Docket: IMM-459-16
Citation:
2016 FC 963
Ottawa, Ontario, August 25, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
|
BETWEEN:
|
|
PETER COLI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Coli is a citizen of Albania. He arrived in
Canada in March 2012, and claimed protection on the basis of an ongoing blood
feud between his family and another family in Albania.
[2]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada [IRB] refused Mr. Coli’s claim in
January 2016. The RPD found that there was no nexus between the risks
identified by Mr. Coli and the identified grounds set out in section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The RPD concluded, on a
balance of probabilities, that the blood feud Mr. Coli alleged was a
fabrication in all respects. In reaching this conclusion the RPD recognized
that a differently constituted RPD panel had, in a decision rendered in January
2013, considered similar allegations based on similar documentary evidence put
forward by Mr. Coli’s brother. The RPD rejected Mr. Coli’s claim.
[3]
Mr. Coli now asks that the Court set aside the
decision of the RPD and return the matter for re-determination by a differently
constituted panel. He argues that the findings were unreasonable. Mr. Coli
submits the RPD erred in relying on the National Documentation Package [NDP] to
conclude certain statements and documentation supporting the claim were
fraudulent. He further argues that the refusal of his claim, when his brother’s
claim had been successful, also renders the decision unreasonable. The sole
issue I need to address is whether the RPD’s findings are reasonable.
[4]
The reasonableness standard of review applies to
the RPD’s determinations on nexus and credibility (Jia v Canada (Minister of
Citizenship and Immigration), 2014 FC 422 at paras 15-16).
[5]
I am not persuaded by Mr. Coli’s submissions and
dismiss his application for the reasons that follow.
II.
RPD Decision
[6]
The RPD set out Mr. Coli’s allegations and
identified credibility as the determinative issue. While the RPD acknowledges
that the risks alleged by Mr. Coli are linked to family membership, the RPD
concluded that the alleged dispute concerns property and related reciprocal
attacks and that there is no nexus between the risks alleged and the grounds
set out at section 96 of the IRPA. On this basis, the RPD assessed Mr. Coli’s
claim under subsection 97(1) of the IRPA. Mr. Coli does not challenge this
conclusion.
[7]
The RPD recognizes that there is a presumption
of truth when considering the sworn allegations of a claimant but notes serious
credibility issues concerning central elements of Mr. Coli’s narrative. The RPD
notes that the inconsistencies and contradictions were so great as to undermine
Mr. Coli’s credibility. The credibility concerns in turn resulted in the RPD
concluding that Mr. Coli’s blood feud narrative was a fabrication in all
respects. The RPD rejects the claim on the basis of insufficient credible
evidence.
[8]
In rejecting the claim the RPD specifically
addresses the success of Mr. Coli’s brother’s claim before a different panel
[Previous Panel]. The RPD notes that in the hearing of the brother’s claim the Previous
Panel accepted, on a balance of probabilities, the existence of the alleged
blood feud and supporting documentation that was similar or identical to the documentation
adduced by Mr. Coli. However, the RPD concluded that it was not bound by the Previous
Panel’s conclusions.
[9]
The RPD concluded that it had “considerable grounds to find to the contrary, given the
claimant’s lack of consistency and thus credibility in regard to the two
central aspects of his claim”. The RPD also relied on recent evidence in
the NDP relating to the widespread availability of false documents in relation
to blood feuds in Albania and inconsistencies between Mr. Coli’s narrative and
the content of supporting documents to impugn the supporting documentation.
III.
Analysis
A.
Were the RPD’s findings and ultimate
determination reasonable?
[10]
Mr. Coli does not dispute the credibility
findings based on the inconsistencies in his narrative. Rather he argues those
credibility findings should not have been determinative of his claim in light
of the documentary evidence before the RPD, evidence the RPD unreasonably
concluded was not credible.
[11]
Mr. Coli relies on the decision of Justice Henry
Brown in Tenzin Losel et al v Canada (Minister of Citizenship and
Immigration), IMM-7989-14 [Losel] to argue that the RPD was required
to consider and weigh the findings of the Previous Panel before it could
reasonably conclude that documentation relied on by Mr. Coli was not credible.
He further submits that the RPD erred in concluding that the statement of a
priest who attempted to protect Mr. Coli and reconcile the two families
involved in the blood feud was fraudulent. In addition, relying on the decision
of Justice Donald Rennie in Kabongo v Canada (Minister of Citizenship and
Immigration), 2012 FC 313 [Kobongo], Mr. Coli submits that it was
unreasonable to dismiss a certificate from the police corroborating his claim
of a blood feud on the basis of supposedly widespread availability of
fraudulent documents. I am not persuaded.
[12]
Mr. Coli acknowledges that the RPD was not bound
by the findings of the previous panel. (Uygur v Canada (Minister of
Citizenship and Immigration), 2013 FC 752 [Uygur]). As noted by
Justice Catherine Kane in Uygur at paragraph 28: “…it is settled law that refugee claims are to be considered
on their own merits. The fact that one applicant is granted refugee status
based on a similar experience is not binding on the Board as the Board must
assess each claim individually, and previous decisions, even regarding family
members, may have been wrongly decided.”
[13]
It is this well-settled principle that the RPD
recognized and applied in this case. The Losel decision that Mr. Coli
relies upon recognizes this at page 6 where Justice Brown states: “Separate risk assessments under s. 96 and s. 97 are
obviously required as a general rule because risk is personal to the claimant
and includes both objective and subjective considerations which may differ
between claimants.”
[14]
In Losel the issue was the claimant’s
nationality, an issue that had been previously determined in relation to the
claimant’s sibling in a prior hearing. In this regard Justice Brown states at
pages 6 and 7: “However, when it comes to determining
the nationality of two apparently identically-situated siblings to whom the
same law and facts apply, it is not reasonable for the RPD to reach opposite
outcomes … In my view, an RPD must follow the decision made by a previous panel
concerning the nationality of an identically-situated sibling unless the second
RPD differentiates the two in clear and compelling reasons, which it did not do”.
This is not the case here. In this case the RPD was conducting an assessment of
risk based on Mr. Coli’s narrative, a narrative that was to be considered on
its own merits.
[15]
Furthermore, in considering the claim on its
merits the RPD did not ignore the previous panel’s conclusions in his brother’s
case. However, unlike in the brother’s case the RPD found Mr. Coli’s evidence was
simply not credible due to significant inconsistencies in his testimony
including in relation to incidents he alleged he personally experienced. In
addition the RPD had before it, and relied upon, documentation in the NDP that
had been generated after the brother’s claim had been determined. This evidence
described investigations by various sources into issues of falsified blood feud
documents in Albania. While some of the investigations reported in this
document preceded the brother’s claim, other investigations and reports post-dated
the brother’s claim. It was reasonably open to the RPD to rely on the updated
information as a factor in concluding Mr. Coli’s claim was a fabrication.
[16]
Similarly, it was reasonably open to the RPD to discount
church and police documents certifying the existence of a blood feud and indicating
that the church had been involved in attempts to mediate the feud on the basis
that the information was not consistent with Mr. Coli’s testimony in material
respects. Unlike Kabongo, where the RPD gave no weight to supporting
documents without considering the corroborative nature of those documents after
finding the claimant was not credible, here the RPD did consider Mr. Coli’s supporting
documents. However, the RPD determined the inconsistencies between Mr. Coli’s testimony
and the supporting documents coupled with the NDP evidence relating to the wide
spread availability of fraudulent documentation impugned these documents. This conclusion
was reasonably available to the RDP.
IV.
Conclusion
[17]
The RPD decision falls within the range of
possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 at para 47). I agree with
the RPD’s conclusions that in this case there were “considerable
grounds” to depart from the previous panel’s determination.
[18]
Neither party has proposed a question for
certification and none arises.
Email this Content