Date:
20121015
Docket:
IMM-558-12
Citation:
2012 FC 1198
Ottawa, Ontario,
October 15, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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NIKOLLE VUKTILAJ
LIZE VUKTILAJ
LAURA VUKTILAJ
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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 seek judicial review of the negative Pre-Removal Risk Assessment
(PRRA) rendered on their applications by an Immigration Officer (“the Officer”)
on December 2, 2011. The Officer found that the Applicants would not be
subject to a risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment or punishment should they return to Albania.
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Facts
[3]
The
Applicants – Mr. Nikolle Vuktilaj (the Principal Applicant), his wife, and
their daughter – are citizens of Albania.
[4]
They
left Albania for the United States in 2000, where they submitted a claim for
political asylum on the basis of their affiliations with the Democratic Party
in Albania. Their claim was rejected by the American immigration authorities
in 2004 because the political situation in Albania had changed. The Applicants
subsequently exhausted the appeals at their disposal in the American system,
and an official deportation order was issued against them in February 2008.
[5]
On
February 18, 2008, the Applicants entered Canada illegally by truck at the Windsor, Ontario border crossing and submitted an application for refugee protection the
following day on the basis of their family’s involvement in a blood feud with
the Rexhaj family in Albania.
[6]
The
Applicants describe that the origin of the blood feud was a property dispute
dating back to 1992. The Rexhaj family asserted that the land under the Applicants’
home was theirs prior to communist rule in Albania, and began issuing threats
against the Applicants. In 1997, the Applicants’ house was burned to the
ground. It was rebuilt with the help of the newly reopened Catholic Church,
but, as previously mentioned, the Applicants left Albania in 2000.
[7]
In
February 2008, while preparing to return to Albania in accordance with their
American deportation order, the Applicants learned that the Principal
Applicant’s brother was killed by a truck while riding his bicycle. Three days
later, a member of the Rexhaj family was killed. The Rexhaj family accused a
member of the Applicants’ family of the murder, and declared a blood feud.
[8]
The
Applicants’ claim for refugee protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) was refused by the Refugee
Protection Division of the Immigration and Refugee Board (“the Board”) on
January 28, 2011 on the bases of credibility concerns and adequate state
protection. They submitted their PRRA applications on August 22, 2011.
II. Decision
under Review
[9]
The
PRRA Officer found that the Applicants had submitted a number of items of new
evidence, as described in subsection 113(a) of IRPA. The new evidence included
a letter from the Principal Applicant’s sister-in-law (the wife of his deceased
brother) that described the sexual assault that she suffered at the hands of
three men whom the Officer accepted as being tied to the Rexhaj family. The
other items of new evidence included attestations and news articles describing
the continued existence of blood feuds in Albania, as well as evidence that the
Principal Applicant’s wife is undergoing treatment for cancer in Canada.
[10]
The
Officer accepted that the new evidence confirmed that there is an ongoing blood
feud between the Rexhaj and Vuktilaj families, and that this dispute has
resulted in “members of both families being murdered as well as in damage to
property.”
[11]
Despite
the presence of this risk, the Officer was not satisfied that the Applicants
had provided clear and convincing evidence to rebut the presumption of state
protection. First, the Applicants had not shown that they had made reasonable
attempts to access state protection in Albania. Second, the Applicants had not
demonstrated that the authorities would be unable or unwilling to provide them
with protection. While acknowledging some mixed information in the news
articles and reports, the Officer found that the new evidence pointed to a
number of efforts made by the Albanian government to address the issue of blood
feuds.
[12]
The
Officer noted that, “[b]arring a complete breakdown of state apparatus, there
is a presumption that a state is able to provide protection to its citizens.” The
Officer concluded that “state protection, while not perfect, is available for
Albanian families who are involved in blood feuds and would, on a balance of
probabilities, be available to the Applicants, were they to attempt to access
it.”
III. Issues
[13]
The
sole issue in this application is whether the Officer’s assessment of state
protection was reasonable.
IV. Standard of Review
[14]
The
Officer’s consideration of state protection involves questions of mixed fact
and law and is thus reviewable on the standard of reasonableness (see Mendez
v Canada (Minister of Citizenship and Immigration), 2008 FC 584, [2008] FCJ
No 771 at paras 11-13; CRPP v Canada (Minister of Citizenship and
Immigration), 2012 FC 181, [2012] FCJ No 189 at para 25).
[15]
Reasonableness
is concerned with “the existence of justification, transparency and
intelligibility in the decision-making process” and with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47).
[16]
I
note that it is not the role of this Court to substitute its view of the facts
for that of the Officer (see Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1425, 157 FTR 35 at para 14).
V. Analysis
[17]
There
cannot be said to be a failure of state protection where a state has not been
given an opportunity to respond to a form of harm. As the Supreme Court of
Canada has held, “only in situations in which state protection ‘might
reasonably have been forthcoming’, will the claimant’s failure to approach the
state for protection defeat his claim” (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 at para 49).
[18]
The
primary question in contention between the parties to this case is whether
state protection might reasonably have been forthcoming to the Applicants. Indeed,
the Applicants contend that the documentary evidence clearly and convincingly
shows that state protection would not be reasonably forthcoming to them. They
submit that the Officer erred in pointing to their failure to approach the
police and ignored the documentary evidence.
[19]
The
Respondent underlines the proposition laid out in Borges v Canada (Minister
of Citizenship and Immigration), 2005 FC 491, [2005] FCJ No 621 that “[a]ll
the documentary evidence regarding the deficiencies of [a particular] justice
system that the Applicant produced (and the Board allegedly ignored) are not
relevant in the absence of any attempt to seek state protection or in the
absence of a credible and plausible explanation therefore” (see Borges,
above, at para 10).
[20]
Taking
the decision as a whole, I am satisfied that the Officer’s conclusions with
respect to state protection are reasonable for three main reasons.
[21]
First,
the Officer had no satisfactory answer from the Applicants themselves as to why
they failed to approach the Albanian authorities for protection. While they
now contend in their submissions on judicial review that their answer was that
“they didn’t expect [the state] to protect them, and this position was backed
up by ample evidence,” there was little personalized evidence before the
Officer to this effect. Specifically, the Applicants did not answer the
question in their PRRA applications that asked them to describe what help they
had sought from the state or, if they had not, to explain why they had not.
[22]
While
I note that the Applicants have been absent from Albania since 2000, and that
approaching the authorities for protection in Albania during this time would
have been difficult, the Applicants did not ever raise this point. In
addition, as the Officer points out, there is no evidence specific to their
case that explains why no one in their family sought protection from the
authorities, or went to the police. While the Applicants noted in their PRRA
application submissions that others who were similarly situated had been killed
and that this demonstrated an inability of the Albanian state to protect
families involved in blood feuds, the Officer noted that there were “few
specifics” concerning those deaths, and that it was “not clear if the
individuals who were killed had attempted to access protection from the
Albanian authorities.”
[23]
The
Applicants bear the burden of rebutting the presumption of state protection and
the absence of explanations in their applications for protection does not
constitute the requisite clear and convincing evidence to rebut the
presumption.
[24]
Second,
the Applicants’ argument with respect to the recent decision of Justice John
O’Keefe in Shkabari v Canada (Minister of Citizenship and Immigration),
2012 FC 177, [2012] FCJ No 186 is unconvincing. In Shkabari, the
applicants’ attempts to seek help from a peace and reconciliation commission set
up to resolve blood feuds in Albania was found to be an important consideration
that was missing from the Board’s decision. The Applicants posit that this
case is analogous to their own, and that the Officer’s failure to consider
their repeated attempts to seek mediation of their dispute when evaluating
state protection constitutes a reviewable error.
[25]
The
Applicants’ argument on this point has three primary shortfalls: first, the
Applicants do not appear to have relied on this evidence as proof of their
attempts to seek state protection. Instead, they relied on it primarily to
counter the credibility concerns of the Board. Indeed, the Officer considered
the affidavits from the Chairmen of the Committee of Nationwide Reconciliation
and of the Elders’ Council of Vermosh Village to be convincing evidence of the
existence of a blood feud, thus overcoming the decision of the Board with
respect to the credibility of the risk faced by the Applicants. Second, these
organizations do not appear to be agencies of the state. Third, and finally,
there is evidence in the record that points to the fact that both the Vuktilaj
and Rexhaj families refused to mediate their dispute. I thus find the
Officer’s decision as to the Applicants’ failure to approach the authorities
for protection reasonable.
[26]
Finally,
the Applicants suggest that the Officer “ignored or chose to overlook the
express statements in the evidence that most isolated families receive no
support from the authorities and that police officers do not intervene before
the isolated family suffers the murder of one of its members, apparently
because the police themselves are afraid to become targets of the blood feud
instigators” (Applicants’ Memorandum of Fact and Law at para 16). This
ignoring of the evidence, they submit, led the Officer to an unreasonable
decision that state protection would have been reasonably forthcoming to the
Applicants.
[27]
I
am not satisfied that the Officer ignored this evidence. The Officer weighed
the newly submitted documentary evidence and, while recognizing that state
protection is not perfect in Albania, found that there was insufficient
evidence either to upset the finding of the Board or to rebut the presumption
in favour of state protection. Where the Applicants argued that the police
only become involved when there has been a murder, for example, they failed to
provide evidence that the police had not, and would not, become involved in
this particular case after two deaths. The Officer’s conclusion was
reasonable.
VI. Conclusion
[28]
The
Officer considered the new evidence submitted by the Applicants to demonstrate
that state protection would not be reasonably forthcoming to them in Albania, but was not satisfied that there was clear and convincing evidence to rebut the
presumption of state protection on a balance of probabilities. I find that the
Officer’s conclusion is within the range of possible, acceptable outcomes that
are defensible in respect of the facts and law and is thus reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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