Docket: IMM-5358-15
Citation:
2016 FC 519
Ottawa, Ontario, May 10, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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DRITAN MUHAMETI
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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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JUDGMENT AND REASONS
I.
Background
A.
Nature of the Application
[1]
This application, brought pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
seeks to set aside the October 20, 2015 decision of the Refugee Protection
Division [RPD] of the Immigration and Refugee Board of Canada. The RPD rejected
the applicant’s refugee claim finding he was neither a Convention refugee nor a
person in need of protection under sections 96 and 97 of the IRPA respectively.
[2]
The application is granted for the reasons that
follow.
B.
Facts
[3]
The applicant, Dritan Muhameti is a male citizen
of Albania who arrived in Canada on June 13, 2012 and claimed refugee
protection on June 15, 2012 on the basis that he faced persecution arising out
of a blood feud between his family and the Muska family in Albania.
[4]
He alleged that his family lost vast tracts of
land to the communists who came to power in Albania after World War II. After
the fall of communism the family was only able to reattain a small portion of
their lost land. They learnt that the vast majority of their land had been
improperly returned to the Muska family who had paid bribes to government
officials. There was long-standing enmity between the applicant’s family and
the Muska family.
[5]
The long-standing dispute was rekindled as the
result of attempts to develop land owned by the applicant’s family. The dispute
resulted in the beating of the applicant’s brother Fatos by the police, a force
where Muska family members hold positions of influence. The applicant was subsequently
beaten on the street, an incident observed by the police. This incident in turn
led to the brother Fatos stabbing a Muska and then fleeing.
[6]
As a result of the stabbing the police,
including members of the Muska family broke down the applicant’s family’s door
looking for Fatos. Not finding Fatos, the applicant was beaten.
[7]
The Muskas then declared a blood feud and the
applicant’s family went into self-confinement. The police, including members of
the Muska family went to the applicant’s house several more times and beat the applicant
and his father accusing them of hiding Fatos. The applicant escaped to Greece
and then Canada.
C.
Decision under Review
[8]
The RPD found the applicant’s allegations
credible with one exception that the RPD found not to be central to the claim.
However, the RPD rejected the applicant’s claim finding no nexus existed to a
Convention ground under section 96 and that the applicant would not face a risk
of life under section 97 of the IRPA.
[9]
The RPD found that a family’s victimization
alone cannot form the basis of membership in a particular social group and that
victims of blood feuds are not members of a particular social group as their
fear is based on criminality. Moreover, there was no nexus with political
opinion under section 96 as the Muska’s family’s historical association with
the Communist Party and the applicant’s family’s association with the National
Front Party was not the basis of the present day conflict.
[10]
The RPD concluded that the applicant does not
face a likely risk to his life, noting at paragraph 21 of the decision that the
Muskas and the police officers continually beat up the applicant and members of
his family more than a dozen times, entering the applicant’s home contrary to
the Kanun but never killed any of them:
If the Muskas were willing to violate the Kanun
by entering the family home, they could have carried out their revenge by
killing a member of the claimant’s family. Since they did not do so the last 13
times, I do not find it likely that they would in the future. I find that
assault is as far as the Muskas are willing to take this matter, and therefore
there is no risk to the claimant’s life, on a balance of probabilities. Their
past behaviour does not demonstrate they would escalate to murder.
[11]
The decision is silent on the risk of cruel and
unusual treatment or punishment the applicant might face if returned to Albania,
as well as the availability of state protection in that country.
II.
Issues and Analysis
[12]
The sole issue I need address in this application
is whether or not the RPD applied the correct test in considering the question
of protection under paragraph 97(1)(b) of the IRPA. The correctness standard of
review applies (Parmanathan v Canada (Minister of Citizenship and
Immigration), 2012 FC 338 at para 11; Ospina v Canada (Minister of
Citizenship and Immigration), 2011 FC 681 at paras 19, 25, 2 Imm LR (4th)
73).
[13]
The parties do not dispute that the RPD
reasonably concluded that the applicant’s claim did not demonstrate a nexus to any
Convention ground under section 96 of the IRPA. The issue was whether or not
the applicant had established that he would be subject to a risk to life or to
a risk of cruel and unusual treatment or punishment if returned to Albania
under paragraph 97(1)(b) of the IRPA.
[14]
The parties also do not dispute that the RPD analysis
of the paragraph 97(1)(b) risk was limited to a risk to life.
[15]
The applicant argues that the failure of the RPD
to consider the question of cruel and unusual treatment or punishment is an
error in law.
[16]
The respondent adopts the novel position that
the RPD had no obligation to consider anything more than risk to life as the
question of cruel and unusual treatment or punishment only need be considered
in a paragraph 97(1)(b) analysis where the conduct is instigated or condoned by
public officials operating in an official capacity. In this case the RPD at
paragraph 18 of its decision made an express finding that the police officers
involved in the alleged persecution of the applicant were “rogue officers who have abused their authority for their own
personal reasons”. The respondent cites no law in support of this
interpretation of paragraph 97(1)(b) of the IRPA.
[17]
I am not at all persuaded by the respondent’s
position. Interpreting the risk of cruel and unusual treatment or punishment
under paragraph 97(1)(b) to require that the risk arise from the conduct of the
state itself would render the requirement under subparagraph 97(1)(b)(i) that
the claimant is unable or, because of that risk, unwilling to avail themselves
of the protection of that country, redundant and meaningless. Facing a risk
under paragraph 97(1)(b) does not require the risk derives from state actors
but rather that the person will face such a risk if they cannot receive state
protection, in addition to the other requirements under that provision. Moreover,
case-law relating to blood feuds in Albania which the applicant cited shows
that subsequent to a finding of no nexus to a Convention ground under section
96, the determination of the existence of risk under paragraph 97(1)(b) of the
IRPA often requires resolving the issue of state protection, not whether the
risk arises from state conduct (Murati v Canada (Minister of Citizenship and
Immigration), 2010 FC 1324 at paras 7, 24-25, 39, 384 FTR 1; Taho v
Canada (Minister of Citizenship and Immigration), 2015 FC 718 at paras
18-19, 43-44).
[18]
In light of the RPD’s finding the applicant’s
narrative credible with one minor exception, the RPD’s failure to in any way consider
the question of risk to cruel and unusual treatment or punishment is a
reviewable error and on that basis the matter is returned for reconsideration.
[19]
The parties have not identified a question of
general importance for certification.
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