Docket: IMM-4836-15
Citation:
2016 FC 1071
Ottawa, Ontario, September 21, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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NDUE KROJ
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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
[1]
This is an application for judicial review,
under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c.27 [IRPA]. The Applicant seeks to set aside a decision of the Refugee
Appeal Division of the Immigration and Refugee Board [RAD] dated October 8,
2015 [Decision]. The RAD confirmed the decision of the Refugee Protection
Division [RPD] that determined the Applicant was neither a convention refugee
nor a person in need of protection pursuant to sections 96 and 97 of the
IRPA.
[2]
For the reasons that follow, this application is
dismissed.
I.
BACKGROUND FACTS
[3]
The Applicant is a citizen of Albania, born
January 16, 1987. On September 1, 1999, his cousin killed two individuals. The
family of the victims, the Arifi, then initiated a blood feud with the family
of the Applicant. The Applicant states his family received numerous threats,
including the writing of the word ‘death’ on the front door of the Applicant’s
home, as well as numerous letters and telephone calls.
[4]
On March 7, 2001, the Applicant’s cousin was
murdered. The Arifi family denied any involvement in the death and the police
never discovered the perpetrators.
[5]
The Applicant’s family decided to relocate. After
a month they discovered that a number of their livestock had been killed.
Threats persisted over the years and the family moved again on July 14, 2013.
On July 25, 2014, someone detonated three explosives at the family’s original
residence destroying the entire house and damaging neighbouring properties.
[6]
From 2005-2009, the Applicant worked in Albania
as a brick layer and then he worked as a construction worker during 2010-2014.
He also worked in Italy as a fruit harvester and construction worker for two to
three month periods at a time from 2009-2014, travelling back and forth between
Italy and Albania.
[7]
Most of the elder cousins and uncles of the
Applicant left Albania seeking refuge in the United States and Europe. Using a
false Italian passport, the Applicant left Albania on December 2, 2014. He remained
in France for two weeks and arrived in Canada on December 18, 2014. He made a
refugee claim at the port of entry. Now, as the oldest male of the family, aside
from his father, the Applicant says he fears he will be killed if he returns to
Albania.
II.
The RPD decision
A.
No Nexus to a Convention Ground Established
[8]
The RPD hearing was held February 23, 2015. The
decision was released on March 6, 2015. The RPD determined the Applicant’s
fears of the Arifi family related to being a victim of crime and of a vendetta
by the Arifi family. There was no link found between the Applicant’s fear of
persecution and one of the Convention grounds. The RPD therefore found that the
Applicant was not a Convention refugee. His claim failed under section 96 of the
IRPA.
B.
State Protection was the Determinative Issue
[9]
The RPD also found that state protection was a determinative
issue. It noted Albania is a functioning democracy. The RPD found the evidence
regarding whether state protection in Albania was operationally effective was
mixed and an individualized and contextualized analysis of each claim was
required.
[10]
Overall, the RPD found the Applicant had not
provided sufficient credible and reliable evidence to rebut the presumption of
state protection in his particular circumstances. The RPD reviewed a number of
country condition documents and found there was evidence that “there is state protection at the operational level for
victims of crime, including blood feuds.” It also determined the
Applicant had not made sufficient efforts to seek help from police. It noted
the Applicant testified he had never personally called the police or reported
to the police but his mother had done so on his behalf.
[11]
The Applicant submitted an attestation from the mayor
and a police officer in support of his claim. The RPD noted the documents showed
the police had often been by the side of the family offering protection. The
Applicant testified that other than the 2001 murder of his cousin no members of
his family had been physically harmed despite the numerous threats. The RPD
noted that failure to arrest someone for the 2001 murder and an inability to
reconcile the two families did not lead to a conclusion that there is no
adequate state protection.
[12]
With respect to a successful 2005 refugee claim
on similar grounds by the Applicant’s cousin in the United States, the RPD
noted there had been several tangible improvements in state protection in
Albania in the ensuing period of time.
C.
Viable Internal Flight Alternative
[13]
The RPD also found the Applicant had an Internal
Flight Alternative [IFA] in Tirana, Albania and that the several re-availments
he made from Italy to his family home Albania undermined his allegation that
his life was seriously at risk in Albania. The RPD doubted the severity of the
threats from the Arifi family given the various re-availments over many years, his
failure to claim asylum in either Italy or France and his ability to work in
Albania. The Applicant testified that if he received any threats from the Arifi
family and he was in Tirani he would report them to the police there.
III.
The RAD decision
[14]
The Applicant raised three grounds of appeal
before the RAD alleging that the RPD:
i.
failed to articulate credibility findings in
clear and unambiguous terms
ii.
failed to conduct a proper analysis on the
availability of state protection
iii.
erred in the determination of an IFA
[15]
The RAD accepted as new evidence two documents:
i.
an Attestation dated March 30, 2015 signed by
police for the commune of Pult, reporting that the Applicant’s mother had
reported that she had been threatened and assaulted by two unknown masked
persons. The report noted that the police have been unable to identify the
perpetrators so far.
ii.
a letter dated March 29, 2015 from the
Applicant’s mother alleging that on March 28, 2015 she was assaulted and
threatened by armed masked men who asked as to the whereabouts of the men of
her family and threatened to kill her husband and sons.
A.
Standard of Review of the RPD Decision
[16]
The RAD reviewed the most recent jurisprudence as
of October 2015 on the standard of review they were to apply. Relying on Huruglica
v Canada (Citizenship and Immigration), 2014 FC 799 [Huruglica FC], the
RAD came to the conclusion that it would conduct its own “independent assessment of all the evidence to determine
whether the appellant is a Convention refugee or person in need of protection,
while giving certain deference where the RPD enjoys a particular advantage.”
The RAD also determined that the standard of correctness would be used for any
error of law found in the RPD decision.
B.
Credibility Findings
[17]
The RAD reviewed the RPD reasons and found the
credibility concerns expressed were not determinative of the claim. State
protection was the determinative issue. The RAD noted there were no credibility
issues “as to the historical basis of the alleged blood
feud”. The lack of sufficient credible evidence to rebut the presumption
of state protection came from the Applicant’s testimony with respect to failing
to claim asylum in Italy and France as well as his several re-availments to
Albania. The RAD noted that the Applicant’s employment in Albania led the RPD
to find his allegation that he was in hiding for over 10 years to be an
embellishment of his claim.
[18]
The RAD stated that in any event credibility was
not dispositive of the claim; state protection was the determinative issue.
C.
State Protection Analysis
[19]
The Applicant submitted to the RAD that the
state protection analysis by the RPD was “wholly
inadequate” given the official letter from the police that their efforts
have failed to find the perpetrators and they were unable to reconcile the
families in the blood feud. He also took issue with the documentary sources
relied upon by the RPD and stated there was no analysis on the availability of
state protection for victims of blood feuds. He said there was no
individualized assessment of state protection and no consideration of the
dimensions of blood feuds including “rules, guidelines and cultural
considerations”.
[20]
The RAD noted there were several references to
blood feuds in the country condition documents relied upon by the RPD, and in
the reasons there were specific references to blood feuds. The Applicant had
objected to the RPD considering country condition documents unrelated to blood
feuds. In that respect, the RAD determined the RPD “certainly
committed no error in analysing the greater context of state protection in
Albania with references to such factors as corruption, judicial reform and
organized crime”.
[21]
The RAD noted the RPD had accepted there was a
blood feud and that extensive documentation on blood feuds had been filed with
the RPD. The RAD found the RPD reasons did consider the context of a blood feud
and the review of state protection referred to various country documents
discussing Albania’s response to blood feuds.
[22]
With respect to the letter filed at the RPD from
the mayor and a police officer, the RAD reviewed it and came to the conclusion
that the letter was a summary statement prepared at the request of the family
and did not provide details so it was not known what steps were taken by the
police.
[23]
The RAD noted an individualized assessment of
state protection included considering what efforts were made by a refugee
claimant. The Applicant personally had never approached authorities for
protection. He relied upon his mother’s actions.
[24]
The new evidence presented to the RAD was
considered. It showed the police attended at the mother’s house and noticed she
seemed frightened and terrorized. The RAD found that evidence showed the police
were willing to provide protection, but as there was no witnesses and the attackers
were masked the police could not identify the perpetrators. The RAD concluded
there was not much more the police could have done, and it did not equate to a
lack of state protection.
D.
Internal Flight Alternative (IFA)
[25]
In reviewing this ground of appeal the RAD noted
the determinative issue was state protection and, given the finding that the
Applicant had failed to rebut the presumption of state protection, there was no
need to address the third ground of appeal.
E.
Conclusion by the RAD
[26]
The RAD concluded by confirming they conducted
their own independent assessment of all the evidence. They found the RPD had
not made any error in law, fact or mixed law and fact. The RAD concurred with
the ultimate determination that the Applicant is neither a Convention refugee
nor a person in need of protection. They confirmed the state protection
determination made by the RPD and rejected the appeal.
IV.
ISSUES AND
standard of review
A.
Issues
[27]
In criticizing the RAD decision, the Applicant
raises virtually the same issues as he did before the RAD about the RPD. He
claims: (1) the RAD erroneously accepted the RPD credibility finding and failed
to come to a definitive conclusion about his credibility; (2) the RAD made
unreasonable findings on state protection; and (3) the RAD ignored relevant
evidence that conflicted with the evidence selected to support the decision.
B.
Standard of Review
[28]
Since the hearing of this matter, the Court of
Appeal confirmed that RAD decisions are reviewed on the reasonableness
standard: Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93
at para 35 [Huruglica FCA]. That is the standard I will apply.
[29]
Reviews of RAD decisions by this Court involve
reviewing decisions made by a highly specialized tribunal. As such, deference
in the form of “a respectful attention to the reasons
offered or which could be offered in support of a decision” is owed to
decisions by the RAD. A decision is reasonable when there is “justification, transparency and intelligibility within the
decision-making process” and the actual decision “falls within a range of possible, acceptable outcomes that
are defensible both on the facts and law”: Dunsmuir v New Brunswick,
2008 SCC 9 at paras 48 and 47 respectively [Dunsmuir].
[30]
The Court of Appeal also held in Huruglica
FCA, at paragraph 103, that the standard of review to be applied by the RAD
to decisions of the RPD is correctness when there is no issue of credibility of
oral evidence. As stated below, I am satisfied this is the standard that was
applied here by the RAD.
V.
Analysis
A.
Standard of Review
[31]
The process employed by the RAD, although it
pre-dates Huruglica FCA by more than six months, is in keeping with the
direction given by the Court of Appeal. Throughout the decision, the RAD showed
it re-examined the record, including the reasons given by the RPD, and
determined at each instance whether the RPD had erred.
[32]
The legislation, as confirmed by Huruglica
FCA, states that the RAD shall, after considering the appeal either: (a)
confirm the RPD determination; (b) set it aside and substitute the
determination the RAD believes ought to have been made; or (c) refer the matter
back to the RPD for redetermination while giving any directions the RAD
considers appropriate: IRPA, s. 111.
[33]
By confirming the RPD findings, the RAD complied
with the legislative requirement. It does not mean they failed to conduct the appeal
properly.
B.
Credibility
[34]
Counsel for the Applicant submitted that the RPD
member failed to articulate her credibility findings in clear and unambiguous
terms, did not conduct an independent analysis, as there is no reference to the
transcript of the RPD hearing nor to the similarly situated cousin who received
refugee status in the United States in 2005. He argues that these unstated
credibility assessments on the Applicant’s subjective fear of persecution
tainted the objective evaluation of adequate state protection. He also says the
RAD simply analyzed the RPD assessment on each piece of evidence instead of
conducting an independent assessment.
[35]
I do not read the Decision that narrowly. For
one thing, the information the Applicant claims was not considered is set out
in the RPD decision. Failure to mention the evidence does not mean it was not
considered. The RAD focussed on the fact that state protection, not credibility,
was the determinative issue. As such, the panel only addressed the salient
evidence.
[36]
Relying on Mendoza v Canada (Citizenship and
Immigration), 2015 FC 251 [Mendoza], the Applicant says that
negative credibility claims must be made in clear and unmistakeable terms and it
is an error not to specify what evidence the decision-maker does and does not
find credible. In Mendoza, Mr. Justice Zinn found there were statements
that the applicant there was not credible but there was no reference to any
particular evidence that was rejected on the basis of the credibility finding.
The Court then could not tell what impact the credibility findings had on the
state protection finding. That is not the case here.
[37]
Contrary to the allegations of the Applicant, I find
both the RPD and the RAD made clear credibility findings. They each accepted the
murders occurred in 1999 and 2001. They each accepted the fact of the blood
feud. They each accepted the police letters were credible that the police offered
protection but made no arrests. They each clearly state why they find that does
not show an inability to provide state protection. Few credibility findings are
made because the facts, such as the trips by the Applicant back and forth
between Italy and Albania for work, are straightforward and not in dispute. I
acknowledge that the Applicant objects to the interpretation of the facts and
the conclusions drawn from them by both tribunals. That, however, does not mean
the decision-maker failed to articulate the credibility findings. It simply means
the Applicant disagrees with the outcome.
[38]
The Applicant also relies on Farkas v Canada
(Citizenship and Immigration), 2014 FC 210 [Farkas], for the
proposition that a failure to articulate credibility findings is an error when
the RPD does not make a finding on subjective fear before analyzing state
protection, which is a component of whether a claimant’s fear is reasonable. Farkas
in turn relies on the decision of Cobian Flores v Canada (Citizenship and
Immigration), 2010 FC 503 [Flores], which held that the RPD should
make a determination of subjective fear of persecution before questioning
whether state protection is available.
[39]
I find this case to be distinguishable from both
Farkas and Flores. Flores does not stand for the
proposition that a determination on state protection without a conclusion on
subjective fear is always unreasonable. Rather, there was a factual vacuum that
precluded the RPD from assessing the adequacy of state protection from the
particular threats the applicant was fleeing. The Court noted, at paragraph 32,
that a low-level drug dealer and a powerful drug cartel present different
threats in analysing state protection.
[40]
In Farkas, the issue was that the RPD
implicitly found the applicant non-credible by rejecting his subjective fear of
persecution, but then relied on his testimony in finding that state protection
was adequate. The RPD’s decision was overturned because the same evidence
cannot reasonably be true for one purpose but false for another.
[41]
In this case, the RPD and RAD found that the
Applicant’s frequent travel between Italy and Albania, and his failure to make
refugee claims in Italy or France, was evidence that the Applicant did not
consider the state protection in Albania to be inadequate. They found that this
evidence undercut the Applicant’s claim that Albanian state protection was
objectively inadequate. This chain of analysis was reasonably open to both
decision-makers. The fact that the RAD and RPD did not also rely on the
Applicant’s travel history to reject his claim on the basis that he had no
subjective fear of persecution does not make their state protection findings
unreasonable. If a piece of evidence can cause a refugee claim to fail for two
reasons, a decision-maker does not err by relying solely on one of them.
C.
State Protection Analysis
[42]
The Applicant raised a concern that the RPD had
not considered the nature of blood feud when looking at state protection. The
RAD found the RPD accepted as credible that there was a blood feud. They noted the
country condition documents reviewed by the RPD referred to blood feuds and
that an individualized and contextualized analysis of the Applicant’s claim was
required to determine state protection.
[43]
The RAD reviewed the state protection findings
made by the RPD. It analyzed the appropriateness of those findings and reviewed
the applicable country condition documents that had been relied upon. The RAD noted
that state protection does not have to be perfect. It found that the documents,
including a European Commission report from 2014, stated authorities were
reducing crime arising from blood feuds. The Applicant’s disagreement with the
conclusions drawn appears to be a difference in opinion on the relative weight
to be assigned to the evidence in the documents. I am satisfied the RAD made an
independent assessment of the evidence, as shown in the reasons, and that the
finding on the availability of state protection was reasonable given the
documentary evidence in the record.
[44]
The RAD dealt with the Applicant’s evidence
before the RPD from the police and the mayor as well as the new evidence
provided to the RAD. They found that the evidence from the police in both
instances confirmed that the authorities were taking the blood feud seriously
and were willing to provide protection. This is consistent with the statement
in the letters and was a conclusion that was reasonably open to the RAD to draw.
[45]
As part of the individualized analysis, the RAD looked
at the Applicant’s several re-availments and his work in Albania, some of which
was outdoors. The RAD also considered the context of the Applicant’s actions in
not claiming asylum over many years in Italy or in France for the two weeks he
was there before he came to Canada. It was reasonable for the RAD to find those
facts undermined the Applicant’s alleged fear of serious risk to his life if he
is returned to Albania.
[46]
I find that the state protection analysis by the
RAD is not confusing and does not prevent the Applicant from understanding why
the RAD came to the conclusions it did. The RAD found evidence provided by the
Applicant supported the availability of state protection. It reasonably
concluded the Applicant’s prior actions show he did not have a fear of harm if
he were to be returned to Albania and that the Arifi family was not so powerful
that the police would not be able to assist him.
[47]
The Applicant offered little evidence to rebut
the presumption of state protection and what was offered was found to support,
not rebut the presumption. That view of the evidence was reasonably available
to the RAD. Although the reasons might have contained more detail, they are
sufficient to enable the Applicant to understand why the RAD arrived at the
conclusions it did and what evidence it relied upon in coming to those
conclusions. In that respect, the Dunsmuir criteria have been met.
D.
Internal Flight Alternative
[48]
The RAD determined that as state protection was a
determinative factor where the RPD had made no errors in its analysis, it was
not necessary to examine the RPD finding that there was a viable internal
flight alternative.
VI.
Conclusion
[49]
The RAD conducted its own independent review and
made their own determinations of whether the RPD had erred or not. In each
instance, as it is required to do, it found no error.
[50]
The decision-making process was transparent and
intelligible. It was justified by the evidence before the RAD. The RAD agreed
that the Applicant failed to rebut the presumption of state protection. I am
unable to find anything unreasonable in the reasons provided or in the outcome.
The Applicant knows why the findings were made and which evidence was
considered in arriving at those findings. The decision falls within the range
of possible, acceptable outcomes. It is defensible on the facts and law.
[51]
The Applicant would like me to look at the evidence
and come to a different conclusion than the RAD and the RPD but that is not my
role or function.
[52]
The application is dismissed. Neither party
posed a serious question of general importance for certification and none
arises on these facts.
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