Date:
20120625
Docket: IMM-7832-11
Citation: 2012 FC 807
Toronto, Ontario, June 25, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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GJERGJ CELAJ
ALMA CELAJ
JOHN CELAJ
PETER CELAJ
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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]
The
applicants are a family of four. Gjergj Celaj and his wife Alma Celaj are
citizens of Albania. Their
children, John and Peter, are citizens of the United States by birth.
Their claims for protection pursuant to sections 96 and 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 were rejected by the Immigration
and Refugee Board.
Background
[2]
The
adult applicants left Albania and entered the United
States
in 2002. The following year they made asylum applications claiming that they
feared persecution in Albania because the principal
applicant was formerly a police officer and they feared harm at the hands of
criminals whom he had arrested but were subsequently released. They also
claimed to fear the Socialist Party, as the principal applicant had worked for
the rival Democratic Party. In 2004, their claims were denied and they were
unsuccessful in appeals to the Board of Immigration Appeals and the United
States Court of Appeals, Third Circuit by January of 2007. Both of the adult
applicants’ sons were born while they were in the US.
[3]
The
applicants entered Canada in January 2008 and filed refugee claims on a
different basis. They alleged that in October of 2006, the principal
applicant’s brother, Pjeter Celaj, shot and killed a neighbour, Prec Melaj, in
self-defence because of a long-standing land dispute. The Melaj family
immediately declared a blood feud against the Celaj family thus forcing male
members of the Celaj family into self-confinement. The Celaj family’s attempts
to reconcile the blood feud and to seek police protection were unsuccessful.
[4]
The
Board held that the sons’ claims must fail as there was no evidence that they
would be persecuted in the US. With respect to the parents’ claims the
Board found that the determinative issues were credibility and, in the
alternative, state protection. The Board found that the principal applicant
was not credible and, alternatively, that there was state protection available
in Albania. Those two
findings give rise to the two issues raised by the applicants who seek to set
aside the Board’s decision.
Credibility
[5]
The
applicants submit that none of the five reasons the Board identified for
finding that the principal applicant lacked credibility justifies the
conclusion reached, either individually or cumulatively.
Failure to
Tell American Authorities About the Alleged Blood Feud
[6]
The
applicants remained illegally in the US after the court
dismissed their appeal. The principal applicant testified that in early 2007
immigration enforcement officials surrounded his home looking for him, although
he was not present at the time. Despite this, the principal applicant did not
seek to bring his blood feud fears to the attention of the US
authorities. He explained that the US authorities do not take
blood feuds into consideration, but the Board rejected this explanation. The
Board cited evidence indicating that the Chair of the Committee of Nationwide
Reconciliation, Mr. Gjin Marku, told the European Parliament that the US has indeed
provided asylum to those threatened by blood feuds. The Board noted that
although it had other serious credibility concerns with the evidence of Mr.
Marku, it saw no reason for Mr. Marku to mislead European legislators on this
particular point. The Board found that the principal applicant’s failure to
tell US authorities about his blood feud fears, even as they sought to deport
him, belies his claim to be afraid for his life in Albania.
[7]
The
applicants submit that there are multiple problems with this finding. First,
they point out that they made their asylum claim in the US in 2002, four years
before the blood feud was declared and therefore could not have included it in
their claim in the US. I note, however, that there is nothing in the
Board’s reasons that suggests that the Board was unaware of that fact or was
perversely indicating that they ought to have raised as a ground of asylum an
event that had not yet occurred.
[8]
Second,
it is submitted that the Board did not address what application or claim it
expected the applicants to make, based on the blood feud, in order to prevent
their removal from the US. They say that this was necessary if the
Board wanted to draw an adverse inference with respect to credibility on this
basis. I disagree. The Board was making a very simple observation. When a
person is about to be removed to a country where his life is at risk, one
reasonably expects, regardless of any possible processes that may be available,
that the deportee will tell the removing authorities that they are removing him
to a place of danger. A failure to do so may reasonably warrant an inference
that the deportee has no fear.
[9]
Third,
it is submitted that even if Mr. Marku is correct in asserting that US
authorities had granted protection to potential blood feud victims, the legal
basis for doing so remains unexplained because the US does not
have an expanded concept of “person in need of protection” as in Canada. The issue
is not, as the applicants suggest, whether the US could grant
protection but rather whether the principal applicant could be expected to seek
protection. The Board was not suggesting that the principal applicant could
bring an application for protection in the US, rather it was making the quite
straight forward observation that people do not typically remain silent when
they are about to be placed in a situation where their life is at risk.
[10]
For
the same reasons, I reject the final submission that there is no basis upon
which the Board could conclude that the principal applicant’s failure to
mention the blood feud to US immigration authorities in 2007 speaks negatively
to the genuineness of his fear upon return to Albania, because his US lawyer
had advised him that US immigration authorities did not consider blood feuds to
be grounds for asylum.
Incident in
1999 Not Included in PIF
[11]
The
principal applicant testified that in 1999 his brother attempted to build a
house on the land claimed by the Melaj family. They threatened to kill the
brother and he did not build the house at that location. However, the Board
noted that the principal applicant could not explain why this important
incident is not described in his PIF, other than to say that he wrote about
things that were more problematic. The Board found that this was not a
reasonable explanation as these are key elements of the story and from this
drew a negative credibility inference.
[12]
The
applicants’ claim is rooted in an alleged blood feud, the events leading up to
the blood feud declaration and most particularly the shooting committed by the
principal applicant’s brother in 2006 which directly precipitated the
declaration. These seem to be the key events and these were the focus of the
applicant’s PIF. Nonetheless, the principal applicant did mention other,
arguably peripheral events in his PIF related to the land dispute and blood
feud, including an allegation that the cause of the shooting had its origins in
a land dispute that started in the early 1990s when the government distributed
lands confiscated by the communists, that former owners refused to obey the law
and claimed ownership to the land, and that “this was the case with the lands
where our family back home has built the house on.”
[13]
The
applicants felt that these events were significant enough to mention in the
PIF. The incident where the principal applicant’s brother’s life was
threatened if he built on the disputed land, in my assessment, is more directly
related and significant than these peripheral events which were mentioned. For
that reason, I am unable to conclude that the Board’s assessment that it was a
key event is unreasonable; a negative inference on credibility was warranted
given the failure to mention it.
Inconsistent
Evidence on Disputed Land
[14]
The
principal applicant drew a sketch of the property involved for the Board,
described the disputed land, and also provided a land certification document
from Albania. However,
the Board found that his evidence was inconsistent with the certification
document with respect to the location of streets and/or families that bordered
his family’s property. According to the official document, the family’s
property is bounded in the north by the Gjeka family. However, according to
the applicant’s testimony and sketch, the north side of the property is bounded
by a street with the Melaj family on the other side of the street. The
applicant could not explain why the Melaj family’s name does not appear on the
official document, although he guessed that different names were used in older
registration methods. He insisted that the Melaj family and the Gjeka family
are the same.
[15]
The
Board was not persuaded by the principal applicant’s explanation that the Melaj
family was listed under its former name from the old registry. The Board noted
that the land certification document, which was dated September 12, 2008,
refers to Mr. Fran Zef Celaj, the principal applicant’s father’s current name,
as the owner of the disputed property. He too had a former family name which
presumably would have appeared if the names were taken from the old registry.
[16]
The
Board’s conclusion was reasonable and the issue goes to the root of the
applicants’ allegations. Specifically, based on the record, the Board was entitled
to draw an adverse credibility inference from the fact that the principal
applicant’s evidence as to the names and location of neighbours bordering the
disputed property was not consistent with the land certification document.
Vague and
Inconsistent Evidence about Police Interaction
[17]
In
his PIF, the principal applicant claims that immediately after the early
October 2006 murder, his family asked the police for protection but the police
showed no interest. He further alleges that in late December of that year,
police forces were again asked to provide protection but no protection was
offered.
[18]
At
his hearing, the principal applicant testified that his brother called the
local police on the day of the murder to ask for protection. The applicant gave
vague testimony about his family “perhaps” asking at other times for
protection. When pressed, he testified that his sister went to the local
police station a few days after the incident. He does not know when or if
police were next contacted, nor does he know whether anyone from his family
went to higher police officials or to the authorities. The Board found that
not only was the applicant’s oral testimony vague on the matter of police
protection but it was not consistent with the information in his PIF narrative.
[19]
The
Board found that the applicants’ documents did not assist in this respect. For
example, a letter from the police makes no mention of approaches by the family
or requests for assistance. While the principal applicant explained that the
police do not want to acknowledge the existence of a blood feud, the Board
stated that this does not explain the omission, particularly since the letter
refers to self-confinement, which is an important element of blood feuds. The
Board referred to numerous other letters submitted by the applicants that
addressed the issue of blood feuds in some way but noted that none of them made
reference to the family’s alleged efforts to obtain state protection. As such,
the Board found that the applicants’ family did not approach the police for
protection and the applicants’ vague and inconsistent evidence on this issue
further damages their credibility.
[20]
The
applicants submit that the Board failed to recognize that the principal
applicant himself was not in Albania during these events and
therefore could not be expected to have detailed knowledge of when or how many
times the police were contacted for help. Contrary to the Board’s reasons, the
principal applicant did not say that his family had “perhaps” asked the police
for help again; he was certain they had, but did not know the details of how
often or when the police were contacted. Further, with respect to the Board
supporting its conclusion on this issue by referring to the fact that the
applicant’s documents did not corroborate that such approaches had been made,
the applicants submit that the Board erroneously focused on what the documents
did not say, rather than what they did say which, it is submitted, is a
reviewable error: Mahmud v Canada (Minister of Citizenship and Immigration),
(1999) 167 FTR 309. The purpose of the documents was primarily to corroborate
the existence of the blood feud and the dangers faced by the Celaj family as a
result—not to show interaction with the police.
[21]
My
review of the transcript of the hearing confirms that the principal applicant’s
evidence with respect to the efforts of his family to seek police protection
was vague at times. There were minor inconsistencies in his evidence and PIF;
however, these alone would have been unlikely to raise any credibility
concerns. I agree with the applicants that the oral testimony was clear that
the family in Albania did seek
police assistance.
[22]
However,
the Board also looked at a letter from a lawyer retained by the applicants to
assist them in obtaining documents and noted that it makes no reference to any
attempts to seek protection. The Board notes that “the claimant could not
explain this omission.” In my view, this was both appropriate and telling.
This is correspondence from someone whom the applicants had retained to assist
them. They are presumed to know that the applicants would have to establish
that state protection was not available. As no other document spoke to any
efforts to seek protection and as the applicants were not in the country at the
time, it is reasonable to expect, as the Board did, that reference to such
efforts would be found in the lawyer’s letter, if in fact any efforts were
made. The Board’s finding that on the balance of probabilities the applicants’
family in Albania did not
approach the police for protection is reasonable based on the evidence before
it. If that finding stands, then the principal applicant’s evidence to the
contrary does indeed go to credibility.
Further
Document Difficulties
[23]
At
the initial sitting of his hearing, the principal applicant was asked why he
had not provided documents, such as police or prosecutor reports and death
certificates. At the next sitting, almost a year later, the principal
applicant was able to provide such documents but these documents only raised
further credibility issues.
[24]
A
death certificate allegedly for the murdered Prec Melaj does not show a cause
of death although the Board cited documentary evidence that indicates that a
cause is almost always shown on such documents. The letter from a district
prosecutor references the death but the principal applicant could not explain
why there was no reference to the alleged blood feud. When asked why a letter
from the Committee of Nationwide Reconciliation states that the conflict
between the families began in 1999 when, according to the principal applicant,
it began in the early 1990s, he only explained that the situation escalated in
1999 when his brother attempted to build a house on the disputed land. The
Board found this explanation unsatisfactory.
[25]
I
agree with the respondent that the Board was entitled to consider the
conflicting documentary evidence provided and to draw an adverse inference
based on it. In particular, the Board appropriately noted that a death
certificate allegedly for the man shot by the principal applicant’s brother
does not show a cause of death even though documentary evidence from the
Research Directorate indicates that “the primary cause of death was recorded in
almost all cases.”
Conclusion on
Credibility Findings
[26]
While
there were minor issues with the Board’s findings, they are not sufficient
cumulatively to overturn its conclusion that the principal applicant lacked
credibility.
State Protection
[27]
In
the alternative, the Board found that the applicants’ claim should be rejected
on the basis of their failure to rebut the presumption of state protection.
[28]
The
applicants submit that the Board erred in its refusal to believe their evidence
that his family sought police protection. However, as observed above, I find
that the Board’s decision in this respect was reasonable.
[29]
They
also submitted that the Board erred in its finding that documentary evidence
citing Mr. Marku and the Committee of Nationwide Reconciliation (CNR) was not
credible and in its reliance on a supposed change of opinion by one of the
experts cited in the documentary evidence. However, I note that ultimately the
Board concluded that the objective evidence regarding state protection in Albania is mixed.
More specifically, the Board acknowledged that:
[T]here is much evidence to suggest that
those fearing blood feuds face serious problems, and that the protection
provided by the state is far from perfect. However, there is also reliable
evidence to indicate that the state has taken important steps to provide
protection, and that those steps are having concrete positive results.
[30]
Finally,
the applicants submit that the Board erred in failing to acknowledge evidence
which contradicted its conclusions. In particular, they point to a paragraph
of a document relied on by the Board, the “Alston Report” of 2010, which states
at paragraph 26:
Finally, the Government could play a
stronger role in outreach, especially in facilitating efforts to achieve family
reconciliation, which thus far has been almost completely left to families
themselves and civil society. A number of interlocutors informed me that they
had approached the Government for assistance to end their self-isolation
through reconciliation, but the State did little in response.
However, I note that the Alston Report also
states that “blood feud killings will soon be largely a thing of the past.”
Neither was specifically referenced by the Board; however, as has often been
said, the Board is entitled to weigh the evidence before it and it is not
required to refer to every piece of evidence.
[31]
I
find that the Board’s decision was within “a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law” as a reasonable decision was described in Dunsmuir v New Brunswick, 2008 SCC 9. Neither party
proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is dismissed,
and no question is certified.
"Russel
W. Zinn"
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