Docket: IMM-2870-11
Citation: 2011 FC 1451
Ottawa, Ontario, December 12,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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VEHBI LICI
FITNETE LICI
STELA MAIO
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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 8, 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
Principal Applicant, Vehbi Lici, and his wife, Fitnete Lici, and their
daughter, Stela Maio, are citizens of Albania. They came
to Canada in early
2008 after their asylum claim on political grounds was denied in the United
States of America (USA).
[4]
The
Principal Applicant claimed that as a member of the Democratic Party (DP) he
was mistreated by police officers under the former Albanian socialist regime. After
attending a funeral for a DP member in April 1991, he was taken to jail and
beaten. In February 1998, police raided his home and threatened family
members. He was jailed again in September 1999 and kicked and threatened at a
police station following a protest in April 2000.
[5]
His
elder daughter, Ridvana, also joined the DP. She attended a funeral for a DP
leader and was jailed for three days and raped in October 1998.
[6]
As
a result of this treatment, the Principal Applicant and his wife left Albania on May 31, 2000.
They made their way to the USA to be with their son and daughter, who had
already left Albania.
[7]
The
Principal Applicant’s daughter stated at the refugee hearing that she married
an American citizen in March 2003 and is applying to be sponsored by him. She
intends to return to the USA and become a permanent resident.
II. Decision Under Review
[8]
The
Board considered the change of circumstances in Albania. While the
Principal Applicant feared communists from the former regime, the DP was now in
power. There was no persuasive evidence that he would be targeted as a supporter
of the DP with a low political profile.
[9]
The
Board proceeded to consider the application of the compelling reasons exception
as this may prove relevant in cases where the reasons for seeking refugee
protection have ceased to exist. Counsel asked for this to be considered since
the Applicants had “suffered terribly.” However, the Board found that the
compelling reasons exception did not apply to the Applicants. While they had
suffered from persecution, their evidence, though sad, did not establish that
such treatment was appalling or atrocious.
[10]
Finally,
the Applicants had not provided clear and convincing evidence to rebut the
presumption of state protection. Albania is a parliamentary
democracy and the DP is currently in power. The Board acknowledged that state
protection was not perfect in the country. However, there was no evidence that
individual members of any political party would not be able to access
protection from the authorities should they need it.
III. Issue
[11]
This
application raises the following issue:
(a) Did the Board err in its
compelling reasons analysis under subsection 108(4) of the IRPA?
IV. Standard
of Review
[12]
The
appropriate standard of review for the content of a compelling reasons analysis
is reasonableness (see Decka v Canada (Minister of Citizenship and
Immigration), 2005 FC 822, [2005] FCJ no 1029 at para 5; Luc v Canada (Minister of
Citizenship and Immigration), 2010 FC 826, 2010
CarswellNat 2880 at para 22).
[13]
Reasonableness
is “concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” as well as “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[14]
Subsection
108(1)(e) of the IRPA provides that a refugee claim must be rejected where the
reasons for having sought protection have ceased to exist. Under subsection
108(4), however, some refugee claimants may benefit from the following exception:
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Exception
(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.
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Exception
(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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[15]
In
Canada (Minister of
Employment and Immigration) v Obstoj, [1992] 2 FC 739,
[1992] FCJ no 422 at 747-748 (FCA), it was emphasized that “[t]he
exceptional circumstances envisaged by subsection [108(4)] must surely apply to
only a tiny minority of present day claimants.”
[16]
Before
the Board can even consider whether there are sufficient compelling reasons to
grant refugee status the claimants must establish that, at some point in time,
they would have met the definition of a Convention refugee or person in need of
protection. There must also be a determination that they no longer meet these
definitions because of a change of circumstances (see Brovina v Canada (Minister of
Citizenship and Immigration), 2004 FC 635, [2004] FCJ no 771; Nadjat
v Canada (Minister of
Citizenship and Immigration), 2006 FC 302, [2006] FCJ no 478).
[17]
Once
the Board finds that these conditions are met, it must assess whether past
persecution experienced was “atrocious and appalling” (Obstoj, above; Shpati
v Canada (Minister of
Citizenship and Immigration), 2007 FC 237, 2007 CarswellNat 550 at
paras 9, 13).
[18]
The
Board followed this approach in its analysis by acknowledging changed
circumstances in Albania and recognizing that the Applicant had suffered
from persecution in the past. It, nonetheless, found their evidence did
not establish that such persecution was atrocious or appalling.
[19]
The
Applicants argue that this finding was unreasonable, given the treatment
experienced. They point to evidence that Lici was beaten and tortured by
police on more than one occasion and that his elder daughter Ridvana was raped
in October 1998. According to the Applicants, this evidence does not justify
the finding that the treatment was not atrocious or appalling.
[20]
The
Respondent contends that the Board considered the Applicants’ allegations but
still found that the circumstances, though sad, did not prevent them from
returning to Albania today. This
amounts to a disagreement as to the weighing of evidence. The Respondent also
suggests that the finding that there were insufficient compelling reasons to
justify granting refugee status was supported by the Board’s other conclusion
that the Principal Applicant had a low political profile and state protection
was available in Albania.
[21]
I
find that I must side with the position of the Respondent. Bearing in mind
that compelling reasons were only to apply in exceptional circumstances (see Obstoj,
above), the Board was entitled to weigh the evidence regarding the Applicants’
past persecution and determine that they did not reach the threshold of
“atrocious and appalling.” The Principal Applicant alleged four incidents
involving mistreatment by the police and had a low political profile. His
elder daughter was raped, but she was not a party to this refugee claim.
[22]
It
was reasonable for the Board to conclude that the Applicants could not benefit
from the compelling reasons exception in subsection 108(4). The Board
considered past persecution suffered but found that it did not reach the
required threshold.
VI. Conclusion
[23]
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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