Date: 20090901
Docket: IMM-4020-09
Citation: 2009 FC 868
Ottawa, Ontario, September 1, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
DRITAN PRIFTI
ELONA PRIFTI
FRANCESKO PRIFTI
JASON PRIFTI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicants, Mr. Dritan Prifti, and his spouse, Ms. Elona
Prifti, Albanian nationals, are scheduled for removal on September 5, 2009.
Their two minor children, who are both United States citizens, are scheduled
for removal to the United States on September 2, 2009. The Applicants bring
this motion to stay their removal based on a challenge to their negative
Pre-Removal Risk Assessment (PRRA) decision. The PRRA Officer rejected the Applicants’
claim on the basis that their allegations were a reiteration of what was before
the Refugee Protection Division (RPD) and that adequate state protection is
available for the Applicants in their home country.
II. Background
[2]
The adult Applicants are both citizens of Albania and have been
in Canada since July 2006. The Applicants made protection claims before the RPD
of the Immigration Refugee Board (IRB). The adult Applicants allege a fear of
reprisals or retaliation on the basis of the female applicant’s rejection of
her former fiancé and, consequently, the existence of a blood feud between the
two families. The RPD made a negative refugee determination decision on April
4, 2008 and rejected the Applicants’ joint protection claims on the basis of credibility.
Leave to seek judicial review of this negative decision was denied in August
2008 by this Court, and a negative PRRA was completed in July 2009, reiterating
the decision of the RPD on credibility which was not based on actual contradictions
but rather on plausibility findings; and it is not the RPD decision, which is
in question; but rather, it is the PRRA decision which is under scrutiny as to
whether or not the Applicants, as a family, would be in peril. In reading the relevant
2008 U.S. Country Report, released in February 2009, and other material evidence,
such as that of Freedom House, of the Applicants, it is recognized that
corruption, at every level, is still a major concern in respect of the authorities
in question, although the state apparatus is in place for such protection; that,
however, is in large measure, only in place on a theoretical basis.
III. Issue
[3]
Have
the requirements of the Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, 11
A.C.W.S. (3d) 440 (F.C.A.) tripartite
test been met?
IV. Analysis
[4]
The Applicants have satisfied the Toth tripartite test for a stay
of removal in regard to each of the components of that conjunctive test.
A. Serious Issue
[5]
The determination of risk on return to a particular country is in
large part a fact-driven inquiry. It requires consideration of the actual
human rights record of the country, not a theoretical one, and the need
to examine the possible personal risk faced by an applicant. The facts
presented are particular to the applicants’ situation and the applicable documentary
evidence. This required analysis must be reasonable and in accordance with the Immigration
and Refuge Protection Act, S.C. 2001, c-27 (IRPA). Reasonableness is concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. It is also concerned with
whether the decision falls within a range of possible, acceptable outcomes in
respect of the facts and law. It must take into account the peril, if any,
awaiting the female applicant and her family (Sebastiampillai v. Canada (M.C.I.), 2009 FC 394 at paras.
45-46; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47).
[6]
The PRRA Officer does not appear to have considered each of the
Applicants’ evidentiary documents. Specifically, the Officer notes that the RPD
found credibility to be the determinative issue in denying the Applicants’
joint claim; however, that does not alleviate the PRRA Officer from analyzing
the potential peril to the family under the rubric of state protection which has
been put forward in this regard. The PRRA Officer specifically was obliged to
address the tangible, not theoretical, risk, to the family itself
under “state protection”.
[7]
The new evidentiary documents appear to refute the findings of
the PRRA decision.
[8]
An applicant who claims that state protection is
inadequate bears the evidentiary burden of adducing clear and convincing
evidence to rebut the presumption of state protection. It is the Applicants who
must satisfy the trier of fact on a balance of probabilities that state
protection is inadequate (Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1,
153 N.R. 321; Flores Carillo v. Canada (M.C.I.), 2008 FCA 94 at para. 30).
[9]
The PRRA officer appears to have narrowly reviewed the
documentation and not to have focused on the current evidence of state measures
related to blood feuds in Albania. The Applicants do appear to bear the
evidentiary burden as is demonstrated through several pieces of evidence; that
evidence is in regard to the degree of potential peril awaiting the family due
to, still existing, corruption of officials to which the Applicants
could be subjected. At the beginning of the relevant 2008 U.S. Country Report,
it is clearly stated that “Societal killings continued during the year,
resulting from vigilante action (including… ““blood feud” killings and revenge
killings”) The Country Report of 2008, if read as whole, includes an excerpt,
specifically, in regard to children who are not sent to school due to fear
arising from blood feuds. Furthermore, the analysis that was conducted was to
be with a view to any forward-looking risk to the Applicants. A PRRA Officer’s
reasons are not to be read microscopically but rather as a whole and as a whole
they must be reasonable, based on the evidence the PRRA Officer would have
analyzed, they do not appear to be so (Applicant’s PRRA enclosures,
Applicant’s Record, pp. 55-66; Doukhi v. M.C.I., 2006 FC 1464 at para. 27;
Miranda v. Canada (M.E.I.), (1993), 63 F.T.R. 81, pp. 81 & 82; Rizvi v.
Canada (M.C.I. and M.P.S.E.P.), 2009 FC 463 at para.
22).
[10]
The PRRA Officer’s review of the documentary evidence indicated
that measures were taken by the state to handle blood feuds, but, in fact, a
serious problem still exists as was specified in the Applicants’ material
evidence; a thousand persons remain in their homes due to fear arising from blood
feuds. In particular, the PRRA Officer reviewed the U.S. Department of State
(DOS) report, dated February 25, 2009, and the Freedom House 2008 report,
published in August 2008, all of which need to be read as a whole in a context
that is practical and, not merely theoretical; it would even be difficult to
state that a tangible, durable, change of circumstances has, in fact, taken
place when considering the evidence of the Applicants submitted to the PRRA
Officer. Specifically, the PRRA Officer cites the enactment of criminal
legislation in 2007 that targeted blood feuds themselves, making them a crime
punishable by a three year sentence, and resultant harm such as murder,
subjecting perpetrators to a potential penalty of 20 years’ incarceration;
however, although some improvement has been shown, blood feuds still continue on
a significant level (Applicant’s PRRA enclosures, Applicant’s Record, pp. 62-63).
[11]
In light of the foregoing, the PRRA Officer’s conclusion, that
the Applicants had failed to rebut the presumption of state protection, needs
to be examined more closely as to its reasonableness (Applicant’s PRRA enclosures, Applicant’s
Record, pp. 64-65).
B.
Irreparable Harm
[12]
The onus was on the Applicant to demonstrate, through clear and
convincing evidence of irreparable harm, that the extraordinary remedy of a
stay of removal is warranted. Irreparable harm must constitute more than a
series of possibilities and cannot be simply based on assertions and
speculation, which is not the case in this matter (Atwal v. Canada (M.C.I.), 2004 FCA 427).
[13]
Even if there is the existence of a serious issue in the context
of a PRRA decision, this does not necessarily establish irreparable harm. Each
case must be determined on its facts and the facts herein do establish the
possibility of irreparable harm (Selliah v. Canada (M.C.I.), 2004 FCA 261 at para. 19).
[14]
The Applicants have duly satisfied the test for irreparable harm.
C. Balance of
Convenience
[15]
The Applicants are seeking extraordinary equitable relief. The
public interest must be taken into consideration when evaluating this last
criterion. In order to demonstrate that the balance of convenience favours the
Applicants, the latter should demonstrate that there is a public interest not
to remove them as scheduled, as these Applicants have duly done (Dugonitsch v. Canada (M.E.I.), [1992] F.C.J. No. 320;
RJR-MacDonald
Inc. v. Canada,
supra, para.4; Blum v. Canada (M.C.I.) (1994) 90 F.T.R. 54).
[16]
The balance of any inconvenience which the Applicants may suffer
as a result of removal from Canada outweighs the public interest which the
Respondent seeks to maintain; specifically, an interest exists in executing a
deportation order as soon as reasonably practicable, if, in fact and law, such
a deportation is warranted which, in this case, it is not (Atwal v. Canada
(M.C.I.),
2004 FCA 427 at para. 19).
V. Conclusion
[17]
For all of the above reasons, the Applicants’ application for a
stay of execution is granted pending a final determination of their application
for leave and for judicial review of the negative PRRA decision.
JUDGMENT
THIS COURT ORDERS that the Applicants’ application for a stay of
execution be granted pending
a final determination of their application for leave and for judicial review of
the negative Pre-Removal Risk Assessment decision.
“Michel M.J. Shore”
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