Docket: IMM-494-11
Citation: 2011 FC 1079
Ottawa, Ontario, September 20, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ZOJA ZOJA (a.k.a. ZOJA PERKOVIQ) ROBERT
PERKOVIQ,
ELIZABETH DUSEVIC,
CHRISTIAN MARK DUSHAJ JR,
SHPRESA PERKOVIQ,
GJERGJ PERKOVIQ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
The
applicants are a family of refugee claimants who left Kosovo for the United
States
in 1986. They lived in the US illegally after their claim for asylum was
rejected in 1989. In 2008, they were smuggled into Canada.
[2]
The
family consists of Ms. Zoja Zoja (aka Zoja Perkoviq), her husband, Gjergj
Perkoviq, their son, Robert, their daughters, Shpresa and Elizabeth, and Elizabeth’s son,
Christian. (Zoja and Gjergj have two other sons, Alfred and Kastriot Perkoviq,
but they are not part of this application.) The applicants are citizens of
Kosovo, except Shpresa and Christian, who are US citizens.
[3]
The
applicants’ claim was based on their mixed ethnicity and religion. They are
Albanian nationals with a Serbian surname who adhere to the Catholic faith.
They maintain that the Albanian majority sees them as Serbs, while the Serbian
minority sees them as Albanian. In addition, Zoja claimed persecution on the
basis of gender, arguing that women in Kosovo have a lower social status, are
poorly treated, and receive a lesser degree of state protection. Gjergj also
alleged that his family was the object of a feud waged by a family called
Leshaj.
[4]
A
panel of the Immigration and Refugee Board dismissed the applicants’ claim
mainly on the basis that their evidence was not credible. The applicants argue
that the Board made erroneous credibility findings, conducted an incomplete
analysis of their claim, rendered an unreasonable decision, and failed to
provide adequate reasons. They ask me to set aside the Board’s decision and
order a new hearing before a different panel of the Board.
[5]
I
agree with the applicants that the Board’s analysis was incomplete and will
grant their application for judicial review on that basis. It is unnecessary
for me to consider the other grounds raised by the applicants.
II. The Board’s Decision
[6]
Since
Shpresa and Christian are both US citizens, the Board concluded that they
did not merit refugee protection in Canada. The applicants do not
dispute that finding.
[7]
The
Board also rejected the claims of the other applicants, mainly because their
testimony was implausible or not credible. The Board’s concerns arose mainly
from the testimony of Gjergj. Gjergj stated in his written narrative that the
family could not return to Kosovo because of the Leshaj family’s feud against
them. However, he had not mentioned this feud when he first arrived at the port
of entry (POE). The Board found this omission was inconsistent with Gjergj’s
claim that the conduct of the Leshaj family was the main reason the family left
Kosovo in 1986.
[8]
Gjergj
testified that his sons Alfred and Kastriot were deported from the US in 2007 and,
when they returned to Kosovo, unknown persons attacked them in the street and
burned down their apartment. According to Gjergj, his sons were told that the
arson was a message from the Leshaj family. However, the Board found that
Gjergj was “vague and evasive in his responses”. It found his evidence to be
untrustworthy and not credible.
[9]
The
Board also found Elizabeth’s testimony to be unpersuasive. She did not
know much about the feud and did not tell her mother anything about it. The
Board found this evidence “totally untrustworthy”. The Board was also concerned
that Zoja’s evidence did not mention the feud. Her main fear was based on the
family’s Albanian ethnicity, Catholic religion and Serbian surname.
Furthermore, none of the applicants mentioned the feud at the POE.
[10]
The
Board was also concerned about Robert’s evidence. When Robert was interviewed
at the POE, he said he was unable to return to Kosovo because he would be too
far from his wife (a US citizen), they were expecting a baby, he
did not speak the language fluently, and his brother, who was deported in 2007,
had told him about the poor conditions in Kosovo. Robert did not mention
persecution as a reason for not wanting to return to Kosovo.
[11]
Ms.
Megan Perkoviq, an American citizen married to Alfred, testified that she was
in Kosovo in 2007 when Alfred and Kastriot were attacked and their apartment
was set alight. But she had no knowledge of any threats from the Leshaj family.
The panel drew a negative inference from her testimony and determined that the
family had fabricated evidence about the feud to establish their refugee claim.
[12]
Regarding
the applicants’ fear of persecution based on their ethnicity, Zoja, Elizabeth
and Robert all testified that the brothers were attacked by young Albanians
because of their accent, Serbian last name and the fact that they did not live
in Kosovo. But the Board found no evidence to support that allegation. It found
that the attack was random.
[13]
With
respect to the issue of state protection, the Board determined that the police
did take some action. It found that state protection in Kosovo “is not without
its flaws”. However, it also noted that state protection does not have to be
perfect, and that the applicants had the burden of rebutting the presumption of
state protection. The Board found that the claimants had not presented clear
and convincing proof of Kosovo’s inability to protect its own citizens.
[14]
The
Board drew a negative inference from the applicants’ varying and often contradictory
evidence as to why they were seeking protection. It found that the applicants’
desire to live in Canada was motivated not by fear, but by their inability to
gain status in the US and their wish to seek a better life. Further,
the Board found that their evidence did not establish that they would be at
risk of persecution if they returned to Kosovo. Accordingly, it dismissed their
claims.
III. Did the Board fail to analyze
fully the applicants’ claim?
[15]
The
Minister submits that the Board fully considered the merits of the applicants’
claim. Further, the Minister argues that the Board did not commit a reviewable
error in failing to analyze the gender issue, as it was clearly not the main
focus of Zoja’s claim.
[16]
The
Board clearly disbelieved the applicants’ evidence about a family feud.
However, in my view, it failed to go on to consider other parts of the
applicants’ claim with respect to mixed ethnicity and religion. In fact, the
Board’s reasons did not contain any assessment of the risks faced by the
applicants on those grounds, even though there was evidence before the Board
that the attack on the brothers was, in fact, ethnically motivated. The door of
their apartment was painted with an ethnic slur.
[17]
Further,
documentary evidence, not cited by the Board, supported this aspect of the
applicants’ claim. The 2009 US Department of State report on Kosovo notes that
particular risks are faced by Catholics, Albanian Serbs and persons from mixed
marriages perceived to be Serbian. A Response to Information Request identifies
Kosovo Albanians in ethnically mixed marriages as being vulnerable and in need
of international protection. Further, the UNHCR Eligibility Guidelines for
Assessing the International Protection Needs of Individuals from Kosovo
identifies persons in mixed marriages or children of mixed parentage as being
one of four groups most at risk in Kosovo.
[18]
With
regard to gender, the Board simply failed to address this aspect of the claim,
notwithstanding the evidence before it. A 2009 US Department of State report
suggested that women in Kosovo face persecution, domestic abuse, sexual
harassment and discrimination.
[19]
In
my view, the Board focused entirely on the part of the applicants’ claim
relating to a long-standing family feud. It was entitled to conclude that the
applicants’ evidence relating to that situation was not credible. However, it
also had a duty to consider the other grounds put forward by the applicants and
consider their merits. The fact that their evidence relating to the feud was not
credible did not excuse the Board from considering those other grounds. As I
stated in Joseph v Canada (Minister of
Citizenship and Immigration), 2011 FC 548, at para 11:
The Board must be careful not
to dismiss a refugee claim on the basis that it disbelieves parts of the
claimant’s testimony, or evidence that does not go to the core of the claim.
Sometimes claimants embellish their stories, or they forget minor details. It
is unreasonable for the Board to dismiss claims simply because they find evidence
at the fringes not to be reliable or trustworthy. Even if the Board finds some
evidence not to be credible, it must go on to consider whether there remains a
residuum of reliable evidence to support a well-founded fear of persecution.
[20]
Here,
the Board failed to consider whether there was a residuum of reliable evidence
to support the applicants’ claim of persecution based on mixed ethnicity,
religion and gender. Accordingly, I find its decision was not a defensible
outcome based on the facts and the law and, therefore, was unreasonable.
IV. Conclusion and Disposition
[21]
The
Board omitted analysis of important aspects of the applicants’ refugee claim.
Accordingly, I find that its decision was unreasonable and must, therefore,
allow this application for judicial review. Neither party proposed a question
of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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