Date: 20110210
Dockets: IMM-3453-10
IMM-3455-10
Citation: 2011 FC 161
BETWEEN:
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MENSUR DEMIRAJ & VELE DEMIRAJ
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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 ORDER
HENEGHAN J.
[1]
Mr. Mensur
Demiraj and his wife Mrs. Vele Demiraj (the “Applicants”) are citizens of
Albania who came to Canada in November, 2007. They
sought protection in Canada, pursuant to the provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) on the basis of
persecution in Albania arising from a blood feud between their extended family,
that is the Demiraj family and the Bushati family. They claimed protection in Canada, either as Convention
refugees or as persons in need of protection as defined in sections 96 and 97
of the Act, respectively.
[2]
The
specific impetus for this blood feud was a romantic relationship between
Taulant Demiraj, a nephew of the male Applicant and a young female member of
the Bushati family. The young woman was “intended” to be the wife of another
man and the romantic relationship with Taulant, when discovered by the Bushati
family in February 2007 led to an attack upon Taulant. The attack was reported
to the police. Subsequently, Taulant and his friends attacked a member of the
Bushati family. Ultimately, a member of the Bushati family was injured by a
firearm that was shot by Taulant in July 2007. The Bushati’s then declared a
blood feud against the immediate family of Taulant.
[3]
After the
shooting, Taulant, together with his brother and sister-in-law, moved into the
Applicants’ house in Tirana, the capital city of Albania. After the declaration of the blood
feud, the Applicants left Tirana and went to Korce, living with the male Applicant’s
sister until they left Albania on September 4, 2007.
[4]
The
Applicants travelled to Canada on false passports, obtained
from a smuggler.
They landed in Canada on November 22, 2007,
arriving in Montreal. The Refugee Protection
Division of the Immigration and Refugee Board (the “Board”) rejected their
claim for status as refugees or persons in need of protection in a decision
dated February 23, 2009, on the grounds that the Applicants had failed to rebut
the presumption of state protection in Albania. The Applicants successfully obtained
leave for judicial review of the Board’s decision but their application for
judicial review was dismissed on September 25, 2009.
[5]
On January
18, 2010, the Applicants submitted a Pre-Removal Risk Assessment (“PRRA”) application,
pursuant to the Act. In this application, they alleged that they continue to be
at risk in Albania from the blood feud between
the Applicants’ family and the Bushati family.
[6]
On May 6,
2009, the Applicants also submitted an application for permanent residence from
within Canada, on humanitarian and
compassionate grounds (the “H & C application”), pursuant to subsection
25(1) of the Act. The basis of this application was the extreme hardship that
they would suffer if separated from their daughter who lives in Michigan, United States of America, with her husband and two
American-born young children. The Applicants also claimed that they would face
considerable hardship, for example by living in social isolation and unable to
look after their basic needs, if returned to Albania.
[7]
A PRRA
Officer (the “Officer”) assessed both the PRRA and H & C application. In a
decision dated April 27, 2010, the Officer refused the PRRA application, noting
that the Applicants had failed to submit new evidence of risk to them in Albania.
[8]
By a
decision dated April 28, 2010, the Officer denied the Applicants’ H & C
application. The rationale for this decision was the Applicants’ failure to
show that they would face a risk if returned to Albania, as well as their failure to establish
that they would suffer unusual and undeserved or disproportionate hardship if
returned to Albania. In the negative H & C
decision the Officer considered the Applicants’ establishment in Canada, in
comparison with their establishment in Albania, as well as the best interests of
children who might be affected by their return to Albania, in this case, their
grandchildren who lived in Michigan but who have visited, and
continue to visit the Applicants in Windsor,
Ontario.
[9]
In the
written and oral submissions made on their behalf, the Applicants argue that the
Officer committed reviewable errors in making both decisions, including errors
of law and failure to address relevant evidence.
[10]
The first
issue to be addressed is the relevant standard of review. According to the
decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, decisions of
statutory decision-makers, like the Officer, are reviewable on one of two
standards, either reasonableness for fact-driven conclusions and questions of
mixed fact and law, or correctness for questions of law and issues of
procedural fairness.
[11]
In Canada (Citizenship and Immigration)
v. Khosa,
[2009] 1 S.C.R. 339, the Supreme Court of Canada confirmed this approach to the identification
of the relevant standard of review. The issue whether the Officer applied the
appropriate legal test is reviewable on the standard of correctness. Otherwise,
the issues decided by the Officer in this case were ones of mixed fact
and law, reviewable on the standard of reasonableness. According to Dunsmuir
and Khosa, that standard is met when a decision is justifiable,
transparent and intelligible.
[12]
I will
first discuss the PRRA decision which is the subject of cause number
IMM-3453-10. I am not persuaded that any of the arguments raised by the
Applicants supports a finding that the Officer committed any error of law in
dealing with their PRRA application. The Officer did not apply the wrong test
nor fail to conduct a proper analysis.
[13]
Subsection
113(a) of the Act allows a person to submit new evidence upon a PRRA
application when a prior request for refugee protection has been rejected by
the Board. The meaning of “new evidence” was definitively reviewed by the
Federal Court of Appeal in Raza v. Canada (Minister of Citizenship and Immigration)
et al. (2007),
289 D.L.R. (4th), at para. 13. “New evidence” is evidence that meets the
following criteria:
…
3. Newness: Is the evidence new in
the sense that it is capable of:
(a) proving the current state of affairs
in the country of removal or an event that occurred or a circumstance that
arose after the hearing in the RPD, or
(b) proving a fact that was unknown to
the refugee claimant at the time of the RPD hearing, or
(c) contradicting a finding of fact by
the RPD (including a credibility finding)?
If not, the evidence need not be
considered.
In the result, I see no basis for judicial interference in
this negative PRRA decision. The Officer made a reasonable decision, having
regard to the material submitted. This application for judicial review is
dismissed. No question for certification was proposed.
[14]
I turn now
to the decision whereby the Officer refused the Applicants’ H & C
application. The Applicants here argue that the Officer erred by applying the
wrong test for assessing risk, using the elevated standard for assessing risk
in the context of a PRRA application rather than the less stringent test that
applies in an H & C application.
[15]
As well,
the Applicants submit that the Officer erred in her assessment of “hardship”
should they be returned to Albania.
[16]
I am not
satisfied that the Officer erred in assessing risk in the context of an H &
C application. She properly noted that there was no evidence of a change in
risk between the negative determination of their refugee claim, and that state
protection was still available to the Applicants.
[17]
However,
at the same time, I am not satisfied that the Officer took the correct approach
to assessing the potential hardship the Applicants will face if returned to Albania. The Officer reasons that because
there is state protection available in Albania, the Applicants face no risk to life,
and therefore, that there will be no undue, undeserved or disproportionate
hardship.
[18]
In Pacia
v. Canada (Minister of Citizenship and
Immigration) (2008),
73 Imm. L.R. (3d) 274, Justice Mosley held that equating state protection to a
lack of undue, undeserved or disproportionate hardship is an error of law, as
it indicates that the officer applied the wrong legal test. At para. 13,
Justice Mosley said:
…The Officer accepted the applicant’s
account of a long-standing dispute in her community and threats of harm. The
finding that protection was available to the applicant does not address the
question whether she would encounter undue hardship should she be required to
avail herself of the state’s shelter.
[19]
In my
opinion, the Officer in this case committed the same error. She considered the
availability of state protection to be determinative of whether the Applicants
faced unusual, undeserved or disproportionate hardship if returned to Albania, without addressing whether
the Applicants will face hardship should they need the protection of the state.
In doing so, the Officer applied the wrong legal test.
[20]
The
application for judicial review in respect of the negative determination of the
H & C application is allowed. No question for certification was proposed.
“E. Heneghan”
Toronto, Ontario
February
10, 2011
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