Docket:
IMM-1799-13
Citation: 2014 FC 121
Ottawa, Ontario, February 3, 2014
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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EDMOND TOMA
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Applicant
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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 applicant seeks judicial review pursuant to
section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27
[the Act] of the decision of the Refugee Protection Division of the
Immigration and Refugee Board (the “Board”) made on January 29, 2013, which
determined that he was not a Convention refugee pursuant to section 96, nor a
person in need of protection pursuant to section 97 of the Act.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The applicant, Edmond Toma, is a citizen of Albania who claims that he fears persecution stemming from a blood feud between his family and
the Dodaj family. The Board rejected the applicant’s claim for protection on
the basis that he lacked credibility and subjective fear of persecution and
that, alternatively, he had not rebutted the presumption of adequate state
protection in Albania. On judicial review, the applicant submits: that the
Board made unreasonable credibility findings; that the Board relied upon
specialized knowledge during the hearing without disclosing what the
specialized knowledge was, in contravention of Rule 22 of the Refugee
Protection Division Rules (“Rule 22”), thereby breaching its duty of
procedural fairness; and that the Board unreasonably concluded that Albania
could offer adequate state protection.
[4]
At the outset, the Board found that the
applicant’s claim for protection is based entirely on the existence of a blood
feud and because there is no nexus to an enumerated ground under section 96 of
the Act, the claim was assessed solely under section 97. The applicant
did not take issue with this finding.
[5]
The applicant claims that in 1998, his brother,
Victor Toma, who was a police officer described as having democratic political
views, was involved in the arrest and ultimate incarceration of Nush Dodaj, who
had killed a member of another family with whom the Dodaj family were in a
blood feud. Victor Toma was also present at the shooting and killing of Martin
Dodaj. Consequently, the Dodaj family declared a blood feud against the Toma
family, as well as the families of the other policemen involved. Victor Toma
fled Albania and was granted asylum in the United States in 2000 on the basis
of his political opinion as a democrat in a socialist police force; he did not
mention the family’s blood feud in his claim for protection.
[6]
The applicant alleges that he and his family
went into hiding in 1998 and, apart from a 2004 vacation in Macedonia and short excursions to town, he lived at his family’s small farm. In 2010, he drove to a
store for supplies for his mother and was shot at three times. The applicant
alleged that his relatives had heard Nush Dodaj, who had been released from
jail in the spring of 2010, claim responsibility for the shooting. Following
this incident, the applicant travelled with a smuggler to Canada.
Standard of
review
[7]
The parties agree that questions of credibility
and whether the applicant has rebutted the presumption of state protection are
questions of mixed fact and law, reviewable on a standard of reasonableness. A
breach of procedural fairness is reviewable on a standard of correctness.
[8]
The role of the court is,
therefore, to determine whether the Board’s decision “falls within ‘a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law’ (Dunsmuir, at para.
47). There might be more than one
reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome” (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59). The Court does not re-weigh the
evidence or remake the decision.
[9]
It is also well-established that significant
deference is owed to credibility findings made by boards and tribunals as they
are well placed to assess the credibility of refugee claimants (Aguebor v
Canada (Minister of Employment and Immigration) (1993), 160 NR 315, [1993]
FCJ No 732 at para 4 (FCA); Lin v Canada (Minister of Citizenship and
Immigration), 2008 FC 1052 at para 13, [2008] FCJ No 1329; Fatih v
Canada (Minister of Citizenship and Immigration), 2012 FC 857 at para 65,
415 FTR 82).
[10]
Justice Martineau described the determination of
credibility as the “heartland of the Board's jurisdiction” (Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 7, 228
FTR 43).
[11]
The Board may make negative credibility findings
based on inconsistencies in testimony and perceived implausibility, so long as
they are based on reasonable inferences. A claim may be evaluated on
plausibility, common sense and rationality (Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at paras 41-46, [2012]
FCJ No 369).
The credibility
findings were reasonable
[12]
Contrary to the applicant’s submissions that the
credibility findings were not clear and focussed on issues that were peripheral
to his claim, the Board identified several omissions, inconsistencies and
implausibilities which led it to conclude that the applicant was not credible
and did not have a subjective fear of persecution. The applicant acknowledges
that deference is owed to the Board with respect to its credibility findings
but submits that given this deference, the Board has a duty to make clear
findings.
[13]
There was nothing unclear or vague about the
Board’s credibility findings nor were the credibility findings based on matters
peripheral to the applicant’s claim.
[14]
The Board’s several credibility findings led it
to conclude that, on a balance of probabilities, the applicant was not
credible. The Board clearly stated “I do not believe the claimant’s story”.
[15]
The Board’s credibility findings were based on
omissions and implausibilities, including: that the applicant was unable to
establish how and when he actually arrived in Canada as he had no
documentation, ticket or boarding pass; he did not mention the blood feud in
his Port of Entry interview and did not respond to the question on the form
indicating what he feared in Albania; his brother’s claim for protection in the
US was not based on the family’s blood feud; he travelled to Macedonia on
vacation in 2004 but did not seek protection from that country; he did not seek
protection in Germany, although he claimed to travel via Germany en route to
Canada; and, he relied on the suspect and discredited attestation of the blood
feud provided by Gjin Marku.
[16]
With respect to the applicant’s failure to
establish how and when he arrived in Canada, the Board reasonably found that
this led to a negative credibility inference. The applicant’s explanation that
the smuggler had taken all his documents and that he landed in Montreal but
then took a taxi to Ottawa, where he claimed protection the next day, was
probed extensively at the hearing. The Board questioned the applicant about
whether he had been in Canada or the US previously. The Board reasonably found
his explanation to be insufficient. It was open to the Board to draw negative
credibility findings under these circumstances.
[17]
With respect to the lack of any mention of the
Dodaj family and the blood feud in his Port of Entry notes, the applicant’s
explanation, that he did not speak English at the time and lacked the education
to appreciate the full significance of the notes, was reasonably found to be
insufficient. The applicant signed the acknowledgment that the contents were
true and that he fully understood the questions. There is no evidence that the
translation was poor and the interpreter also signed an acknowledgment that the
applicant completely understood the nature of the forms. It was reasonable for
the Board to draw an adverse inference of credibility from this significant
omission. The applicant’s claim was allegedly based on his fear arising from
the blood feud, which had forced his family into a secluded life for 12 years,
yet he failed to mention it. The Board indicated clearly that this omission led
to a further negative credibility finding.
[18]
With respect to the applicant’s failure to seek
protection in Germany and Macedonia, the law is clear that, absent a compelling
explanation, a failure to seek protection at the first opportunity may diminish
credibility (Mahari v Canada (Minister of Citizenship and Immigration),
2012 FC 999 at para 27, [2012] FCJ No 1087) and may undermine the allegation of
subjective fear (Krasniqi v Canada (Minister of Citizenship and Immigration),
2010 FC 350 at para 34, [2010] FCJ No 410). Although it may not be reasonable
to expect the applicant to claim protection in Germany if he had only a short
stopover en route to Canada, his failure to seek protection in Macedonia in
2004 when he was 24 years old provided the reasonable basis for the Board to
find that he lacked subjective fear and to draw a negative credibility finding.
[19]
In his testimony, the applicant indicated that he had
no money and no job and could not seek to stay in Macedonia. He now submits
that he was not in a state of fear at that time and, therefore, the Board’s
finding that he had no subjective fear based on his failure to seek protection
in Macedonia is not reasonable. However, his testimony before the Board was
that he lived in some state of fear and seclusion since 1998 due to the blood
feud. Although he testified that his fear escalated in 2010, he also stated
that his brother had encouraged him to leave Albania much earlier. Therefore,
it was open to the Board to find that his failure to seek protection in Macedonia undermined his claim of subjective fear and his credibility. The applicant’s submission that the Board made an unclear
credibility finding by noting that “his credibility is eroded” is without
merit. There is no doubt that this is a credibility finding arising from his
failure to seek protection in Macedonia in 2004.
[20]
With respect to the credibility findings derived
from his brother’s refugee claim in the US, which also did not mention the
blood feud, the applicant submits that the Board’s finding is unreasonable
because the Board cannot make a finding about his brother’s credibility and use
that finding against him. While the Board’s wording suggests that it made a
credibility finding against his brother, who was not a party to these
proceedings, the context supports the reasonableness of the Board’s adverse
credibility finding against the applicant. The applicant failed to mention the
blood feud in his Port of Entry notes as did his brother in his US asylum claim. The applicant could not explain why his brother did not mention the blood
feud, even if his brother’s claim was also based on persecution due to
political opinion. In this light, the Board’s credibility finding is reasonably
based on its observation that both the applicant and his brother failed to
mention the blood feud, even though the applicant claimed that the blood feud
was the primary reason for both fleeing Albania.
[21]
The Board also reasonably drew a negative
inference with respect to the applicant’s failure to produce documents from
official government agencies attesting to the blood feud. While the lack of
corroborating evidence cannot be used to undermine the credibility of an
otherwise credible claimant (Yotheeswaran v Canada (Minister of Citizenship
and Immigration), 2012 FC 1236 at para 10, 14 Imm LR (4th) 61), the
applicant in the present case insisted on submitting unreliable evidence from
Mr Marku, despite having been cautioned not do so by his counsel and despite
the Board’s clear statements at the outset of the hearing that Mr Marku was
discredited. However, once corroborating evidence from Mr Marku was submitted,
the Board was entitled to draw adverse credibility inferences based on the
quality of the evidence. In this case, the Board found the attestation letters
from Mr Marku to be fraudulent and reasonably undermined the applicant’s
credibility as a result.
[22]
As established in Canada(Minister of
Citizenship and Immigration) v Sellan, 2008 FCA 381 at para 3, [2008] FCJ
No 1685, the adverse credibility findings are sufficient to dispose of
the claim:
[3] In our view, that
question should be answered in the following way: where the Board makes a
general finding that the claimant lacks credibility, that determination is
sufficient to dispose of the claim unless there is independent and credible
documentary evidence in the record capable of supporting a positive disposition
of the claim. The claimant bears the onus of demonstrating there was such
evidence.
Rule 22 does not provide a basis to set aside this decision
[23]
With respect to the applicant’s submissions that
there was a breach of procedural fairness due to the Board’s reliance on
specialized knowledge that was not disclosed to him, the wording from the
decision, at para 27, was as follows “[t]he claimant
was advised that based on my specialized knowledge and the new Response to
Information Request (RIR) on Mr. Marku et al. at tab 7.14 I give no weight to
his views and regard his evidence as tainted.”
[24]
The applicant submits that the Board did not
give adequate notice about its specialized knowledge and, therefore, breached
its duty of procedural fairness as codified under Rule 22.
[25]
The applicant acknowledges that he was informed
that his attestation letters from Gjin Marku would be scrutinized in light of a
recent RIR, but asserts that the Board did not identify its specialized
knowledge beyond the RIR. The applicant submits that he was unaware of the
content or source of this specialized knowledge and the extent to which the
Board’s decision is based on it, and as a result, was denied the possibility to
respond to whatever this specialized knowledge was.
[26]
The transcript of the hearing establishes that
the Board provided clear and numerous references to its concerns about any
evidence from Gjin Marku; the applicant was clearly cautioned that the Board
regarded Mr Marku as a fraud who took money in exchange for providing false
blood feud attestation letters. The applicant’s counsel acknowledged the
concerns of the Board about the attestation letters provided by Mr Marku and
noted that the applicant nevertheless instructed him to submit it as evidence.
[27]
Although the wording of the Board suggests that
it relied on specialized knowledge and the RIR, rather than specialized
knowledge based on the RIR, the overall context, including the Board’s
extensive cautions about Mr Marku, coupled with its thorough questioning of the
applicant to determine if he had any other authoritative document to establish
the family’s blood feud, suggests that the specialized knowledge was only based
on the RIR.
[28]
Regardless, even if the Board erred in not
clearly indicating its specialized knowledge as required by Rule 22, this is
not a sufficient basis to set aside the decision. The decision must be reviewed
as a whole in order to determine whether the merits of the claim are such that
it would have changed the result.
[29]
As noted by the respondent, in Munir v Canada (Minister of Citizenship and Immigration), 2012 FC 645 at para 19, [2012] FCJ No
625, Justice de Montigny held:
[19] Even if one
were to assume that the panel erred by relying on the advertising document,
that factor was not a determining one in the panel’s decision. A breach of Rule
18 of the Rules [the predecessor to Rule 22], alone, is not sufficient
to set aside the panel’s decision if the other grounds raised to conclude that
the applicant’s account was implausible and non credible stand on their own
(see Kabedi v Canada (Minister of Citizenship and Immigration), 2004 FC
442 at paragraph 14, 131 ACWS (3d) 313; Lin v Canada (Minister of
Citizenship and Immigration), 171 FTR 289 at paragraph 21 and 23, 90 ACWS
(3d) 116 (1st inst.)).
[30]
Similarly, in N'Sungani v Canada (Minister of
Citizenship and Immigration), 2004 FC 1759 at paras 32, 44 Imm LR (3d) 105,
Justice Tremblay-Lamer considered and applied the principles set out in Yassine
v Canada (Minister of Employment and Immigration) (1994), 172 NR 308, 27
Imm LR (2d) 135 (FCA):
32 In my view,
the principal established in Yassine, supra stands with a caveat
taken from [Hu v Canada (Minister of Citizenship and Immigration), 2003
FCT 603, 28 Imm LR (3d) 200]: provided credibility determinations were properly
arrived at, and wholly determinative of the application, then the Mobil Oil,
supra exception can be invoked to deny a new hearing, assuming there is
no reason to suspect that the specialized knowledge in dispute in any way shaped
the Board's credibility findings.
[31]
In this case, even if the Board had relied on
any other specialized knowledge, there is no reason to conclude that it had any
bearing on the Board’s credibility findings, which were clearly identified and
reasonable.
The applicant
did not rebut the presumption of adequate state protection
[32]
Although there is no need to consider the
reasonableness of the Board’s determination regarding state protection, which
was alternative to its credibility findings, it is trite law that there is a
presumption that a democratic state will provide adequate state protection and
that the onus is on the applicant to rebut that presumption with clear and
convincing evidence.
[33]
The Board conducted a lengthy review of the
country condition reports and noted which sources could be relied on and which
sources were suspect, before concluding that the documentary evidence was
mixed. The Board was candid to acknowledge the shortcomings of state protection
mechanisms in Albania, but found the documentary evidence demonstrating the
operational adequacy of state protection mechanisms to be more persuasive. It
was open to the Board to weigh the evidence as it did.
[34]
The applicant argued, in effect, that there was
no onus on him because there is no adequate state protection in Albania: the police and courts are ineffective against blood feuds, corruption is
widespread and it would have been pointless for him to approach the police.
[35]
As noted by Justice
Rennie in Sow v Canada (Minister of Citizenship and Immigration),
2011 FC 646 at para 10, [2011] FCJ No 824, the onus on an applicant to rebut
the presumption of state protection varies with the level of democracy:
[10] This
principle, however, does not stand in isolation. It is tempered by the
fact that the presumption varies with the nature of the democracy in a country.
Indeed, the burden of proof on the claimant is proportional to the level
of democracy in the state in question, or the state’s position on the
“democracy spectrum”: Kadenko v Canada (Minister of Citizenship and
Immigration) [1996] FCJ No 1376 at para 5; Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359 at para 30; Capitaine v Canada
(Citizenship and Immigration) 2008 FC 98 at paras 20-22.
[36]
I agree that the applicants’ efforts to rebut
the presumption must be commensurate with or proportional to the level of
democracy and the adequacy of state protection, which as noted, the Board found
to be mixed. However, an applicant must take some steps and can not rely on their
own belief that the police will do nothing. Although the applicant was not well
educated, lived in a rural community governed by the Kunun customary law, and
had been told by his father not to approach the police, his own evidence was
that his father’s efforts at reconciling the feud had been pointless and had
waned in recent years. He made no effort to report the shooting incident
involving Nush Dodaj to the police, even though Nush Dodaj had previously been
arrested, convicted and imprisoned by the state for 12 years in connection with
another blood feud related incident. The applicant was a 30-year old adult at
the time he decided to leave Albania, yet he unquestioningly relied on the
advice of his ailing father without making any other inquiries or taking any
steps to seek state protection. The Board reasonably found that he had not
rebutted the presumption of state protection.
[37]
The basic premise of refugee law is that a person must
seek the protection of their own country before seeking the surrogate
protection of another country. In this case, the applicant did nothing to seek
state protection in Albania.
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