Date: 20110519
Docket: IMM-5925-10
Citation: 2011 FC 586
Ottawa, Ontario, May 19,
2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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UDI NASUFI
MUKADES NASUFI
SHKUMBIN NASUFI
and ALJBION NASUFI
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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
I. Facts
[1]
The
applicants are ethnic Albanians. They consist of Udi Nasufi (“the male applicant”),
his wife, Mukades (“the female applicant”), their son, Aljbion (“the older
minor applicant”) and their younger son, Shkumbin (“the younger minor applicant”).
The applicants are all citizens of Macedonia except for Shkumbin,
who is a citizen of the United States.
[2]
The
male applicant was involved in the Kosovo National Movement which fought for an
independent Albanian national state, viewed by Macedonian security forces as a
revolutionary organization. The male applicant claimed there was prevalent
persecution and harassment, and that he was particularly targeted due to his
participation in the movement.
[3]
The
male applicant recalled one particular incident involving a fight with
Macedonians, where he was arrested and detained for three days in 1986. He fled
to Switzerland in 1988 and remained there while working in an Albanian
nationalist organization, until he returned to Macedonia in 1996.
While he was in Switzerland, Macedonian security forces searched for him at
his parents’ home in Macedonia, several times. His
mother and other family members were harassed by the Macedonian police. Even
after returning to Macedonia, the security forces have attempted to find him
although, without success. The applicant also claimed he has been roughed up
and threatened by the police due to his political activity.
[4]
In
another unrelated incident about six years before the claim, the male applicant’s
brother, Sefer, was involved in a dispute against a man named Zhuda Xhevdet and
in the process of defending himself against him, shot Xhevdet, causing him to
lose his leg. The family of the victim declared a blood feud against Sefer and
the Nasufi family. The male claimant claimed that a blood feud still exists in
Macedonia, despite
attempts of reconciliation.
[5]
The
applicant family went to the United States, in November 1998, and remained
there until October 2008, when they came to Canada and made a
claim for asylum.
II. Decision under review
[6]
In
the decision dated September 22, 2010, the Immigration and Refugee Board’s
Refugee Protection Division [RPD] found that the applicants were neither
Convention Refugees nor persons in need of protection.
[7]
In
reviewing the applicants’ claim, and the documents about ethnic Albanians in Macedonia, the RPD
found “there may be discrimination of a person such as the male claimant and
his family.” However, the RPD found that what he experienced was discrimination
only and not persecution and therefore, he was not and is not a Convention
refugee. In providing reasons for this conclusion, the RPD observed that even
though there was still unrest in the country, there were serious efforts to
remedy this discrimination and that the ethnic Albanian population “have a
voice in government, educational opportunities exist, and the language is
recognized as official in areas that are predominantly Albanian.” The RPD
explained that it preferred these documents over those provided by the applicant
because they came from a variety of reliable and objective sources with no
vested interest in the outcome of the decision.
[8]
As
such, the RPD found that there was no persuasive evidence that the male
applicant was still politically active or that the authorities would still seek
him out for his political activities from fifteen years ago.
[9]
The
RPD also found that fear of a blood feud did not give rise to a nexus to the
Convention Refugee definition. The RPD acknowledged the documentary evidence of
the blood feud between the families, in form of letters, but noted that the
male applicant’s father returns to Macedonia because of his brothers
who are “self-confined”. The RPD found that this was not the action of a person
who feared being a target in a blood feud. The RPD also did not find the male applicant’s
testimony to be credible, that anything could happen regarding his wife, given
his statement that women were not targeted in blood feuds. The RPD then found, based
on the fact that there were no documents describing blood feuds in general in Macedonia, that there
was no persuasive evidence of an ongoing blood feud.
[10]
The
RPD therefore found no objective basis to the applicants’ fear of being
returned to Macedonia because of
their Albanian ethnicity.
[11]
The
RPD also considered whether there were compelling reasons not to send the applicants’
family back to Macedonia. The RPD considered the medical evidence, but found
that although there may have been discrimination, the applicants did not suffer
persecution in Macedonia, and that there was nothing atrocious or
appalling about the circumstances.
[12]
As
such, the RPD rejected the applicants’ claims.
III. Relevant
legislation
Immigration and Refugee
Protection Act,
2001, c 27 [IRPA]
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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,
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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 :
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(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
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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;
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(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.
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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.
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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
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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 :
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(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
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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;
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(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
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(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…
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(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,
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IV. Issue
[13]
The
issue raised by this application is the following: Is the Board’s decision
reasonable with respect to the existence of blood feuds in Macedonia and with
respect to the applicants’ fear of persecution if they are returned to Macedonia?
A. The Standard of Review
[14]
Both
the applicants and the respondent agree that the issue of whether a claim is
objectively well-founded is a question of mixed fact and law, and reviewable on
the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, and Canada (Minister of Citizenship and Immigration)
v Khosa,
2009 SCC 12 at para 59).
(1) Reasonableness
of the RPD’s finding on the blood feud
[15]
The
applicants observe that the RPD concluded there was no blood feud based on two
factors: the lack of subjective fear because the male applicant had re-availed
himself to Macedonia after the
blood feud was declared, and the lack of documentation regarding blood feuds in
Macedonia.
(2) Available
documentation regarding blood feuds
[16]
Regarding
the latter matter, the applicants submit that the documentary evidence before
the RPD was a letter from a community leader, attesting to the existence of a
blood feud. This letter was acknowledged by the RPD in its decision, but should
not have been discounted as it came from an impartial source.
[17]
In
response, the respondent argues that the RPD specifically mentioned this letter
and therefore did not discount it.
[18]
Although the RPD
claimed that there were no RPD documents that made reference to blood feuds in
Macedonia, the applicants point out that there were several references to blood
feuds, including in the RPD’s own documents such as its “Issue Paper: Albanian
Blood Feuds”.
[19]
The
respondent claims that the overall determination is not affected by minor
errors; instead, the finding of fact must be truly erroneous and made
capriciously or without regard to the evidence, and the decision must be based
on the erroneous finding (Rohm and Haas Canada Ltd v Canada (Anti-Dumping
Tribunal), [1978] FCJ No 522 at para 5, affirmed in the immigration context
in Rajapakse v Canada (Minister of Employment and Immigration), [1993] FCJ
(TD) 649 at para 3). Although the RPD erred in stating that the RPD documents
made no references to blood feuds in Macedonia, the respondent argues
that most of these documents refer to Albania, and not Macedonia, and
that the mere mention of Macedonia in the list of
countries where blood feuds occur, outside Albania, is not
sufficient to result in a different outcome. This was therefore a reasonable
finding, not a perverse or capricious one.
[20]
The
applicants reply by arguing that it was still incorrect for the RPD to state
that the country documentation made no reference to blood feuds in Macedonia,
as it casts doubt on the RPD’s reading and understanding of the evidence that
was before it. Even though the documents mostly referred to Albania (as opposed
to Macedonia), the applicants
point out that blood feuds are a part of ethnic Albanian society, and cultural
traditions prevail despite political borders. There was therefore objective,
credible evidence of blood feuds taking place outside of Albania and in Macedonia
specifically, which the RPD ignored.
[21]
However,
the respondents note that other than the one mention of Macedonia, there are no
detailed accounts of Albanian blood feuds occurring in Macedonia. The RPD is
presumed to have considered all of the evidence (Woolaston v Canada
(Minister of Manpower and Immigration), [1973] S.C.R. 102 and Hassan v
Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946).
[22]
In
terms of the alleged re-availment, the applicants submit that the RPD made an
error in stating that the male applicant had returned to Macedonia after the
blood feud was declared. The male applicant was last in Macedonia, in 1998,
before he fled to the United States, and therefore did not re-avail himself to Macedonia. The applicant
argues that errors of fact constitute reviewable errors, particularly where
they lead the RPD to make an inference about credibility. The applicants cite Anwar
v Canada (Minister of
Citizenship and Immigration), 2008 FC 305, where the RPD had found many
aspects of the applicants’ story to be implausible. Justice Lagace found that
the RPD had made a clear error of fact, which formed the basis of the RPD’s
finding that the events never occurred, and because it was not an insignificant
error but an important finding made without regard to the fact, it constituted
sufficient grounds for review “in view of the strong negative inference drawn
from a wrong understanding of the principal applicant’s testimony.” (Anwar v
Canada (Minister of
Citizenship and Immigration), 2008 FC 305 at para 26). The applicants
also cite Yang v Canada (Minister of Citizenship and Immigration), 2010
FC 468, where Justice Campbell found that the RPD made a fundamental reviewable
error in mistakenly stating that the applicant lived in Guangdong Province,
when the applicant was actually a native of Fujian Province, which had an
unfair contaminating influence on the outcome Yang v Canada (Minister of
Citizenship and Immigration), 2010 FC 468 at paras 2 and 3.
[23]
In
response, the respondent submits that the applicants have misread the RPD’s
finding, and the sentence in question: “the male claimant said he returned to Macedonia because of
the claimant’s brothers who are allegedly self-confined”; the RPD was referring
to the male applicant’s father, not the male applicant himself. At the hearing,
the applicants’ counsel acknowledged that the RPD was actually referring to the
father.
[24]
The
applicants submit that the RPD’s finding of the male applicant’s testimony
about his wife to be not credible demonstrates a lack of understanding of
violence and the history of blood feuds. The applicants point out that there
was evidence before the RPD of females being killed as well, even though adult
males are the traditional targets in a blood feud. The applicants argue that
there was nothing contradictory in worrying about the safety of his wife. As
such, the applicants submit that the RPD ignored important and on topic
material before it in making this negative credibility finding (Mendoza v Canada (Minister of
Citizenship and Immigration), 2008 FC 387 at para 16).
[25]
The
respondent argues, however, that the incidents of females being targeted were
not in the documentary evidence but in the psychologist’s report. The respondent
submits that the applicants did adduce any real evidence and have not shown why
exists a real possibility that is likely to occur to the adult female applicant,
in Macedonia.
[26]
In
general, the applicants submit there was no reason to question the male applicant’s
credibility, and that an applicant’s testimony is presumed to be truthful, unless
there is reason to doubt his truthfulness (Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302 at para 5) [Maldonado].
The applicants conclude that because the RPD relied on errors of fact and made
improper inferences as to the applicants’ credibility based on those errors,
the entire reasoning as to blood feud is unreasonable.
[27]
The
respondent points out that having a fear of a blood feud does not give rise to
a Convention Ground, and that the applicants have not offered any
non-speculative evidence to support their allegation of future persecution in
Macedonia.
V. Analysis
Several issues need to be examined in this
case:
[28]
The
first and most important issue involves the RPD’s findings on the available
evidence of blood feuds. The applicants submit that the RPD should not have
discounted the letter from the community letter attesting to the existence of
the blood feud. The respondent, however, points out that the RPD specifically
mentions the letter and, therefore, clearly did not ignore it and claims that
the applicants are asking the Court to re-weigh the evidence, which is not for
the Court to do.
[29]
This
Court is concerned, however, by the RPD’s explanation in paragraph 31 of its
decision: “I prefer the documentary evidence referred to above to that provided
by the claimant because it comes from a variety of reliable and objective
sources that have no vested interest in the outcome of this decision.” This
Court has, in the past, questioned the RPD’s preference of “disinterested”
documentary evidence over the applicants’ evidence. Justice Snider wrote, in Coitinho
v Canada (Minister of
Citizenship and Immigration), 2004 FC 1037 at para 7:
The Board goes on to make a most
disturbing finding. In the absence of stating that the applicants' evidence is
not credible, the Board concludes that it "gives more weight to the
documentary evidence because it comes for (sic) reputable, knowledgeable
sources, none of whom have any interest in the outcome of this particular
refugee hearing". This statement is tantamount to stating that documentary
evidence should always be preferred to that of a refugee claimant's because the
latter is interested in the outcome of the hearing. If permitted, such reasoning
would always defeat a claimant's evidence. The Board's decision in this case
does not inform the reader why the applicants' evidence, when supposed to be
presumed true (Adu, supra), was considered suspect. Further, this reasoning
cannot even stand on the facts of this case.
[30]
This
was affirmed again in Nilam v Canada (Minister of Citizenship and
Immigration), 2008 FC 689 at para 16, where Justice Mandamin pointed out
that all applicants have an interest in the outcome of their hearing, and to
discount their evidence on that ground goes against the proposition in Maldonado
that there is a presumption of truth in the sworn testimony of a claimant.
The Federal Court’s jurisprudence has cautioned the RPD against this kind of
reasoning in weighing the evidence. Hence, this Court is not convinced that the
RPD was reasonable in rejecting the evidence, including the letter from the
community leader, in favour of the RPD documentary evidence, on the sole
grounds that the latter did not have a vested interest in the outcome.
[31]
However,
the RPD did reject the applicants’ claims for other reasons as well, including
for credibility reasons. In particular, the RPD did not find the male applicant’s
testimony about his wife’s safety to be credible, given that the male applicant
had given evidence that women were not usually targets in blood feuds. Although
the applicants now attempt to explain this inconsistency, it would seem to me
that it was reasonably open to the RPD to find that this inconsistency impacted
negatively on the applicants’ credibility.
[32]
The
applicants also take issue with the RPD’s findings on the documentary
evidence. Both the respondent and applicants appear in agreement that the RPD
made a mistake in stating “The RPD documents make no reference to blood feuds in
Macedonia.” As pointed
out by the applicants, the Immigration Refugee Board’s [IRB] document, “Issue
Paper: Albania Blood Feuds”, clearly reads: “In addition, blood feuds occur
outside Albania, including in Macedonia, Kosovo, southern Serbia, Greece and
Italy. Pano acknowledged that blood feuds do occur outside Albania, but
indicated that they are few.” The respondent claims this mistake is minor and
would not change the RPD’s decision, particularly given that other sources
cited by the applicants. This Court does not qualify that mistake as minor
since it goes to the very heart of applicant’s fear of becoming victims of the
blood feud should they be forced to return to Macedonia. It might have been
open to the RPD to find that it was not convinced by the documentary evidence
that blood feuds existed in Macedonia; it is however, quite different to claim
that there was no documentary evidence on Macedonian blood feuds, and to
therefore reject the applicants’ claim of an ongoing blood feud on the basis of
implausibility, which the RPD did despite the existence of evidence that blood
feuds sometimes occurred in Macedonia. While the RPD is presumed to have considered all the
evidence, when there is evidence to the contrary of its decision, it must
analyze the evidence and provide reasons why it does not consider it relevant
or trustworthy or why it chose to disregard it (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425 and Khan v
Canada (Minister of Citizenship and Immigration), 2003 FC 1076 at para 10).
The RPD clearly did not acknowledge this contrary evidence and instead claimed
that none existed.
[33]
In
the present case, the main question is whether the RPD has made a reviewable
error that warrants this Court’s intervention. This Court finds that the RPD
has made two such reviewable errors. Firstly, in choosing the RPD documentary
evidence over the applicants’ evidence on the grounds that the former had “no
vested interest in the outcome of this decision”. The second error lies in
basing its decision on the fact that no ongoing blood feud existed due in part
to an absence of evidence in the RPD documents of blood feuds in Macedonia, when there
was such evidence. The RPD was required to acknowledge contrary evidence and explain
why it did not accept it. It was open to the RPD to make negative credibility
findings against the applicants; however, it was required to explain why it
also rejected the other contrary evidence in concluding that it was implausible
that such an ongoing blood feud existed.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The application for judicial
review is granted.
2.
The
board’s decision is set aside and the matter is referred back for
consideration.
3.
There
is no question of general interest to certify.
"André
F.J. Scott"
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