Date:
20121109
Docket:
IMM-1200-12
Citation:
2012 FC 1312
Ottawa, Ontario,
November 9, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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GJOVALIN MELAJ
JOZEFINA MELAJ
JOZEF MELAJ
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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 January 3, 2012, decision of the Refugee
Protection Division of the Immigration and Refugee Board (“the Board”) in which
the Board determined that the Applicants were neither Convention refugees nor
persons in need of protection under sections 96 and 97, respectively, of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Facts
[3]
The
Applicants are Mr. Gjovalin Melaj and his two minor children, Jozefina and
Jozef Melaj. Mr. Melaj and his daughter are citizens of Albania, while
his son is an American citizen. They came to Canada on July 15, 2008, and
submitted their claim for refugee protection two days later on the basis of
their fear of harm pursuant to a blood feud declared against their family in
Albania.
[4]
Mr.
Melaj was a police officer in Albania until 1996, when the country fell into
civil war. He was taken into custody and tortured by his fellow officers after
he refused to shoot at civilians who opposed the government, as ordered by his
superiors. He fled with his family to the United States, where his claim for
asylum was ultimately refused because the civil war had ended.
[5]
While
in the United States, Mr. Melaj discovered that a blood feud had been declared
against his family back in Albania. The origin of the dispute purportedly
dates back to Mr. Melaj’s time working as a police officer. While a customs
inspector in 1996, Mr. Melaj confiscated contraband goods from three
individuals. A skirmish ensued, in which Mr. Melaj suffered a knife wound. While
he arrested two of the three men, one of them escaped. The two were then
released from custody shortly after their arrest. Mr. Melaj attributed this to
their participation in a crime ring that also involved the chief of police of
the same region where they were arrested.
[6]
Two
years after this confrontation, the three men approached Mr. Melaj’s brother
for compensation for the confiscated goods that were not returned. When the
brother did not acquiesce, the three men began to beat him. Mr. Melaj’s
cousins, returning from work right around this time, came to his brother’s
assistance. They brought weapons, and shot one of the three men. Mr. Melaj
asserts that the blood feud was declared the following day.
[7]
In
the course of the following years, Mr. Melaj recounts that one of his cousins
was shot and wounded, though not killed, and his father was killed. While the
evidence is not entirely clear on this particular point, Mr. Melaj testified
that the Dokaj family decided that the blood had been satisfied by taking the
life of the head of the family, but that the Melaj family was not willing to
reconcile.
II. Impugned
Decision
[8]
The
Board first dismissed the claim of the Applicant with American citizenship, as
no submissions were made, nor was evidence adduced, to establish that state
protection in the United States would be inadequate.
[9]
The
Board then rejected the claim of the two other Applicants on the basis that the
principal Applicant’s testimony was not credible. While it recognized that
there are documents that, on their face, support the Applicants’ claim, the
Board concluded that these documents depended on the credible testimony of the
principal Applicant.
[10]
The
Board drew a series of negative credibility inferences from Mr. Melaj’s
testimony. First, Mr. Melaj failed to testify that his mother told him that a
blood feud was actually declared the day following the first altercation, in which
his brother was attacked.
[11]
Second,
the Board drew a negative inference from Mr. Melaj’s explanation about why his
brother’s name was on the DHL package that he claimed was sent by his mother. If
the Applicant’s brother was purportedly hiding in Italy, and only returned to
Albania occasionally, the Board found it reasonable that one of the Applicant’s
sisters would assist their mother with mailing the documents, should she
require assistance. As such, the Board concluded that the documents were
actually sent by Mr. Melaj’s brother and that, by extension, he was no longer
in self-confinement or hiding in Italy.
[12]
Third,
the Board drew a negative credibility inference from the Applicant’s inability
to explain why his father’s death certificate was printed on lined paper. The
Board concluded that it had been altered for the purpose of advancing the claim
for refugee protection. The Board further noted that only one report made in
connection with Mr. Melaj’s father’s death mentioned the blood feud.
[13]
The
Board was also not convinced that the blood feud was sparked by the Dokaj
family’s attempt to obtain compensation from the contraband goods that were
seized two years prior to the declaration of the blood feud. First, the Board
did not find it plausible that the demands would be made two years after the
actions. Second, Mr. Melaj was only one of three officers involved in the
confiscation, and there was no evidence that any similar demands were made of
the other two officers or their families.
[14]
Finally,
the Board noted that it would have been incumbent on the Applicant to seek the
assistance of his former employer before making a claim for protection in
Canada. The Board was not satisfied that he did so, and concluded that the
Applicant failed to show that state protection from the illegal demands for
compensation would not be adequate.
III. Issues
[15]
The
determinative issue in this case is whether the Board’s credibility finding was
reasonable.
IV. Standard
of Review
[16]
Credibility
determinations are questions of fact and of mixed fact and law. As such, they
are owed significant deference, and are reviewable on the standard of
reasonableness (see Baykus v Canada (Minister of Citizenship and
Immigration), 2010 FC 851, [2010] FCJ No 1058 at para 14; Mejia v Canada
(Minister of Citizenship and Immigration), 2009 FC 354, [2009] FCJ No 438
at para 29).
[17]
Reasonableness
is concerned “mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[18]
The
Applicants contest the Board’s finding with respect to the following main
points: (a) the Applicant’s testimony about the declaration of the blood feud;
(b) whether the Applicant’s brother is in hiding; (c) the “fraudulent” death
certificate; (d) the connection between the Applicant’s father’s death and the
blood feud; (e) the plausibility of the Dokaj brothers’ demands two years after
the 1996 confiscation of goods; and (f) the Applicant’s failure to seek state
protection.
[19]
Based
on the record, it is evident that the Applicant’s testimony was not clear on
when or by whom the blood feud was declared. As such, it was open to the Board
to make a negative credibility inference on this point. The Board’s conclusion
in this regard was reasonable.
[20]
The
Board’s conclusion that the Applicant’s brother is not in hiding in Italy
hinges on the credibility of the Applicant’s account as to why the brother’s
name is on the courier package of documents that were sent to the Applicant,
when he testified that it was his mother who physically sent them. There were
inconsistencies in the record with respect to the mother’s level of literacy,
and, as the Respondent points out, it is clear that the Applicant’s mother was
very active and involved in retrieving documents, reporting incidents to the
police, and going to the public attorney’s office. I am satisfied that the
Board’s conclusion on this point was reasonable, particularly in the absence of
evidence that it was unreasonable to expect that the Applicant’s sisters may be
able to help their mother with the documents. Given the dangers associated
with a blood feud, it would be reasonable to expect that the Applicant’s family
might change the manner in which the Applicant described they sent documents
historically, so as to protect the brother from being targeted.
[21]
Furthermore,
I find the Board’s conclusion with respect to the death certificate reasonable.
Its conclusion was based on the appearance of the document, and not on any
“specialized knowledge,” as the Applicants contend. I note that the birth
certificates of the Applicants contained in the record were not printed on
lined paper, and the Board did give the Applicant an opportunity to explain the
appearance of the document. Given the evidence in the record, the Board’s
conclusion on this point was within the range of possible, acceptable outcomes.
[22]
The
Board decided that, even if it were to accept that the Applicant’s father had
been killed in connection with the blood feud, the Applicant testified that the
Dokaj family told villagers that the feud was settled for now. It was
reasonable, when considering the whole of the decision, to conclude that the
Applicant was no longer at risk. This is particularly so given the Applicant’s
testimony that it was in fact his own family that was unwilling to settle the
feud, considering that too much blood had been shed.
[23]
Relatedly,
the Board made an adverse credibility finding on the basis that it was not
plausible that the blood feud had as its root the compensation sought by the
Dokaj brothers, particularly since there was no evidence that either of the
other two officers involved in that incident had been targeted. This Court has
determined that “a tribunal may make adverse findings of credibility based on
the implausibility of an applicant's story provided the inferences drawn can be
reasonably said to exist” (Valtchez v Canada (Minister of Citizenship and
Immigration), 2001 FCT 776, [2001] FCJ No 1131 at para 7). I am satisfied
that the inferences drawn can reasonably be said to exist on a consideration of
the whole of the evidence.
[24]
Finally,
the Board states that the Applicant failed to show that state protection would
not be forthcoming with respect to the illegal claim for compensation
purportedly made by the Dokaj brothers. The Applicant testified that his
mother went to the police to report incidents related to the blood feud, though
there was no evidence that the alleged source of the feud was recounted to
police at all. The Applicant’s mother further obtained a record of the 1996
customs incident from the police, apparently without difficulty. These events
tend to show that state protection would be forthcoming.
[25]
The
Applicants further posit that the Board did not raise state protection as a
determinative issue. While I agree that the Board did not refer to state
protection generally at the hearing, and that it did not acknowledge any
consultation of the documentary evidence, its decision was centered on its
credibility findings. In other words, state protection was not, in fact,
determinative of the claim. As such, I find the Board’s overall conclusion to
be within the range of possible, acceptable outcomes.
VI. Conclusion
[26]
The
Board’s credibility decision, when evaluated in its entirety, is defensible in
respect of the facts and the 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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