Docket: IMM-7829-13
Citation:
2014 FC 938
Ottawa, Ontario, October 6, 2014
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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ERVIN PEPAJ
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MANDALENA PEPAJ
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicants seek judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the Board), dated October 15, 2013, which found that they were
neither Convention refugees nor persons in need of protection pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA). For the reasons that follow the application is
dismissed.
II.
Facts
[2]
The applicants, mother and son, are citizens of Albania. The principal applicant, Ervin Pepaj, is 26 years of age, and his mother,
Mandalena Pepaj, is 47 years old. They resided in Albania until 2001, when
they went to the United States and claimed political asylum. Their claims were
rejected and the applicants were deported back to Albania in July, 2009.
[3]
Before the Board, the applicant testified that
he would be at risk in Albania because of a blood feud. He claims that in
October, 2009, he entered into a relationship with a woman named Stela Vukaj. In
May of 2010, Stela’s four brothers approached the applicant on the street and
told him to stop seeing Stela. When the applicant refused the brothers beat
him. Consequently, the applicant spent four days in hospital. While there, a
police officer visited but left shortly thereafter saying “that [the applicant’s] situation has the making of a blood
feud and he didn’t want to get caught in the middle”.
[4]
After release from the hospital, the applicant
continued to see Stela. The threats from Stela’s family did not stop, so on
June 6, 2010, a month after the threats, he fled Albania. He first travelled
to Montenegro, then to Germany, then to the Dominican Republic. From the Dominican Republic the applicant returned again to Germany, and from there he travelled to Spain. On July 18, 2010, he entered Canada and claimed protection pursuant to sections 96
and 97 of the IRPA. From the Dominican Republic and on, he used a
fraudulent passport to travel.
[5]
Mandalena testified that she was also the recipient
of threats by Stela’s family, and so in December of 2010 she fled Albania. She travelled first to Montenegro, then to France. On December 24, 2010, she
travelled from France to Canada and claimed protection pursuant to sections 96
and 97 of the IRPA. Mandalena travelled using a fraudulent passport
from France to Canada.
III.
Decision Under Review
[6]
The Board found the determinative issue was
credibility and, in the alternative, state protection. The Board concluded
that the applicants were not credible. This finding was based, in part, on the
applicants’ failure to claim protection at the first opportunity. The
applicant travelled through four safe countries, and had five opportunities to
claim protection. His mother travelled through two countries. The Board found
this behaviour indicated a lack of genuine subjective fear.
[7]
The Board considered the applicants’ reliance on
fraudulent documents while travelling, and a lack of state documentation
verifying the feud. The applicants did submit documentary evidence from a
local priest however, this document contained a factual error and as such the
Board determined that it was fraudulent. Further, the Board found that the
documentary evidence from non-governmental organizations, including the
Committee of Nationwide Reconciliation led by Gjin Marku, was fraudulent, and
had been bought by the applicants.
[8]
Although the Board also cited state protection
as a reason for denying the applicants’ claim, no analysis or reasons were
provided.
[9]
The applicants argue the Board’s adverse
credibility assessment was unreasonable. The applicants’ submit that they had
a reasonable explanation for failing to claim refugee status in other countries
before applying in Canada. They testified that they wanted to get as far away
as possible from Albania, and that they knew that Canada would provide
protection. They also contend, in argument, that delay in making a claim
cannot, in and of itself, be the basis for doubting the applicant’s
credibility: Gyawali v Canada (Minister of Citizenship and Immigration),
2003 FC 1122 at para 16.
[10]
The applicants submit that the Board should not
have drawn a negative credibility inference based on the fact that no documents
were submitted to support the claim: Henriquez Pinedo v Canada (Citizenship and Immigration), 2009 FC 1118 at para 13. Further, the Board should not
have found that the applicants’ use of fraudulent passports eroded their
credibility.
[11]
Finally, the applicants’ argue that even if they
were able to produce objective evidence from the state verifying the blood
feud, the Board would not have accepted the documentation. They contend that
the Board required objective documentary evidence from the state, yet also
acknowledged that widespread corruption exists in the Albanian government which
undermined the very documentation demanded. Further, they argue that the
documents from the Committee of Nationwide Reconciliation, a non-governmental
organization, should have been assessed on the facts contained in them, and not
dismissed because they were not from a recognized source.
[12]
Finally, the applicants submit that because
evidence related to state protection was advanced at the hearing, the Board’s
lack of analysis regarding state protection was unreasonable. A claimant may
not be entirely credible, yet still face a risk to his or her life, with
regards to country conditions and other objective criteria which can be
verified independently of the claimant’s subjective fear: Alegria Monroy v
Canada (Minister of Citizenship and Immigration), 2006 FC 588 at paras
29-31.
IV.
Analysis
[13]
The Board’s assessment of the applicants’
credibility is an issue of fact. Accordingly, the standard of review is
reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9. In questions of
credibility significant deference is owed to boards and tribunals as they are
well placed to assess the credibility of refugee claimants. The determination
of credibility is the “heartland of the Board’s
jurisdiction”: Toma v Canada (Citizenship and Immigration), 2014
FC 121 at paras 9-10.
A.
The Board’s Adverse Credibility Finding was Reasonable
[14]
Significant deference is owed to credibility
findings made by boards as they are well placed to assess the credibility of
refugee claimants: Toma, para 9. The Board reasonably concluded that the
applicants were not credible. The Board did not believe the applicants’ story,
and identified several issues which, in its view, supported an adverse
credibility finding. These issues included failure to claim elsewhere,
reliance on fraudulent documentation, inconsistencies in their evidence and
lack of government confirmation of the feud.
[15]
The Board was entitled to impugn the applicants’
credibility based on the applicants’ delay in claiming refugee status, and
their failure to claim at the first opportunity: Toma, para 18; Mahari
v Canada (Citizenship and Immigration), 2012 FC 999 at para 27. The
applicants submit they have a reasonable explanation for the delay and failure
to claim; however, the only explanation provided was that the applicants
“wanted” to come to Canada for its “very good refugee protection”. This is not
an explanation that justifies the applicants’ failure to claim in the numerous
safe countries they travelled through. It was therefore reasonable for the
Board to conclude that the applicants’ behaviour was inconsistent with the
fears alleged.
[16]
The explanation offered had to be considered in
the context of the evidence before the Board as a whole. That evidence, which
was not disputed, was that the applicants had been in the United States for eight years and returned to Albania in July 2009. The threats giving rise to the
claim took place in May of 2010 and the applicants left in June of that same
year without, in their own evidence, having sought any assistance from local
authorities. In this context, the explanation offered for failing to claim,
given multiple opportunities to do so, was reasonably discounted by the Board.
[17]
These circumstances are far removed from those
considered in Pathmanathan v Canada (Citizenship and Immigration), 2013 FC
353, a case relied on by the applicant. There, the explanation for a failure
to avail was assessed by the Board on an incorrect understanding of the
underlying facts.
[18]
The Board noted that both applicants relied on
fraudulent passports on the final legs of their journey. Unlawful entrants
into Canada are eligible to have their refugee claims determined: Surujpal v
Canada (Minister of Employment & Immigration), [1985] FCJ No 326 (case
not cited by either party). However, I believe it was reasonable for the Board
to question the applicants’ genuine subjective fear given that, prior to
entering Canada, both applicants travelled using their own, non-fraudulent
passport and did not avail themselves of the opportunity to claim protection,
in the case of the son, in four countries.
[19]
The applicants’ credibility was further
undermined by their failure to provide state documentation proving the alleged
blood feud and by their reliance on documents from unreliable and potentially
fraudulent sources. The applicants had been in Canada for three years and were
unable to provide any reliable documents confirming the alleged blood feud. It
was reasonable for the Board to draw a negative inference from the applicants’
failure to corroborate elements of their story.
[20]
The Board also found that the attestation
letters produced by the applicants were fraudulent and had been purchased by
the applicants. As the Board based this finding on objective evidence,
including the Response to Information Request, the adverse credibility finding
was open to it.
[21]
In sum, the Board’s adverse credibility finding
has a solid evidentiary foundation.
B.
It was Reasonable for the Board to not Provide a
State Protection Analysis
[22]
The applicants’ second argument that the Board
must provide a state protection analysis following an adverse credibility
finding fails in light of the decision of the Federal Court of Appeal in Canada
(Citizenship and Immigration) v Sellan, 2008 FCA 381, where the Court
stated at paragraph 3:
[W]here 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.
[23]
The applicants argue that the Board only focused
on Mr. Gjin Marku’s documentary evidence and failed to reference documentary
evidence from other sources and in particular, the commentary of the UN Special
Reporter Philip Alston, on extra-judicial killings.
[24]
A report such as this does not, in my view,
constitute independent and credible documentary evidence as contemplated by Sellan.
Generalised descriptions of country conditions provide useful and important
context to the assessment of claims, but they cannot, by their very nature,
stand as a surrogate for proof of particular facts in respect of an individual
claimant.
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