining if
the claimant should reasonably have sought state protection.
In determining whether the state
is willing or able to provide protection to a woman fearing gender-related
persecution, decision-makers should consider the fact that the forms of
evidence which the claimant might normally provide as "clear and
convincing proof" of state inability to protect, will not always be either
available or useful in cases of gender-related persecution.
[Emphasis in original]
(Guideline 4, Women Refugee Claimants Fearing Gender
Related Persecution, Part 3)
I agree with this argument and I find that
the RPD’s decision is made in reviewable error because of failure to recognize
the importance of conducting this critical evaluation.
[6]
While
the Applicants did not file in-country documentary evidence in support of their
claims, nevertheless the RPD engaged the issue of the availability of state
protection in Albania by commenting upon documentation from its own pubic
resource:
The claimant and her family
lived in Triana, the capital of Albania. The United States Department of State
Report for 2009, Exhibit RJA- I, item 2.1, reports discrimination against women
and children was a problem. Further trafficking in persons remained
problematic. In the section titled “Women” rape is identified as a crime and
the maximum sentence is greater when the rape involves a child than it does
when an adult is the victim. The section “Role of the Police and Security
Apparatus” indicates local police report to the Ministry of the Interior. Improvements
have been implemented but the overall performance of law enforcement remained
weak. Even so, in the section “Trafficking in Persons” it is reported that
in 2009, 14 new trafficking cases were referred to the general prosecutor’s
office. The report shows the court did prosecute offenders for trafficking in
persons. In Carillo the Federal Court appeal is clear that the claimant
must establish the efforts of the state would provide inadequate protection.
Since the claimant has only recently been confident to disclose all the
evidence pertaining to the incident, it becomes speculation as to how the
authorities might proceed if the young woman finds herself needing their
assistance in the future or even what steps can be taken now, more than 3 years
after the March 2009 incident.
[Emphasis added]
(Decision, para. 9)
Counsel for the Applicants argues that the
passage cited by the RPD goes to rebut the presumption that state protection
exists in Albania for Dajana. In addition, Counsel for the Applicants argues
that once the RPD engaged the issue of whether state protection is available, it
was required to provide a full, fair, and balanced analysis. In support of this
argument, during the course of the hearing of the present Application, Counsel
for the Applicant properly tendered documentary evidence from the same resource
used by the RPD to demonstrate that a full, fair, and balanced analysis was not
conducted (see: BMHS v Canada, 2011 FC 644 at paragraphs 42 and 45).
[7]
For
balance, Counsel for the Applicants relies on the United States Department of
State Report for Albania 2010, which contains the following relevant paragraph:
The Government of Albania does
not fully comply with the minimum standards for the elimination of trafficking; however, it is making
significant efforts to do so. The government continued to improve its capacity
to identify, protect, and reintegrate trafficking victims. It also
successfully prosecuted some sex trafficking offenders leading to significant
penalties imposed on them during the reporting period. In March 2009, the
government approved an amendment to the Social Assistance law which will
provide victims of trafficking with the same social benefits accorded to other
at risk groups in Albania and provide government funding for shelters. The
government continues to track and analyze trafficking trends through a
nationwide database. Government officials have increased public attention to
trafficking in Albania. There were serious concerns, however, about
protection for victims who testified against their traffickers. The government
did not vigorously prosecute labor trafficking offenders and did not adequately
address trafficking-related complicity. Lack of political will and cooperation
in some key government agencies hampered the government’s overall ability to
vigorously prosecute all forms of trafficking.
[Emphasis in the original]
In addition, Counsel for the Applicants
also relies on the following passage from Responses to Information Requests
(RIRs) on Albania:
Albanian women tend not to
report incidents of domestic abuse to the authorities (OMCT Apr. 2005, 69; GADC 13
June 2006; AI 30 Mar. 2006, Sec. 2), or even to their closet family members
(ibid.). There are several explanations for this: women may be unaware
of their legal rights (ibid.; HRDC 26 June 2006), police officers often
disregard women’s complaints (AI 30 Mar. 2006, Sec. 4; US 8 Mar. 2006, Sec.
4), social norms dictate that women should submit to men (Professor of
History 14 June 2006, AI Apr. 2006), women fear that their complaint would
dishonour their family (ibid. 30 Mar. 2006, Sec. 2), and women’s religious
beliefs and/or economic dependence on their spouses prevent them from doing so
(OMCT Apr. 2005, 69). AI noted that many women who did report incidents of
domestic abuse eventually withdrew their complaints for fear of their spouse’s
reaction (1 Dec. 2005). Reports of specific incidents of domestic violence
could not be found among the sources consulted by the Research Directorate
within time constraints.
[Emphasis in the original]
[8]
I
find that the evidence quoted by both the RPD in its decision and tendered by
Counsel for the Applicants raises a grave doubt that state protection exists
for women in Albania.
[9]
In
the result, I find that the decision under review is made in reviewable error
for two reasons: no proper application was conducted of the Chairperson’s
Gender Guidelines, and no fair analysis was given to the available
evidence.
ORDER
THIS COURT
ORDERS that the decision under review
is set aside and the matter is referred back for redetermination before a
differently constituted panel, but on the following directions:
Because of her vulnerability, Dajana
should not be placed in the position of having to prove her innocence and credibility
a second time, and, therefore, the redetermination will be conducted on the
evidence in the present record accepted as credible and on an application of
the Chairperson’s Gender Guidelines. The Applicants are at liberty to
supply further evidence and argument on the issue of state protection in Albania.
“Douglas R. Campbell”
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