Date: 20080327
Docket: IMM-1970-07
Citation: 2008 FC 388
Ottawa, Ontario, March 27,
2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
LEC
KEQAJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
[7] A tribunal may make
adverse findings of credibility based on the implausibility of an applicant's
story provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu. [see L. Waldman, Immigration Law
and Practice (Markham, ON: Butterworths, 1992) at 8.22]
(Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, [2001] F.C.J. No. 1131
(QL).)
[2]
In Leung v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 774
(QL), this Court overturned the decision of the Refugee Determination Division of the
Immigration and Refugee Board, denying the applicants’ applications for status
as Convention refugees, on the basis that their fear of persecution was not
objectively well-founded. The Court stated:
[14] Both divisions of this Court have consistently held
that the Board's decisions must be based on the totality of the evidence
contained in the Record. This does not mean, however, that the Board must
summarize all of the evidence, or that a decision will be quashed simply
because the Board has failed to refer to some minor piece of documentary
evidence in its reasons. Nevertheless, the Board is under a very clear duty to
justify its credibility findings with specific and clear reference to the
evidence.
[15] This duty becomes particularly important in cases
such as this one where the Board has based its non-credibility finding on
perceived "implausibilities" in the claimants' stories rather than on
internal inconsistencies and contradictions in their narratives or their
demeanour while testifying. Findings of implausibility are inherently
subjective assessments which are largely dependant on the individual Board
member's perceptions of what constitutes rational behaviour. The
appropriateness of a particular finding can therefore only be assessed if the
Board's decision clearly identifies all of the facts which form the basis for
their conclusions.
[16] Given this clear
obligation on the Board to base its decision on the totality of the evidence,
combined with the duty to justify its credibility findings, it must be assumed
that the Board's reasons contain a reasonably complete account of the facts
which form the basis of their decision. The Board will therefore err when it
fails to refer to relevant evidence which could potentially refute their
conclusions of implausibility. My review of the Board's implausibility findings
reveals that such an error has occurred here. I will deal with each implausibility
finding.
[3]
The Refugee Protection Division of the Immigration
and Refugee Board (Board) noted that the Applicant provided a Certificate from
the Kastrat Commune, dated November 1, 2006, a Certificate from the Aldermen of
the Ivanaj Village, dated October 1, 2006, and a letter from the Nationwide
Reconciliation Mission, “Mother Teresa”, dated November 11, 2006. The Board stated
that it gave the following documents insufficient weight to offset the numerous
credibility concerns. These documents indicate:
·
The Certificate from the Kastrat Commune, from
the local Albanian government representative, certifies all of the salient
details of the blood feud as recounted in the Applicant’s Personal Information
Form (PIF) and confirms that the blood feud is still in effect (Tribunal
Record, p. 161).
·
The Certificate from the Alderman the
Applicant’s family had contacted to broker peace between the families confirms
the blood feud between the Lunaj family and the Keqaj family over land. The
Alderman notes that he tried to resolve the conflict, was unsuccessful and that
the blood feud still exists (Tribunal Record, p. 163).
·
The third document, equally a certificate,
recounts in detail the information provided in the PIF and confirms the ongoing
nature of the blood feud.
[4]
In the case at bar, the Board does not deny that
the certificates constitute credible authoritative evidence. Each certificate corroborates
the critical elements of the Applicant’s refugee claim. The Board erred in
failing to adequately refer to these relevant certificates, which refute their
conclusions of implausibility. (Reference is made to the Mother Teresa
Nationwide Reconciliation Mission Certificate, annexed to this judgment.)
II. Judicial
Procedure
[5]
This is an application, pursuant to
paragraph 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), for judicial review of the decision of the Board, rendered
on April 17, 2007, wherein, it determined that the Applicant was not a
Convention Refugee nor a person in need of protection, pursuant to s. 96 and
ss. 97(1) of the IRPA.
III. Background
[6]
The Applicant, Mr. Lec Keqaj, is a
31-year old citizen of the town of Ivanaj, district of Shkoder in Albania. On November 22, 2005,
Mr. Keqaj entered Canada with a false Slovanian passport, after traveling
through Montenegro, Croatia and Hungary. He claimed refugee protection upon arrival.
[7]
Mr. Keqaj alleges a fear of
persecution on the basis of his political opinion and his membership in a
particular social group, namely, males belonging to the Keqaj family who are
involved in a blood feud with the Lunaj family.
[8]
Albania was once governed by a Communist regime. The
Communist regime confiscated land owned by the Keqaj family and made it state
land. In 1992, the Communist regime was defeated and the Democratic Party came
to power. Mr. Keqaj’s family made efforts to reclaim the confiscated land. In
1995, the Court granted the return of the land, located in the centre of the
town, where the family proceeded to build a café.
[9]
The Lunaj family previously owned
the land adjacent to the property which was returned to the Keqaj family.
[10]
From 1995 to 1999, due to the Lunaj
family’s virulent disagreement with the Court’s ruling as to the division of
the land, the Lunaj family threatened to kill Keqaj family members if the land
was not given to them.
[11]
In 1999, the Keqaj family, in
order to avoid a blood feud, gave the Lunaj family one hectare portion of the
land that had been returned to them.
[12]
Mr. Keqaj alleges that, in
December 2004, two members of the Lunaj family, Mr. Alex Lunaj and Mr. Marlen
Lunaj, returned from abroad. Not happy that their family members had made peace
with the Keqaj family, they resumed the dispute over the land, demanding that
the Keqaj family turn over the profitable café or face dire consequences.
[13]
Mr. Keqaj alleges that his family
members contacted both the police and the village elder to try and resolve the
problem. The elder, together with Mr. Keqaj’s father and uncle went to the
Lunaj family to try to negotiate a pledge of honor; however, the Lunaj family
did not cooperate. As for the police, Mr. Keqaj alleges that they took no
action, as is typical for potential blood feud situations. (Transcript of the
Hearing, Tribunal Record, pp. 180-185).
[14]
In January 2005, Mr. Keqaj’s cousin,
Mr. Arben Keqaj, who worked in the café, was attacked and beaten by two members
of the Lunaj family; he required hospitalization for his injuries. In April
2005, after recovering, Mr. Arben Keqaj took revenge by similarly attacking and
injuring a member of the Lunaj family.
[15]
In May 2005, three members of the
Lunaj family came to the café and ordered Mr. Keqaj to close the café and
leave. Mr. Keqaj alleges that he was attacked with a knife which injured his
hand. This attack resulted in the blood feud being officially declared by the
Lunaj family.
[16]
Following this dispute, Mr. Keqaj claims
he isolated himself in his home; however, in July 2005, shots were fired at his
family residence, forcing him and his family to find refuge elsewhere. Mr.
Keqaj, therefore, left his native town of Ivanaj to stay with his maternal uncle, in Verrith,
Albania, until he fled the country.
IV.
Decision under Review
[17]
The Board was not
persuaded that Mr. Keqaj met the onus of establishing that he was in
need of refugee protection, in Canada, based on his claim of a blood feud with
another family, in Albania.
[18]
With respect to Mr.
Keqaj’s fear of persecution, on the basis of an alleged blood feud between his
family and the Lenaj family, the Board found that there was no persuasive
evidence before it of a serious violation of any of Mr. Keqaj’s basic human
rights or of a serious possibility that he would face persecution in the
future. Moreover, the Board found Mr.
Keqaj failed to establish that,
on a balance of probabilities, the core events of the blood feud, had, in fact,
occurred in 2004 or 2005, after the elders had settled the blood feud, in 1995.
The Board also found it unlikely that Mr.
Keqaj is being sought in Albania.
[19]
Moreover, the Board
found that Mr. Keqaj was not credible due to the inconsistencies
and implausibilities in his evidence.
[20]
The Board did not find
plausible that the elders of the Lunaj family would have accepted the land from
the Keqaj family for settlement of a blood feud between the
families and then reverse themselves by allowing individuals, who had returned
to Albania from overseas, in May 2005, to set aside the agreement. (Reasons, p. 4.)
[21]
The Board determined the issue of credibility
on the basis of speculative plausibility findings that had not been raised at
the hearing: Mr. Keqaj contends that the Board failed to ask why the two men,
who returned from overseas, would have been capable of engaging the extended
Lunaj family to resume their conflict and also why Mr. Keqaj would not have
personally attended mediation or, for that matter, taken any measures by which
to obtain assistance from the State.
[22]
Moreover, Mr. Keqaj submits that,
although, generally recounting the facts in evidence at the beginning of its Reasons,
the Board made incorrect statements in respect of the evidence when making its negative
credibility findings.
[23]
The Board failed to analyze the
evidence, corroborating the blood feud claim.
V. Relevant
Legislation
[24]
Section 96 and subsection 97(1) of
the IRPA define the expression “refugee” and “person in need of protection”:
|
Convention
refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country
Person in need of
protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced
by the person in every part of that country and is not faced generally by
other individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care
|
Définition de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
Personne à protéger
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
VI. Issues
[25]
(1) Did the Board err by making
an adverse credibility determination by making findings of fact, unsupported by
the evidence?
(2) Did the Board breach principles of
procedural fairness by failing to inform the Applicant of the case to be met
and by giving inadequate Reasons?
VII.
Sandard of Review
[26]
The proper standard of review with
respect to questions of credibility is that of patent unreasonableness. “The
Refugee Protection Division has a well-established expertise in the determination
of questions of fact, including the evaluation of the credibility of refugee
claimants.” (Harusha v. Canada
(Minister of Citizenship and Immigration), 2007 FC 2004, [2007] F.C.J. No. 1438 (QL), para. 21); therefore, the
Court may only set aside the Board’s finding if it demonstrates that such a finding
was one of patent unreasonableness.
[27]
With regard to questions of
procedural fairness and natural justice, the Supreme Court of Canada clearly
stated, in Canadian Union of Public Employees (C.U.P.E.) v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 100: “It
is for the courts, not the Minister, to provide the legal answer to procedural
fairness questions. It is only the ultimate exercise of the Minister's
discretionary s. 6(5) power of appointment itself that is subject to the
"pragmatic and functional" analysis”; therefore, the pragmatic and functional analysis is not to
be applied and the reviewing Court shall consider all questions, including
questions in regard to the adequacy of reasons, on a standard of correctness. (Canada (Minister of Citizenship and Immigration) v. Charles, 2007 FC 1146, [2007] F.C.J. No. 1493 (QL), para 24.)
VIII.
Analysis
(1) Did the Board err by making an adverse credibility determination
by making findings of fact not supported by the evidence?
Chronology of Events – Land Controversy and Blood Feud
[28]
The Board did not find it plausible that the elder
Patriarchal males in the Lunaj family would have accepted land from the Keqaj family,
as settlement of a blood feud, and then allow individuals who had returned to
Albania from overseas, in May 2005, to set aside the settlement that had ended
the blood feud.
[29]
Mr. Keqaj explained, during the hearing, as was noted in his evidence,
that his family gave up a portion of land, in 1999, to avert a blood feud.
Contrary to the Board’s Reasons, there had been no blood feud, in 1995. (Applicant’s
Record, Applicant’s Affidavit, para. 6, p. 13; Transcript of Hearing, Tribunal
Record, p. 176; Reasons, p. 4.)
[30]
Mr.
Keqaj submits that there are no details in evidence as to what agreement had
been reached by the Lunaj family. There is no evidence that the Lunaj family
took the Keqaj family land, in good faith, or, that they intended to keep the
promises made previously. Moreover, there is no evidence that the two men, who returned
from overseas, were not elders of the family and, given that they were invited
by the mediators to participate in negotiations, it is clear that the Lunaj
family and the mediators considered them as elders. (Applicant’s Affidavit,
paras. 16-18, pp. 14-15.)
[31]
The
Board based these credibility concerns on speculation and factual errors, which
could have been dispelled had he been questioned in this regard during the
hearing.
[32]
The Respondent
contends that the Board is entitled to make adverse findings of credibility
based on implausibility of the story and can base these findings on common
sense and rationality. The Board, as the primary finder of fact, is entitled to
reject evidence if it is not consistent with the probabilities of the case as a
whole. (Shahamati v. Canada
(Minister of Employment and Immigration) (F.C.A.), [1994] F.C.J. No. 415 (QL); Chen v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 551 (QL).)
[33]
Although the Board is entitled to
make adverse findings of credibility, based on implausibilities of the narrative
and can base its findings on common sense and rationality, it may not simply reject
specific evidence when the issues raised are point specific to a particular context
within a particular country. The Board has the obligation to become familiar
with these circumstances in order to address any ambiguities that may arise and
give opportunity to a claimant to respond.
[34]
A careful review of the evidence reveals
that the Board erred in not having had addressed/clarified its concern
regarding the land transfer, in addition to not having analyzed the particular
circumstances that had reignited the quarrel and led to the declaration of a
blood feud by the Lunaj family, in May 2005.
[35]
When asked about the conveyance of
the Keqaj family land during the interview, Mr. Keqaj, stated:
REFUGEE
PROTECTION OFFICER TO CLAIMANT:
Q. So, did your family give the
Luni family some land in 1999?
A. Yes, in order to avoid the
blood feud we had.
Q. So, what did your family give
the Luni family in 1999?
A. A piece of land in order to
avoid it.
…
Q. Why did the
argument begin again for the land if they were satisfied in -- if the Luni
family was satisfied in 1999?
A. Because two gentlemen from Luni
extended family came from abroad.
Q. What did they do?
A. They
were not satisfied with what we had conveyed to them and they threatened
us.
…
Q. Well,
apparently everyone was satisfied before in the Luni family, so how did this
new fight begin?
A. Because we
had built a coffee bar and they wanted to get that coffee bar from us which we
had built in the middle of the village.
(Emphasis
added.)
(Tribunal Record, Transcript of Reasons, pp.
176 and 178.)
[36]
Furthermore, “[w]here the Board finds a lack of
credibility based on inferences, including inferences concerning the
plausibility of the evidence, there must be a basis in the evidence to support
the inferences”. Where, “[t]here
is no evidence on the record to support this finding or the inference drawn or
to doubt the truthfulness of the Applicant's evidence. I can only conclude, in
the result, that this plausibility finding is erroneous”. (Roozbahani
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1524, [2005] F.C.J. No. 1867 (QL), para. 18.)
[37]
Despite
the detailed country conditions presented before the Board which explain Albania’s struggle with vengeance-related
blood feuds and the particular dynamics of mediation of these quarrels, the
Board made adverse credibility findings. The Board erred in determining that Mr.
Keqaj’s narrative of the conflict was not plausible. The Reasons lacked detail
and disregarded the specific circumstances pertinent to the country conditions
prevalent in Albania.
Mediation of conflict
[38]
The
Board determined it was not plausible for the elder males in the Lunaj family to
have accepted the land in good faith, in 1995, as settlement of a blood feud
and then to have allowed individuals, not the elders of the family, to reopen a
land controversy contrary to the “agreement” (the evidence before the Board
indicates that the land was conveyed in 1999 and not in 1995 as stated in the its
Reasons). (Reasons, p. 4.)
[39]
The
Board does not indicate why this is a credibility concern; had it been raised
at the hearing, Mr. Keqaj, may have adduced in evidence in this regard.
[40]
As stated
in an affidavit by Mr. Keqaj, individuals involved in negotiations are selected
by a mediator and, more specifically, two Lunaj family members were invited by
the reconciliation committee to participate in the process by which to resolve
the conflict between the two families. Furthermore, Mr. Keqaj notes that his
interests were fully protected by his father and uncle who were parties to the
mediation with the Lunaj family, all of which points to his not participating
in the mediation process.
[41]
In respect
of the mediation process, the country reports specify:
… the following description of the steps taken by mediators to
resolve a blood feud: first,
[t]he missionaries have meetings with the families and they listen
to the claims of both pairs. After this they contact persons who have great
influence on each family. Than together with the persons of great influence,
they go to the families, and continuously try to convince them to solve the conflict
by legal [means]. If the family, whose member has been killed, does not accept
the reconciliation and they insist in taking revenge, than the missionaries
recommend to the killer's family to leave its village or city and go another
city or state. Because the moving off of the killer's family soothes the hatred
of the damaged family. All these meetings and efforts are confidential and they
are not published (24 Oct. 2004).
The
Chairman also stated that reconciliation efforts never stop, and in some cases
continue for years, despite the fact the offended family may have taken revenge
in the meantime (Committee of Nationwide Reconciliation 24 Oct. 2004).
(Immigration and Refugee Board, Responses to Information Requests (RIRs)
ALB43020.E 03, 03 November 2004, Albania: Means
by which reconciliation groups begin working on a case…)
[42]
Furthermore,
the evidence before the Board indicated that, in 2003, a mere 0.44 percent of
blood feud conflicts were resolved in mediation centers. (Tribunal Record, p.
102.)
[43]
In
denying Mr. Keqaj’s claim, the Board also noted that his father and other
relatives continue to reside in Albania. Mr. Keqaj did allege that his father was in hiding.
The Board found that there was no evidence provided to indicate that Mr.
Keqaj’s father, or any other member of the family, had been harmed since he
fled from Albania, in November 2005.
[44]
During
the hearing, Mr. Keqaj testified that his father was still living in hiding at
the maternal uncle’s home, in Verrith, Albania. He also noted that the reason for his father having remained
in Albania was that the family did not have
the financial resources to do otherwise. Mr. Keqaj also explained that no further
attacks had been perpetrated or any attempts made to reconcile the conflict as
all of his male family members were in hiding because of the blood feud. (Tribunal
Record, Transcript of Hearing, pp. 191, 197 and 206.)
[45]
Based
on the evidence before the Board, it was patently unreasonable for it to
determine that Mr. Keqaj was not credible on the basis that he could have gone
to the elders in order to take part in the mediation of the conflict. Mr. Keqaj’s
father and uncle were considered as “the persons of great influence” and were
the individuals designated as representatives of the family in the mediation of
this blood feud.
[46]
The
Board made an erroneous negative credibility finding with regard to Mr. Keqaj’s
subjective evidence while disregarding the objective evidence, more
particularly, the country conditions in regard to the mediation of blood feuds
which corroborated his subjective evidence.
Well-founded fear of
persecution
[47]
The Board
concluded that there was no persuasive evidence before it to determine that there
had been a serious violation of any of Mr. Keqaj’s basic human rights or that a
serious possibility exists that he would face persecution in the future.
[48]
The Board did not consider the
available evidence that blood feuds begin with fights; nor did the Board recognize
the evidence that, in context, land claims are important enough to substantiate
a major cause of blood feuds.
[49]
The documentary evidence before
the Board in respect of blood feuds, clearly states that “societal killings and
an atmosphere of fear in some areas due to traditional blood feuds” is a
serious problem afflicting Albania. (U.S. Department of State, Albania:
Country Reports on Human Rights Practices – 2005.)
[50]
The evidence indicates:
… the "weakness of state institutions", the "law
and order vacuum" and the "failure of the judicial system to operate
appropriately" are among factors behind the prevalence of blood feuds in Albania.
… the only escape for those who are trapped in blood feuds is to
leave the country although doing so cannot protect them from being
"tracked down' somewhere else".
(RIRs ALB42821.E, 20 July 2004: Albania:
Update to ALB33770.E of 4 April 2000 on blood feuds/vendettas and the level of
protection available to victims through police, court and other avenues of
recourse (April 2000-July 2004).)
[51]
The evidence states:
Various
reports indicated that blood feuds remain a significant problem in Albania (UK
Apr. 2004, sec. 6.130; Country Reports
2003 25 Feb. 2004, sec. 5; MJAFT! 14 Apr. 2003; UN Chronicle 1 Dec. 2003) and particularly in the
northern part of the country (UN 28 Aug. 2003; UK Apr. 2004, sec. 6. 132; Country Reports 2003 25 Feb. 2004,
sec. 5; UN 28 Aug. 2003; DPA 12 July 2003). According to MJAFT! (Enough!)
(Etaco 20 July 2004), a non-governmental organization that addresses the
societal concerns of Albanians (MJAFT! N.d.), approximately 1,370 families and
at least 7,000 individuals living in the northern country are "affected
by vengeance killings," while the town of Shkoder is
described as "one of the most problematic cities for blood feuds"…
Sources
also indicated that thousands of children, mostly boys, remain locked inside
their homes and miss schools for fear of being killed for revenge (UN Chronicle
1 Dec. 2003; The Australian
24 Dec. 2003; DPA 12 July 2003, WFP 28 Aug. 2003) while hundreds men are
killed each year as a result of blood feuds in the country (ibid.).
(Emphasis
added.)
(RIRs
ALB42821.E , above.)
[52]
Country Reports, in respect of Albania, on
Human Rights Practices – 2005:
The country continued to
experience high levels of violent crime. Many killings occurred as the result
of individual or clan vigilante actions connected to traditional "blood
feuds" or to criminal gang conflicts. According to the interior ministry,
at least nine persons were killed during the year in blood feuds based on the
medieval Code of Lek Dukagjini (the kanun), which was practiced
particularly in the northern part of the country. Under the kanun, only
adult males are acceptable targets in blood feuds; however, women and
children often were killed or injured in attacks. According to the National
Reconciliation Committee, approximately 738 families were effectively
self-imprisoned during the year due to blood feuds. Fear of revenge in a blood
feud also led approximately 50 families to live under protection outside of the
country and prevented approximately 200 children—75 of whom were considered
to be in serious danger—from attending school. Disputes over land and
trafficking in persons remained the main grounds for blood feuds.
[Emphasis
Added]
(Albania:
Country Reports on Human Rights Practices – 2005, above)
[53]
The
Board unequivocally failed to consider the evidence that was before it and
erroneously determined that Mr. Keqaj did not have a well-founded fear of
persecution by reason of any of the enumerated grounds. (Reasons, p. 5.)
State protection
[54]
The
country reports before the Board clearly indicate that persons targeted by
blood feuds, in Albania,
could not:
… safely relocate within the country… Although the HRDC
admitted that the situation surrounding blood feuds had improved, it claimed that
avengers would be able to find their target within Albania, especially in
the north of the country (ibid.). Similarly, the Justice and Home Affairs
Coordinator for the European Commission delegation in Albania and the
Representative of the Tirana-based Committee of Nationwide Reconciliation (CNR)
stated that Albania is small enough that avengers would be capable of finding
their targets (EU 13 July 2006; CNR 18
June 2006).
The CNR
Representative added that those targeted in blood feuds "are obliged to
confine themselves [to their homes] or leave Albania," after
which the threat against them supposedly decreases (ibid.).
(Emphasis
added.)
(RIRs ALB
101479.E, 13 Sept 2006 : Albania:
Possibility for those targeted in blood feuds to relocate within Albania;
whether avengers can locate targeted individuals who have relocated in other
areas of Albania (2005 - 2006).)
[55]
As to
state protection to persons targeted by blood feuds, the country documents,
state:
… despite some improvements
in Albania's overall level of governance, Albanian authorities were unable
to protect victims of blood feuds … also
… blood feuds continue,
regardless of improvements, because the Albanian state remains somewhat
ineffective … Similarly, … the "very fragile"
Albanian state had failed to control the blood feud phenomenon ... In addition, … the Albanian government has
not taken any effective measures to combat blood feuds [and] may be reluctant to become
involved in blood feud cases for fear of becoming targets themselves. (Emphasis
added.)
(RIRs ALB101471.E 22 September 2006: Albania: Protection available to persons targeted in blood feuds
from the government, police, judiciary and non-governmental organizations;
effectiveness of protection measures (2005 - 2006).)
Police protection
[56]
The
country documents also address the availability of protection given by the
police to targeted persons. Although the documents indicate that protection is
available, those targeted are reluctant to avail themselves of this protection
as they reportedly fear greater repercussions:
Although police officers have been known to assist in the
reconciliation processes between feuding parties on occasion … police intervention in such conflicts tends to aggravate the
situation and can put a police officer's life at risk. … [P]olice officers prefer to
abstain from addressing blood feud cases out of fear of becoming targets
themselves… In some cases, police reportedly advised
targeted persons to temporarily leave an area… although further
information on this approach or its effectiveness could not be found among the
sources consulted by the Research Directorate.
(RIRs ALB101471.E,
above.)
[57]
Based on the
foregoing, the Board erred in taking into account irrelevant evidence,
misinterpreting evidence properly before it and in making erroneous findings of
fact without regard to the evidence before it. Consequently, the Board’s
decision as to Mr. Keqaj’s credibility, was patently unreasonable.
(2) Did the Board breach principles of procedural fairness by
failing to inform the Applicant of the case to be met and in failing to give
adequate reasons?
Failing to inform applicants
of the case they had to meet
[58]
Justice
Sean Harrington of the Federal Court, in Skripnikov v. Canada (Minister of Citizenship and
Immigration), 2007 FC 369, [2007] F.C.J. No. 528 (QL), determined that, by not
sharing concerns, a panel failed to observe a principle of procedural fairness.
This caused erroneous findings of fact arrived at in a perverse and/or
capricious manner. Further, it was determined that natural justice demands that
one be informed of the case one has to meet and be given an opportunity to meet
it.
[59]
Mr. Keqaj explained to
the Board, during the hearing and in his narrative, the reasons why the blood
feud had been initiated in 2005; he, further, explained why his presence was
not required nor requested at the mediation of the conflict or why he was
personally unable to seek the police’s protection. Mr. Keqaj’s explicit
explanation is corroborated by the country reports.
[60]
The
Board did not raise these concerns at the hearing, ultimately, depriving Mr.
Keqaj, of the ability to address and clarify these concerns. This resulted in the
Board having made erroneous findings of fact.
[61]
By not
sharing its concerns, the Board breached its duty of procedural fairness.
Failure to provide proper
reasons
[62]
The
Board noted that Mr. Keqaj provided a Certificate from the Kastrat Commune,
dated November 1, 2006, a Certificate from the Aldermen of the Ivanaj Village, dated October 1, 2006
and a letter from the Nationwide Reconciliation Mission “Mother Teresa”, dated
November 11, 2006. The Board stated that it gives the aforementioned documents little
weight to offset the numerous credibility concerns. These documents, consist of
the following:
·
The Certificate from the Kastrat Commune, from
the local Albanian government representative, certifies all of the salient
details of the blood feud as recounted in the Applicant’s Personal Information
Form (PIF) and confirms that the blood feud is still in effect (Tribunal
Record, p. 161).
·
The Certificate is from the Alderman whom the
Applicant’s family had contacted to broker peace between the families. It
confirms the blood feud between the Lunaj family and the Keqaj family over
land. The Alderman notes that he tried to resolve the conflict, but was
unsuccessful and that the blood feud still exists (Tribunal Record, p. 163).
·
The third document, equally a certificate,
recounts in detail the information provided in the PIF and confirms the ongoing
nature of the blood feud.
[63]
In Leung, above, this Court
overturned the decision of the Refugee
Determination Division of the Immigration and Refugee Board, denying the applicants’
applications for status as Convention refugees, on the basis that their fear of
persecution was not objectively well-founded. The Court stated:
[14] Both divisions of this Court have consistently held that
the Board's decisions must be based on the totality of the evidence contained
in the Record. This does not mean, however, that the Board must summarize all
of the evidence, or that a decision will be quashed simply because the Board
has failed to refer to some minor piece of documentary evidence in its reasons.
Nevertheless, the Board is under a very clear duty to justify its
credibility findings with specific and clear reference to the evidence.
[15] This duty becomes particularly important in cases such as
this one where the Board has based its non-credibility finding on perceived
"implausibilities" in the claimants' stories rather than on internal
inconsistencies and contradictions in their narratives or their demeanour while
testifying. Findings of implausibility are inherently subjective assessments
which are largely dependant on the individual Board member's perceptions of
what constitutes rational behaviour. The appropriateness of a particular
finding can therefore only be assessed if the Board's decision clearly
identifies all of the facts which form the basis for their conclusions.
[16] Given
this clear obligation on the Board to base its decision on the totality of the
evidence, combined with the duty to justify its credibility findings, it must
be assumed that the Board's reasons contain a reasonably complete account of
the facts which form the basis of their decision. The Board will therefore err
when it fails to refer to relevant evidence which could potentially refute
their conclusions of implausibility. My review of the Board's
implausibility findings reveals that such an error has occurred here. I will
deal with each implausibility finding.
[64]
In the
case at bar, the Board does not deny that the certificates are authoritative
credible evidence. Each certificate confirms the critical elements of Mr.
Keqaj’s refugee claim. The Board acted perversely and capriciously in failing
to adequately refer to these relevant certificates, which refute their
conclusions of implausibility.
[65]
Justice
John A. O’Keefe of the Federal Court, noted, in Charles, above:
[32] The duty to provide reasons contributes critically to the
accomplishment of an agency's mandate. As articulated by the Supreme Court of
Canada in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193, reasons fulfill a number of purposes:
- they ensure that issues and reasoning are well articulated;
- they allow parties to see that the applicable issues have been
carefully considered; and
- they are invaluable if a decision is to be appealed, questioned,
or considered on judicial review.
[33] According to the judgment in VIA Rail Canada Inc. above at
paragraph 21, the purposes for providing reasons are relevant to their
adequacy: "adequate reasons are those that serve the functions for which
the duty to provide them was imposed."
[34] In the case at bar, I am of the opinion that these purposes have
not been served by the reasons provided. The reasons provided by the IAD have
not ensured that the reasoning upon which the decision was made was well
articulated. Furthermore, the inadequacy of the reasons provided deprives the
applicant of a full assessment of the possible grounds of appeal or review.
This is especially relevant given that the IAD's decision is subject to a
deferential standard of review. The IAD did not provide adequate reasons for
its conclusion.
[66]
For all of the above reasons,
this Court finds that the RPD has also breached the duty of procedural fairness
by failing to provide adequate reasons for its decision.
VIX. Conclusion
[67]
The
decision of the Board was patently unreasonable. The Board based itself on
speculation, as logic inherent to the examination of the evidence appears to
demonstrate no credibility issue was discernable in regard to the testimony of Mr. Keqaj. Its conclusions were based on speculation rather than
an institutional memory, and/or the subjective and objective evidence pertaining
to the case. (Attakora v. Canada (Minister of
Employment and Immigration) (1989), 99 N.R. 168, [1989] F.C.J. No. 444 (QL)
(F.C.A.); National Corn Growers Assn. v. Canada (Canadian
Import Tribunal) (1990), 74 D.L.R. (4th) 449 (S.C.C.).)
[68]
For
all of the above reasons, the application for judicial review is allowed and
the matter is remitted for redetermination to the Convention Refugee Protection
Division for a new hearing before a differently constituted panel.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed and the
matter be remitted for redetermination to the Convention Refugee Protection
Division for a new hearing before a differently constituted panel.
“Michel M.J. Shore”
Email this Content