Docket: IMM-4694-16
Citation:
2017 FC 880
Ottawa, Ontario, October 04, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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LEONARD LIKA
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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]
The Applicant seeks refugee protection claiming
he is the target of a blood feud in his home country of Albania. By this
application he seeks review of a decision of the Refugee Appeal Division [RAD] upholding
a decision of the Refugee Protection Division [RPD] that he was neither a
Convention refugee nor a person in need of protection.
[2]
For the reasons that follow, this application
for judicial review is allowed on the basis that the RAD decision is neither
intelligible nor transparent with respect to its treatment of the documentary
evidence.
I.
Background
[3]
In April 2015 the Applicant was involved in a
traffic accident which left a member of the Hysa family paralyzed. Following this,
the Hysa family declared a blood feud against the Lika family. The families reached
an agreement not to harm each other. However, the agreement did not apply to the
Applicant who consequently went into hiding.
[4]
In August 2015, following a shooting incident where
the Applicant’s cousin was mistaken for the Applicant, the Applicant obtained a
visa allowing him to travel to the United States [US]. In September 2015 he
travelled to Germany where he remained until October 2015. In October 2015 he travelled
to the United States. In March 2016 he arrived in Canada and made a refugee claim
on the basis of the blood feud.
[5]
In June 2016, the RPD rejected his claim on
credibility grounds, noting that he did not claim refugee protection in either Germany
or the United States. The RPD also noted important omissions in his Basis of
Claim [BOC]. He appealed to the RAD.
II.
RAD Decision
[6]
In October 2016, the RAD dismissed his appeal. Like
the RPD, the RAD concluded that the Applicant’s failure to claim refugee
protection in Germany or in the US was indicative of a lack of subjective fear.
The Applicant explained that he delayed in making a refugee claim because he
was hoping the blood feud would end and he would be able to return to Albania.
[7]
Before the RPD, the Applicant testified that the
Hysa family admitted to being involved in the shooting of his cousin, a fact
which was corroborated by a document from the village elders. However, as the
Applicant did not mention this in his BOC, the RAD and the RPD, determined that
this omission brought his credibility into question.
[8]
Further, the RAD gave no weight to the elders’
document or the documents relating to the Applicant’s cousin being involved in
a shooting because of the overall finding that the Applicant lacked
credibility.
[9]
The RAD concluded that the Applicant was likely
not the target of a blood feud, and therefore he was not a Convention refugee
or person in need of protection.
III.
Issues
[10]
The Applicant raises a number of arguments with
respect to the reasonableness of the RAD decision. However, the RAD’s treatment
of the documentary evidence is dispositive of this application.
IV.
Standard of Review
[11]
The standard of review of the RAD’s decision is
reasonableness (Canada (Citizenship and Immigration) v Huruglica, 2016
FCA 93 at para 35; Canada (Citizenship and Immigration) v Singh, 2016
FCA 96 at paras 29 and 30).
V.
Analysis
[12]
The Applicant argues that the negative
credibility finding made against him led the RAD to disregard documentary
evidence, notably a medical report related to the shooting of his cousin and
the letter from the village elders.
[13]
At the RPD, the Applicant testified about the
shooting incident involving his cousin. He provided evidence, in the form of a
letter from village elders, that the Hysa family had admitted the existence of
the blood feud, and that police were aware of the feud. Because these facts were
not included in his BOC, the RPD and the RAD made a negative credibility
finding against the Applicant.
[14]
However, the RAD failed to assess this evidence
as corroborating his claim. While it is not necessary for the RAD to refer to every
piece of evidence, when it is evidence from an official source and it
corroborates the underlying claim, the RAD has a duty to address the evidence.
[15]
As the Court explained in Vushaj v Canada
(Citizenship and Immigration), 2016 FC 255 at paras 15 and 17:
[15] However, in respect of the documents
from the official sources, the Village Elders and the Commune, the RPD gave
them low probative value because of the prevalence of fraudulent documents.
Neither the RPD nor the RAD explained why these documents could reasonably be fraudulent.
There were no concerns about the contents, the form or the source of the
documents.
[17] In the absence of a considered,
articulated rationale for rejecting documents that on their face appear
official, the RAD cannot dismiss as not credible that part of the Applicants’
story related to the existence of a blood feud.
[16]
Here the RAD does not indicate why it is
disregarding these documents, other than the general negative credibility of
the Applicant. That is not enough.
[17]
The RAD decision is therefore unreasonable.
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