Docket: IMM-5481-15
Citation:
2016 FC 1136
[ENGLISH
TRANSLATION]
Ottawa, Ontario, October 12, 2016
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN:
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SHKELZEN BAJRAKTARI
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review of
the November 18, 2015, decision by the Immigration Appeal Division [IAD]
in which the IAD allowed the appeal of the Minister of Citizenship and Immigration
and declared Shkelzen Bajraktari [Mr. Bajraktari] inadmissible
because there were reasonable grounds to believe that he committed crimes
against humanity, in violation of subsection 35(1)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. For the
reasons that follow, I am dismissing the application for judicial review.
II.
Background and Immigration Division decision
[2]
Mr. Bajraktari is a 77-year-old Albanian
citizen. He is married with three children. He arrived in Canada alone in January 1996
and applied for refugee protection. He obtained refugee status on October 20,
1997, and applied for permanent residency in Canada in 1998. He updated
his application in 2012, and it is still pending.
[3]
Mr. Bajraktari graduated with a law degree
from the University of Tirana. In 1961, he was appointed to be a judge in
the city of Puke, but chose instead to work for the Albanian communist
government in the Ministry of Interior. While working, Mr. Bajraktari also
completed a psychology degree in 1963 through a correspondence program. In
total, Mr. Bajraktari worked for the Albanian communist government from
1961 to 1993, holding several different high-level positions in the Ministry of
Interior. He was also a member of the communist party of the time, the Albanian
Labour Party. Near the end of his career in the Albanian communist government,
Mr. Bajraktari was paid as if he had the rank of colonel in the army, even
though the ranks were abolished in 1966.
[4]
The Albanian communist regime lasted 45 years
before collapsing in 1991. Documentary sources show that during Enver Hoxha’s
dictatorship, Albania was the poorest, most isolated country in Europe; all
forms of religious practice and freedom of expression and association were
banned. Albania did not allow its citizens to own land or travel outside the
country. The private practice of law was forbidden, and there were no
independent courts, as the judicial system was entirely controlled by the
Albanian Labour Party. The central government and the Albanian Labour Party met
disobedience and opposition with brutal retribution, including internal exile,
long-term imprisonment and execution.
[5]
In 1996, Mr. Bajraktari and eight other
members of the communist party were tried in absentia for crimes against
humanity under the Albanian Penal Code. In September 1996, Mr. Bajraktari
was convicted in the first instance; the nine convictions were upheld by the
Albanian Appeals Court in November 1996, but were quashed, in September 1997,
by the Albanian Cassation Court. The Cassation Court held that retroactively
applying the relevant Albanian legislation was against the constitution.
[6]
A report under paragraph 44(1) of the IRPA
recommended that Mr. Bajraktari should be found inadmissible in Canada
because of his complicity in the commission of crimes against humanity by the
Albanian communist government while he was working for the Ministry of Interior
from 1961 to 1993. Finding the report relevant and well-founded, the minister
referred the affair to the Immigration Division [ID] of the Immigration and
Refugee Board of Canada for investigation.
[7]
In its January 20, 2014, decision, the ID
found that Albania committed crimes against humanity against its population,
including through its administrative internment practices and confessions
obtained by ill treatment. The ID did not analyze the other practices of the
Albanian communist government that could constitute crimes against humanity.
The ID determined that the allegations of complicity in crimes against humanity
made against Mr. Bajraktari under paragraph 35(1)(a) of the IRPA were
unfounded according to the parameters set out in Ezokola v. Canada
(Citizenship and Immigration), [2013] 2 SCR 678, 2013 SCC 40
[Ezokola]. More specifically, the ID found that the minister did not establish
through credible and trustworthy evidence that Mr. Bajraktari voluntarily
made a significant contribution to the crimes or criminal purpose of the
Albanian communist government. The ID also found that Mr. Bajraktari’s
testimony was credible and trustworthy and that his duties related to
prosecution and investigation in the Albanian communist government were
legitimate and indispensable.
III.
Preliminary questions
[8]
As a preliminary measure, the respondent asked
this Court to modify the style of cause to remove the Minister of Citizenship
and Immigration as respondent and to replace this with the Minister of Public
Safety and Emergency Preparedness [the minister]. The minister also brought the
Court’s attention to a spelling error in the applicant’s surname in the style
of cause of this request for authorization for judicial review. The minister
asked this Court to amend the style of cause so the applicant’s name would read
Shkelzen Bajraktari, not Shkelzen Bjaraktari.
[9]
I agree that the appropriate respondent in this
case is the Minister of Public Safety and Emergency Preparedness. With the
parties’ consent, I authorize the style of cause to be changed so that the
respondent is the Minister of Public Safety and Emergency Preparedness and the
applicant’s name is spelled Shkelzen Bajraktari, in accordance with rule 76
of the Federal Courts Rules, SOR/98-106.
IV.
Decision under appeal – IAD
[10]
The minister appealed the ID decision to the
IAD. The minister submitted that the ID erred in applying the complicity test
set out in Ezokola to the facts of this case. The IAD held a new hearing
and gave the parties the opportunity to submit new evidence. It considered both
the evidence submitted to the ID and the evidence submitted in the appeal. The
IAD noted that the applicable standard of evidence for a finding of
inadmissibility under section 33 of the IRPA is that of “reasonable ground to believe.”
[11]
The IAD examined the question of whether the
Albanian communist government committed, outside of Canada, acts that would
constitute an offence under sections 4 to 7 of the Crimes Against
Humanity and War Crimes Act, SC 2000, c. 24. If yes, the
resulting question is whether there are reasonable grounds to believe that Mr. Bajraktari
was complicit in the perpetration of any of these crimes against humanity.
[12]
To answer the first question, the IAD examined
the many documentary sources on the communist regime in Albania. The IAD found
a plethora of documentary sources listing the following acts defined in
subsection 7(1) of the Rome Statute and committed by the Albanian
communist government, including during the periods when Mr. Bajraktari
worked for the communist regime from 1961 to 1991: murder; imprisonment or
other severe deprivation of physical liberty; deportation or forcible transfer
of population; torture; persecution on political, cultural and religious
grounds; and other inhumane acts intentionally causing great suffering, or
serious injury to body or to mental or physical health. The IAD applied the
factors listed by the Supreme Court in Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40,
at paragraph 119 [Mugesera] and found that the minister established
the conditions to find that crimes against humanity were committed.
[13]
For the second question, the IAD found that the
minister met the burden of proof by demonstrating the existence of reasonable
grounds to believe that, during his career with the Ministry of Interior,
Mr. Bajraktari was complicit in the perpetration of numerous crimes
against humanity committed by the Albanian communist regime. More specifically,
the IAD determined that there were reasonable grounds to believe that Mr. Bajraktari
made a significant voluntary contribution to certain acts committed by the
Albanian communist government and listed in paragraph 12 above. Therefore,
the IAD found Mr. Bajraktari inadmissible under paragraph 35(1)(a) of
the IRPA and issued a removal order against him under subsection 67(2) of
the IRPA and paragraph 229(1)(b) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR].
[14]
The IAD analyzed the six factors identified in Ezokola,
namely: (i) the size and nature of the organization; (ii) the part of
the organization with which the applicant was most directly concerned; (iii) the
applicant’s duties and activities within the organization; (iv) the
applicant’s position or rank in the organization; (v) the length of time
the applicant was in the organization, particularly after acquiring knowledge
of the group’s crime or criminal purpose; and (vi) the method by which the
applicant was recruited and the applicant’s opportunity to leave the
organization (Ezokola, above, at paragraph 91).
(1) The size
and nature of the organization
[15]
The IAD held that the Albanian communist regime
maintained itself in power through brutal retribution, including internal
exile, long-term imprisonment, and execution. However, it also held that for
years the Albanian communist government and its Ministry of Interior carried
out state functions and provided state services such as police and
firefighting. The IAD therefore held that the Albanian communist government and
its Ministry of Interior could not be considered organizations with limited and
violent purposes.
(2) The part
of the organization with which the applicant was most directly concerned
[16]
The IAD examined the various positions held by
Mr. Bajraktari during his thirty-year career and found that he was
directly associated with the then-most important and powerful ministry in the
Albanian communist regime: the Ministry of Interior. The IAD found that Mr. Bajraktari
held positions related to investigations for approximately 20 years.
Specifically, he was an investigator in the Investigative Branch from 1961
to 1971; chief investigator in the Criminal Investigations Branch in the
District of Fier from 1975 to 1982; head of the 8th Branch,
Anti-Terror, Organized Crime and Anti-Drugs, from 1982 to 1984; and head of the
Administrative Branch of the Ministry of Interior from 1985 to 1993. According
to an Amnesty International publication, investigators readily used violence
and other forms of coercion to obtain detainee confessions or cooperation. On
this point, the IAD found Mr. Bajraktari’s testimony that he was always able to
obtain a confession from everyone he interviewed throughout his career not
credible.
(3) The
applicant’s duties and activities within the organization
[17]
The IAD found that Mr. Bajraktari was
complicit in the perpetration of the crime of deportation by proposing the
internment in 1976 and in 1979 of two families after one of these family had
been found guilty of political crimes. This finding is based on the charges
against Mr. Bajraktari as recounted in the documents of the Albanian
Courts in the first and second instances and on undisputed facts in the
decision of the Albanian Cassation Court. The IAD explained that the Cassation
Court quashed the conviction in the previous instances because it was made
under a retroactive law and because the criminal acts were not committed in
wartime. However, the IAD found that the facts in the matter were not disputed
by the Cassation Court and that they must be considered in assessing
complicity.
(4) The
applicant’s position or rank in the organization
[18]
The IAD noted that, although military ranks were
abolished in 1966, then reinstated in 1992 or 1993, Mr. Bajraktari’s
pension was calculated as if he had the rank of colonel. The IAD found that
such a rank generally means, according to Ezokola, that an individual
had knowledge of the organization’s objectives and the crimes it committed and
could demonstrate significant support for these objectives and greater control
over actions.
[19]
In addition to his rank, the IAD noted that at
the end of his studies in law, Mr. Bajraktari had the highest average in
his cohort, taught penal law, and for part of his career as an administrator,
signed internment orders. Mr. Bajraktari’s claims that his signature was
only a formality and that he had no control over these decisions were deemed
inadmissible by the IAD. Moreover, the fact that he was a law professor at that
time shows that he had knowledge of the existence of the internment process,
including that it affected innocent people.
(5) The length
of time the applicant was in the organization, particularly after acquiring knowledge
of the group’s crime or criminal purpose
[20]
According to the documentary evidence, the
Albanian communist regime was in power for 15 years before Mr. Bajraktari
joined the Ministry of Interior in 1961. Considering his education, the IAD is
of the view that Mr. Bajraktari had significant knowledge of how the
Albanian communist regime operated even before he started working there. The
IAD also considered the fact that, over the years, especially when he worked in
the Investigations Branch, teaching law, and as an administrator in the
Ministry of Interior, Mr. Bajraktari gained practical and theoretical
knowledge of the Albanian communist regime. Moreover, the IAD found that it was
implausible that Mr. Bajraktari could move up in the ranks with the
government and finish his career with the rank of colonel without being aware
of the objectives and operation of the Albanian communist regime. Therefore,
based on his long and flourishing career with the Ministry of Interior, the IAD
found that Mr. Bajraktari made a knowing, significant contribution to the
crimes and criminal purpose of the Albanian communist regime.
(6) The method
by which the applicant was recruited and the applicant’s opportunity to leave
the organization
[21]
The method by which Mr. Bajraktari was recruited
to the Albanian communist government is entirely typical. However, the IAD made
several important findings about his ability to leave the country and his work
with the Ministry of Interior.
[22]
The IAD did not believe Mr. Bajraktari’s
claim that it was impossible for him to request a transfer or leave the
country. The IAD noted that Mr. Bajraktari was able to refuse his 1961
appointment as a judge and that his request for a different position was
accepted. Mr. Bajraktari was also transferred to a less stressful position
in 1984 due to health problems. Accordingly, the IAD held that Mr. Bajraktari
was unable to satisfactorily and credibly demonstrate why he was unable to
request a transfer during his career. The IAD also noted that he had many
opportunities to leave Albania when he travelled abroad as part of his work for
the Ministry of Interior. Although Mr. Bajraktari explained that he did
not want to flee the country without his family, the IAD noted that he did not
hesitate to separate himself from his family when he left Albania for Canada
alone in December 1995.
V.
Issues
[23]
Mr. Bajraktari claims that the IAD erred in
finding that he was complicit in the listed acts committed by the Albanian
communist government. He claims that the IAD’s assessment of his credibility
was unreasonable. He also claims that the IAD should have taken into account
the decision of the Albanian Cassation Court on crimes against humanity in
Albania rather than the decisions of the trial division and the Appeals Court.
VI.
Standard of review
[24]
The standard of review for a finding of
inadmissibility concerns questions of fact and law. Consequently, the
reasonableness standard of review applies (Williams v. Canada (Citizenship
and Immigration), 2015 FC 917, [2015] FCJ No 978,
at paragraph 14; Qureshi v. Canada (Citizenship and Immigration),
2012 FC 335, [2012] FCJ No 375, at paragraph 12; Canada
(Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339,
2009 SCC 12). It is important to remember that questions of evidence
and credibility require this Court to show a high level of judicial deference
to the IAD (Mugesera, above, at paragraph 38). This Court must only
intervene if the IAD’s decision-making process fails to be justified,
transparent and intelligible, and if the decision does not “fall within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at
paragraph 47).
VII.
Relevant provisions
[25]
The relevant sections of the IRPA and the IRPR
are attached below as Appendix A.
VIII.
Analysis
A.
Credibility
[26]
Mr. Bajraktari claims there is nothing in
his file that could cast doubt on the credibility of his testimony, other than
an example of a crime against humanity published in an Amnesty International
report entitled The 1984 AI Publication, Albanian Political Imprisonment and
the Law. This report refers to a Greek citizen who was allegedly detained
for 13 months at the Fier police station in 1979 and beaten during
interrogations with the goal of making him confess. The IAD noted that this
incident occurred when Mr. Bajraktari was chief investigator in Fier. The
IAD also noted that Mr. Bajraktari previously told an officer that he was
aware of everything that happened in this “small
building” in Fier where five investigators worked. The IAD therefore
held that it was unlikely that he was unaware of the event. Mr. Bajraktari
disputed the admissibility of such evidence and argued that it was an anecdotal
story not documented by credible sources. I do not share Mr. Bajraktari’s
opinion on this point. Let us not forget that the applicable test is whether
there are reasonable grounds to believe that Mr. Bajraktari was complicit.
I am of the opinion that the IAD’s finding in this matter is a decision made
through logical reasoning based on the evidence on file, a consequence deemed
probable under the circumstances and based on the facts of the matter (Zhang
v. Canada (Citizenship and Immigration), 2008 FC 533, [2008] FCJ No 678;
Osmond v. Newfoundland (Workers’ Compensation Commission), 2001 NFCA 21,
200 Nfld & PEIR 203, at paragraph 134; Miller
v. Newfoundland (Workers’ Compensation Commission), 2001 NFCA 20,
199 Nfld & PEIR 186, at paragraph 11).
[27]
On the other hand, I agree that the IAD must
favour direct evidence rather than lending too much weight to general
statements, even if they come from reliable sources (Bedoya v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1092, [2005] FCJ No 1348,
at paragraph 16; Jalil v. Canada (Minister of Citizenship and Immigration),
2006 FC 246, [2006] FCJ No 320, at paragraph 39 [Jalil]).
The IAD must demonstrate diligence when deciding whether there are reasonable
grounds to believe that an individual committed acts listed in sections 34
to 37 of the IRPA (Jalil, above, at paragraph 40). Based on a
close reading of the reasons described by the IAD, it is clear that it did not
base its inferences of lack of credibility solely on this event reported by
Amnesty International. This inference was one of many. The IAD provided
several examples of the many contradictions, inconsistencies and
improbabilities in Mr. Bajraktari’s testimony, including:
[96] The tribunal considers that the
respondent has attempted to minimize the quality of his education, the duration
of his investigator positions, the importance of his assignment as the Head of
the 8th Branch and the charge brought against him in Albania in 1995.
This impacts negatively on the respondent’s testimony on the importance of his
duties and activities.
[97] The tribunal considers that the
respondent did not provide the same information to the same questions in the
immigration documents he provided from 1996 to 2012 and that it affects
his credibility negatively.
. . .
[109] The respondent tried to avoid
questions in relation to his knowledge of the crimes against humanity committed
by the regime and the ones committed by the other investigators and by the
people in his teams when he was chief of investigation in Fier and chief of
investigations for the 8th Branch.
. . .
[111] . . . It is not credible that a
regime that had no tolerance for criticism or perceived criticism would have
had patience for the respondent, a free thinker, as he called himself, for
thirty years.
. . .
[115] . . . the tribunal does not find
credible that the respondent who saw the abuses of the new government quickly
had no knowledge of any similar abuses done during his career under the
communist regime.
. . .
[129] . . . The tribunal considers that
there are contradictions in the respondent’s testimony on the control he had
over his team as a chief investigator in Fier for eight years (1974-1982) or in
charge of the 8th Branch in Tirana (1982-1984) . . .
[130] The respondent’s testimony was
guarded when he was questioned on his role in investigation, on his knowledge
of the widespread violence and ill-treatment in Albanian investigations, during
his career. The respondent repeatedly tried to avoid answering these questions
by coming back to the description of the various parts of the Ministry of
Interior and of other institutions of the communist Albanian state, subject
that he felt at ease with and on which he tried to keep his testimony.
[28]
Moreover, Mr. Bajraktari testified that he
did not accept a position as a judge in 1961 because his family and
children were in Tirana. Yet he previously stated that his children were born
in 1963 and 1974, and in 1961, he was not married.
B.
Decision of the Cassation Court
[29]
Concerning the decisions rendered in Albania,
Mr. Bajraktari claims that the IAD lent too much importance to the
decisions of the trial division and the Appeals Court. The minister, on the
other hand, maintains that it was reasonable for the IAD to take these
decisions into consideration on the following grounds: (i) the IAD recognized
in its reasons for decision that the decisions of the District Court and the
Appeals Court were quashed by the Cassation Court; (ii) the Cassation Court
allowed that Mr. Bajraktari did commit the alleged acts; and (iii)
although Mr. Bajraktari was not present at the District Court trial, he
was represented by an attorney, and there would have been a “test of the facts.” I also note that the Cassation
Court, in quashing the previous decisions, examined questions of law related to
the constitutionality of the applicable legislation, rather than questions of
fact.
[30]
The IAD is not bound by the strict rules of
evidence in admissibility hearings: Sittampalam v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 326, [2006] FCJ No 1512.
This interpretation is consistent with paragraph 175(1)(b) of the IRPA.
Moreover, paragraph 175(1)(c) of the IRPA provides that the IAD “may receive and base a decision on evidence adduced in the
proceedings that it considers credible or trustworthy in the circumstances.”
[31]
I agree that it was reasonable for the IAD to
take into consideration the decisions of the District Court and the Appeals
Court. Moreover, it is clear from the IAD’s reasons that these decisions were
not the only evidence on which the inadmissibility decision was based. The IAD
refers to them only at the end of its assessment of the third criterion in the
complicity test, Mr. Bajraktari’s duties and activities within the
organization. The IAD therefore considered all of the evidence before finding
Mr. Bajraktari complicit.
[32]
I will add that it is the IAD’s mandate to weigh
the probative value of the evidence before it, and it is not for this Court to
reweigh the evidence or to substitute its own opinion for that of the IAD (Torre
v. Canada (Citizenship and Immigration), 2015 FC 591, at
paragraphs 16 and 61). It is also important to remember that the standard
of evidence on the existence of reasonable grounds to believe is lower than the
standard on a balance of probabilities, though it does require more than a mere
suspicion (Mugesera, above, at paragraph 115).
IX.
Conclusion
[33]
I am of the opinion that the IAD carefully
weighed Mr. Bajraktari’s testimony and came to a reasonable conclusion in
light of the evidence and an accumulation of contradictions and inconsistencies
at the heart of Mr. Bajraktari’s testimony. Based on the criteria in Ezokola,
the IAD’s finding that there are reasonable grounds to believe that, due to the
nature of his duties and positions he held, Mr. Bajraktari was complicit
in the perpetration of certain crimes against humanity committed by the
Albanian communist regime, is entirely reasonable. Intervention by this Court
is therefore not justified.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The style of cause is
modified to change the spelling of the applicant’s name to Shkelzen Bajraktari
and the respondent from the Minister of Citizenship and Immigration to the
Minister of Public Safety and Emergency Preparedness.
2.
The application for
judicial review is dismissed.
3.
There is no question
to be certified.
4.
No costs are awarded.
“B. Richard Bell”
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