Docket: IMM-2918-11
Citation: 2011 FC 1450
Ottawa, Ontario, December 12,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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XHESIKA LLANA
AHEZON LLANA
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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
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated April 7, 2011. The
Board determined that the Applicants were not Convention refugees or persons in
need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicants, siblings Xhesika Llana and Ahezon (Xhezon) Llana, are citizens of Albania alleging
they will be harmed because their father is involved in a blood feud.
[4]
In
January 2009, their father shot and killed a burglar, Petrit Pjetri. The
Pjetri family has sworn to avenge his death. They have openly threatened the
Applicants’ family and have banged on their door at night.
[5]
The
Applicants claimed that the family went into self-confinement and informed
police who patrolled the area for a period. They have also contacted the
Committee for Nationwide Reconciliation (CNR), but the Pjetri family has
refused to co-operate.
[6]
The
Applicants obtained a visa for a summer camp in Canada and made a
refugee claim on their arrival. The Applicants’ parents and two other siblings
remain in Albania.
II. Decision Under Review
[7]
The
Board raised concerns regarding the Applicants’ credibility. It found that if
the Applicants’ remaining family, especially their father as the primary
target, felt themselves truly at risk of remaining in Albania, they would have
taken more proactive steps to escape than just sending the two children.
[8]
There
was also a significant inconsistency in the evidence regarding the current
state of affairs of the Applicants’ family in Albania. While
there were documents presented indicating that the family had entered
self-confinement, testimony suggested that this was only the case for the
father. The Board therefore accorded lesser weight to these documents.
[9]
Although
it was not mentioned in the Applicants’ Personal Information Form (PIF), the
Applicants testified that the girls in Albania have been
followed upon leaving the house. However, there was no evidence that they, or
other members of the family, had been threatened or harmed. The Board found
that the Applicants would face the same level of risk as their siblings and
mother and would not be threatened or harmed.
[10]
The
Board acknowledged that documentation regarding the adequacy of state
protection for individuals threatened by blood feuds in Albania was mixed. Although
the state is not always adequately effective in protecting individuals and
proceeding with prosecutions, the actual sentences for blood feud murders are
higher than for regular murders. At least one document suggested that the
deaths caused by blood feuds dropped to zero in 2007. Albania was also
seen as making serious efforts to address blood feuds with increased penalties
and a serious crimes court dealing with the issue.
[11]
The
Board suggested that state protection could be adequate, and often is, but this
depends on the circumstances of the particular case. In looking at the
Applicants’ experience, the Board found the police were quite active in
proactively protecting the family and reactive, in that they provided patrols
on their request.
III. Issues
[12]
The
Applicants raise the following issues:
(a) Did the Board member’s conduct
at the hearing raise a reasonable apprehension of bias?
(b) Did the Board breach procedural
fairness in addressing the Applicants’ claim?
(c) Did the Board err in its
assessment of the adequacy of state protection for the Applicants?
IV. Standard
of Review
[13]
Procedural
fairness concerns, including a reasonable apprehension of bias, require the
correctness standard (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
[14]
The
Board’s assessment of the adequacy of state protection is, however, reviewed on
a standard of reasonableness (see Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 2007 Carswell Nat 950
at para 38; Mendoza v. Canada (Minister of
Citizenship and Immigration), 2010 FC 119, 88 Imm LR (3d) 81 at paras
26-27). Under this standard, the Court should only intervene if the decision
does not fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Did
the Board Member’s Conduct at the Hearing Raise a Reasonable Apprehension of Bias?
[15]
The
Applicants allege in their written submissions bias on the part of the
presiding Board member based on his conduct during the hearing. They assert
that he yawned, looked sleepy during the hearing and sat reclined in his chair.
He was impatient and aggressive in his questioning, at times interrupting the
testimony of the Designated Representative and subsequent submissions of
counsel. This caused the Applicants to fear him. They believe this conduct
shows the Board member had made up his mind regarding their claim prior to the
hearing.
[16]
To
establish a reasonable apprehension of bias, the Applicants must demonstrate
that an informed person, viewing the matter realistically and practically, and
having thought the matter through, would probably conclude that an individual
would not decide the matter fairly (Committee for Justice and Liberty v
Canada (National Energy Board), [1978] 1 S.C.R. 369).
[17]
As
the Respondent has highlighted in its submissions, this test establishes an
extremely high threshold. Allegations of bias call into question the integrity
of the decision-maker. They “cannot rest on mere suspicion, pure conjecture,
insinuations or mere impressions of an applicant or counsel. It must be
supported by material evidence demonstrating conduct that derogates from the
standard” (see Arthur v Canada (Attorney
General),
[2001] FCJ no 1091, 283 NR 326 at para 8).
[18]
I
must also agree with the Respondent that the Applicants have failed to provide
sufficient material evidence to demonstrate that an informed person would
conclude the Board member would not decide the matter fairly. The Board member
may not have demonstrated the degree of enthusiasm that the Applicants would
have preferred, but this does not amount to bias. He listened to the testimony
and reviewed the documents presented. From the transcript, it also appears
that he considered additional evidence not previously submitted. Even if the
Board appeared tired to the Applicants and their counsel, his questions in
direct response to the assertions made, as evidenced in the transcript of the
hearing, suggests he was alert to the case before him.
[19]
Admittedly,
the Board member engaged in intensive questioning, raising counterarguments to
the claims in the testimony of the Designated Representative and elder
Applicant. At times, he expressed scepticism regarding any broad assertions of
the threat of blood feuds or the lack of state protection.
[20]
However,
this Court has held that vigorous, extensive and energetic questioning does
not, in itself, necessarily give rise to a reasonable apprehension of bias or
breach of procedural fairness (see for example Veres v Canada (Minister
of Citizenship and Immigration), [2001] 2 FC 124, [2000] FCJ no 1913
at para 36; Ithibu v Canada (Minister of Citizenship and Immigration),
2001 FCT 288, [2001] FCJ no 499 at para 68). The Board member was
attempting to clarify information, address any inconsistency and test the veracity
of the Applicants’ claims.
[21]
The
Respondent also goes as far as to suggest that the Applicants’ failure to raise
a reasonable apprehension of bias at the hearing means that they cannot rely on
this argument on judicial review (see for example Ranganathan v Canada
(Minister of Citizenship and Immigration), 2003 FC 1367, [2003] FCJ no 1741
at paras 18-20).
[22]
I
find that the Board member’s conduct is insufficient to raise a reasonable
apprehension of bias. The Applicants cannot point to any specific comments by
the Board member that he prejudged the case or did not take in all of the evidence
presented. He simply asked difficult questions. To suggest that bias could
result in instances of intensive and sceptical questioning because it
intimidates claimants would deprive the Board of the opportunity to properly
assess each case before it.
B. Did
the Board Breach Procedural Fairness in Addressing the Applicants’ Claim?
[23]
For
similar reasons, the Applicants contend in their written submissions that the
Board breached procedural fairness in addressing their claim. They reiterate
concerns regarding the aggressive approach of the Board member. More
specifically, they object to the Board member’s interruptions during counsel’s
submissions. The Applicants also insist that counsel was told and gestured to
“hurry up” during the hearing. This made it difficult for counsel to focus or
complete her submissions. The Board was also unable to know the specific
references that counsel would have presented in submissions.
[24]
They
claim that the Board’s approach did not enable them to fully and fairly present
their case. They note that the right to a fair hearing is “an independent,
unqualified right which finds its essential justification in the sense of
procedural justice which any person affected by an administrative decision is
entitled to have” (Cardinal v Kent Institution, [1985] 2 S.C.R. 643, [1985] SCJ
no 78 at 661).
[25]
The
Applicants also rely on the decision of this Court in Ayele v Canada (Minister of
Citizenship and Immigration), 2007 FC 126, [2007] FCJ no 174 at para 12
where it was stressed that the “essence of adjudication is the ability to keep
an open mind until all evidence has been heard.”
[26]
However,
there is nothing in the Board’s decision or transcript to suggest that the
Applicants were not given the opportunity to present their case. The counsel
was interrupted repeatedly because she proceeded through a lengthy reiteration
and reading of the material in the documents. The Board member did not prevent
her from continuing but suggested that he would be able to read the documents
and asked her to consider simply referring him to particular passages. Whatever
gestures the Applicants and their counsel claim to have observed, the Board
member never told them to “hurry up”.
[27]
In
Ayele, above, a breach of procedural fairness was found because the
presiding member suggested that “there’s no point calling witnesses […] when
the evidence is of no use and calling the witness is futile.” In this
instance, the Board member did not make a similar suggestion. He did not
refuse to consider the evidence presented by counsel, but suggested that he
could review the documents without her providing a lengthy reading. At no time
did the Board member imply that the evidence was futile or irrelevant, his
objection was with counsel’s approach to presentation. This did not result in
a breach of procedural fairness in the assessment of the Applicants’ claim.
C. Did
the Board Err in its Assessment of the Adequacy of State Protection for the
Applicants?
[28]
The
Applicants assert that the Board ignored evidence regarding the adequacy of
state protection for those threatened by blood feuds. They point to additional
portions of the documentary evidence that was not specifically addressed by the
Board in its reasons. These portions dealt with questions regarding the implementation
of laws and effectiveness of prosecutions.
[29]
It
is trite law that the Board is entitled to weigh the evidence before it and is
not required to refer to every piece of evidence (see Hassan v Canada
(Minister of Employment and Immigration), [1992] FCJ no 946, 147 NR 318
(FCA)).
[30]
I
agree with the Respondent that the Board was reasonable in the assessment of
the evidence before it. It was acknowledged that there was mixed evidence
regarding the adequacy of state protection for those threatened by blood feuds
and that this remains a problem in Albania. For example, it was
noted that the prosecutions do not always proceed and sentences are often
shorter than appropriate. However, its finding that state protection was
adequate was based on the totality of the evidence, including the development
of new laws and declining related deaths.
[31]
There
was also supporting evidence that state protection had been provided to the
Applicants in this particular instance. Given that patrols were provided at
their family’s request, irrespective of their brief duration, this conclusion
was reasonable. The failure of the police to arrest anyone for the alleged
incidents and threats does not undermine it.
[32]
To
rebut the presumption of state protection, there must be clear and convincing
evidence that state protection is inadequate or non-existent (Carillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, 2008 CarswellNat 605 at para
38). While state protection must be adequate, it need not be perfect (see Canada (Minister of
Employment and Immigration) v Villafranca (1992), 99 DLR (4th)
334, 18 Imm LR (2d) 130 at para 7).
[33]
Moreover,
I cannot accept the Applicants’ argument that their situation is identical to
previous cases where this Court overturned a decision of the Board in failing
to address certain evidence and reach a conclusion that state protection is
adequate in Albania. There are
equally cases where the opposite result was true. Each case turns on a unique
set of facts and documentary evidence at a particular moment in time.
[34]
In
this instance, for example, evidence of police patrols was understandably
highly relevant to the determination that adequate state protection was
available to the Applicants in addressing the threat posed by the blood feud. The
Board is entitled to weigh such factors in making its determination. As long
as the evidence is considered, as the Board is presumed to have done, its conclusion
cannot be unreasonable.
VI. Conclusion
[35]
The
Applicants have failed to demonstrate that the approach of the Board member
raised a reasonable apprehension of bias or related breach of procedural
fairness. Having reviewed mixed evidence, the Board was justified in its
conclusion that there was adequate state protection in Albania for the
Applicants.
[36]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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