Date: 20091015
Docket: IMM-593-09
Citation: 2009 FC 1047
Ottawa, Ontario, October 15, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
LAVDIMIR PREKAJ and
EDMONDA PREKAJ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated January 19, 2009 (Decision) refusing the Applicants’
application to be deemed Convention refugees or persons in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants, husband and wife, are citizens of Albania. The male
Applicant fled to the United States in 2000 where he
claimed political asylum after an assault. The female Applicant fled to the United
States
in 2002. The Applicants were married in 2002 and now have three children. Two
of the children are citizens of the United States. One child is a citizen
of Canada. The
Applicants and their children fled to Canada after learning their claim for
asylum had been denied and they were to be deported from the United
States.
[3]
The
Applicants fear returning to Albania because of a blood feud
in the male Applicant’s family. His uncle killed a man and the victim’s family
is seeking to kill a male member of the male Applicant’s family. As a result,
the male members of the Applicant’s family live in hiding. The Applicants fear
being returned to the scene of the blood feud and came to Canada to seek refugee
status.
DECISION UNDER REVIEW
[4]
The
Board found that the Applicants did not have a well-founded fear of
persecution. Moreover, the Board determined that they were not people in need
of protection and that their removal to Albania and the United
States
would not subject them to a risk to their lives or to cruel and unusual treatment
or punishment.
[5]
The
Board determined that state protection was the main issue in this case. Because
the Democratic Party is in power in Albania, the male Applicant is no
longer a member of a particular social group. Moreover, a risk to his life and
a threat of cruel and unusual punishment no longer exists.
[6]
The
Board cited the Federal Court decision of Zefi v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 636 (Zefi) in finding
that vendettas and blood feuds do not have a nexus to the Convention. Moreover,
the government of Albania has made sweeping statutory changes regarding
blood feuds. Such changes include a twenty-five year prison sentence for those
who kill in a blood feud and stiff penalties for those who threaten retaliation.
These changes have begun to diminish the blood feud custom.
[7]
The
Board was satisfied that the Albanian government was making serious efforts to
address the problem of blood feuds. Expanded governmental efforts include an
amendment to make blood feuds illegal and a recent pledge of 65,000 Euros to
promote reconciliation. The Board was also satisfied that the occurrence of
blood feuds was reasonably low. The Board noted that Albania is a
parliamentary democracy and generally respects the rights of its citizens.
[8]
The
Board found that the Applicants had not presented the clear and convincing
evidence necessary to rebut the presumption of state protection. While the
protection offered by Albania was not perfect, the
Board was satisfied that the country was making serious efforts.
ISSUES
[9]
The
Applicants submit the following issues on this application:
1)
Did
the Board err in law in its interpretation and application of the definition of
Convention refugee and a person in need of protection as per sections 96 and 97
of the Act?
2)
Did
the Board base its Decision on an erroneous finding of fact or facts that it
made in a perverse or capricious manner or without regard for the material
before it?
3)
Did
the Board base its Decision on findings of plausibility based on inferences
that were not reasonably open to it?
4)
Did
the Board fail to observe a principle of natural justice, procedural fairness
or other procedure that it is required by law to observe?
However, not all of the formal grounds for
review are raised by the Applicants in their submissions. Essentially, the
Applicants argue that the Board’s findings on state protection are
unreasonable.
STATUTORY PROVISIONS
[10]
The
following provisions of the Act are applicable in these proceedings:
|
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
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
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;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
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.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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STANDARD OF REVIEW
[11]
In Dunsmuir v. New Brunswick,
[2008] 1
S.C.R. 190, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent
unreasonableness standards are theoretically different, "the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review" (Dunsmuir at paragraph 44). Consequently, the Supreme Court
of Canada held that the two reasonableness standards should be collapsed into a
single form of "reasonableness" review.
[12]
The Supreme Court of Canada in Dunsmuir
also held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the 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.
[13]
The Board’s interpretation
of the Act will be reviewed on a correctness standard, while the Board’s
application of the law to the facts will be considered on a standard of
reasonableness (Dunsmuir at paragraph 164). Reasonableness will also be used to
consider whether the Board erred in making its finding
of credibility: Aguirre v. Canada
(Minister of Citizenship and Immigration), 2008 FC 571.
[14]
Reasonableness
is the appropriate standard when reviewing the Board’s consideration of state
protection, since state protection is a question of mixed fact and law: Guzman
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 490. Questions of fact also attract
a standard of reasonableness (Dunsmuir at paragraph 51). Thus, in
considering whether or not the Board relied on erroneous findings of fact, a
standard of reasonableness will apply.
[15]
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” (Dunsmuir
at paragraph 47). Put another way, the Court should only intervene 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.”
[16]
The
Applicants have also raised legal error and procedural fairness issues to which
the standard of review is correctness: see Suresh v. Canada
(Minister of Citizenship and Immigration), 2002 SCC 1
and Dunsmuir at paragraph 60.
ARGUMENTS
The Applicants
[17]
The
Applicants recognize that a well-founded fear is based on the existence of both
a subjective and an objective component. They cite and rely on the Federal
Court of Appeal decision in Adjei v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 680 which held that the objective component of
the test is defined in terms of a “reasonable chance” that the persecution
would occur if the Applicants were returned. The Court expanded this test in Ponniah
v. Canada (Minister of Employment
& Immigration)(1991),
13 Imm. L.R. (2d) 241, in finding as follows:
“Good
grounds” or “reasonable chance”… is less than 50 % chance (i.e. a probability),
but more than a minimal or mere possibility. There is no intermediate ground:
what falls between the two limits is “good grounds”. If the claimant, as the
Board said, “…may face slightly more than a mere possibility…” of persecution,
he had crossed the lower limit and had made his case of “good grounds” or a
“reasonable chance” for fearing persecution.
[18]
The
Applicants submit that state protection is a question of fact because seeking
state protection depends on the unique circumstances of each case. In this
instance, the Board noted that the state’s protection was marginal, that there was
a low level of police professionalism, and that little police help was
available.
[19]
The
Applicants submit that they rebutted the presumption of state protection. Their
documentary evidence highlighted blood feud killings and revenge killings.
Moreover, this evidence showed that blood feuds are responsible for more than a
thousand families being imprisoned in their homes for fear of retaliation.
[20]
The
Applicants contend that the number of families imprisoned in their homes
demonstrates that state protection in Albania is not effective with regard to blood feuds. Moreover,
the evidence shows that Albanian police prefer not to get involved in
situations regarding blood feuds. Other evidence provided by the Applicants
shows that, in some situations, leaving Albania is the only solution to a blood feud.
[21]
Finally,
the Applicants submit that the National Committee of Reconciliation helps to
resolve blood feuds because state protection is ineffective in these cases.
[22]
The
Applicants believe that the Board misconstrued the evidence on state
protection. Furthermore, inferences made by the Board regarding the documentary
evidence were not reasonable, and the decision should be quashed. See Giron
v. Canada (Minister of Employment and Immigration)(1992), 143 N.R. 239.
The
Respondent
[23]
The
Respondent argues that the Board was correct in its consideration of state
protection. Specifically, the Board noted that, in the past year in Albania, only 2 murders out of
96 have been related to blood feuds. The Board also considered evidence that
the government was enacting steep penalties for blood feud killings which were helping
to decrease the practice. The Respondent contends that the Board’s reasons
demonstrate a full understanding of the documentary evidence.
[24]
In
order to show that the Board erred in its finding of state protection, the
Applicants must show that some reliable and probative evidence was not
considered by the Board. Moreover, the Applicants must demonstrate that
protection would not be forthcoming from the state: Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94.
[25]
The
evidence relied upon by the Applicants does not show an error in the analysis
of the Board, and does not show that state protection is inadequate. Simply
showing that blood feuds are still a problem in Albania does not discharge the Applicants’ burden.
ANALYSIS
[26]
This
matter must be returned for reconsideration. A review of the evidence before
the Board reveals an extremely partial selectiveness in order to support
conclusions that the evidence in total may well contradict.
[27]
For
example, the Board quotes and relies upon Exhibit C-10 for the following
quotation:
Statistics
vary on blood feud activity. According to the Interior Ministry, of the 96
murders during the year, two were related to blood feuds, with the number of
blood killings dropping due to an increase in investigations … .
[28]
However,
it is very telling that the Board does not quote the very next sentence from
the same document:
However,
the Committee for National Reconciliation, a nongovernmental organization
(NGO), continued to cite high levels of blood feud activity including over
1,000 families imprisoned in their homes for fear of blood feud reprisals
against them.
[29]
Counsel
for the Respondent has suggested to the Court that the reason this evidence was
disregarded was its source: the Committee for National Reconciliation. The Board
is, of course, entitled to prefer some evidence over other. However, where no
explanation is provided for the failure to refer to contradictory evidence,
then the Court may well conclude that it was simply ignored or was overlooked.
See Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), (1998) 157 F.T.R. 35.
[30]
The Response
for Information Request (RIR) that was part of the document package contained
unequivocal evidence that “Albanian authorities were unable to protect victims
of blood feuds,” that “blood feuds continue regardless of improvements” because
“the Albanian state remains somewhat ineffective.” There is also evidence that
the police and the judiciary are ineffective and are reluctant to become
involved in blood feud disputes because they fear that they may become targets
themselves.
[31]
None
of the contradictory evidence is addressed in the Decision. Counsel for the
Respondent suggests that the reason why the Board failed to refer to this
evidence is because the RIR is dated September 2006, so that the Board was
entitled to rely upon more recent documentation that refers to improvements in
the situation and action by the Albanian Government to deal with blood feuds.
However, this completely ignores the advice of the Protection Officer which
appears at page 270 of the Certified Tribunal Record and which refers to a May
2008 paper, and makes it very clear that, notwithstanding legislative changes
and government initiatives, the Government of Albania “is unable to deal with
blood feuds effectively or offer significant protection to citizens. Albanian
legislations have acknowledged that in Albania there is an absence of the rule of law.” All of
this is ignored by the Board. The Officer simply selects incomplete references
and evidence to support a finding that the Applicants have not rebutted the
presumption of state protection. The Decision is entirely unreasonable for this
reason. See King v. Canada (Minister of Citizenship and Immigration),
2005 FC 774.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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