Date:
20120601
Docket:
IMM-7209-11
Citation:
2012 FC 677
Toronto, Ontario, June 1, 2012
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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ENERIK JAKAJ
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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
[1]
This
is an application for judicial review pursuant to section 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board [the Board] dated July 26, 2011 in which the Board determined that the applicant
is not a Convention refugee or person in need of protection.
BACKGROUND
FACTS
[2]
The
applicant is an Albanian citizen born on February 8, 1987. He claims refugee
protection because of a blood feud against his family.
[3]
After
the fall of the communist regime, the Albanian government transferred a parcel
of land to the applicant’s grandfather. Prec Gjoni [Gjoni], who owns the land
immediately to the north of that parcel, believed that the land was rightfully
his. In 1999, Gjoni was arguing with the applicant’s uncle, Mark Jakaj, and
Mark struck Gjoni. Gjoni and his family then declared a blood feud. Mark
remains in Albania in hiding, but his son Edmond, the applicant’s cousin, made
a successful refugee claim in Canada in 2005.
[4]
The
applicant’s father moved to Italy in the 1990s. Although he was initially there
without status, the applicant’s father became an Italian permanent resident.
The applicant, his mother, and his siblings joined his father in Italy in May of 2001. The applicant was 14 years old at the time. He began working in Italy when he was 16 years old.
[5]
In
2008, the applicant’s father learned that Gjoni knew where the family was in Italy and was threatening them, since Edmond was out of his reach in Canada. As the eldest son, the
applicant was particularly at risk so the applicant’s father made arrangements
for the applicant to travel to Canada. The applicant arrived in Canada on July 20, 2008, travelling on a false Italian passport. He claimed refugee
protection on his arrival.
[6]
His
refugee claim was heard on October 5, 2010 and June 28, 2011. The first hearing
date was adjourned to address the question of the applicant’s status in Italy, as the Minister of Public Safety and Emergency Preparedness had intervened to argue
that the applicant was excluded from refugee protection. After it was
determined that the applicant’s status in Italy had lapsed, the Minister
withdrew his submissions about exclusion.
THE DECISION
UNDER REVIEW
[7]
The
Board found that the applicant had failed to credibly establish the existence
of the blood feud. It based this determination on inconsistencies in the
applicant’s evidence about how his father learned that Gjoni was looking for
the applicant as well as the fact that the applicant’s family continues to live
in the same location in Italy and has not had any problems with Gjoni since the
applicant’s departure. The Board therefore determined that the applicant had
fabricated the allegation that Gjoni found his family in Italy to further his refugee claim.
[8]
The
Board also noted the applicant’s lack of knowledge about the land dispute,
which it determined to be the cause of the blood feud. The Board further
doubted the existence of the blood feud because of this lack of knowledge and
the lack of evidence that Gjoni has formally disputed the land ownership.
[9]
Finally,
the Board acknowledged the letter from the Peace Missionaries that confirms the
existence of the feud, but gave it little weight because it was based only on
interviews with the two families. The Board found that there was no independent
and reliable evidence to confirm the existence of the blood feud.
[10]
The
Board therefore found that the applicant was not a Convention refugee or person
in need of protection.
STANDARD OF
REVIEW
[11]
The
Board’s determination was essentially one of credibility and will therefore be
reviewed on the reasonableness standard (see Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC 354, 2009 CarswellNat 898 at
para 29). Therefore, the decision will only be disturbed if it falls outside of
“the range of acceptable outcomes that are defensible in respect of the facts
and the law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47).
IS THE DECISION
REASONABLE?
[12]
The
applicant submits that the decision is unreasonable because the
Board failed to address all of the evidence before it. Specifically, he argues
that the Board failed to consider an email sent by the Canadian Mission in Rome which corroborated the existence of the blood feud and which referenced the Albanian
police being aware of the feud. He further argues that the Board placed too
much emphasis on minor inconsistencies in his evidence, citing Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116, 228 FTR 43 and Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, 83
ACWS (3d) 264. He also notes that the Board made no mention of the letter from
his Village Dignitary or to the National Reconciliation Committee [NRC], which
was contacted by the Canadian Mission in Rome.
[13]
I
agree. I find that the Board misconstrued the evidence that was before it to
support the existence of the blood feud. The Board found that the letter from
the Peace Missionaries was not sufficient evidence to establish the existence
of a blood feud, but it made no mention of the letter from the Village Dignitary,
the letter from the Chairman of the village, the declaration from the
applicant’s father, or the letter from the All-Nation Association for the
Integration of the Prisoners and Political Prosecuted Persons, all of which
attested to the existence to the blood feud and the risk to the applicant. Nor
did the Board mention the email from the Canadian Mission, which indicated that
the NRC corroborated the existence of the feud. Although the staff at the
Canadian Mission did not contact the Albanian police directly, the email does
suggest that the police in the village are aware of the blood feud.
[14]
At
paragraph 16 of its decision, the Board stated that “The English version of the
Peace Missionaries letter, attests [sic] to the existence of a blood feud, but
other than interviewing both families, gives no other information as to why the
author believes that a feud exists”. The applicant argues that there was
evidence in the record that Peace Missionaries and other reconciliation
committees do more than merely interview families and that, in any event, the
Board’s experience with other refugee claimants alleging blood feuds is not
sufficient to ground specialized knowledge. I note that a police report, which
the Board suggested would have been more reliable evidence than the Peace
Missionaries letter, would likely also be based on interviews with the families.
In any event, given that the blood feud is essentially a private dispute
between families, it is unclear what other evidence can be expected to attest
to the existence of the blood feud.
[15]
It
was open to the Board to give little weight to the letters and declarations
provided by the applicant, but it was required to explain its reasons for doing
so; the same is true of the email from the Canadian Mission, which was put
before the Board by the Minister of Public Safety and Emergency Preparedness.
Further, even if each of these documents is on its own insufficient to
establish a risk to the applicant, the Officer was required to consider the
cumulative effect of these various documents which all state that there is a
blood feud against the applicant’s family and that the applicant is therefore
at risk in Albania.
[16]
Based
on these omissions, I find that the Board misconstrued the evidence and that
its decision must therefore be set aside.
[17]
I
also accept the applicant’s submission that the Board’s credibility assessment
is unreasonable because it was based on relatively minor inconsistencies. These
inconsistencies arose with respect to two issues: how the applicant’s family
learned of the threat in Italy and the basis for the land dispute.
[18]
However,
the applicant’s evidence about how the family learned of the threat was not
actually contradictory. The applicant testified that his aunt told the family
of the threat and later that they learned of the threats by word of mouth. His
PIF states that they were threatened indirectly. These three accounts may
differ slightly, but they are easily reconciled with one another. I note as
well that the applicant testified at the second day of the hearing that his
father was told of the threats by his sister, the applicant’s aunt, and several
others. Although the Board suggested that the PIF should have referenced the
applicant’s aunt if indeed she told the family about the threat, I am not
prepared to accept this proposition. The applicant consistently stated that his
father informed him of the threat, and these so-called inconsistencies relate
to how his father learned of it. Given that the applicant was recounting what
his father told him about how he had learned of the threat, I do not find these
slight variations to be a reasonable basis for a negative credibility finding.
[19]
The
other inconsistency concerned the details of the land dispute, which began in
the 1990s when the applicant was a small child. Although the applicant’s
evidence was somewhat inconsistent about the land dispute, I find this
inconsistency to be peripheral. This inconsistency, either on its own or in
combination with the variations in the applicant’s evidence about how the
family learned of the threat, is not in my view sufficient to ground a negative
credibility finding.
[20]
The
Board essentially required a police report in order to find that the blood feud
existed. I am not satisfied that this was reasonable, given the young age at
which the applicant fled Albania and the fact that his uncle who remains there
is in hiding. I also note that the applicant testified that there is only one
policeman in his village, a fact which is supported by the wording of the
email. In these circumstances, and given the evidence corroborating the
existence of the blood feud that the Board failed to address, I find the
decision to be unreasonable.
[21]
For
these reasons, the application is allowed. The decision is set aside and the
matter is remitted to a differently constituted panel of the Board.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is allowed. The decision is hereby set aside
and the matter is remitted to a differently constituted panel of the Board.
“Danièle Tremblay-Lamer”
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