Date: 20070301
Docket: IMM-1801-06
Citation: 2007 FC 237
Ottawa, Ontario, March 1,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ZEF
SHPATI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The
Applicant, Mr. Zef Shpati, is a citizen of Albania. He bases
his Convention refugee claim on an alleged fear of persecution by the current
government of Albania by reason of political opinion and membership, risk of
harm arising from a land dispute, and because his past 25-year internment in a
labour camp in Albania are sufficient compelling reasons to deem him a
Convention refugee.
[2] In a decision
dated March 16, 2006, a panel of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) determined that the Applicant was not
a Convention refugee. The Board expressed three main reasons for rejecting the
claim:
- The
Board had credibility concerns regarding the Applicant’s oral evidence in
two areas: that a land dispute exists; and that the Applicant received 8
years rather than 12 years of education.
- The
Board found that the Applicant had an internal flight alternative (IFA) in
Tirana, the capital of Albania.
- The
Board was satisfied that the experiences of the Applicant in the first 25
years of his life in the labour camp were not “compelling reasons” within
the meaning of s. 108(4) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the IRPA) in that they did not reach the
level of appalling and atrocious.
Issues
[3] The Applicant
raised the following issues:
1.
Did the Board err in its analysis of compelling reasons under s. 108(4) of the
IRPA by:
(a) Failing to
make a determination as to whether the Applicant’s past treatment in the
Albanian labour camp amounted to persecution?
(b) Reaching a
patently unreasonable conclusion that the past treatment was not “appalling and
atrocious” and, thus, did not meet the level of compelling reasons for purposes
of s. 108(4) of the IRPA?
(c) Failing to
consider the United Nations High Commission for Refugees (UNHCR) assessment of
the Applicant?
(d) Establishing
too high a test by requiring that the Applicant’s experiences rise to the level
of “appalling and atrocious”?
2. Did the Board
make a patently unreasonable finding that the Applicant’s story of a land
dispute was not credible?
3. Did the Board
make a patently unreasonable finding that the Applicant had a viable IFA in
Tirana?
Analysis
Issue #1:
Compelling Reasons
[4] The Applicant
was born in and spent the first 25 years of his life in a labour camp in Albania. In 1991, he
was recognized as a “person of concern” by the UNHCR and entered the United
States
where he was granted permanent residence status. As described in his Personal
Information Form (PIF), he was deported from the United States to Albania in April
2005 for illegal use of his wife’s green card. He immediately left Albania and
made his way to Canada, arriving May 8, 2005 and making this refugee
claim. Before the Board, the Applicant submitted that his experiences in Albania over the
first 25 years of his life constituted compelling reasons as contemplated by s.
108(4) of the IRPA.
[5] Under the
provisions of the IRPA, a claim for protection is rejected if “the
reasons for which the person sought refugee protection have ceased to exist” (IRPA,
s. 108(1)(e)). An exception to this clear statutory provision is contained in
s. 108(4), which provides that:
|
(4) Paragraph (1)(e) does not apply to a person who establishes that
there are compelling reasons arising out of previous persecution, torture,
treatment or punishment for refusing to avail themselves of the protection of
the country which they left, or outside of which they remained, due to such
previous persecution, torture, treatment or punishment.
|
|
(4) L’alinéa (1)e) ne s’applique pas si le demandeur
prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la
torture ou à des traitements ou peines antérieurs, de refuser de se réclamer
de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
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[6] Justice
Michel Beaudry in Kotorri v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1195, [2005] F.C.J. No. 1457
at paras. 15-19 (T.D.) (QL), conducted a pragmatic and functional analysis on
the proper standard of review of determinations of whether subsection 108(4) of
the IRPA “compelling reasons” exception applies. Justice Beaudry
concluded that the
determination of whether there are “compelling reasons” sufficient to exempt
the Applicant from being deemed to have ceased to be a refugee under subsection
108(1)(e) of the IRPA is a question of fact, and thus, is to be reviewed
by a standard of patent unreasonableness. However, Justice Beaudry also
observed that “the delineation of the concept of 'compelling reasons' is a
question of law for which the Board has no specific expertise” to which he
would apply a standard of correctness. I agree with and adopt the reasoning of
my colleague.
[7] The Applicant
submits that the Board erred in law by not making an initial determination on the
evidence as to whether the Applicant had suffered past persecution on account
of his internment in a labour camp for the first 25 years of his life. As this
would be a question of the proper application of s. 108(4), this issue is
reviewable on a standard of correctness.
[8] A review of
the jurisprudence related to s. 108(4) of the IRPA or its predecessor
legislation demonstrates that the Board is not required to consider the
exception of s. 108(4) unless the claimant would have, at some time, met the requirements
for protection (see, for example, Canada (Minister of Employment and Immigration)
v. Obstoj,
[1992] 2 F.C. 739, 93 D.L.R. (4th) 144, [1992] F.C.J. No. 422
(F.C.A.) (QL); Ortiz v. Canada (Minister of Citizenship and Immigration),
2006 FC 1365, [2006] F.C.J. No. 1716 (T.D.)
(QL); Brovina v. Canada (Minister of Citizenship and
Immigration), 2004 FC 635, [2004] F.C.J. No. 771 at para. 5
(T.D.) (QL)). However, this does not mean, in my view, that a failure to make
an explicit finding of persecution will automatically amount to an error of
law. It is obvious, from reading the reasons, that the Board was satisfied that
the Applicant’s treatment during his 25 years in the labour camp amounted to
persecution; otherwise, the Board would not have considered the application of
s. 108(4). Even if the Board erred by not making an explicit finding of past
persecution, any error is immaterial to the Applicant’s case, given that the
Board did consider whether there were “compelling reasons”.
[9] The Applicant also argues that the Board’s
conclusion that the past treatment did not rise to the level required for s.
108(4) was not reasonable. The Applicant submits that the Board ignored
evidence related to conditions of the camp the Applicant lived in. I disagree. It is clear
from the reasons and the review of the transcript that the Board recognized the
poor treatment of the Applicant in the labour camp; specific reference is made
in the reasons to the testimony of the Applicant. The Board concluded that
the conditions the Applicant endured in the camp were terrible but not
sufficient so as to reach the level of “appalling and atrocious.” The
Applicant has not established that the Board ignored evidence, but only that
the Board did not weigh the evidence in the Applicant’s favour.
[10] The Applicant submits that the UNHCR document was
ignored. As noted above, this document describes the Applicant as a “person of
concern” and appears to have been the basis for his asylum in the United States. There are two
problems with this argument. The first is that the UNHCR document was not
ignored; it is referred to in the Board’s decision. Secondly, while the
document may have been helpful in establishing that the Applicant had suffered
past persecution, it does not assist the Applicant in showing that the past
treatment was “appalling and atrocious”. The document states only that, as of
1991, the Applicant was a “person of concern” to the UNHCR. The Applicant’s
UNHCR status in 1991 does not mean that the Applicant is protected from
refoulement or can be considered to be a refugee under Canadian law (see Kim
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540
(F.C.) (QL)).
[11] In sum, the finding that the Applicant’s
treatment in the Albanian labour camp did not constitute “compelling reasons”
was not patently unreasonable.
[12] Finally, in oral submissions before me, the
Applicant raised, for the very first time, the argument that “appalling and
atrocious” is too high a standard for s. 108(4). He refers to the case of Dini
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 217, [2001] F.C.J. No. 389 (F.C.T.D.)
(QL), where Justice Frederick Gibson certified the following question:
In relation to a determination under s. 2(3) of the Immigration
Act, does a finding of “compelling reasons” require a finding of
“appalling” or “atrocious” past persecution?
[13] I decline to consider
this argument because it was not raised in the Applicant’s Memorandum of Facts
and Law. Further, except for this one case (where, in fact, Justice Gibson
answered the above question in the affirmative but agreed to certify the
question), there is no jurisprudence that raises a doubt about the correctness
of this test. The level of persecution required for a finding of “compelling
reasons” appears to have been first established by the Federal Court of Appeal
in Obstoj, above. In that case, Justice James Hugessen stated that the
exception should be available only to “those who have suffered such appalling
persecution that their experience alone is a compelling reason not to return
them, even though they may no longer have any reason to fear further
persecution.” [Emphasis added]. This test has been consistently in use since at
least that time.
Issue #2: Land Dispute
[14] The
Applicant submits that the Board erred in its interpretation of the evidence
regarding the danger to the Applicant with respect to future land disputes in Albania.
[15] The
Board’s finding that it disbelieved the Applicant’s claim of a land dispute is
one of fact that will only be overturned if it was patently unreasonable.
[16] In my view,
finding of negative credibility was not based upon any perverse or capricious
erroneous findings of fact. Nor was it made without regard to evidence before
it; on the contrary, the Board draws from evidence in front of it to make this
conclusion. The Applicant simply disagrees with the manner in which the Board
weighed the evidence – against the Applicant’s favour, and this is not a ground
for judicial review (Aguebor v. Canada (Minister of
Employment and Immigration), 42 A.C.W.S. (3d) 886, 160 N.R. 315, [1993]
F.C.J. No. 732 (F.C.A.) (QL)).
[17] The Applicant
relies on Yaliniz v. Canada (Minister of Employment
and Immigration),
9 A.C.W.S.
(3d) 369, 7 Imm. L.R. (2d) 163, [1988] F.C.J. No. 248 (F.C.A.) (QL). There, the
Federal Court of Appeal found the Board’s opinion that “the evidence supplied
by the Applicant was not credible” was patently unreasonable. However, this
case differs from the case at hand because the Federal Court of Appeal also
found that:
...this opinion of the Board was not based, at
least if we rely on the reasons given for decision, on discrepancies or
contradictions in the Applicant's testimony but merely on the feeling that
there were obvious exaggerations in what he was recounting. [Emphasis added.]
[18] It is clear from the discrepancies
in the Applicant’s PIF and oral testimony, that the Board had reasons for
making the finding that the Applicant’s story was not credible.
[19] As well, the Applicant relies on Shahaj
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1044, [2005]
F.C.J. No. 1292 (F.C.) (QL), wherein the applicant was an Albanian claiming
Convention refugee status due to a blood feud. This case is in stark contrast
to the case at hand because the applicant’s family in Shahaj was already
engaged in a feud, and there was evidence of such a feud involving the
applicant’s brother, including documentary evidence that the brother’s death
was a homicide. In the case at hand, the Board noted that there was no
documentary evidence of such a feud.
Issue
#3: Internal Flight Alternative
[20] In oral submissions, the Applicant
raised, for the first time, an argument that the Board’s finding of a viable
IFA was patently unreasonable. I decline to consider this argument since it was
not contained in the Applicant’s Memorandum of Facts and Law.
Conclusion
[21] For
the above reasons, this application for judicial review will be dismissed.
[22] The
Applicant proposed that I certify the same question certified by Justice Gibson
in Dini, above. Since the argument regarding the issue of the test for
“compelling reasons” was not properly before this Court, I decline to certify
any question. In any event, I am satisfied that the answer to the question is
settled law. No question will be certified.
ORDER
This Court orders that:
- The
application for judicial review is dismissed; and
- No
question of general importance is certified.
“Judith A.
Snider”
___________________________
Judge
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