Docket:
IMM-1214-13
Citation: 2014 FC 151
Ottawa, Ontario, this 17th
day of February 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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RAZBURGAJ, Pashko
RAZBURGAJ, Lule
RAZBURGAJ, Juljana
RAZBURGAJ, Klaudia
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Applicants
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And
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MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is a difficult case. There is no doubt that
blood feuds continue to exist in Albania. However, the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”) found that, in this
case, the credibility of the main applicants, Pashko Razburgaj and his wife
Lule Razburgaj, was such that they are not “persons in need of protection” on
account of two blood feuds. Furthermore, the Board was of the view that state
protection is available and adequate in Albania and the complete refusal to
even consider asking for state protection would in itself be enough to deny the
remedy sought. I have come to the conclusion that the findings cannot be
disturbed as they meet the test of reasonableness.
[2]
This is a judicial review application made pursuant
to section 72 of the Immigration and Refugee Protection Act, SC 2001, c
27 (the “Act”). The applicants claimed refugee status in accordance with
section 96 and they also claimed for protection under paragraph 97(1)(b)
of the Act. The Board disposed quickly of the claim under section 96 because
there was no nexus with any of the grounds found in section 96. The existence
of the blood feud does not satisfy the pre-requirements of section 96. This
matter is not before this Court as judicial review has not been sought with
respect to that decision. Thus, there is only one issue before this Court and
it is whether or not paragraph 97(1)(b) applies. The paragraph reads as
follows:
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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
(b) to a risk to their life or to
a risk of cruel or unusual treatment or punishment if
(i)
the person is unable or, because of that risk,
unwilling to avail themselves 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.
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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 :
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.
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[3]
Given the circumstances of this case, I believe
that the correct approach is to rely strictly on rigorous analysis which, in
this case, requires that the standard of review be identified properly, that
the burden of proof be allocated and adhered to and that deference, where it is
owed, be applied.
Facts
[4]
The applicants claim that their return to their
country of nationality, Albania, would subject them personally to a risk to
their lives or to a risk of cruel and unusual treatment or punishment. That is
because, they claim, their families are involved in blood feuds in Albania.
[5]
With respect to the blood feud that involves the
principal applicant’s family, the relevant facts are the following. A dispute
began with another family over a piece of land. It had been given by the
communist government of Albania to another family. However, the principal
applicant’s family claimed to be the rightful owners of the land. Starting in
1992, attempts were made by the principal applicant’s family to retrieve the
said piece of land. The conflict seems to have degenerated over time.
[6]
It appears that, in 1998, the principal
applicant and his brother made an attempt to delineate what they considered to
be their property; that was met by violent resistance by representatives of the
other family. As a result of a confrontation, the principal applicant was
assaulted and rendered unconscious. It seems that it took another six years for
the principal applicant to leave Albania for the United States. It must be said
however that the co-applicant, the wife of the principal applicant, and one of
their children had already left for the United States in 1999. They lived in
the United States without any status and, with the arrival of the main
applicant in 2004, an attempt was made to regularize their legal status in the United States through an application for asylum.
[7]
The applicants sought to get status in the United States on the basis of their political opinions. One of the principal applicant’s
brothers had been successful before and they felt there was some likelihood of
success. However, it appears that the brother’s application for asylum had been
made in 1989, as the communist regime was still in place in Albania, which most probably favoured a successful application. Be that as it may, the
claim by these applicants before the United States authorities was not
successful. No attempt was made to raise fears about blood feuds in Albania.
[8]
On November 26, 2010, the applicants crossed the
border into Canada illegally. They claimed for protection on December 9, 2010.
[9]
The attempts to reclaim the land in Albania seem to have continued after the principal applicant’s departure for the United States in 2004. On September 26, 2010, brothers and cousins of the principal
applicant decided to remove the members of the other family from what they considered
to be their land and to re-establish the boundaries. As told by the main
applicant in his Personal Information Form [PIF] a gunfight ensued. He says
that “[T]hey (representatives of the other family) started approaching us and
when they saw that our family wasn’t moving, they started swearing and they
started shooting in the direction of my family then they severely wounded my
brother Gjek Razburgaj and the others laid down on their stomachs and responded
with firearms and shot Luvigji Pjetraci dead and severely wounded Gjeto
Pjetraci.” I take it that when the principal applicant refers to “approaching
us” he refers to the members of his family but does not include himself
because, according to his PIF, he was still in the United States.
[10]
Following that tragic incident, the principal
applicant claims that his family is jailed in their house in Albania and they would be awaiting the “unexpected that could come from the Pjetraci
family”.
[11]
The other so-called blood feud involves the
co-applicant’s family and would be the result of the murder committed by the
co-applicant’s brother in 2003 in the State of Michigan, in the United States. In the principal applicant’s affidavit, one can read:
[11] Parallel
to these events, in 2003, a violent incident between my wife’s side of the
family, the Pepaj and the Sufaj family blew up and became a blood feud. My wife
is part of the Pepaj family and many of the family members of this family are
in Michigan, USA. In 2003, my wife’s brother went to church and shot a man he
knew nine times in the back. This was an escalation in violence between the victim
and my brother-in-law. A blood feud was declared in Albania between these
families. My wife was called by her family members and warned about the
official blood feud.
Questions and
Issues
[12]
As already pointed out, the Board had
significant issues with the credibility of the applicants and, at any rate,
would have faulted the applicants for not having sought state protection in
their country of nationality. In order to be successful before this Court, the
applicants must prevail on both. Furthermore, the applicants contend at this
stage that the duty of procedural fairness owed to them has been violated in
the use that was made of the specialized knowledge the Board had acquired about
allegations of blood feuds in Albania.
Standard of
Review
[13]
The parties agree, and the Court concurs, that
the allegation of a breach of the procedural fairness duty is reviewable on a
correctness standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339), while issues having to do with credibility and
state protection are subject to a reasonableness standard (Lawal v The
Minister of Citizenship and Immigration, 2010 FC 558; Jiang v The
Minister of Citizenship and Immigration, 2008 FC 775; Mendez v The
Minister of Citizenship and Immigration, 2008 FC 584; Hinzman v The
Minister of Citizenship and Immigration, 2007 FCA 171).
Analysis
[14]
As pointed out, this application is now limited
to paragraph 97(1)(b) of the Act. The applicants do not claim anymore to
be refugees pursuant to section 96.
[15]
The difficulty a case like this poses stems from
evidence that is often unreliable, or not corroborated, about a phenomenon,
blood feuds in Albania, that is not clearly defined. In the case at hand, it is
conceded that the applicants did not contact the Albanian authorities and that
the blood feud has not been formally declared. It is not that blood feuds do
not exist. It is rather that the Board must assess whether the evidence
supports an allegation that a particular family is actually involved in a blood
feud, as opposed to relying on a phenomenon in order to gain refugee status in
this country. To put it another way, it must go from the general to the
specific. General allegations may not suffice.
[16]
The assessment made by the Board is entitled to
deference from this Court. It is not for this Court to substitute its view on
the matter, but rather the Court may apply the standard of reasonableness which,
in the words of the Supreme Court of Canada in Dunsmuir, supra,
at paragraph 47,
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. . is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[17]
Before addressing the two issues reviewable on a
reasonableness standard, we can dispose of the claim that the duty of fairness
was violated in this case. The applicants complain that the Board member, who
professed to have some expertise in cases of that nature from past involvement,
used “specialized knowledge” in a manner that did not give the principal
applicant an opportunity to contest that “specialized knowledge” because of its
lack of specificity.
[18]
With respect, I cannot agree with the
applicants. I have read carefully the transcripts of the hearings before the
Board and the exchanges between the principal applicant and the Board member.
Rule 22 of the Refugee Protection Division Rules, SOR/2012-256, appears
to me to codify the common law which requires that parties be notified where
information not already on the record may be relied on. It is only fair that an
opportunity be provided to persons before conclusions detrimental to their
interests are reached (see Judicial Review of Administrative Action in
Canada, Toronto, Carswell, 2013, at 7:3110). Rule 22 reads:
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22. Before using any information or opinion that is within its
specialized knowledge, the Division must notify the claimant or protected
person and, if the Minister is present at the hearing, the Minister, and give
them an opportunity to
(a) make representations on the
reliability and use of the information or opinion; and
(b) provide evidence in support of
their representations.
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22. Avant d’utiliser des
renseignements ou des opinions qui sont du ressort de sa spécialisation, la
Section en avise le demandeur d’asile ou la personne protégée et le ministre
– si celui-ci est présent à l’audience – et leur donne la possibilité de
faire ce qui suit :
a)
présenter des observations sur la fiabilité et l’utilisation du renseignement
ou de l’opinion;
b)
transmettre des éléments de preuve à l’appui de leurs observations.
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Obviously, the requirements
created by the Rules are closer to the “judicial” side of the spectrum as
opposed to the “political” or “legislative” end of the spectrum.
[19]
The applicants have not argued, with authorities
in support, and I have not found any, that the duty on the Board had to be any
heavier than that which is outlined in rule 22. A hearing held by the Board
should not be turned into a trial. The consequences that attach to these
hearings are serious and the measure of procedural fairness must be
commensurate. However, it does not reach the level of disclosure found in
criminal law, for instance. What rule 22 contemplates is that a protected
person be afforded an opportunity to make representations and to provide evidence
in line with the representations.
[20]
In this case, there is no doubt that the
principal applicant, and his counsel, knew precisely about the information and
the opinion that were conveyed to him. Two opportunities were in fact given to
the principal applicant to correct the “specialized knowledge” displayed by the
Board. He knew the case he had to meet and the information in the possession of
the Board was specific and clear. Contrary to the contention of counsel on this
judicial review, I cannot find that the specialized knowledge was so
“unquantifiable and unverifiable” that it was impossible to respond. On the
contrary, the information was specific and precise.
[21]
Like my colleague Justice Yves de Montigny in Linares Morales v The Minister of Citizenship and Immigration of Canada, 2011 FC 1496, I find somewhat surprising that the issue was raised on judicial
review and not before the Board. As pointed out by the respondent, the subjects
are present in the Board’s disclosure package and the issues raised can hardly
be considered to be novel. I find myself in agreement with paragraph 13 of Linares
Morales:
I
note first of all that the applicant was represented by counsel experienced in
immigration law during his hearing before the panel. She did not object to the
panel’s use of its specialized knowledge and did not even request clarification
from the panel as to the sources on which it relied in setting out what it
considered to be established practices. I will not go so far as to say that the
applicant is now barred from raising this issue before the Court, but the fact
remains that this issue is being raised late, and this can only undermine the
seriousness of this argument.
There was no
violation of the duty of fairness in this case.
[22]
In order to be successful in this application
for judicial review, the applicants must show, on a balance of probabilities,
that the Board’s decisions on their credibility and the availability of
adequate state protection in Albania were unreasonable. If adequate state
protection is available, a conclusion with respect to credibility becomes a
moot issue. Given that the applicants have failed to convince me that adequate
state protection was not available, it will not be necessary to address the
credibility issue.
[23]
The law on state protection has been usefully
canvassed recently in Ruszo v The Minister of Citizenship and Immigration,
2013 FC 1004 [Ruszo]. Thus, the burden is on the shoulders of applicants
as a state is presumed to be able to protect its nationals (Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689). It is only with clear and convincing
evidence that the presumption will be refuted, and that burden must be
discharged on a balance of probabilities (The Minister of Citizenship and
Immigration v Carrillo, 2008 FCA 94).
[24]
The following two paragraphs taken from Ruszo,
supra, are particularly apposite to the case at hand:
[32] An
applicant for refugee protection is required to demonstrate that he or she took
all objectively reasonable efforts, without success, to exhaust all courses of
action reasonably available to them, before seeking refugee protection abroad (Hinzman, above, at para 46; Dean v Canada (Minister of Citizenship and Immigration), 2009 FC 772, at para 20; Salamon, above,
at para 5). Among other things, this requires claimants for refugee protection “to
approach their home state for protection before the responsibility of other
states becomes engaged” (Ward, above, at para 25; Kim v Canada (Minister of
Citizenship and Immigration), 2005 FC 1126, at
para 10 [Kim]; Hassaballa v
Canada (Minister of Citizenship and Immigration),
2007 FC 489, at
paras 20-22); Camacho v
Canada (Minister of Citizenship and Immigration),
2007 FC 830, at para
10; Del Real v
Canada (Minister of Citizenship and (Immigration), 2008 FC 140, at para
44; Ramirez v
Canada (Minister of Citizenship and Immigration),
2008 FC 1214, at
para 28; Stojka v
Canada (Minister of Citizenship and Immigration),
2012 FC 1371, at
para 3; Ruiz
Coto v Canada (Minister of Citizenship and
Immigration), 2012 FC 1211, at
para 11; Matthews v Canada (Minister of
Citizenship and Immigration), 2012 FC 535, at
paras 43-45; Kotai v Canada
(Minister of Citizenship and Immigration), 2013 FC 693, at para
31; Muli v Canada (Minister of
Citizenship and Immigration), 2013 FC 237, at
paras 17-18; Ndoja v Canada (Minister of
Citizenship and Immigration), 2013 FC 163, at
paras 16-18, 25; Dieng v Canada (Minister of
Citizenship and Immigration), 2013 FC 450, at para
32).
[33] In
this regard, doubting the effectiveness of state protection without reasonably
testing it, or simply asserting a subjective reluctance to engage the state,
does not rebut the presumption of state protection (Ramirez, above; Kim, above). In the absence of a compelling or persuasive explanation,
a failure to take reasonable steps to exhaust all courses of action reasonably
available in the home state, prior to seeking refugee protection abroad,
typically will provide a reasonable basis for a conclusion by the RPD that an
applicant for protection did not displace the presumption of state protection
with clear and convincing evidence (Camacho, above).
[25]
Here, the applicants have not even attempted to
seek protection from their country of nationality. Indeed, they have not even
raised the issue of blood feuds in the United States where they resided for
many years. It is only in Canada where they ask for state protection against
blood feuds in Albania. As for Albania, the applicants rather argue that state
protection will not be forthcoming. The Board disagreed and that conclusion, in
view of the totality of the record, can only be reasonable. The burden was
never discharged.
[26]
The Board, in its examination of the issue,
referred abundantly to a report made about Albania and dated October 31, 2012,
as well as to the “Report of the Special Rapporteur on extrajudicial, summary
or arbitrary executions” following a mission to Albania by one Philip Alston
(the “Alston Report”). In that report done for the Human Rights Council of the
United Nations, Mr. Alston provides views and observations on the blood
feuds phenomenon in Albania supported by documentary evidence and numerous
interviews of senior officials of Albania. It is not surprising that the Board
gave significant weight to the Report. I have read the Report too.
[27]
Although the applicants showed a subjective
reluctance to engage the state, the Board found that the more persuasive views
of the United Nations demonstrated an adequate protection against blood feuds
which are in part prosecuted in Albania. Hence, not only are there laws in Albania to punish blood feud killings, but they are enforced.
[28]
The Alston Report observes at paragraph 29 that
for many families, “… the State should do little because matters of honour and
respect must be resolved privately, rather than by the police”. That found an
echo in the Board’s decision, at paragraphs 48 and 49:
[48] The
principal claimant was asked if his family ever approached the state for help
to resolve the feud and he said yes they went to village elders and municipal
[village commune] officials. He was then asked if, after the failure of the
elders to resolve the dispute if the family went to the Albanian federal
government or courts for assistance and he said no. He said the dispute/feud
was “considered a private matter.” Asked if his family ever consulted a lawyer
he said no, “we had no idea what a lawyer is.” The principal claimant confirmed
that at no point did he or any other family member seek assistance above the
village level. The Albanian government was never approached for help. The
principal claimant was specifically asked if he made a complaint to the police
following his assault in 2000 and he said “no one goes to the police, the
police don’t help, it’s a private matter, and the police are corrupt.”
[49] His
counsel asked the principal claimant what laws do people follow in his region
of Albania and he said the Kanun. Counsel then asked him if people were aware
that the state has laws as well. He replied “No one talks about Albanian laws
because no one recognizes it. State laws are not recognized.” Asked if the
state would protect him and his family if they went back, the principal
claimant said “no, we have no hope with the state. And where we are [from] it’s
not honourable to go to the state … we must go by Kanun.”
[29]
The conclusion drawn from the position taken by
the principal applicant seems to me to be unassailable. The Board found that
this kind of attitude about blood feuds being a private matter and the refusal
to acknowledge the authority of the state can hardly constitute clear and
convincing evidence rebutting the presumption of adequate state protection. The
decision not to seek state protection is not clear and convincing evidence that
state protection is unavailable.
[30]
There was evidence before the Board to support
the view that enforcement of laws takes place. Perfection is certainly not
required. Indeed it is impossible to attain. The Federal Court of Appeal made
the point vividly in Villafranca v The Minister of Citizenship and
Immigration (1992), 99 DLR (4th) 334, at paragraph 7:
No
government that makes any claim to
democratic values or protection of human rights can guarantee the protection of
all of its citizens at all times. Thus, it is not enough for a claimant merely
to show that his government has not always been effective at protecting persons
in his particular situation. Terrorism in the name of one warped ideology or
another is a scourge afflicting many societies today; its victims, however much
they may merit our sympathy, do not become convention refugees simply because
their governments have been unable to suppress the evil. Where, however, the
state is so weak, and its control over all or part of its territory so tenuous
as to make it a government in name only, as this Court found in the case of Zalzali
v. Canada (Minister of Employment and Immigration), a refugee may justly
claim to be unable to avail himself of its protection. Situations of civil war,
invasion or the total collapse of internal order will normally be required to
support a claim of inability. On the other hand, where a state is in effective
control of its territory, has military, police and civil authority in place,
and makes serious efforts to protect its citizens from terrorist activities,
the mere fact that it is not always successful at doing so will not be enough
to justify a claim that the victims of terrorism are unable to avail themselves
of such protection.
[31]
The Alston Report states that the Government of
Albania should try to do more, especially in research, community education and
outreach (paragraph 47). The phenomenon is complex, with cultural underpinnings
and societal pressures. Conversely, the Report finds that not only laws have
been adopted, but enforcement seems to produce results:
27. While
the criminal justice system is thus significantly flawed, suggestions that it
is so inefficient and corrupt as to necessitate continuing resort to blood
feuds to achieve justice appear misplaced. There is no evidence that a
perceived law and order vacuum explains a continuing attachment to the practice
of blood feuds. While some cases, particularly older ones, remain unresolved,
and some accused killers have gone into hiding or fled the country and not been
extradited, in most of the cases I examined, the killer had either surrendered
or been quickly arrested and was prosecuted and sentenced. Moreover, the
reduction in recent years in the overall homicide rate has also brought with it
a reduction in blood feuds, thus attesting to the impact of more effective
policing, among other factors.
28.
A much more salient problem is that many families involved in blood feuds do
not see the State’s criminal justice system as being capable of addressing
their concerns, which centre on the loss of blood and honour caused by the
initial killing. Sentencing a killer to a long prison term might be inadequate
to satisfy some families’ conception of justice, which requires restoration of
the lost blood, either through a revenge killing or a voluntary formal
reconciliation between the families. The actions of the State vis-à-vis the
perpetrator are thus sometimes perceived to be irrelevant in the families’
evaluation of whether there has been a “just” response.
29. On
the other hand, the State’s role in relation to the family in isolation varies.
For many such families, it is limited at best. Some believe that, in practical
terms, there is little the State could do to protect them. Others think the
State should do little because matters of honour and respect must be resolved
privately, rather than by the police. One such family indicated to me that,
although they were deeply unhappy with the restraints and strictures of
isolation under kanun, they felt obliged to remain in isolation in
deference to the other family’s respect for kanun rules. To this family,
State intervention was beside the point. Moreover, many isolated families never
receive a specific threat to which police could respond; they just believe that
the lack of besa means they could be targeted at any time.
[32]
International refugee protection is only a
surrogate form of protection. Only if there is no adequate state protection
should there be the protection of another state. In order to get to that point,
clear and convincing evidence is needed. The following paragraphs, taken from Ruszo,
supra, are compelling:
[49] In
my view, the weight of the jurisprudence establishes that, in the absence of
compelling or persuasive evidence which establishes an objectively reasonable
basis for refraining from fully exhausting all reasonably available avenues of
state protection, it is reasonably open to the RPD to find that the presumption
of state protection has not been rebutted with clear and convincing evidence.
[50] In
this regard, compelling or persuasive evidence is evidence that provides an
objective basis for the belief that taking any of these actions might
reasonably expose the applicant to persecution, physical harm or inordinate
monetary expense, or would otherwise be objectively unreasonable. It is not
unreasonable to expect a person who wishes to seek the assistance and
generosity of Canada to make a serious effort to identify and exhaust all
reasonably available sources of potential protection in his or her home state,
unless there is such a compelling or persuasive basis for refraining from doing
so. In brief, this would not satisfy the requirements of the “unable” branch of
section 96, discussed at paragraphs 30-33 above. And in the absence of a demonstration
of an objectively reasonable well founded fear of persecution, the requirements
of the “unwilling” branch, discussed at paragraph 34 above, also would not be
met.
[51] For
greater certainty, a subjective perception that one would simply be wasting
one’s time by seeking police protection or by addressing local police failures
by pursuing the matter with other sources of police protection, would not
constitute compelling or persuasive evidence, unless the applicant had
unsuccessfully sought police protection on multiple occasions, as in Ferko v Canada (Citizenship and Immigration), 2012 FC 1284, at
para 49.
[33]
In his decision, the Board member considered all
the evidence before him. He found, primarily, that Albania has laws in force to
punish blood feud killings, and that the law was being enforced. He cites a
variety of sources detailing a reduction in the homicide rate, the fact that in
Albanian blood feuds, the targets are the killer and the killer’s nuclear
family, not extended family members (such as the principal applicant and his
wife). He found that women and children are not targeted, based on the most
reliable evidence provided. In my estimation, the findings meet the
reasonableness test.
[34]
The applicants, in their Further Memorandum, tried
to rely on Cekaj v The Minister of Citizenship and Immigration, 2012 FC
1531, [Cekaj] where the decision of a Pre-Removal Risk Assessment
officer was quashed by this Court. This decision is of no assistance to the
applicants.
[35]
In Cekaj, the errors which resulted in
the grant of judicial review were of a different order. The Court found that
critical evidence had not been reviewed, the decision maker employing
standardized phrases such as the evidence was vague, without considering
carefully the evidence. The decision maker had not weighed the probative value
of the evidence submitted. Not so in the case at bar. The Board did in fact a
thorough and reasoned analysis of the documentary and corroborative evidence.
One thing is for sure: on judicial review, the Court is not making a
determination that there is, or not, adequate state protection in a country. I
share the view expressed in Konya v The Minister of Citizenship and
Immigration, 2013 FC 975, at paragraph 47:
[47] The
second problem is that the
Applicant appears to be using findings of this Court as evidence that state
protection is not adequate in Hungary. This would be a wrong application of the
law. A judge of the Federal Court, sitting in judicial review, is not
determining whether state protection is or is not adequate in Hungary. The task of the judge on judicial review is to review the decision to determine
whether it is reasonable. Each case will be decided on the basis of the facts
and arguments before the Court. In the course of analysis, a judge may express
views of what the documentary evidence tends to show. However, these judicial
comments cannot be elevated to factual findings. Only the Board is able to make
such findings. Use of jurisprudence in the manner proposed by the Applicant is
improper.
See also Karimzada
v The Minister of Citizenship and Immigration, 2012 FC 152, at paragraph
24.
[36]
The applicants also rely on the decision in Andoni
v The Minister of Citizenship and Immigration, 2012 FC 516. It is not clear
how referring to the arguments made by the applicant in that case, as done by
the applicants, can be used in any fashion. They can hardly be relied on as
authorities. Similarly, the applicants seem to refer to paragraphs of the
Court’s decision in support of credibility findings in the Andoni case.
Credibility is assessed on a case by case basis. This kind of an argument carries
no weight.
[37]
The task of the reviewing court is to determine
if the decision of the Board on the availability of adequate state protection
is reasonable in that it falls within the range of acceptable outcomes in view
of all of the evidence before the Board and the law that requires that the
presumption be displaced by clear and convincing evidence. I have concluded
that the Board’s decision is reasonable.
[38]
As pointed out, a finding that there is
available adequate state protection renders an examination of arguments about
credibility moot. I wish however to add in passing that evidence relied on in
the past coming from one Gjin Marku, the chairman of an organization called the
Albanian Committee of Nationwide Reconciliation, is now under a cloud. The
Board quoted extensively from a recent report on Albania in the National
Documentation Package; it seems that false documents have been issued by this
organization, which only adds to the murkiness about the phenomenon of blood
feuds and their prevalence. Given that those reports are already 14 months old,
it may be that the investigations into the activities of Mr. Marku and his
organization have concluded and an update would be welcome.
[39]
As a result, the application for judicial review
is dismissed. At the hearing I raised with the parties if they suggested
serious questions of general importance need to be certified, as provided by
section 74 of the Act. None was suggested.
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