Docket:
IMM-5374-13
Citation:
2014 FC 373
Ottawa, Ontario, April 17, 2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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SUFAJ, RITA
LEKA, ANTONETA
LEKA, ANGJELA
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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]
The applicants, a mother and her two children,
seek judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the “Act”),
of the decision of a Senior Immigration Officer (the “Officer”)
made on July 20, 2013, which refused their Pre-Removal Risk Assessment [“PRRA”] and found that they were not Convention refugees
or persons in need of protection pursuant to sections 96 or 97 of the Act.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The principal applicant, Rita Sufaj, is a
citizen of Albania. Her two children, the co-applicants, were born in the US and have American citizenship. In September 2003, the principal applicant left Albania for the US. Her refugee protection claim in the US was denied in February 2009. They arrived
in Canada in August 2009, and claimed refugee protection.
[4]
In this application for judicial review, the
principal applicant asserts that the new evidence she submitted in her PRRA
application should have been considered to support her allegations that she
faces the risk of gender-based violence if she were to return to Albania. The applicant submits that she was constrained from fully describing her past experience
as a victim of a violent rape in Albania at her refugee protection hearing
because her claim was joined to her brothers and other family members. She
submits that the Officer was aware of the decision of the Refugee Protection
Division of the Immigration and Refugee Board [“RPD”], the Personal Information
Form [“PIF”] she submitted in support of her refugee protection claim, and her
PRRA submissions, all of which should have resulted in the Officer considering
the risks she faces of gender-based and other violence in Albania.
[5]
Some additional background to the applicants’
claim is essential for context. The applicants alleged that they are fleeing
from a blood feud in Albania and in the US between their family and the Isufaj
family. The blood feud stems from the murder of the principal applicant’s
brother in Michigan in 1992, by members of the Isufaj family. The principal
applicant also indicated that the feud was exacerbated by her marriage, while
in the US, to Anton Leka, who had left his ex-wife, a member of the Isufaj
family.
[6]
The applicants’ claim for refugee protection was
joined to that of the principal applicant’s brothers and other members of the
Sufaj family because they were all based on the same alleged blood feud with
the Isufaj family in Albania and the US.
[7]
On September 19, 2011, the RPD denied the
refugee claims of all the Sufaj applicants solely under paragraph 97(1)(b) of
the Act. The Board found their testimony, including that of the current
applicant, Rita Sufaj, to not be credible. On January 12, 2012, leave for
judicial review of the RPD’s decision was denied.
[8]
The current applicants applied for a PRRA in
January 2013. In support of the PRRA, the principal applicant submitted, among
other documents, photographs depicting scars on her neck that allegedly
resulted from the rape she suffered in 2003 in Albania that was purportedly
connected with the blood feud. The principal applicant submits that she did not
disclose or show her scars to the RPD in front of her brothers because rape is
of great shame in her culture. However, the Board was clearly aware of the
allegations of rape and referred to this in its decision.
[9]
The applicants’ submissions in their PRRA
application refer only to insecurity in Albania and conclude with a general allegation
“that if I am going to go back to Albania, I will be killed”, without providing any additional
details. The PRRA application attaches the PIF submitted to the IRB which
provides the allegations of the blood feud, the murder of the principal
applicant’s brother, Prel, in Michigan, her brothers’ efforts to have Prel’s
murder investigated, the impact of her marriage on the blood feud, and also
indicates that a member of the Isufaj family paid someone in Albania to rape
the principal applicant in 2003, that this occurred and that she then fled.
[10]
The affidavit that the principal applicant
submits in support of her application for judicial review states that she had
asked the RPD to have her claims separated from those of her brothers because
she did not want to disclose the details of her rape in front of her brothers,
due to the shame and victim blaming associated with rape in Albanian culture.
This request was denied and she “felt that I could
not discuss the rape”. She also states that she
has scars as a result of this attack and fears the man who attacked her.
[11]
This affidavit was not before the Officer.
The decision
[12]
The Officer noted that the RPD had found the
principal applicant and her brothers to be not credible and found that the
documentary evidence they had submitted had little or no weight. As a result,
the RPD found there was no evidence to support their allegations. The RPD found
that the dispute with the Isufaj family originated in the US and not in Albania.
[13]
The Officer also noted that in the PRRA application,
the applicants reiterated the events from the principal applicant’s PIF and
stated that the political situation in Albania is unstable.
[14]
The Officer did not consider the majority of the
documents submitted by the applicant as “new”
because this evidence predated the applicants’ refugee claim and no explanation
was given as to why this evidence, which included several articles, was not
presented or was not reasonably available during the refugee determination
hearing. The Officer also considered the current country conditions in Albania and concluded that, while certain human rights issues remain a concern in Albania, there was no objective evidence to establish that the applicants faced a personalized risk
if they were to return to Albania.
[15]
The Officer concluded that the applicant had not
demonstrated on a balance of probabilities that she is in a blood feud with the
Isufaj family or that she faces a personalised risk in Albania.
[16]
The Officer mentioned that the co-applicants are
US citizens and there was no evidence presented of persecution or risk to them
if returned to the US.
The issues
[17]
The applicants submit that the decision is not
reasonable because the Officer erred by failing to conduct an analysis under
section 96 of the Act of the principal applicant’s status as a victim of
sexual assault or member of a social group. The applicants also argue that the
Officer failed to consider key evidence, including scars on the principal
applicant’s neck, which was not presented during her refugee hearing.
Was the officer’s decision
reasonable?
[18]
The applicants submit that the Officer did not
provide an analysis under section 96 regarding gender-based persecution or
women as a social group and that, despite recognizing the existence of human
rights abuses in Albania, the Officer failed to grasp the implications of the
photographs depicting the principal applicant’s scars. The applicants submit
that the Officer had the relevant information in front of him and should have
taken the extra steps to conduct the section 96 analysis, even though it was
not specifically submitted in the application.
[19]
The applicants also argue that the Officer erred
in not holding a hearing regarding the photographs and in finding the
photographs to be not credible solely on the basis that the RPD had already
found the Sufaj claimants to be not credible. The applicants note that the RPD
credibility findings had focused on the Sufaj brothers, who were the primary
figures of the blood feud and had not made a credibility finding regarding the
principal applicant’s allegation of rape.
[20]
The respondent submits that a PRRA is not a
second refugee hearing; rather a PRRA is to assess new risks which may have
arisen between the RPD hearing and the removal date (Perez v Canada (Minister of Citizenship and Immigration), 2006 FC 1379 at paras 9-13, 59 Imm LR
(3d) 156 [Perez]).
[21]
In this case, the respondent notes that the
principal applicant made the same allegations in her PRRA that were considered
and rejected by the RPD, namely that she faces a risk due to a blood feud in
Albania and that she believed she was raped in 2003 as a result of that blood
feud.
[22]
The respondent submits that the Officer cannot
be faulted for not assessing Convention grounds that were never identified.
[23]
With respect to the photographs submitted by the
principal applicant of scars that she stated resulted from her rape connected
to the blood feud, the respondent submits that the applicants provided no
explanation why these photocopied and undated photographs were submitted.
[24]
In response to the applicants’ argument that the
Officer erred in not holding a hearing, the respondent submits that PRRA
hearings are held only in exceptional circumstances. The respondent argues that
the Officer did not make a credibility finding about the photographs, but
rather, after considering the allegation of rape in the principal applicant’s
narrative, along with the photographs, and the appropriate country condition
documents, concluded that there was insufficient new evidence demonstrating a
personalized risk.
The Officer’s decision is reasonable
[25]
The applicants’ counsel submits that the
applicants have fallen through the cracks of the refugee protection system
given that the principal applicant requested a separate claim or hearing before
the RPD which was denied and, as a result, was denied the opportunity to fully
describe the rape she experienced and to have her claim assessed in the
appropriate context. Leave for judicial review of the RPD decision was refused.
In addition, the applicant did not have the benefit of counsel in making her
PRRA submissions.
[26]
Like many other refugee claimants, the
applicants face many challenges. However, the decision of the Officer is
reviewed on the standard of reasonableness and on the record that was before
the Officer. Moreover, the RPD had considered the applicant’s experience of
rape, as it is noted in its decision. Whether the applicant was reluctant to
fully describe her experience to the RPD can not be determined in the context
of this judicial review, which relates only to the PRRA.
[27]
All the material submitted by the applicant
relates to events tied to the alleged blood feud, which the RPD and the Officer
considered. The applicants’ submissions in their PRRA application focus on the
instability of Albania and the attached PIF describes the blood feud in detail
and mentions the principal applicant’s rape as part of the blood feud.
[28]
It is well established that a PRRA is not an
appeal of the RPD decision or a “do over”.
[29]
As noted by Justice Shore in Singh v Canada (Minister of Citizenship and Immigration), 2014 FC 11 at paras 22-24, [2014] FCJ
No 6:
[22] It is well established that the
purpose of a PRRA application is to assess new risk developments that have
occurred since a rejection of a refugee protection claim. A PRRA application
cannot, and must not, be used as an appeal or reconsideration of a RPD decision
rejecting a refugee protection claim (Raza, above, at para 12).
[23] As stated by Justice Judith Snider in
Cupid v Canada (Minister of Citizenship and Immigration), 2007 FC 176:
[4] Canada has taken steps to
ensure that a claimant is provided with a process whereby changed conditions
and circumstances may be assessed. It follows that, if country conditions or
the personal situation of the claimant have not changed since the date of the
RPD decision, a finding of the RPD on the issue of state protection – as
a final, binding decision of a quasi-judicial process – should continue
to apply to the claimant. In other words, a claimant who has been rejected
as a refugee claimant bears the onus of demonstrating that country
conditions or personal circumstances have changed since the RPD decision
such that the claimant, who was held not to be at risk by the RPD, is now at
risk. If the applicant for a PRRA fails to meet that burden, the PRRA
application will (and should) fail. [Emphasis added.]
(Reference is also made to Kaybaki v Canada (Minister of Citizenship and Immigration), 2004 FC 32; Elezi v Canada (Minister of Citizenship and Immigration), 2007 FC 240, 310 FTR 59).
[24] Put simply, when considering the
evidence in a PRRA application, an officer must ask whether the information it
contains is significant or significantly different from the information
previously provided (Raza v Canada (Minister of Citizenship and Immigration),
2006 FC 1385, 306 FTR 46 at para 22-23; Elezi, above, at para 29; Doumbouya
v Canada (Minister of Citizenship and Immigration), 2007 FC 1187, 325 FTR
143 at para 38). [Emphasis in the original.]
[30]
The respondent also referred to Perez, supra
at para 5, where Justice Snider, reiterated the same principles:
[5] It is well-established that a PRRA
is not intended to be an appeal of a decision of the RPD (Kaybaki v. Canada
(Solicitor General of Canada), 2004 F.C. 32 at para. 11; Yousef v.
Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1101 at
para. 21 (F.C.); Klais v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 949 at para. 14 (F.C.)). The purpose of the PRRA is not to
reargue the facts that were before the RPD. The decision of the RPD is to be
considered as final with respect to the issue of protection under s. 96 or s.
97, subject only to the possibility that new evidence demonstrates that the
applicant would be exposed to a new, different or additional risk that could
not have been contemplated at the time of the RPD decision. Thus, for example,
the outbreak of civil war in a country or the imposition of a new law could
materially change the situation of an applicant; in such situations the PRRA
provides the vehicle for assessing those newly-asserted risks.
[31]
In this case, the RPD had already considered the
principal applicant’s allegation that she was raped as a result of the blood
feud. The principle applicant is making the same allegation in her PRRA and the
same arguments that were considered and rejected by the RPD: namely that she
faces a risk due to a blood feud in Albania and that she believes that she was
raped as a result of the feud.
[32]
In her PRRA application, the principal applicant
submits that there is new evidence, being the undated and photocopied
photographs entitled “photos from beatings”, to support the personalized risk
she would face if she were to return to Albania. She argues that she could not
reasonably be expected to have presented evidence of her scars to the RPD,
since she did not want to discuss her rape in front of her brothers, whose
refugee claim was joined with hers. She also submits that she did not want her
claim to be joined to that of her brothers.
[33]
Although the applicants argue that the context
of the rape and the risk of gender-based violence were not considered by the
RPD, given that the RPD assessed only the claim pursuant to section 97, the
applicants have not provided new evidence or evidence of new risks to the
Officer.
[34]
The applicants argue that the Officer should
have been more alert to the risks and conducted a more comprehensive assessment
of the section 96 risks given the documents before him.
[35]
As the respondent noted, there is no obligation
on the Officer to go beyond the application and to seek out other grounds to
support the application. The affidavit filed in support of the application for
judicial review was not before the Officer.
[36]
In Marte v Canada (Minister of Public Safety
and Emergency Preparedness), 2010 FC 930 at paras 36-40, 374 FTR 160,
Justice Bédard clarified this principle:
[36] It was up to the applicant to provide
the explanations in his affidavit in support of his PRRA application and at
this stage, it is too late to supplement the deficient evidence.
[37] An analogous case is Gosal v. Canada (Public Safety and Emergency Preparedness), 2010 FC 620 (available on QL). At
the time the application for a stay was made, the applicant had submitted an
affidavit which provided much more detailed information about her fear of the
risk she faced if she were to return to her country of origin.
[38] Justice Shore found that while this
affidavit would have helped the PRRA officer better understand the applicant’s
file, the officer did not have it on hand when he made his decision.
Consequently, he determined that, based on the evidence the officer had before
him and his analysis of this evidence, the officer’s decision was entirely
reasonable and the intervention of the Court was not warranted.
[39] The onus is on the applicant who is
applying for a PRRA to submit an application that is clear, detailed and
complete, and to provide evidence to support his or her allegations.
[40] The Court has established on numerous
occasions that the PRRA officer is under no obligation to gather or seek
additional evidence or make further inquiries. Nor is the officer under any
obligation to take measures or do research to clarify obscure or contradictory
points or to bolster insufficient evidence (Yousef v. Canada (Citizenship and Immigration), 2006 FC 864, 149 A.C.W.S. (3d) 1097). These
principles were also applied recently in Zhou v. Canada (Citizenship and
Immigration), 2010 FC 186 (available on QL) and in Gosal, above.
[37]
The principal applicant indicated that she had
been raped and the RPD acknowledged this allegation. The photographs relate to
that same allegation. I do not agree that these photographs could be considered
evidence of a new risk.
[38]
Although the principal applicant now offers an
explanation why she did not present them to the RPD, the photographs would not
make the allegations of the rape more or less credible nor change the nature of
the risk she alleged, which was that she was raped due to the blood feud.
[39]
The onus is at all times on applicants to
support their allegations with evidence.
[40]
In any event, the Officer did consider the
photographs, whether or not they were new evidence, but still concluded that,
on a balance of probabilities, the applicants are not involved in a blood feud
with the Isufaj family and would, therefore, not be subject to a personalized
risk in Albania.
[41]
With respect to the issue of whether an oral
hearing should have been held, I agree with the respondent that there was no
breach of procedural fairness. Oral hearings for PRRA proceedings are held only
in exceptional circumstances, which were not present in this case (Immigration
and Refugee Protection Regulations, SOR/2002-227, s 167). The Officer did
not make a credibility finding with respect to the photographs. The Officer
considered the photographs and reasonably found that they did not demonstrate
that the applicants would face the risks they alleged.
[42]
The Officer’s findings were reasonable. The
Officer considered all the evidence presented and provided justification for
his findings. The decision meets the reasonableness standard as it “fall(s) within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
[43]
The application for judicial review is dismissed.
No question was proposed for certification.
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