Docket: IMM-2423-19
IMM-2424-19
Citation: 2020 FC 706
Ottawa, Ontario, June 18, 2020
PRESENT: Mr. Justice McHaffie
| BETWEEN:
|
| DRITA TAHO, RESMI TAHO
AND MARSELINA TAHO
|
| Applicants
|
| and
|
| MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Resmi Taho, Ms. Drita Taho, and their daughter Ms. Marselina Taho are Albanian citizens who came to Canada to flee an alleged blood feud that threatens Mr. Taho’s life. The Refugee Protection Division (RPD) denied their claim for refugee protection because it found that the evidence did not establish an ongoing blood feud, and that in any case, state protection in Albania was available. Following that denial, the Tahos applied for a Pre-Removal Risk Assessment (PRRA) and for permanent residence on humanitarian and compassionate (H&C) grounds. A senior immigration officer rejected the PRRA, finding that the Tahos had simply restated the information presented to the RPD and that their new evidence did not rebut the RPD’s findings. The same officer also refused the H&C application, concluding that the Tahos’ personal circumstances, including their establishment, their friends in Canada, the best interests of their second child (a Canadian citizen), and the risks of returning to Albania did not warrant an exemption on H&C grounds.
[2]
This Court heard the Tahos’ applications for judicial review of their rejected PRRA and H&C applications together as related cases. With respect to the PRRA, the Tahos argue that the officer erred in concluding that state protection is available in Albania, placing undue reliance on a prior decision of this Court and inadequately assessing the evidence to the contrary. They also say that the officer should not have disregarded a new letter from Ms. Taho’s parents stating that the blood feud was ongoing. On the H&C application, the Tahos state that the officer unreasonably focused on risk rather than assessing the hardship the family would face in Albania, failed to assess material elements of their establishment in Canada, and took an improper approach to assessing their newborn child’s best interests.
[3]
I conclude that each decision was reasonable. In regards to the PRRA, the officer’s reference to a prior decision of this Court was not misplaced, and the finding of adequate state protection was supported by the record and the prior determination of the RPD. It was also reasonable for the officer to conclude that the parents’ letter was not significantly different from what the Tahos had presented to the RPD, despite not having access to the full RPD record, as the RPD’s reasons described the evidence adequately to allow the comparison.
[4]
As for the H&C application, the officer did not apply the wrong approach to their analysis of conditions in Albania, and reasonably considered the Tahos’ submissions and evidence on hardship. The officer’s assessment of both establishment and the best interests of the child (BIOC) was also reasonable, and did not have to reference each supporting point raised by the Tahos or that might have been found in the evidence. Overall, the officer reasonably considered each of the factors raised by the Tahos, made a global assessment of these factors, and came to a reasonable conclusion that those factors did not justify an H&C exemption.
[5]
Both of the applications for judicial review are therefore dismissed.
II.
Issues and Standard of Review
[6]
The Tahos’ applications for judicial review raise the following issues:
Was the rejection of the PRRA application unreasonable, and in particular:
1)
Did the officer err in their analysis of the availability of adequate state protection in Albania?
2)
Did the officer err in their assessment of the letter from Ms. Taho’s parents and the evidence before the RPD?
Was the rejection of the H&C application unreasonable, and in particular:
1)
Did the officer err in their analysis of risk and hardship facing the Tahos in Albania?
2)
Did the officer adequately consider the evidence of the Tahos’ establishment in Canada?
3)
Did the officer apply an improper framework to their BIOC analysis?
[7]
The Court applies the reasonableness standard to evaluate the officer’s appraisal of a PRRA or H&C application: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 44; Mohammed v Canada (Citizenship and Immigration), 2016 FC 619 at para 11. While this case was heard before the Supreme Court of Canada’s decision in Vavilov, that case does not affect the standard of review here. Rather, Vavilov simply confirms that the reasonableness standard applies, as do the pre-existing principles by which this Court determines if a decision bears the hallmarks of reasonableness—transparency, intelligibility and justification: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25, 99.
III.
Analysis
A.
The Tahos’ Pre Removal Risk Assessment
[8]
A PRRA is the “last formal risk assessment given to qualifying individuals before they are removed from Canada”
: Valencia Martinez v Canada (Citizenship and Immigration), 2019 FC 1 at para 1. It seeks to ensure that individuals are not removed to a country where their lives would be in danger or where they would be at risk of persecution or other cruel and unusual punishment: Valencia Martinez at para 1; Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] at ss 96–97, 112–113.
[9]
A PRRA considers the same provisions applicable to a claim for refugee protection, namely sections 96 and 97 of the IRPA. It is not, however, intended as an appeal of an adverse refugee determination, or a second chance to make the same refugee claim: Raza v Canada (Citizenship and Immigration), 2007 FCA 385 at para 12. To this end, an applicant who has had a refugee claim rejected may present only new evidence on the PRRA application: IRPA, s 113(a).
[10]
The risk identified by the Tahos on their PRRA was the same one they raised before the RPD: their fear of a blood feud in Albania. This blood feud ignited at the end of August 2011, when a man visited Mr. Taho while he was in Albania helping with his family farm. This man recited the Kanun and informed Mr. Taho that he was a messenger of the Deda family, who sought blood for the death of Kol Deda, whom Mr. Taho’s deceased father accidentally killed in a work place accident in 1980.
[11]
After a failed attempt at reconciliation with the Deda family, Mr. Taho said that gunshots were fired at him while he was leaving his house to go to Greece at the beginning of September 2011. He sought the help of the police, but said that the police told him that they could do nothing. Fearing for his life, Mr. Taho fled to Greece, where his wife and daughter lived, and, after hearing that Albanians in Greece had been asking about his whereabouts, the family came to Canada, where they made a refugee protection claim.
[12]
After a first rejection of their refugee claim was quashed by this Court (Taho v Canada (Citizenship and Immigration), 2015 FC 718), the RPD heard the Tahos’ claim in 2017. The RPD found that the Tahos were neither Convention refugees under section 96 nor persons in need of protection under section 97 of the IRPA. The RPD found the Tahos were generally credible and accepted their testimony with respect to the blood feud. However, it determined that the Tahos failed to provide any credible or trustworthy evidence with respect to the agents of persecution, and that, on a balance of probabilities, there was no ongoing blood feud. Alternatively, the RPD found that the limited attempt made by the Tahos to report the blood feud to authorities did not amount to a failure of state protection, and that there was available and operationally effective state protection available to the Tahos in Albania.
[13]
The Tahos’ PRRA application relied only on section 97, asserting that they were persons in need of protection given the existence of an ongoing blood feud and the lack of adequate state protection. In support of their application, they submitted new evidence in the form of a 2018 letter from Ms. Taho’s parents stating that the Deda family continues to show up and ask about them, and recent reports from a non-governmental organization, Operazione Colomba, about blood feuds in Albania and the state’s response to them.
[14]
The officer rejected the PRRA because they did not believe that the Operazione Colomba reports rebutted the RPD’s findings, notably its finding that state protection is available in Albania. They also concluded that the letter from Ms. Taho’s parents was not significantly different from the evidence previously provided, and did not rebut the findings of the RPD. The Tahos challenge both of these conclusions. I do not believe that the Tahos have demonstrated that the decision was unreasonable on either count.
(1)
The officer’s analysis of state protection in Albania was reasonable
[15]
To obtain refugee protection under section 97, a claimant must be unable or, because of the risk they face, unwilling to avail themselves of the protection of their country of nationality: IRPA, s 97(1)(b)(i). A determination of whether a claimant can avail themselves of the protection of the state involves an assessment of whether there is adequate state protection at an operational level: Meza Varela v Canada (Citizenship and Immigration), 2011 FC 1364 at para 16; Marqeshi v Canada (Citizenship and Immigration), 2016 FC 932 at paras 25–27.
[16]
After reviewing the RPD’s findings, including as to adequate state protection, the officer set out their brief reasons on the issue:
I have been provided a report from Oper[a]zione Colomba which counsel submits documents incidents of blood feuds. While I have read and carefully [sic] this document, I do not find it rebuts the significant findings of the RPD. Specifically, its finding that state protection is available to the applicants in Albania. I note that [the] RPD panel indicated in its Written Decision and Reasons that in Marqeshj the Federal Court upheld the finding that state protection in Albania is adequate at the operational level. While protection in Albania may not be as robust as Canada, it is not at a level that relieves the claimants of their duty to pursue it, as supported by several state protection cases concerning Albania.
[Emphasis added; footnote to the RPD’s decision omitted]
[17]
The Tahos take issue with two aspects of this finding. First, they argue that the reliance on Marqeshi is misplaced, as that case does not and cannot determine the question in respect of the Tahos’ application. Second, they argue that the officer did not give adequate consideration to the Operazione Colomba reports, which identified recent blood feud killings in which there was no protection forthcoming.
[18]
With respect to the first argument, I agree with the proposition that an officer must assess the adequacy of state protection on a case-by-case basis, i.e., that each application is a distinct matter and is not determinative of subsequent decisions: see Taho at para 44; Perez Mendoza v Canada (Citizenship and Immigration), 2010 FC 119 at para 33. In Marqeshi, Justice Locke upheld the RPD’s finding that Mr. Marqeshi had not established that state protection in Albania was inadequate. However, he did not purport to make any broad conclusions about the availability of state protection in Albania: Marqeshi at paras 24–30. To the extent that the officer relied on Marqeshi as determinative of the issue, that would have been an unreasonable approach.
[19]
However, that is not how I read the officer’s reasons. Rather, having concluded that the Operazione Colomba evidence was not sufficient to rebut the significant findings of the RPD on state protection, the officer simply reiterated the RPD’s reference to Marqeshi as an example of a recent decision that reached the same conclusion. The officer went on to repeat the RPD’s finding that “while protection in Albania may not be as robust as Canada, it is not at a level that relieves the claimants of their duty to continue to pursue it,”
a finding that the RPD similarly made with reference to other recent decisions reaching the same conclusion. While it would be an error to treat such decisions as determinative, it is not unreasonable to make comparative reference to other cases that reach the same result. The fact that the officer reiterated the RPD’s comments and the reference to Marqeshi does not render their analysis unreasonable.
[20]
With respect to the second argument, the Tahos assert that if one removes the reference to Marqeshi, the officer’s analysis becomes simply conclusory, stating that the report does not rebut the RPD’s conclusion, without any substantive analysis. It is clear that the officer’s comments on state protection were short. But they must be considered in the context that it is not a PRRA officer’s task to reassess as a whole whether state protection was available. Their task is to determine whether the new evidence would have changed the state protection finding of the RPD: Zazaj v Canada (Citizenship and Immigration), 2018 FC 435 at para 69.
[21]
The officer’s analysis must also be assessed in the context of the Tahos’ submissions on the issue and the RPD’s “significant findings”
regarding state protection. The Tahos’ submissions on state protection were limited to two brief paragraphs referencing the Operazione Colomba reports. The first paragraph noted that the reports were recent and showed that “blood feuds still very much exist even now in Albania.”
The second reproduced a passage from one of the reports that said that “police investigations have not always produced the desired results,”
referred to cases that had not led to justice, and noted that action by the state “does not always produce tangible results when applied.”
Even on their face, these submissions do little to rebut the RPD’s findings on state protection, which entailed an assessment of both the extensive country condition evidence and, importantly, the “limited attempt”
by the Tahos to report the blood feud to the authorities. In this context, I cannot say that the officer erred by not undertaking an in-depth analysis or deviating from the RPD’s finding on state protection in Albania.
(2)
The officer’s treatment of the evidence from Ms. Taho’s parents was reasonable
[22]
The Tahos filed a letter from Ms. Taho’s parents dated July 17, 2018. The letter states that the parents are aware of the blood feud, that “members of the Deda tribe continue to show up in the village and ask about”
the Tahos, and that even Mr. Taho’s brother and children live in hiding. The parents note that they have “lost our peace these last seven years”
because of the problem, and that “the problem of blood feud never goes away.”
The Tahos pointed to this letter as new evidence of “ongoing”
risk to the Tahos in Albania.
[23]
While acknowledging that the letter postdated the RPD’s decision, the officer concluded that it was “not significantly different”
from what the Tahos had provided at their RPD hearing. The officer cited Justice Mosley’s observation in Raza that assessing new information involved considering not just the date of the document, but whether the information is significantly different from the earlier information: Raza v Canada (Citizenship and Immigration), 2006 FC 1385 at para 22, aff’d 2007 FCA 385 at para 16. Where information that postdates the original decision merely echoes information previously submitted, it is unlikely to result in a finding that country conditions have changed: Raza (FC) at para 22. The officer concluded that the Tahos had materially restated the same information presented to the RPD and had not rebutted the RPD’s findings. They therefore concluded that they had insufficient evidence to arrive to a different conclusion from that of the RPD.
[24]
The Tahos argue that the officer erred in rejecting the letter. First, they say that since the materials before the RPD were not before the officer, the statement that “the information is not significantly different from what was previously provided”
had no evidentiary basis. Second, they say that the officer did not properly apply Raza because they rejected the letter despite the fact that it contained critical information regarding their prospective risk: the fact that the blood feud is ongoing.
[25]
I cannot accept the Tahos’ arguments. While the officer may not have had access to the evidentiary record before the RPD, they did have access to the RPD’s reasons, which describe the Tahos’ allegations and their testimony in some detail, as well as the Tahos’ Basis of Claim narrative, which formed the foundation of their PRRA application. These sources provided sufficient information for the officer to reasonably determine that the letter was not significantly different from the evidence previously presented: see Zazaj at paras 44–54. Of necessity, a PRRA officer considering evidence filed after rejection of a refugee claim must assess whether that evidence is new in the sense of Raza, or whether it simply echoes what was previously filed. I do not read Raza as requiring a PRRA officer to necessarily have the full record before the RPD to undertake this assessment. Indeed, the Court of Appeal in Raza noted that it is for the applicant to “prove that the relevant facts as of the date of the PRRA application are materially different from the facts as found by the RPD”
: Raza (FCA) at para 17.
[26]
Here, the Tahos did not provide any specific evidence of new events that postdated the RPD’s decision to show that the blood feud was ongoing. They provided a letter that simply stated that members of the other family “continue to show up”
and that Ms. Taho’s parents had lost their peace “these last seven years.”
The officer was not required to undertake an extensive assessment or have the full RPD record before them to reasonably conclude that such evidence was not significantly different from what had been presented to the RPD.
[27]
Whether or not the officer ultimately rejected the letter, a reading of the officer’s reasons shows that they did consider the evidence, including the content of the letter. They nonetheless found that it did not rebut the finding of the RPD regarding state protection and, consequently, believed that there was insufficient evidence to reach a different conclusion. In any event, even if the parents’ letter was sufficient to rebut the RPD’s conclusion as to the existence of an ongoing blood feud, it would not affect the officer’s determination on adequate state protection, which is determinative.
B.
The Tahos’ Application for Humanitarian and Compassionate Consideration
[28]
The Tahos applied for permanent residence on H&C grounds pursuant to section 25 of the IRPA. This section gives the Minister discretion to exempt foreign nationals from the ordinary requirements of the IRPA if H&C considerations justify such relief: Kanthasamy at para 10. While the Minister can typically only examine an H&C application after 12 months have passed since a negative RPD decision, the Tahos were eligible as they welcomed a new addition to their family in 2018, and that child’s interests would be directly affected by their removal from Canada: IRPA, ss 25(1.2)(c)(i), 25(1.21)(b).
[29]
The Tahos’ H&C application stated that it was “based upon establishment in Canada,”
although it also referenced the fact that they have not lived in Albania since 1997 and had nothing to return to there, and referred to the best interests of their newborn child. The officer concluded that a global assessment of the factors for consideration did not justify an exemption. The Tahos now challenge the officer’s approach to the hardships they face on return to Albania; the failure to refer to positive aspects of the Tahos’ establishment in Canada; and the analysis used in conducting the BIOC assessment. I conclude that none of these challenges shows that the officer’s analysis was unreasonable.
(1)
The officer’s analysis of hardship was reasonable
[30]
On an H&C application made from within Canada, the officer may not consider the factors taken into account on a claim for refugee protection, but “must consider elements related to the hardships that affect the foreign national”
: IRPA, s 25(1.3). As the Tahos concede, the officer recognized and correctly distinguished between the refugee context and the H&C context, noting as follows:
I acknowledge that there is an important distinction between the assessment of risk by the Board, and the assessment of a humanitarian and compassionate application, the former is a restricted assessment under specific legislative parameters of persecution, torture, risk to life, and cruel and unusual treatment or punishment, whereas the latter is a global assessment of factors and whether they amount to hardships. Nevertheless, the findings of the Board are relevant to the assessment of hardship in a humanitarian and compassionate application where the applicants present materially the same evidence in their application that was presented before the Board.
[31]
The officer found that the Tahos had not satisfactorily addressed the RPD’s findings. They therefore assigned significant weight to the RPD’s factual findings regarding the allegations of fear of the other family said to be involved in the blood feud, “specifically”
the RPD’s finding on the availability of state protection in Albania.
[32]
The Tahos claim that while the officer correctly stated the applicable principles, they then erroneously relied on a “risk”
lens to assess the H&C application. In addition, they argue that the officer made their conclusions solely based on the risk in Albania without mentioning any of the adverse country conditions in the documentary evidence.
[33]
I cannot read the officer’s decision as unreasonably or inappropriately fixating on the risk in Albania. Country conditions must be considered when they form part of an applicant’s H&C circumstances, and facts previously invoked in support of a failed refugee protection claim may be relevant: Kanthasamy at para 51. However, the primary relevant adverse country condition for the officer to consider was the existence of an ongoing blood feud with the Deda family, which the RPD had found not to exist. While findings of the RPD cannot be determinative, those findings, including determinations regarding the availability of state protection, may be relevant to assessing hardship in the H&C assessment: Asad v Canada (Citizenship and Immigration), 2017 FC 924 at paras 21–22; Shah v Canada (Citizenship and Immigration), 2018 FC 537 at para 54; Lara Martinez v Canada (Citizenship and Immigration), 2012 FC 1295 at para 36.
[34]
Moreover, the Tahos cannot reasonably criticize the officer for the lack of analysis of the country condition evidence given their own limited reliance on that evidence. The Tahos’ submissions on the issue of hardship were limited to an assertion that since they had not lived in Albania for a long period, they had nothing to return to there. The officer reasonably addressed that contention in their reasons, and was not required to undertake an analysis of adverse country conditions that the Tahos did not rely on.
(2)
The officer’s assessment of the Tahos’ establishment in Canada was reasonable
[35]
The officer’s consideration of the Tahos’ establishment in Canada focused—as had the Tahos’ submissions—on their employment in Canada and their eldest daughter’s attendance at college. The officer recognized that these efforts were commendable and gave weight to the Tahos’ establishment. The officer also considered the Tahos’ friendships in Canada. While not discounting these friendships, they concluded that they could be maintained upon the Tahos’ return to Albania, and that they did not display the degree of interdependency that would justify an H&C exemption.
[36]
The Tahos argue that the officer failed to refer to all of the positive establishment factors that were identified and discussed in the H&C application, such as their payment of taxes, English skills, the daughter’s academic achievements, and the laudatory supporting letters from employers that spoke of their “need”
for the Tahos. I cannot conclude that the omission of these matters renders the decision unreasonable. The officer was not required to refer to every aspect of the Tahos’ establishment, and there is no indication that the officer made their decision without regard to the evidence. To the contrary, the decision shows that the officer reviewed and considered the factors put forward by the Tahos, but concluded that their establishment, while positive, did not warrant granting an H&C exemption. Nor do I agree with the Tahos’ contention that Mr. Taho’s employer saying they “need people like”
him, or Ms. Taho’s employer saying they “need”
to have her come back to work after her maternity leave, shows a level of “interdependence”
that required reference in the decision.
[37]
The Tahos also criticize the officer for not explaining why their establishment evidence was insufficient, citing Chandidas for the principle that the officer’s findings on establishment must be adequately explained: Chandidas v Canada (Citizenship and Immigration), 2013 FC 258 at para 80. In my view, the officer’s reasoning is clear and adequately set out in their reasons. The officer assessed the evidence of the Tahos’ employment and friendships, as described above, and set out their view that the fact that the Tahos were employed in Canada was not sufficient to demonstrate integration in Canadian society so as to warrant an H&C exemption. These explanations are sufficient to distinguish this case from Chandidas, where the officer omitted to provide any explanation as to why the establishment evidence was insufficient despite several positive establishment factors: Chandidas at paras 80, 82–83.
(3)
The officer’s analysis of the best interests of the child was reasonable
[38]
Where a child’s interests are affected, an officer on an H&C application must be “alert, alive, and sensitive”
to the best interests of the child, giving those interests substantial weight: Williams v Canada (Citizenship and Immigration), 2012 FC 166 at paras 65–69. In conducting this analysis, the context of the evidence and submissions put forward on the issue is important: Fouda v Canada (Immigration, Refugees and Citizenship), 2017 FC 1176 at para 39; Wu v Canada (Citizenship and Immigration), 2017 FC 1078 at para 25.
[39]
I am satisfied that in the circumstances of this case, the officer’s consideration of the interests of the newborn child, the impacts of going to Albania with the family, and the differences in educational opportunities and healthcare showed that the officer was alert, alive and sensitive to the best interests of the Tahos’ child.
[40]
The Tahos’ submissions in their H&C application on the issue of their newborn’s best interests were limited to a single sentence: “[t]here is no question that the best interests of the recent addition to this family […] will be best served in Canada as opposed to returning to a developing country such as Albania where [they] would not have access to the level of education and healthcare open to [them] in Canada.”
Beyond this, no particular evidence or argument was put before the officer regarding how the child would be adversely affected by returning to Albania.
[41]
In their BIOC analysis, the officer noted that it may be difficult for the child to leave Canada, but that they would be going to Albania with their parents and sibling, and that any necessary adjustments would be made with the parents’ support. The officer found that the child’s best interests “would be met if [they] continued to benefit from the personal care and support of [their] parents in Albania.”
With respect to the question of education and healthcare, the officer noted that different countries had different standards of living and that section 25 of the IRPA was not intended to make up for those differences but to deal with situations where H&C grounds compel the Minister to act.
[42]
The Tahos say that the officer “failed to properly engage with the process of determining the [BIOC].”
They argue that the officer ought to have first determined what would be in the child’s best interests, and then determine how they would have been affected by returning to Albania. According to them, the officer made “generic, non specific statements,”
and concluded that the BIOC would not be compromised, despite documentary evidence in the record suggesting that their child may not be eligible to be registered in school.
[43]
I disagree. The officer was not required to engage in a formulaic analysis in which the child’s best circumstances are first stated, followed by a differential assessment of how those will be affected. As the Federal Court of Appeal noted in Hawthorne, an officer “may be presumed to know that living in Canada can offer a child many opportunities”
: Canada (Minister of Citizenship and Immigration) v Hawthorne, 2002 FCA 475 at para 5. The officer’s analysis in this case implicitly recognizes that continuing to stay in Canada is in the child’s best interests, noting that it “may be difficult”
for them to leave Canada and referring to the education and healthcare they could receive here. The officer appropriately assessed how the young child’s interests would be impacted by going to Albania with their parents, and concluded that these impacts were not such as to justify the family’s H&C application. The officer’s recognition that the benefits of Canada’s higher standard of living are not determinative of an H&C application is consistent with this Court’s jurisprudence: see, e.g., Trach v Canada (Citizenship and Immigration), 2019 FC 747 at para 24.
[44]
As for the Tahos’ arguments that the officer did not address evidence that the child might not be able to attend school, and otherwise did not engage in a thorough analysis of the country condition evidence, this must be assessed in the context of the submissions made. A limited BIOC assessment “is not an error when the evidence on the [BIOC] elements is sparse”
: Fouda at paras 39–40. The officer cannot be faulted for not considering issues not raised or evidence not filed on the H&C application. The Tahos submitted no evidence of adverse country conditions that would affect their child. While the officer on their own initiative reviewed a current human rights report, that report simply indicated that children returning from abroad were unable to attend school because they had no birth certificates or legal documents. It was reasonable for the officer not to have given this too much attention, as nothing suggests that would be the case for the Tahos’ child.
IV.
Conclusion
[45]
The Tahos’ applications for judicial review are dismissed.
[46]
The parties did not provide any questions for certification, and I agree that none arise.
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