Date: 20120417
Docket: IMM-5711-11
Citation: 2012 FC 439
Ottawa, Ontario, April 17,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SHEAT BUDJAKU, SUZANA BUDJAKU
AND ISEN BUDJAKU
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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
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 8,
2011. The Board found that the Applicants were not Convention refugees or
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
For
the following reasons, the application is dismissed.
I. Facts
[3]
The
Principal Applicant, Sheat Budjaku, and his wife, Suzana Budjaku and their
minor child, Isen Budjaku (collectively the Applicants) are ethnic Albanians
and citizens of Macedonia. They arrived in Canada on May 5,
2009 and filed a refugee claim on July 28, 2009.
[4]
Their
claim is based on a blood feud declared in 2005 by the Marku family after an
incident involving the shooting of a horse. The Principal Applicant insists he
approached village elders to reconcile with the Marku family but was
unsuccessful. He and his elder son were attacked by members of the Marku
family, although he managed to escape without injury.
II. Decision
under Review
[5]
The
Board found that the Principal Applicant had not provided credible evidence to
support the central allegations of the claim. His actions after the blood feud
were not consistent with his testimony of self-confinement of the family for
their safety. He ventured outside the home to work in a bakery and his son
attended school, although on an irregular basis. This undermined the
credibility of the risks they faced as a result of the blood feud declared
against the family.
[6]
A
letter from a village elder, Nazif Kaziu, on efforts to reconcile the parties
was found to be of very little probative value. The letter was only signed by
one of the elders when they were supposed to act as a group. There was no
mention as to why and when the blood feud was declared by the Marku family. Also,
it was “written on a plain piece of paper with no semblance whatsoever of being
an official statement from the elders of the village.”
[7]
The
Principal Applicant could not explain inconsistencies in his testimony that
while blood feuds are widespread in Macedonia, he was not aware of
other incidents. He stated that “he could only testify to his own case and if
it happened to other persons, he did not know.”
[8]
At
paragraph 10 of its reasons, the Board summarized the assessment of the
Applicants’ credibility:
Given the principal claimant’s
actions after the alleged blood feud was declared, which were not consistent
with the risks associated with a family against whom a blood feud was declared,
and the questionable statement from the elders from the village, I am not
convinced of the truthfulness of the blood feud and ultimately, the
well-foundedness of the claimant’s alleged fear.
III. Issue
[9]
The
issue to be considered is the reasonableness of the Board’s credibility
findings.
IV. Standard of Review
[10]
Questions
of fact and credibility are reviewed based on reasonableness (see for example Aguirre
v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at paras
13-14). Reasonableness is concerned with “the existence of justification,
transparency and intelligibility” as well as “whether the decision falls within
a range of possible, acceptable outcomes defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2009] 1
SCR 190 at para 47).
V. Analysis
[11]
The
Applicants dispute the Board’s negative credibility findings based on the
inconsistency regarding the family’s self-confinement; the letter from the
village elder; and the mention of blood feuds as prevalent without providing
other examples. Although I am not convinced that these findings were
unreasonable, I will address each of the arguments raised by the Applicants in
turn.
[12]
It
is Applicants’ contention that the Board unreasonably drew a negative inference
as to subjective fear from the reference to self-confinement and inconsistent
actions in attending work and school. The term “self-confinement” was not used
in the Personal Information Form (PIF). The Principal Applicant referred to it
in his testimony but subsequently explained that his family simply took
precautions before going out of the house. Refugees are not required to stay
confined to their homes as this would be a denial of basic human rights. According
to the Applicants, the Board exaggerated a “few apparent contradictions” while
forgetting the substance of the claim related to the blood feud and attacks
based on Djama v Canada (Minister of Employment and Immigration), [1992]
FCJ no 531, 1992 CarswellNat 1136 (CA).
[13]
However,
I am satisfied by the Respondent’s submissions that the Board was justified in
its consideration of the inconsistency related to self-confinement. The
Principal Applicant’s testimony suggested that between 2005 and 2008 he worked
at the bakery “[a]ll the time”, or whenever he had the opportunity to do so “in
a hidden way.” His son continued to attend school during this time, although
on an irregular basis. This was at odds with his claim that “I was forced to
protect myself. I self-confined the whole family in the house.” He referred
to the notion of self-confinement on two occasions.
[14]
It
was open to the Board to find that this evidence was inconsistent with a subjective
fear of the threat posed by the Marku family. The Board did not imply that the
Applicants would have to be self-confined to qualify as refugees, but that
there were issues in the statements made regarding the threat posed by the
Marku family and the actions of the Applicants. Their subjective fear as to
the existence of the blood feud as the substance of their claim received
reasonable consideration.
[15]
Credibility
findings based on internal contradictions, inconsistencies and evasions are at
the heartland of the discretion of the trier of fact (see Dhindsa v Canada (Minister of
Citizenship and Immigration), [2000] FCJ no 2011, 102 ACWS (3d) 165 at
para 41; Giron v Canada (Minister of Employment
and Immigration) (1992), 143 NR 238, [1992] FCJ no 481 (CA)). The
Applicants merely disagree with the significance the Board accorded to this
particular inconsistency.
[16]
Contrary
to the Applicants’ submissions, it also appears that the Board put the
inconsistency to the Principal Applicant at the hearing. The Applicants were
aware that credibility was an issue. The Board was not necessarily even
required to ask the Principal Applicant about this inconsistency in the
circumstances (see Tekin v Canada (Minister of
Citizenship and Immigration), 2003 FCT 357, [2003] FCJ no 506 at para
14).
[17]
The
Applicants further assert that it was unreasonable for the Board to consider
the letter from village elder, Nazif Kaziu, an official statement and attribute
“very little probative value” simply because it was not signed by all elders,
did not mention when and why the blood feud was declared and was written on a
plain piece of paper. They insist that village elders do not act in any
governmental or other official capacity; therefore, the Board should not have
expected a letter by an informal group of older community members to respect
certain formalities. The Applicants also point to evidence that they suggest
corroborates the underlying cause of the feud, namely a reference in the Kaziu
letter to another elder and a second letter from a former neighbour.
[18]
I
must agree with the Respondent’s position that it was reasonable for the Board
to attribute little probative value to the letter based solely on the failure
to identify relevant information as to when and why the blood feud was declared
by the Marku family.
[19]
The
Applicants are placing too much emphasis on the Board’s suggestion that the
letter was supposed to be an “official statement.” During the hearing, the
Applicant acknowledged that the elders acted as a group so it was justifiable
to question why the letter was only signed by Nazif Kaziu. Similarly,
there were issues associated with the credibility of the letter as it was
written on a plain piece of paper and had no indication that it was made on
behalf of a group of elders. As the Respondent also makes clear, the
Applicants cannot now attempt to introduce further explanations as to how the
elders operate in these instances. The Principal Applicant was already
questioned about the elders’ involvement in the course of the hearing.
[20]
I
should stress that the Board is entitled, as it did in this instance, to make
reasonable findings based on implausibilities, common sense and rationality (Araya
v Canada (Minister of Citizenship and Immigration), 2003 FCT 626, [2003]
FCJ no 821 at para 6; Shahamati v Canada (Minister of Employment and
Immigration), [1994] FCJ no 415 at para 2 (CA)).
[21]
Finally,
the Principal Applicant takes issue with the Board’s statement that he
testified blood feuds were “prevalent” in Macedonia but “did not
know” of any examples. It is argued that this amounts to an error of fact. As
stated, he could not provide specific details because he was unaware of them
and could only speak of his own experiences. According to the Applicant, the
Board inferred that he ought to have knowledge of other people’s situations.
[22]
I
nonetheless consider the Board’s assessment reasonable, since the Principal
Applicant confirmed twice in his testimony that blood feuds were prevalent in Macedonia but was
unable to provide a general example. As the Respondent suggests, even if the
Board misunderstood the Principal Applicant’s testimony to a small degree, it
does not alter the broader conclusion.
[23]
The
discussion during oral testimony between the Board Member and the Principal Applicant
was understandably confusing. Initially, the Principal Applicant responded
that he was not aware of other blood feud incidents but when asked for
confirmation, he suggested this occurred “[a]mong the Albanians, where the
Albanians live.” He further commented “if there is a specific person that this
happened…to a specific person I don’t know.” When prompted again, he insisted
“[i]t has happened, but I don’t know.” The Board’s summation that “he stated
he could only testify to his own case and if it happened to other persons, he
did not know” reflects the words of the Principal Applicant and the principles
of justification, transparency and intelligibility.
[24]
In
addition, the Board was not required to specifically mention the documentary
evidence. The Applicants were not found credible and lacked subjective fear. The
Board did not have to look further into the objective basis for fear in the
documentary evidence. The Respondent has also questioned the significance of
that relatively general documentation.
VI. Conclusion
[25]
As
the Board’s negative credibility findings were reasonable, the application for
judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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