Date: 20111031
Docket: IMM-1613-11
Citation: 2011 FC 1063
Ottawa, Ontario, October
31, 2011
PRESENT: The Honourable
Mr. Justice Crampton
BETWEEN:
|
|
KLODJAN TRAKO
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
Applicant, Klodjan Trako, is a citizen of Albania who fears
death at the hands of members of the Fidas family, who he claims have declared a
blood feud against his family.
[2]
He
submits that the Refugee
Protection Division of the Immigration and Refugee Board erred in rejecting his
application for refugee protection by:
i.
finding
that some of the evidence that he adduced was not credible and failing to
provide him with an opportunity to address its credibility concerns;
ii. determining
that he had not rebutted the presumption of state protection; and
iii. assessing his
subjective fear in the context of its analysis under section 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[3]
For
the reasons that follow, this application will be dismissed.
I. Background
[4]
In
2005, Mr. Trako fled Albania after being assaulted
by armed and masked policemen who threatened him because of his support for the
Democratic Party. Upon arriving in the United States, he was arrested and detained for six
months. He filed a claim for asylum and settled in Wisconsin following his release
from detention.
[5]
In
November 2006, he began to live with Enkeleda Hervert and her daughter from a
prior marriage. Ms. Hervert is also of Albanian ethnicity.
[6]
In
March 2007, Mr. Trako and Ms. Hervert ceased their romantic relationship, but
continued living together.
[7]
In
June 2008, Ms. Hervert’s mother visited the United States and learned
of the relationship between Mr. Trako and her daughter. Soon thereafter, Ms. Hervert’s
father, whose name is Defrim Fidas and who lives in Albania, told Mr. Trako
that he could not separate from his daughter because that would harm the Fidas family’s
honour. A short while later, Mr. Trako allegedly learned that a representative
of the Fidas family had declared a blood feud between the two families.
[8]
After
allegedly being attacked by two Albania men who told him that
the attack was a message from Mr. Fidas, Mr. Trako fled to Canada and
submitted his claim for refugee protection in April 2010. His claim was based
on two grounds, namely, (i) a fear of persecution by reason of his political
opinion, and (ii) a fear of death at the hands of the Fidas family.
II. The
Decision under Review
[9]
The
Board identified state protection as being the determinative issue and
ultimately found that Mr. Trako had not demonstrated, with clear and convincing
evidence, that he would be unable to avail himself of adequate state protection
if he were to return to Albania and to require such
protection.
[10]
The
Board also rejected Mr. Trako’s claim for protection based on his political
activities in Albania. Although it
found Mr. Trako to be generally credible with respect to his account of events
that occurred in Albania before he fled to the US, it noted
that the Democratic Party, which he supported, is currently in power. The Board
proceeded to determine that he had not provided sufficient evidence to support
that particular claim. Mr. Trako did not contest that aspect of the Board’s determination
before this Court.
[11]
In
the course of its decision, the Board also made various credibility findings. In
particular, it questioned the credibility of (i) an attestation letter from
Gjin Marku, Chairman of the Nationwide Reconciliation Committee (NRC), which
confirmed the existence of a blood feud between the Fidas and Trako families,
and (ii) a letter from Mr. Trako’s father stating that a member of the Fidas
family had contacted him to declare a blood feud.
[12]
In
addition, the Board found that Mr. Trako’s departure from the United
States,
where he had been living since February 2005 and where he had an outstanding
claim for asylum, was not consistent with having a subjective fear of being
harmed or killed should he return to Albania.
[13]
Nevertheless,
the Board noted that even if it had found Mr. Trako to be credible, state
protection would be reasonably forthcoming to him should he return to Albania.
III. The
Standard of Review
[14]
With
one exception, the issues that Mr. Trako has raised are questions of fact or
questions of mixed fact and law that are reviewable on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190, at paras 51-55). In short, the Board’s decision will stand unless it
does not fall “within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” and is not sufficiently justified,
transparent and intelligible (Dunsmuir, at para 47).
[15]
The issue
of procedural fairness and natural justice that Mr. Trako has raised is
reviewable on a standard of correctness (Dunsmuir, above, at
paras 55, and 79; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR
339, at para 43).
IV. Analysis
A. Did the Board err in
finding that certain evidence adduced by Mr. Trako was not credible, and in
failing to provide him with an opportunity to address its credibility concerns?
[16]
Mr.
Trako submits that it was unreasonable for the Board to identify “serious
credibility concerns” with Mr. Marku’s attestation letter, when:
i.
a
recent response to information request that appears on the Board’s website recognizes
that the NRC “is the only blood feud organization authorized by the Albanian
government to verify the authenticity of blood feuds and to issue attestation
letters”;
ii. other
documentation on the Board’s website notes that a Canadian embassy official,
presumably located in Albania, “stated that the
authenticity of blood feuds may be verified by contacting the chairperson of
the [NRC]”; and
iii. this Court
has on numerous occasions found Mr. Marku and the NRC to be credible and has
relied on evidence provided by Mr. Marku to others on behalf of the NRC
to set aside decisions by the Board.
[17]
I
disagree.
[18]
The
Board made it very clear that, even if it had found Mr. Trako’s claims with
respect to the blood feud to have been credible, state protection would be
reasonably forthcoming to him should he return to Albania.
[19]
That
said, the fact that the NRC may be recognized by the Board to be the only
organization that is authorized by the Albanian government to verify the
authentic city of blood feuds does not preclude the Board from questioning the
credibility of attestation letters written by Mr. Marku on behalf of the NRC in
certain cases. As legal counsel to Mr. Trako conceded during the hearing on
this application, attestation letters written by Mr. Marku or others on behalf
of the NRC are not determinative sources of evidence regarding the existence of
a blood feud. While such letters will often merit considerable weight, there
may be circumstances in which it will be reasonably open to the Board to question
the credibility of such a letter, particularly when its contents cannot be
reconciled with the preponderance of the other evidence before the Board. That is
precisely what happened in this case.
[20]
As
both Mr. Marku and the Board recognized, the facts supporting his claim in this
particular case are unusual. Among other things, the alleged blood feud in
question was declared after Mr. Trako had been living in the United
States
for over two years. In addition, other letters provided by Mr. Trako to the
Board made no reference to the blood feud. In particular, neither the letter
written by Ms. Hervert dated November 27, 2010 nor the undated letter written
by
Mr. Trako’s cousin, Hasime Trako, made any
mention of the alleged blood feud. Moreover, no letters or other evidence was
provided on behalf of the friends who allegedly witnessed the attack on Mr.
Trako by two Albanian men in the United States, which Mr. Trako claims
precipitated his flight to Canada. A letter from the Community of Lazarat
confirming that Mr. Trako’s father no longer lives in that village also failed
to refer to the alleged blood feud.
[21]
In
short, no explanation was provided regarding why evidence that appeared to be
available to corroborate the existence of the blood feud was not adduced. As a
result, the only corroboration of the existence of that blood feud were the
attestation letter written by Mr. Marku and the letter from Mr. Trako’s father.
[22]
The
Board devoted almost four pages of its decision to discussing Mr. Marku’s
attestation letter as well as a second, lengthy, letter written by Mr. Marku to
Professor Philip Alston, the United Nations’ Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions. That second letter, dated April
16, 2010, responded to an e-mail, dated March 9, 2010, and appears to have been
part of a longer exchange of correspondence between Mr. Marku and Professor
Alston. Unfortunately, while the letter itself was part of the Board’s National
Documentation Package, the related correspondence was not available to the
Board. As a result, the Board appropriately noted that it was placed in the
difficult position of considering “Mr. Marku’s letter out of its full and
proper context, and without being able to view Professor Alston’s side of the
exchange.” Given the nature and length of Mr. Marku’s response to Professor
Alston, it is reasonable to wonder what Professor Alston may have said about
the NRC to provoke such a response.
[23]
The
Board also appropriately observed that Mr. Marku’s letter contained a variety
of information and numerous statistics, but little indication of the source of
that information. In this regard, the Board noted that Mr. Marku strongly disputed
(i) statistics with respect to blood feuds issued by the Albanian government
figures, and (ii) certain conclusions that were reached by
Mr. Alston in a report that he was drafting
at the time and that ultimately was finalized on May 10, 2010 (the “Alston
Report”). The Board then questioned why Mr. Marku had not provided sources for
the information he claimed should be preferred.
[24]
Relying
on the Alston Report, the Board proceeded to identify a concern regarding
“Mr. Marku’s objectivity in the matter of blood
feuds.” Specifically, the Board observed that the Alston Report had identified
“wide discrepancies in statistics regarding blood feuds,” which it attributed,
in part, “to the incentive for some non-governmental organizations to
over-state the magnitude of the blood feud problem in order to obtain funding.”
The Board noted that “similar criticism has come in previous years from other
sources, one of whom referred to, ‘… reconciliation groups’ practice of
inflating the number of blood feuds in order to justify their continued
involvement in this area,’ while another stated that some reconciliation
committees focus mainly on raising funds for their organizations.”
[25]
Although
the Alston Report did not specifically identify the NRC as being among the
reconciliation groups that he believes may inflate their statistics, the Board
observed that
Mr. Marku’s letter to Professor Alston did
not acknowledge or address “objective evidence indicating that his organization
does receive financial support from international nongovernmental organizations
and from foreign governments and agencies.” On the evidence before it, the
Board found that “Mr. Marku and his organization to have a financial incentive
to overstate the magnitude of the blood feud problem.”
[26]
Based
on all of the foregoing, and the fact that “there is no indication that
Professor Alston has such a lack of objectivity,” the Board decided to give
more weight to his report than to
Mr. Marku’s letter to him. Among other things,
that report stated Professor Alston’s “carefully considered view … that the
correct numbers [of blood feud disputes in recent years] are much closer to
those provided by the government, especially relation to killings.”
[27]
In
my view, for the reasons given by the Board, it was reasonably open to the
Board to give greater weight to the Alston Report than to Mr. Marku’s letter to
Professor Alston and other documentation that predated the Alston Report. Having
done so, it was also reasonably open to the Board to question the credibility
of Mr. Marku’s attestation letter, which, among other things, stated that the
“number of feud cases have increased in Albania lately.”
This statement was directly contradicted by (i) Professor Alston’s statement
that “the numbers of blood feud killings in Albania has decreased steadily over
the past five years…”, and (ii) other country documentation, cited by the
Board, which reported that the number of blood feud killings “has dropped to
close to zero in more recent years.”
[28]
It
bears underscoring that my conclusion on this point should not be interpreted
as suggesting in any way that it will be reasonably open to the Board to
routinely raise questions regarding the credibility of attestation letters from
Mr. Marku or others associated with the NRC, based solely on the contents of
the Alston Report. Each case will turn on its own particular facts and on the
evidentiary record as a whole.
[29]
In
the case at bar, the Board was forced to choose between, on the one hand, an
unusual claim that strained credulity, and on the other hand, attestation letters
written by Mr. Marku and
Mr. Trako’s father. On the particular facts
of this case, I am satisfied that it was reasonably open to the Board to give
those two attestation letters less weight than they may have warranted in other
circumstances. I am satisfied that the Board’s decision was appropriately
justified, transparent and intelligible. It was also within the range of
acceptable outcomes in fact and law (Dunsmuir, above, at para 47).
[30]
Once
it had reasonably raised a question with respect to the credibility of Mr.
Marku’s evidence, the letter from Mr. Trako’s father provided the sole
remaining corroboration for
Mr. Trako’s claim regarding the alleged
blood feud. In the circumstances, it was not unreasonable for the Board to reject
that letter in favour of the preponderance of remaining evidence, which did not
support the credibility of Mr. Trako’s claims. In rejecting that letter, the
Board did not err by observing that Mr. Trako’s father has an interest in the
outcome of this case and had not been made available to be cross-examined on
his letter.
[31]
The
principle of judicial comity does not assist Mr. Trako, particularly given (i) the
unusual nature of the claim made by Mr. Trako, (ii) the fact that the Alston
Report was issued after the date of many of the decisions relied upon by Mr.
Marku, and (iii) the fact that there is no evidence to indicate that the Alston
report was part of the evidentiary record in the remaining decisions (including
Murati v Canada (Minister of Citizenship and Immigration), 2010 FC 1324)
cited by
Mr. Marku (Almrei v Canada (Minister of
Citizenship and Immigration), 2007 FC 1025, at para 62)).
[32]
Mr.
Trako also submits that he was denied natural justice when the Board failed to
give him an opportunity to address the credibility concerns that it identified
with respect to Mr. Marku’s attestation letter.
[33]
I
disagree.
[34]
Mr.
Alston’s report was contained in the publicly available National Documentation
Package dated October 29, 2010, approximately two months before the Board's
hearing in this matter, which was held on December 23, 2010. As widely
available country condition evidence, it did not have to be specifically
addressed by the Board during its hearing with Mr. Trako. It was entirely open
to the Board to raise a question regarding the credibility of Mr. Marku’s
letter, after considering the contents of the Alston Report, and without giving
Mr. Trako an opportunity to specifically address the issue of Mr. Marku’s
possible motivation to confirm the existence of a blood feud that was not
otherwise substantiated by the preponderance of the evidence.
B.
Did the
Board err by determining that Mr. Trako had not rebutted the presumption of
state protection?
[35]
Mr.
Trako submitted that the Board erred by failing to adequately weigh and assess
material contradictory evidence in concluding that state protection would be
reasonably forthcoming to him should he return to Albania. In this regard, he
essentially repeated his submissions that it was unreasonable for the Board to
fail to give weight to the letters of his father and Mr. Marku. He also noted
that the Board failed to consider a particular document that reported that
Albanian police often do not get involved in blood feud disputes until a crime
has taken place.
[36]
I
disagree. For the reasons discussed in Part IV.A above, I am satisfied that the
Board did not err by failing to give greater weight to the attestation letters
of Mr. Trako’s father and
Mr. Marku.
[37]
In
reaching its conclusion with respect to state protection, the Board cited
extensively to a document entitled 2009 Human Rights Report: Albania, issued by
the United States Department of State. It also referred to a 2008 Issues
Paper published by the Board, the Alston Report, a document authored by the
United Kingdom Border Protection agency, and other sources.
[38]
I
am satisfied that the Board’s treatment of the aforementioned country
documentation was fair, balanced and reasonable. The Board explicitly addressed
certain information that did not support the conclusion that it reached with
respect to the adequacy of state protection in Albania. Among other
things, it observed the following:
i.
There
are concerns about police corruption and impunity, and the overall performance
of law enforcement is weak.
ii. Problems remain
despite judicial reforms which have brought new improvements.
iii. Due to
corruption and political pressure, the judiciary does not always function
independently.
iv. Police
efforts at combating blood feuds are not always supported by prosecutors or the
courts.
v. In many
cases, the killer is arrested, prosecuted and sentenced; yet, some cases remain
unsolved.
[39]
After
reviewing the country documentation, the Board explicitly noted that the “objective
evidence regarding state protection in Albania is mixed.”
In short, the Board noted that while various measures that have been taken by
the state to protect its citizens have had some success, a number of weaknesses
remain apparent.
[40]
Having
regard to all of the evidence, which included the fact that the number of blood
feud killings has dropped to close to zero in recent years, the Board
concluded, on a balance of probabilities, that Mr. Trako had failed to provide
clear and convincing evidence to rebut the presumption that adequate state
protection would be available to him should he return to Albania.
[41]
Based
on the evidence that was before the Board in this particular case, I am
satisfied that the Board’s conclusion on this point was (i) within the range of
possible, acceptable outcomes which are defensible in respect of the facts, and
(ii) sufficiently justified, transparent and intelligible.
[42]
The
burden was on Mr. Trako to adduce clear and convincing evidence to satisfy the Board,
on a balance of probabilities, that adequate state protection would not likely
be available to him if he were required to return to Albania (Ward v Canada
(Attorney General), [1993] 2 S.C.R. 689, at 724-725; Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, at para 54; Carrillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, at para
30). In this case, the Board reasonably found that Mr. Trako had failed to
discharge that burden.
[43]
At
the oral hearing on this application, Mr. Trako also submitted that the Board
erred by failing to specifically address his father’s evidence that on the one
occasion when he reported the alleged blood feud to the police, he was simply
referred to the NRC. On the particular facts of this case, I am satisfied that
this did not constitute a reviewable error, particularly given that the Board
explicitly noted, in its assessment of state protection, that (i) “[p]olice
have cooperated with nongovernmental reconciliation organizations to combat
blood feuds,” and (ii) while there were over forty blood feud murders per year
in the late 1990s, that number has dropped to close to zero in more recent
years.
C. Did the Board err by
assessing subjective fear in the context of its analysis under section 97 of
the IRPA?
[44]
Mr.
Trako submits that the Board erred by assessing his subjective fear, after
having concluded that he had not established a nexus to a Convention ground of
persecution, as set forth in section 96 of the IRPA. He asserts that, at a
minimum, the Board’s analysis of his subjective fear is confusing and
unintelligible and breaches the Board’s duty to provide adequate, intelligible
and transparent reasons.
[45]
I
disagree.
[46]
The
Board’s decision explicitly stated that state protection was the determinative
issue. For the reasons discussed in Part IV.B above, that section of the
Board’s decision was appropriately justified, transparent and intelligible.
Moreover, for the reasons discussed in Part IV.A above, the Board’s treatment
of the credibility of the only evidence which corroborated Mr. Trako’s claims was
also appropriately justified, transparent and intelligible. The fact that the
Board may have also addressed Mr. Trako’s subjective fear did not render
unreasonable its otherwise reasonable decision.
[47]
That
said, on a reading of the Board’s decision as a whole, it is readily apparent
that the Board’s assessment of Mr. Trako’s subjective fear formed the initial
part of its assessment of the credibility of his claim with respect to the
blood feud.
[48]
At
paragraph 16 of its decision, the Board stated the following: “In reference to
credibility,
I will first address [Mr. Trako’s]
allegations regarding events that took place in Albania prior to entering the US. I will
address credibility as to his fear of the more recent blood feud later in these
reasons.” With respect to the events that took place in Albania prior to his
departure from that country, the Board found Mr. Trako to be generally
credible. However, it found that there was no support in the National
Documentation Package for his claimed fear of harm at the hands of persons
associated with the Socialist Party.
[49]
The
Board then turned to Mr. Trako’s claims with respect to the blood feud. It was
at this point in its decision that the Board explained, in three short
paragraphs, why it believed that he had not behaved in a manner consistent with
having a fear of death or other harm should he return to Albania. Among other
things, the Board noted that he had abandoned his outstanding claim for asylum
in the United States and had failed to report the alleged attack on him to
authorities in that country. The Board then immediately proceeded to address
the documentary evidence that he adduced in support of the alleged blood feud.
[50]
At
paragraph 44 of its decision, the Board stated its conclusion with respect to
the credibility of Mr. Trako’s claim regarding the blood feud. After briefly
noting that it had considered his documentary evidence and had previously found
his actions to have been inconsistent with having a subjective fear of harm
should he return to Albania, the Board stated that its view that his
allegations with respect to the blood feud were not credible. In my view, it
was reasonably open to the Board to consider, in this context, Mr. Tracko’s
actions and whether they were consistent with the claims that he had made with
respect to the blood feud.
V. Conclusion
[51]
The
application for judicial review is dismissed. No question was proposed for
certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
“Paul
S. Crampton”
________________________________
Judge
Email this Content