Docket:
IMM-5953-11
Citation:
2012 FC 516
Ottawa, Ontario, May
3, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ALTION ANDONI
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Applicant
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 26 July 2011 (Decision), which refused the Applicant’s application to be
deemed a Convention refugee or a person in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 37-year-old citizen of Albania who seeks protection in Canada from a blood feud between his family (Andonis) and the Fezjiu family (Fezjius).
[3]
The
Applicant says that his parents have been trying to arrange a marriage between
him and a member of Fezjius since February 2000. In April 2000, his parents
completed an arrangement to engage the Applicant to Ela, a member of the Fezjius.
After a celebration, the two families were bound together and announced the
engagement publicly.
[4]
The
Applicant told his parents in June 2000 that he did not want to get married
because he had fallen in love with another woman called Kole. However, his
parents told him he had to get married to Ela because they were bound by the
Kanun laws. If they broke the arrangement, they would be in danger from the Fezjius.
[5]
Kelia,
Ela’s brother, met the Applicant in a coffee shop in August 2000 to talk about
the wedding. The Applicant told Kelia he did not want to get married anymore.
Kelia said that the Applicant was young and would put aside such silly thoughts
after he was married. When the Applicant insisted that he did not want to get
married, Kelia grabbed him and threatened to kill him, saying that the refusal
to marry was the same as killing Ela.
[6]
The
next day, Ela’s parents came to the Applicant’s home which he shared with his
parents. Ela’s parents told the Applicant’s parents about Kelia’s conversation
with him the day before; they also told the Applicant’s parents to make the
Applicant marry Ela because, if he did not marry her, it would destroy her
future. The Applicant’s parents spoke with him and told him there would be
trouble if he did not go through with the marriage. Ela’s parents telephoned
the Applicant’s parents several days later to confirm that the wedding was still
on. The Applicant’s parents gave no answer because the Applicant was still
insisting that he did not want to get married.
[7]
In
September 2000, two of Ela’s brothers came to the Applicant’s house; they
grabbed him and told him they wanted to talk with his parents. When he
resisted, Rudi – another of Ela’s brothers – pushed the Applicant to the ground
and punched him. Neighbours who witnessed this event called the police, who came
and separated the Applicant from Ela’s brothers. When the Applicant’s mother
demanded that the police arrest Ela’s brothers, the police refused, saying it
was a personal family matter. After this event, the Applicant and his family
began to receive death threats over the telephone; the people who threatened
them told them to watch out because they were in a blood feud.
[8]
The
Applicant’s father went to the Mayor of the municipality where they lived to
address the situation between his family and the Fezjius. The Mayor sent the
Applicant’s father to an elder in Borova, Albania, who dealt with blood feuds.
This man went to the Fezjius, but they said this was a problem between them and
the Andonis family and no one else. The elder then told the Applicant’s father
to attempt reconciliation to solve the dispute between the two families.
[9]
In
January 2001, while he was putting out garbage at the restaurant where he
worked, a car drove at the Applicant and knocked him down. Ela’s brothers got
out of the car and attacked the Applicant, but his co-workers dragged him
inside the restaurant to save him from the attack. Ela’s brothers left and the
Applicant went to the hospital to be treated. His father called the police, but
they again said they could not intervene because it was a personal matter. They
suggested that the National Reconciliation Commission (NRC) would help. The
police did not interview the Applicant.
[10]
Because
the blood feud posed a danger to the restaurant, the Applicant’s boss gave him
some money and told him to leave Albania.
The Applicant went home and spoke with his parents. Some days later, a car
drove by the Andonis’ home and fired gunshots through their living room window.
[11]
After this
event, the Applicant fled Albania. He went to Athens, Greece on 14 January 2001, and then traveled to Madrid, Spain on 25 January 2001. From Madrid, he traveled to Sau Paulo, Brazil on 29 January 2001. The Applicant then came to Toronto on 14 February 2001. While he was in Toronto, he claimed protection but then went
to Detroit, in the United States of America (USA) on 16 February 2001. The
Applicant’s parents immigrated to the USA from Albania sometime in 2001. He
says that, while he lived in the USA, his parents tried to sponsor him to
immigrate there. However, in October 2009, when he pled guilty and was
convicted of operating a vehicle while visibly impaired, this made sponsorship
to the USA impossible.
[12]
The Applicant
returned to Canada on 12 March 2009 and claimed protection again on 16 March
2009. Because the Applicant had left after he claimed protection in 2001, the
RPD invited the Respondent to participate in the Applicant’s hearing. The
Respondent provided written submissions and said that the Applicant’s initial
claim was not referred to the RPD because he had not appeared for his initial
screening interview. The RPD had not declared his claim abandoned, so he was
not excluded from claiming protection in 2009.
[13]
The
Respondent did not participate in the hearing which the RPD conducted on 8
April 2011.The RPD refused the Applicant’s claim for protection on 26 July 2011and
notified him of the Decision on 11 August 2011.
DECISION UNDER
REVIEW
[14]
The
RPD refused the Applicant’s claim for protection because it found that his
actions were not consistent with his stated fear and because he had not shown
that Albania could not protect him if he returned there. The RPD also found
that the Applicant had no nexus to a Convention ground, so his claim for
protection under section 96 of the Act failed.
Credibility
[15]
The
RPD reviewed the Applicant’s testimony that he went to the USA because he believed he would be killed if he stayed in Albania. It noted that he had not claimed
protection in the USA in the eight years he had been there, and had explained
this by saying that his friends told him the USA does not accept claims arising
from blood feuds. The RPD noted the USA offers protection under its Withholding
of Removal process, even though blood feuds usually do not establish a nexus to
a Convention ground in the USA.
[16]
The
RPD found there was no evidence that the Applicant approached anyone with
knowledge of the refugee process in the USA to find out about claiming
protection there. It also found that, if he believed he could not have claimed
protection in the USA, he could have returned to Canada and claimed protection.
The RPD noted that Canada has offered protection to claimants from Albania since 2002. The RPD found that living in the USA for eight years without claiming
protection there was inconsistent with the Applicant’s stated fear.
[17]
The
RPD also reviewed the Applicant’s testimony about the blood feud. When it asked
him why he thought his family was in a blood feud with the Fezjius, he said it
was because he refused to go through with the marriage. He testified that his
neighbours told him to watch out because he was in a blood feud and that the Fezjius
told the neighbours they were in a feud with the Andonis. The RPD noted the
Applicant had not mentioned the Fezjius telling his neighbours about the feud
in his PIF and that a formal declaration is usually sent through an emissary to
initiate a blood feud. Since the neighbours did not indicate they were
delivering a message for the Fezjius, the RPD found that there was no
declaration of a blood feud.
[18]
The
RPD found that, if the Applicant expected the police to take action to protect
him, he would have needed to file a report with them. It reviewed his testimony
about the incident at the restaurant in January 2001, noting he had not filed a
police report. The RPD also reviewed the incident at the Applicant’s home in
September 2000, where Ela’s brothers attacked him, but no one was injured. It found
that it was not unusual for the police not to make an arrest where there were
no injuries. It also found that the Applicant had not reported to the police the
threats the Andonis family received over the telephone or the gunshot through
their window. These incidents did not satisfy the RPD that the police would not
assist the Applicant or his family.
[19]
The
Applicant testified that, when he went to the hospital after the attack at the
restaurant, he was bleeding from the outside of his ear; the RPD said he wrote in
his PIF that he was bleeding from the inside of the ear and was held for
observation at the hospital. Although he made submissions that the location of
the bleeding was not important, the RPD found that bleeding on the outside of
the ear would not usually result in being held overnight for observation, so it
found this account was not credible.
[20]
Although
the Applicant submitted a letter from Gjin Marku (Marku), the Chair of the NRC
(Reconciliation Letter), the RPD gave this letter little weight to establish
that the Applicant is at risk in Albania. It noted that the details in the
Reconciliation Letter were the same as those in the Applicant’s PIF, except that
the Reconciliation Letter did not say anything about any attempts to contact
the police. The RPD expected that the NRC would have assisted the police where
there was evidence that Albanian law was being ignored. It also noted that the
Reconciliation Letter did not show from which sources it drew its information.
The RPD found that there might be reasons why two families would mislead Marku.
This had happened before.
[21]
The
RPD also found that two letters (Verification Letters) the Applicant submitted
– one from the Mayor of Ersecke Municipality in Albania (Mayor) and one from
the Elders of Borove Village, also in Albania (Elders) – provided insufficient
evidence of his risk of harm. Both letters confirmed a blood feud between the Andonis
and the Fezjius arising from the Applicant’s cancelled marriage to Ela and said
that efforts to reconcile the families had failed. The RPD said, however, that
these documents did not provide specifics about the efforts made to reconcile,
or how the authors learned of the blood feud between the Andonis and the Fezjius.
State
Protection
[22]
The
RPD found the Applicant had not provided reliable and probative evidence that
state protection would be inadequate if he returned to Albania and the Fezjius found and approached him. It also found he had not made reasonable efforts
to approach Albania for protection when he was living there.
[23]
When
it analyzed state protection, the RPD looked first to the country condition
documentation before it which showed that killings related to blood feuds were
decreasing in Albania. A report from the Federal Department of State in the USA – Country Reports on Human Rights Practices for 2009: Albania (DOS Report) – found that
blood feud killings had decreased and fewer families were in self-confinement
in the Shkoder area of Albania.
[24]
The
RPD also examined Response to Information Request (RIR) ALB103570.E which
indicated there were sometimes false reports of blood feuds. The RIR also
included comments from Marku where he said the NRC investigates the possibility
of mediation where it receives appropriate information. The RPD said that
parties to mediation could mislead the NRC and it would not be able to discover
this deception in the field. It also said that two families could falsely
create the appearance of a blood feud to support a family member’s claim for protection
or to exaggerate the scope of the blood feud problem.
[25]
Although
the NRC kept track of blood feuds, the RPD found that, because its statistics
were based on self-reporting and were gathered by volunteers, its information
may not be as accurate as Marku claimed. Marku said in the Reconciliation Letter
that revenge killings had increased since December 2009. The RPD put little
weight on Marku’s statements as reported in RIR 103570.E and in his letter.
[26]
The
RPD also referred to an issue paper (Issue Paper) authored by the Immigration
and Refugee Board (IRB). It noted that this paper relied on information which,
although dated, was generally accepted by all of the sources. The Issue Paper
noted that some academics had concerns about the validity of letters, such as
the one the Applicant submitted from the NRC. The RPD found that it was
plausible Marku had been mislead into believing the Applicant was in a blood
feud.
[27]
Although
the Issue Paper included quotations from people who believed that families
involved in blood feuds would not receive adequate protection from the
authorities in Albania, the RPD noted that these quotations seemed to be
opinions and did not include examples of failures of state protection. The
Issue Paper also reported on laws in Albania specific to blood feuds, which
Marku had criticized because prosecutors did not always lay charges. Further,
the Issue Paper included quotations from Marku which said police intervention
sometimes increased the bloodshed. However, there were no examples of how this
occurred.
[28]
Ultimately,
the RPD said that the Issue Paper relied on many sources which were not always
consistent and could be used to support any position. The RPD found that there
are many families in self-confinement in Albania and that there are more blood
feuds in Northern Albania than in other areas. It also found that authorities
in Albania had successfully reduced the number of blood feuds through
prosecutions, though some times charges were reduced.
[29]
The
RPD concluded that there was insufficient evidence that police were unwilling
to investigate credible threats which were part of blood feuds. Where there
were witnesses to a threat, as in the Applicant’s case, claimants must show
they sought protection in Albania before they can ask for protection in Canada. It was not enough for the Applicant to have sent his father to the police when his
father had no first-hand information about what was happening to him. On this
basis, the RPD concluded that the Applicant had not made reasonable efforts to
seek Albania’s protection. It also concluded that Albania is making serious
efforts to protect citizens from blood feuds. The Applicant had not established
he would be harmed or killed in Albania.
STATUTORY
PROVISIONS
[30]
The
following provisions of the Act are applicable in this proceeding:
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Convention refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political
opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
[…]
Person in Need of Protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
[…]
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Définition
de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
[…]
Personne à
protéger
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[...]
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[31]
The
following provision of the Refugee Protection Division Rules SOR/2002-228
(Rules) is applicable in this proceeding:
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18.
Before using any information or opinion that is within its specialized knowledge,
the Division must notify the claimant or protected person, and the Minister
if
the Minister is present at the hearing, and give them a chance to
(a)
make representations on the reliability and use of the information or
opinion; and
(b)
give evidence in support of their representations.
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18.
Avant d’utiliser un renseignement ou une opinion qui est du ressort de sa
spécialisation, la Section en avise le demandeur d’asile ou la personne
protégée et le ministre — si celui-ci est présent à l’audience — et leur
donne la possibilité de:
a)
faire des observations sur la fiabilité et l’utilisation du renseignement ou
de l’opinion;
b)
fournir des éléments de preuve à l’appui de leurs observations.
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ISSUES
[32]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s credibility finding was reasonable;
b.
Whether
the RPD’s state protection finding was reasonable;
c.
Whether
the RPD provided adequate reasons;
d.
Whether
the RPD applied the incorrect test for state protection;
e.
Whether
the RPD breached his right to procedural fairness by denying him the
opportunity to respond, denying him the right to counsel, and failing to
consider his submissions.
STANDARD
OF REVIEW
[33]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[34]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister
of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max
Teitelbaum held that findings of credibility are central to the RPD’s finding
of fact and are therefore to be evaluated on a standard of review of
reasonableness. Finally, in Wu v Canada (Minister of Citizenship and
Immigration) 2009 FC 929, Justice Michael Kelen held at paragraph 17 that
the standard of review on a credibility determination is reasonableness. The
standard of review on the first issue is reasonableness.
[35]
In
Carillo v Canada (Minister of Citizenship and Immigration) 2008 FCA 94,
the Federal Court of Appeal held at paragraph 36 that the standard of review on
a state protection finding is reasonableness. This approach was followed by
Justice Leonard Mandamin in Lozada v Canada (Minister of Citizenship and
Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves v Canada (Minister of Citizenship and Immigration) 2005 FC 193, Justice Danièle
Tremblay-Lamer held at paragraph 11 that the standard of review on a state
protection finding is reasonableness. The standard of review on the second issue is
reasonableness.
[36]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board) 2011 SCC 62, the Supreme
Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for
quashing a decision. Rather, “the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes.” The adequacy of reasons, therefore, is to be
analysed along with the reasonableness of the Decision as a whole.
[37]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[38]
The
opportunity to respond, right to counsel, and right to have submissions
considered are all elements of the duty of procedural fairness. In Canadian
Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003
SCC 29, the Supreme Court of Canada held at paragraph 100 that “It
is for the courts, not the Minister, to provide the legal answer to procedural
fairness questions.” Further, the Federal Court of Appeal in Sketchley
v Canada (Attorney General) 2005 FCA 404 at paragraph 53 held that the “procedural
fairness element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty.” The
standard of review on the fifth issue is correctness.
[39]
In Saeed
v Canada (Minister of Citizenship and Immigration) 2006 FC 1016, Justice
Yves de Montigny held at paragraph 35 that, when examining the RPD’s
application of the test for state
protection, the appropriate standard of review is correctness.
Justice Paul Crampton made a similar finding in Cosgun v Canada (Minister of Citizenship and Immigration) 2010 FC 400 at paragraph 30. The
standard of review on the fourth issue is correctness.
ARGUMENTS
The Applicant
[40]
The Applicant argues that the RPD’s Decision is unreasonable
because no reasonable tribunal could find on the evidence which was before the
RPD that the Applicant is not a Convention refugee.
Unreasonable
Credibility Finding
[41]
The
RPD’s finding that he was not credible was unreasonable because it was based on
errors of fact. The RPD relied on the availability of protection in the USA when it found he was not credible because he had lived there for eight years without
claiming status. There was no evidence before the RPD that protection is
available in the USA for victims of blood feuds. The RPD did not notify the
Applicant of the evidence it was relying on to make this finding and thus
denied him the opportunity to respond and to know the case he had to meet.
[42]
Under
section 18 of the Rules, the RPD can rely on specialized knowledge to ground a
finding of fact. However, it must give notice to claimants and allow them the
opportunity to respond. The RPD did not mention in the hearing that the
availability of protection in the USA was in issue, so it breached section 18
of the Rules when it relied on this specialized knowledge. If the RPD expected
the Applicant to show that protection was not available in the USA, it was under a duty to put this expectation to him; since it did not, the Decision
must be overturned.
Delay
in Claiming
[43]
The
Applicant challenges the RPD’s finding that he had lived in the USA for eight years without claiming status. This finding is also based on an error of
fact. As he said in his PIF, his parents immigrated to the USA in June 2001 and were attempting to sponsor him; he also testified at the hearing that they
lived there. The Applicant says he was aware of his options in the USA and was being sponsored to regularize his status. However, as soon as his immigration
status in the USA was put in doubt by his arraignment on charges on 24 February
2009, he moved quickly to claim protection in Canada. The RPD’s credibility
finding was unreasonable because it was made on the basis of an erroneous
finding of fact.
No Efforts in the USA
[44]
The
RPD also erred when it found that the Applicant had not approached anyone to
find out about his options to regularize his status in the USA. He testified that he asked his friends and lawyers about the refugee process in the USA.
No Declaration of a Feud
[45]
When
the RPD found that there was no declaration of a blood feud, it ignored
evidence before it that this actually happened. The Applicant testified at the
hearing that his neighbours told the Andonis family about the blood feud and
that the neighbours knew about the blood feud because the Fezjius told them. The
RPD ignored this testimony. The formal declaration came from the neighbours.
The RPD also did not refer to any evidence which showed that anything more than
this statement from the neighbours was required to initiate a blood feud. If
the RPD relied on its specialized knowledge to show that more was required, it
had to give the Applicant notice and allow him the opportunity to respond. Its
failure to do either breached his right to procedural fairness.
Blood from the Ear
[46]
The
RPD mischaracterized the evidence with respect to the injuries he suffered
after the attack at the hospital. The Applicant notes that he wrote in his PIF
that he was bleeding from the ear and that he testified that he was kept
overnight at the hospital because staff there thought he might have a
concussion. The RPD only refers to scratches on his ear in the Decision, even
though it knew at the hearing that hospital staff were concerned about a concussion.
This shows that the RPD failed to consider the Applicant’s testimony on a
matter directly related to its credibility finding.
Corroborating
Documents
[47]
The
RPD also unreasonably rejected the Marku Letter. The RPD did not refer to any
evidence that the Applicant or his family attempted to mislead Marku, though it
said this appeared to be the case. The RPD’s reasons are inadequate because
they do not show how it came to this conclusion.
[48]
Further,
when the RPD rejected the Reconciliation Letter it relied on a report that was
not in evidence. In the Decision, the RPD referred to the Report of the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip
Alston: Preliminary Note on the Mission to Albania, (Alston Report). The
RPD found this report included evidence that letters from the NRC are not
always factual. The Applicant says that the author of this report, Philip
Alston, did not make the comments the RPD says he did.
[49]
The
RPD also alleged that he and his family have attempted to perpetrate fraud on
the RPD, but did not put this allegation to him during the hearing or give him
an opportunity to address it. He says that it would be impossible to deceive
the Elders, who wrote a letter on his behalf. The RPD’s failure to put this
allegation to him is a breach of his rights under section 7 of the Charter
of Rights and Freedoms. The Elders have no interest in defrauding the RPD
and it has given no reason why other families would jeopardize themselves
simply to support his claim for protection.
[50]
If
the RPD alleges that the documents a claimant has put before it are fraudulent,
it must compare those documents with something and show specific evidence of
fraud (see Moin v Canada (Minister of Citizenship and Immigration) 2007
FC 473).
Inadequate
Reasons
[51]
The
RPD provided inadequate reasons for giving little weight to the letters the Applicant
submitted to prove his claim. Although the RPD gave the letters from the Mayor
and Elders insufficient weight to establish the risk he faced, these letters still
establish a blood feud, even if reduced weight is put on them. Other documents
which were before the RPD established the risk of harm from blood feuds, so the
RPD was obligated to assess his claim from the perspective that the letters
prove a blood feud. Further, there was no evidence before the RPD that a blood
feud did not exist and the RPD was bound to explain its finding on this issue.
When it did not explain why it determined there was no feud, the RPD provided
inadequate reasons.
Verification Letters
[52]
The
RPD’s treatment of the Verification Letters was unreasonable. Although it found
these letters did not contain specifics about reconciliation or how their
authors learned of the feud, the facts support the Applicant’s position and the
RPD came to an unreasonable conclusion.
[53]
The
RPD also erred in its treatment of these letters when it rejected them because
they did not contain information that is superfluous. Specifics about the
reconciliation efforts and how the authors knew about the feud do not impact
the weight these documents were given and it was unfair for the RPD to require
them to contain such details. The RPD also did not provide adequate reasons as
to why it expected this information to be included.
State
Protection
[54]
The
RPD breached the Applicant’s right to procedural fairness when it found he
would need to personally make a report about what happened at the restaurant in
order to engage state protection. There was no evidence before the RPD that a
personal report is required in Albania to get the police to act. The RPD did
not put the evidence it was relying on to establish this fact to the Applicant so
that he could respond. He notes that Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302 (FCA) establishes a presumption
of truthfulness with respect to the testimony of refugee claimants.
The Issue Paper
[55]
The
RPD made an unreasonable state protection finding when it did not consider the
Issue Paper which says that “According to Standish, relatively few blood feud
cases go to court and the sentences for the cases that do are particularly
derisory.” This sentence, which the RPD did not consider, establishes that
blood feuds occur with impunity, a fact contrary to the RPD’s conclusion. The
RPD’s failure to consider this evidence renders its Decision unreasonable. In Salguero
v Canada (Minister of Citizenship and Immigration) 2009 FC 486 Justice
Michel Beaudry held at paragraph 13 that
While
one assumes that a panel has examined all of the evidence, where there exists significant
evidence which contradicts the panel’s findings, it must provide reasons to
explain why this evidence is deemed to be neither relevant nor reliable
Alston
Report
[56]
Although
the RPD relied in part on the Alston Report, it did not appropriately apply the
facts contained in that report. The RPD found the report was correct; it shows
that blood feuds continue until the wronged family achieves revenge or forgives
the other family. Having concluded that the Alston Report was correct, the RPD
was bound to find that families in blood feuds get no protection from the
government. The RPD failed to apply the facts it found in the report which
supported the Applicant’s claim.
Breach of Procedural Fairness
[57]
The
Applicant says the RPD breached his right to procedural fairness by not
providing adequate reasons, denying him the right to counsel, and failing to
consider his submissions. The RPD did not address every issue he raised in his
written submissions, even though the Alston Report supported his position. The
RPD’s reasons are inadequate because they do not show that it considered his
submissions. Reasons must address the major points in issue and deal fully with
a claimant’s allegations. Where the RPD does not meet this obligation, its
decision must be overturned. Further, when the RPD ignored his submissions, it
eliminated the possibility for effective representation, so the RPD breached the
Applicant’s right to counsel.
Test for State
Protection
[58]
The
RPD did not make any finding as to the availability of state protection in Albania, even though the Alston Report shows that the Albanian government’s response to
blood feuds is inadequate. He points to Bautista v Canada (Minister of Citizenship and Immigration) 2010 FC 126 and says that the RPD must look at
what is happening on the ground, rather than the efforts the state is making to
protect. The RPD did not consider material evidence on state protection.
Internal
Flight Alternative
[59]
The
RPD based its state protection finding on the possibility of flight to Tirana, Albania’s capital city, but the RPD failed to consider evidence which showed the
Applicant would be at risk there. The Applicant testified that the Fezjius have
contacts in Tirana who could hurt him. He says that the RPD’s failure to
address this evidence means its conclusion on state protection is unreasonable.
The
Respondent
[60]
The
Respondent says the RPD’s credibility and state protection findings were
reasonable because they were based on all the evidence which was before it. The
Applicant has not demonstrated any reviewable error.
Credibility
Finding was Reasonable
No
Claim in the USA
[61]
The
RPD reasonably concluded the Applicant was not credible because he lived in the
USA for eight years without seeking protection there. The Applicant did not
provide evidence that he had sought protection in the USA, even though the onus was on him to establish that he had a subjective fear of persecution. The
RPD made five reasonable findings of fact related to the Applicant’s failure to
claim in the USA:
a.
He
lived in the USA for eight years without status;
b.
He
did not claim protection in the USA because his friends said claims like his
would not be accepted;
c.
There
was no evidence he approached anyone with appropriate knowledge to ask about
his options;
d.
He
claimed protection in Canada in 2001, but left before his claim could be
completed;
e.
He
could have returned to Canada to pursue his claim if he believed he would be
returned to Albania from the USA.
[62]
Although
the Applicant has sworn in his affidavit on judicial review that he consulted a
lawyer in the USA, the Respondent says that there was no evidence before the
RPD that he had done this. He did not mention the lawyer in either his PIF or
his oral testimony. Judicial review only deals with the record before the
decision maker. It is inappropriate for the Applicant to try and bolster his
claim in this way, particularly where the PIF instructs claimants to include
“all significant events and reasons that have led you to make a claim for
refugee protection in Canada.”
[63]
On
the basis of the evidence before it about the Applicant’s failure to claim in
the USA, the RPD found the Applicant was not credible. The RPD fully understood
the facts of his case, but remained concerned that he had not explored all of
the options available to him to avoid going back to Albania. The Applicant was
not credible because his failure to claim in the USA was inconsistent with his
fear of being returned to Albania. This finding was reasonable.
Inconsistencies in the Applicant’s
Evidence
[64]
The
RPD also reasonably found that the Applicant was not credible based on
inconsistencies in his evidence. It is open to the RPD to make negative
credibility findings based on contradictions, inconsistencies, and implausiblities
(see Sheikh v Canada (Minister of Employment and Immigration), [1990]
FCJ No 604 and Leung v Canada (Minister of Employment and Immigration),
[1990] FCJ No 908. Several inconsistencies in the Applicant’s evidence led
the RPD to conclude he was not credible.
[65]
First,
the Applicant testified that neighbours told his family about the feud, but his
PIF did not include this detail. The RPD found there was no blood feud based on
the Applicant’s testimony about how his family learned about it. He testified
that his family had received threatening telephone calls and that neighbours
told them to watch out because they were in a blood feud. Given this
inconsistency, it was reasonable for the RPD to find that the Applicant was not
credible.
[66]
Although
the Applicant says in his affidavit on judicial review that the neighbours
acted as emissaries to inform his family that the blood feud was on, this was
not in his PIF or testimony at the hearing. The Court should not consider the
new evidence the Applicant seeks to introduce in this respect.
[67]
Second,
although the Applicant has suggested the RPD’s analysis is unreasonable because
it puts insufficient weight on the Reconciliation Letter, the RPD considered
this letter as objective evidence that a blood feud existed. However, it was
reasonable for the RPD to assign little weight to this letter because the NRC
does not independently verify whether incidents leading to blood feuds have
actually occurred.
[68]
Third,
there were inconsistencies in the Applicant’s evidence about the injuries he
says he suffered after the incident at the restaurant. He testified that he was
bleeding from the back of his ear after the attack, but wrote in his PIF that
blood came from inside his ear. The Applicant claimed that he was held
overnight in the hospital because of his injuries. Hence, the source of the
blood from his ear was relevant to his credibility on this aspect of his
testimony.
State
Protection Finding was Reasonable
Applicant
has not Rebutted the Presumption
[69]
The
Respondent notes that Canada (Attorney General) v Ward, [1993]
2 SCR 689 establishes a presumption that states are capable of protecting their
citizens. Ward also establishes that refugee protection is not available
if claimants have made inadequate efforts to engage the protections their home
states. Further, Hinzman v Canada (Minister of Citizenship and Immigration)
2007 FCA 171 teaches that claimants bear a heavy burden to rebut the
presumption of state protection in countries where there is a well-developed
protection apparatus.
[70]
In
this case, the Applicant simply did not do enough to engage Albania’s protection before he fled. All that he did was send his father and neighbours to contact
the police, which is insufficient. The RPD also found that the Albanian police responded
when they were called to his home in September 2000. The Applicant did not
report to police personally after the attack at the restaurant in January 2001.
The Applicant’s family also did not call the police when gunshots were fired
through their living room window. On this evidence, it was reasonable for the
RPD to conclude that the Applicant had not rebutted the presumption of state protection.
RPD Considered
all the Evidence
[71]
Even
though the RPD may not have mentioned every piece of evidence before it in its
reasons, this is not an error that requires reconsideration. Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA)
establishes that the RPD is presumed to have considered all the evidence, even
if it does not mention everything in its reasons. In this case, the RPD’s
reasons show that it grasped the issues and relevant evidence before it. The
RPD examined the Alston Report, the DOS report, and the 2009 European Union
Progress Report as well as evidence from Marku. The RPD explained why it
assigned the weight it did to the evidence before it. The RPD reasonably found
there was no evidence that state protection would not be forthcoming if the
Applicant returned to Albania.
The
Applicant’s Reply
[72]
In
response to the Respondent’s objection to the introduction of new evidence in
his affidavit, the Applicant notes that his affidavit was filed on judicial
review. It follows that the affidavit was not before the RPD when it made its Decision.
He also says that he testified at the hearing that he consulted a lawyer with
respect to his asylum claim.
[73]
The
Applicant says that his failure to claim in the USA is not part of “all the
significant events and reasons that have led [him] to make a claim for refugee
protection,” so he was not required to address this in his PIF. However, he
also says that he mentioned in his PIF that, when his conviction in the USA made it impossible for him to claim asylum there, he claimed protection in Canada. All the information the RPD needed to adjudicate his claim was before it. The Respondent’s
objection to the information he put in his affidavit shows that the RPD should
have addressed additional facts in its reasons. The Respondent relies on the
Applicant’s affidavit as justification for the RPD’s failure to refer to
relevant evidence, but this evidence was actually before the RPD and it did not
consider or refer to it.
The
Respondent’s Further Memorandum
[74]
The
Respondent points to Sanchez v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 536 and says that the Applicant’s
failure to mention important facts in a PIF which he later described in his
oral testimony was a legitimate basis for the RPD to conclude he was not
credible. Although the Applicant said at the hearing that he spoke to a lawyer
about claiming asylum, he did not mention this in his PIF. In a similar way,
the Applicant did not mention in his PIF the head wound, which led to his being
kept overnight in the hospital, so it was reasonable for the RPD to conclude he
was not credible on this basis.
[75]
Although
the Applicant takes issue with the RPD’s finding that the USA offers two forms of protection, the Respondent says that the RPD simply described the forms of
protection the USA offers. This information did not enter the RPD’s analysis
and specialized knowledge was not used. No error arises from this aspect of the
Decision.
ANALYIS
[76]
It
is difficult to determine the true grounds of this Decision. The following
paragraphs from the Decision set out the framework and the general findings:
4. The claimant’s actions in the US are not consistent with his stated fear. The claimant did not establish that for him the
effort of the state would provide inadequate protection. Parts of his evidence
were not credible. Hence, I reject the claim.
…
17. Concerning the issue of state protection,
today, if the claimant were to live in the capital, I have reviewed the current
documents.
…
32. Ten years ago, the claimant did not make
reasonable efforts to seek the assistance of the state. Today, I am satisfied
the claimant did not establish with reliable and probative evidence that if he
was found and approached, that the state would provide inadequate protection.
IN SUMMARY:
-
The
claimant’s actions in the US were inconsistent with his stated fear
-
The
claimant did not make reasonable efforts to access the protection of the state
prior to leaving Albania
-
The
claimant’s account of the declaration of a blood feud was inconsistent with
that of the documentary evidence
-
The
claimant’s account of his injuries was inconsistent and hence not credible
-
The
current country documents show Albania is making serious efforts to protect its
citizens who fear harm as a result of the declaration of a blood feud, these
efforts are most successful in the capital
-
Nexus
was not established
[77]
It
looks to me as though the RPD is saying that:
a.
The
Applicant’s behaviour in the US is not consistent with subjective fear;
b.
The
Applicant has not rebutted the presumption of adequate state protection;
c.
Some
of the Applicant’s evidence is not credible.
[78]
What
is not clear from the Decision as a whole is:
a.
Is
there a finding that the Applicant lacked subjective fear? The fact of his
actions in the US being inconsistent with his stated fear is not, in my view,
the same thing as saying that the Applicant has not established he has subjective
fear on all the evidence;
b.
Is
the adequate state protection finding based upon a notional assumption that the
Applicant’s narrative is true, or is it based upon the RPD’s rejection of the
Applicant’s account of his past attempts to elicit the protection of the state,
either because those past efforts are accepted as true but are insufficient to
rebut the presumption, or because the RPD finds non-credible the Applicant’s
past attempts to secure state protection?
c.
In
looking forward at current state protection, is the finding of failure to rebut
state protection as it exists today stand-alone or, because so much time has
now elapsed, do the Applicant’s earlier dealings with the police remain a
relevant part of the analysis for the current level of state protection?
[79]
The
RPD does not say its state protection finding is a stand-alone determinative
ground for refusing the claim.
[80]
Also,
when the RPD says that Albania’s “serious efforts” are “most successful in the
capital,” has the RPD addressed the “operational adequacy” of those efforts,
and is the RPD saying the Applicant will only be safe in the capital? These
important issues are just not clear.
[81]
In
my view, the Decision lacks a logical framework and this makes it confusing and
difficult to assess. This confusion is not alleviated when the details of the
analysis are examined.
[82]
For
example, if I look at the finding that the “claimant’s actions in the US are not consistent with his stated fear” the RPD’s analysis is as follows:
[5]
The
claimant testified that when he entered the US, he believed he would have been
killed, if he had remained in Albania. He had no status in the US, but he made no claim for protection. His only explanation was that he had heard from a
number of friends in the US that claims of blood feuds would not be accepted.
[6]
The
US offers two forms of protection, and while blood feuds usually lack a nexus
to a Convention ground, this is not the case for protection under Withholding
of Removal.
[7]
There
is no evidence the claimant actually approached anyone with knowledge of the
refugee process in the US to inquire as to his options. If in fact, the
claimant believed he could not make any form of claim in the US, which has not been established, the claimant had started a claim process in Canada that he abandoned before it was referred to the Board. If the claimant believed he
would be murdered if deported to Albania, he could have returned to Canada and made a claim for protection. In 2002, Canada, after the implementation of the Immigration
and Refugee Protection Act (IRPA), was certainly accepting claims
from Albania, pursuant to section 97 of the IRPA. I do not accept that
remaining in the US for eight years without status and without exploring all
options, including returning to Canada, is inconsistent with his stated fear.
Hence, I make a negative credibility finding.
[83]
There
are a number of problems with these findings. First of all, the Applicant gave
evidence at the hearing as follows:
Member: So,
why didn’t you make any attempt to obtain some form of legal status in the United States?
Claimant: I
knew that the United States did not -- do not [sic] take into
consideration claims based on blood feuds.
Member: How
did you know that?
Claimant: I
have a number of friends in the US who had claimed on similar cases and they
had not been successful. So, I knew from them, and I’ve asked lawyers as well.
[84]
So
there was evidence that the Applicant not only asked his friends, but also
consulted lawyers. Does the RPD believe that lawyers have no knowledge of US law? Does the RPD find non-credible the Applicant’s statement that he went to see
lawyers? Is the significant point that the Applicant did not come to Canada? If so, what is the relevance of his not “exploring all the options,” and is
consulting lawyers considered an option that he did not explore when he says he
did? What is the evidence (there is no reference) that the RPD is relying upon
that blood feuds usually lack a nexus in the USA, but not under “Withholding of
Removal,” and why was this matter never put to the Applicant? If the RPD was
relying upon its own knowledge here, section 18 of the Rules means it had an
obligation to put the matter to the Applicant to give him a chance to explain.
Maybe the lawyers consulted by the Applicant gave him advice on this matter.
Why was the Applicant’s explanation as to why he had remained in the USA for eight years not addressed by the RPD? The Applicant went to the USA because his parents, who were legally there, were sponsoring him. There is nothing to
suggest this sponsorship would not succeed until the Applicant was charged and
convicted of driving under the influence, at which point he came straight to Canada and claimed protection. Why is this explanation not considered reasonable?
[85]
There
was no need for the RPD to accept any of this, but it is impossible to tell from
the Decision whether the explanation was even considered and, if it was, why it
was rejected as a reason for the delay in making a claim.
[86]
Similar
problems can be found elsewhere in the Decision, perhaps none of which would
matter if the adequate state protection finding was clearly stand-alone and
determinative, but the RPD fails to make it clear that this is the case and my
reading of the Decision as a whole does not clear up the confusion.
[87]
For
example, if I examine the central issue of how the Applicant knew about the
blood feud and the RPD’s response, I find similar problems:
The claimant was asked why he suspected his family
was in a blood feud. He replied that he knew after he refused to go through with
the marriage that a blood feud would be declared. Further, neighbours told us
to watch out since we are in a blood feud. The evidence is that the Fejzui
family made threats by telephone but never declared a blood feud in any formal
manner. When asked directly how the neighbours knew a blood feud was declared,
the claimant responded that the Fejzui family had told them (the neighbours).
According to the claimant’s Personal Information Form (PIF), Exhibit C-1, there
is no reference of the neighbours being told a blood feud was declared. It is
generally accepted that a blood feud such as this, occurs when a formal
declaration is sent by the wronged family through an emissary to announce the
declaration. I am satisfied, since the neighbours did not indicate they were
delivering a message from the Fejzui family, that there was no declaration of a
blood feud.
[88]
There
is no reference to what the RPD is relying upon for the statement that “It is
generally accepted that a blood feud such as this, occurs when a formal
declaration is sent by the wronged family through an emissary to announce the
declaration.” If the RPD is relying upon its own knowledge, this matter was
never put to the Applicant for his response.
[89]
The
CTR reveals the following exchange on point:
Member: Well,
sir – I’ll try to shorten it. Was there any point before you left that your
ex-girlfriend or your ex-fiancée’s family either approached your family
personally or sent others to approach your family to tell your family that,
because of your actions in refusing their daughter, they have taken this as an
insult and they are declaring a blood feud?
Claimant: Yes.
Member: When
did that happen?
Claimant: In
September of 2000.
Member: And
what happened in September of 2000.
Claimant: It
was the incident that happened with the two brothers who came to our home.
Member: Oh,
I heard all that. Where’s the part in that incident where they say that the
family is in a blood feud?
Claimant: Well,
the thing is, right after this incident, my neigh -- our neighbour, Pandi
Demiri ---
Interpreter: Pandi
Demeri. P-a-n-d-i. The last name is D-e-m-e-r-i.
Claimant: ---
came and told us, said, “Be careful because the other family has declared blood
feud against you.”
Counsel: P-a-n-t-i?
Interpreter: Pandi,
P-a-n-d-i.
Counsel: Okay.
Interpreter: And
the last name D-e-m-e-r-i.
Claimant: I
didn’t write his name in the PIF.
Counsel: No
problem.
Member: And
how did you [sic] neighbour know that a blood feud had been declared?
Claimant: Because
(inaudible) family has told him.
Member: Is
that the way a blood feud is usually declared?
Claimant: I
don’t know how they usually do it. I know how they did it in our case.
[90]
It
looks as though the RPD is here noting a discrepancy between the PIF narrative
and the Applicant’s oral testimony. In the PIF, the Applicant had written at
paragraph 9 of his narrative that
After this incident [i.e. the assault on the
Applicant by the two Fejziu brothers] we began getting death threats over the
phone. Neighbours came round who knew both our families. They told us to watch
out because we were in blood feud.
[91]
It
is unclear how or why the RPD reaches a negative credibility finding on this
point. The PIF says the family received death threats over the phone, but it
was the neighbours who told them they were in a blood feud. This is not
inconsistent with the oral testimony. So, the RPD hangs its finding on the fact
that “there is no reference of the neighbours being told a blood feud was
declared.” But the Applicant explains in the PIF that the neighbours had
overheard the altercation between the families and it was probably them who
called the police; and that the neighbours who came around to tell them they
were in a blood feud “knew both our families.” Is it really a material omission
from the Applicant’s PIF or an embellishment if the Applicant did not say
directly that the Fejziu family told the neighbours? After all, if the
neighbours knew both families and knew of the dispute between them, who else
would be likely to tell the neighbours that there was a blood feud? And
wouldn’t the Applicant assume if he wrote what he did write in his PIF that it
would be pretty obvious who told the neighbours? Can this really be described
as a material omission from his PIF? I do not think so.
[92]
Or
is it the RPD’s point that the blood feuds are only started by “formal
declaration” and neither the PIF nor the oral testimony mentions a formal
declaration? If this is the point, then the RPD would need to indicate what
evidence it is relying upon for this finding and, to be procedurally fair, it should
have put that evidence to the Applicant and given him an opportunity to respond.
[93]
The
Philip Alston Report, praised by the RPD for its objectivity, says that blood
feuds are governed by “culturally understood rules,” but the content of these
rules “differs from region to region over time.” I can find no evidence on the
record that the culturally understood rules in the Applicant’s region require a
formal declaration of some kind. In my view, the negative credibility finding
against the Applicant on this issue is both unreasonable and procedurally
unfair
[94]
The
Decision is not clear on the extent to which the negative credibility findings
and/or past attempts to elicit the protection of the police informed the
adequate state protection analysis. There is clear evidence in the PIF that, as
far as past incidents are concerned, the police informed the family that they
would not interfere in the dispute because it was a personal family matter.
This occurred after the assault by the two Fejziu brothers and after the
Applicant was knocked down by a car driven by the same brothers and the
Applicant had to be hospitalized. The Applicant is criticized for not going to
the police, but the police were called on both of these occasions and said they
would not get involved. It is a significant omission by the RPD not to have
addressed this.
[95]
When
the RPD says at paragraph 31 of the Decision that it has “insufficient evidence
to cause me to find police are unwilling to investigate credible cases of threats
as part of a blood feud,” it is not possible to tell whether the member is
completely discounting the Applicant’s own evidence of what the police have
said to his family in the past. The RPD certainly seems to have the past in
mind for this finding because, in the same paragraph 31, it finds that
Simply having his father, who had no first hand
information, go to the police and not the claimant or his boss does not
establish state protection would be inadequate.
[96]
The
Applicant’s evidence as to why his father went to the police was because the Applicant
was taken to the hospital. His father was told by the police that “it was a
personal thing, and not something for them to bother with.” Having told the
father this, there would be little point in the Applicant going to the police
himself. In addition, there is strong evidence in the Alston Report, praised as
objective by the RPD, that “a belief in the practice of the vindicating honour
and blood outside the regular legal system remains well entrenched in certain
parts of society” (emphasis added), and that its “elimination will require
additional measures to those taken so far.” While this does not mean that the
state will not offer protection when asked, it does not contradict the
Applicant’s own experiences with the police. The police told his mother and his
father when they attempted to obtain protection for the Applicant, in
situations where he had been knocked to the ground or was in the hospital after
being hit by a car, that they would not get involved because it was a personal
family matter.
[97]
In
addition, I think there are two basic factual errors the RPD has made in its
Decision which make the Decision unreasonable.
[98]
First,
the RPD concluded the Applicant’s account of the injuries he suffered after he
was hit by the Fezjia’s car was not credible. The Decision says “the claimant
testified what when he was taken to the hospital, his ear was bleeding from
cuts and scratches on the back of the ear. His written evidence was that blood
was coming from inside the ear.” From the Decision, it would appear that there
is an unequivocal discrepancy between what the Applicant said and what he wrote
in his PIF. However, on a close reading of the PIF, there is really no
inconsistency. What the Applicant wrote was “Later, I was taken to the
hospital, because I was bleeding, including out of my ear and they were
concerned.” This could be taken to mean from the inside of the ear, but it
could also mean the outside of the ear. At the hearing, the Applicant clarified
what he had written, but the RPD did not even address his explanation.
[99]
The
RPD felt this mattered because it apparently thought blood coming from the
inside of the ear would corroborate the Applicant’s story of being held in the
hospital overnight for observation, but blood coming from the outside of the
ear would not. This seems to call for a medical judgment, when there is nothing
to show that the RPD member is a medical doctor or has any expertise in trauma
medicine. At any rate, as I have already noted, if the RPD had specialized
knowledge it was relying on, it had to put this to the Applicant for his
comment (see section 18 of the Refugee Protection Division Rules SOR/2002-228).
[100] Second,
the RPD concluded that the Applicant’s actions in the USA were inconsistent
with his stated fear because “he had no status in the US but he made no claim
for protection” and “I do not accept that remaining in the US for eight years
without status and without exploring all options, including returning to Canada
is [not] inconsistent with his stated fear.” As I have noted, there was
evidence before the RPD that the Applicant had attempted to regularize his
status in the USA through a sponsorship application by his parents. If this was
true, and the RPD does find it is not, then it would seem that the Applicant’s
actions in the USA were at least not inconsistent with his stated fear.
[101] As I
read the Decision, the RPD was concerned that the Applicant’s behaviour in the USA showed he did not actually fear persecution in Albania; had he actually had this fear, he would
have tried his hardest to remain in the USA, where he was safe. However, in
addition to the unreasonable analysis of his reasons for not claiming asylum
there, the RPD assumed that the only way he could have gained status in the USA was through an asylum claim. It did not address whether the outstanding sponsorship
application by his parents made it unnecessary for him to claim asylum.
[102] It is
also important to note that Applicant’s counsel spoke to this at the hearing
and explained why the Applicant would not have claimed asylum in the USA
Therefore, there was no point to making a claim. It
would be unreasonable because there was no prospect of success.
So I submit, in fact, given the information he had,
legal counsel and people in the same position, multiple people in the same
position, if he made the claim, it would have served to draw attention to
himself and hasten his deportation or removal from the US. Therefore, it would be a move against his own interests to do that. Unless there was some
foreseeable chance of success, going to the authorities in that instance could
only have hurt him. He didn’t want to be removed from the States, therefore he
didn’t do it, given no foreseeable chance of success.
The
RPD does not bother to address this explanation, so I think its conclusion on
this point is unreasonable.
[103] All
in all, I think that the lack of clarity in the grounds, the procedural
fairness issues and the unreasonable findings noted render this Decision unsafe
and that the matter should be returned for reconsideration.
[104] Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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