Date: 20060524
Docket: IMM-6407-05
Citation: 2006 FC 621
Ottawa,
Ontario, May 24, 2006
Present:
The Honourable Mr. Justice Simon Noël
BETWEEN:
KRISTINA
LUSHI
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by the
Refugee Protection Division (RPD) dated September 29, 2005. In that decision,
the RPD denied the refugee claim of Kristina Lushi (applicant). According
to the RPD, the applicant is not a Convention refugee or a person in need of
protection within the meaning of sections 96 and 97 of the IRPA.
I. Issue
[2]
The
only issue is the following:
-
Did the RPD err in finding that the applicant is not a refugee or a
person in need of protection within the meaning of sections 96 and 97 of the
IRPA?
II. Facts
[3]
The
applicant is a native of Albania. She alleges that on September 5, 1999, her
parents arranged her marriage and sent her to the home of the man she was to
marry, Kleanth Lapa (applicant’s spouse or Mr. Lapa). There was no ceremony but
the applicant writes in her Personal Information Form (PIF) that [TRANSLATION] “. . . [her] parents
considered it to be a marriage”.
[4]
In
the first few months of their cohabitation, the applicant’s spouse treated her
viciously, was emotionally abusive toward her, beat her until she bled and
sexually assaulted her repeatedly.
[5]
The
applicant became pregnant and her physicians advised her to rest. As her
husband was still mistreating her, she tried to get help from the police, but
her husband prevented her from doing do.
[6]
On
January 2, 2002, the applicant gave birth to a child. One day, Mr. Lapa attacked the
baby. The applicant tried to protect him but her husband hit her on the back
with a hard object.
[7]
On
May 15, 2002, the applicant once again attempted to flee by bus but her husband
stopped her again. Mr. Lapa confined the applicant, continuing to abuse and
threaten her.
[8]
On
January 30, 2003, the applicant’s son died. At the funeral, the applicant asked
her parents whether she could return to live with them. Her parents refused,
telling her that she could only return home if she were dead.
[9]
On
November 10, 2003, the applicant was the victim of a new attack by her husband,
who had become violent because he could not find any alcohol in the house. A
neighbour intervened to calm Mr. Lapa down. That neighbour and his wife
became the applicant’s supporters and helped her to escape. On June 25, 2004,
the applicant fled from her husband’s house and took refuge at the home of one
of the neighbours’ family members. The applicant managed to gather the money
necessary to obtain false papers and left Albania on August 29, 2004. She arrived
in Canada on August 11, 2004.
III. Analysis
[10]
The RPD’s
decision is based on the following considerations:
-
The
applicant did not claim refugee status in Canada until after she had been
detained and questioned. First, she tried to enter Canada as a Greek tourist
(RPD’s record, page 227 et seq.);
-
When the
applicant finally admitted that she had not told the truth when she arrived,
her excuse was that the smuggler who had helped her enter the country had told
her that if she made a refugee claim, she would be deported to her country
(RPD’s record, page 264);
-
The RPD
found that if a smuggler actually had advised the applicant, he would have
known on what conditions claimants are admitted to Canada and would have known
that a battered woman could not be removed without being granted a hearing;
-
According
to the RPD, the applicant would have claimed refugee status when she arrived if
she had real grounds for asking for protection from Canada;
-
According
to the RPD, there were inconsistencies between the story contained in the
applicant’s PIF (RPD record, pages 18 and 19) and the written story at the port
of entry (RPD’s record, pages 240 to 243).
-
The RPD
observed that the applicant did not mention her attempt to get help and that
she failed to mention in her PIF and in her story at the port of entry (RPD’s
record, pages 18, 19 and 240 to 243) the most serious incident of domestic
violence that she alleges to have experienced, which put her in the hospital
for three days (RPD’s record, pages 106, 278, 283 and 284);
-
The RPD
noted moreover that the applicant did not mention in her PIF or in her story at
the port of entry (RPD’s record, pages 18, 19 and 240 to 243) that she had
attempted to obtain protection from the authorities of her country, by sending
a letter to the Albanian Minister of Public Order;
-
According
to the RPD, it was not credible that the applicant would only have mentioned
these incidents (the serious violent episode and sending the letter) in the
amendment to her PIF (RPD’s record, p. 106);
-
The RPD
was of the opinion that considering the fact that the applicant’s credibility
was tainted, the letter in response to her request for help from the Albanian
Minister of Public Order and the medical certificate appearing in the record
(RPD’s record, page 116 to 119) were both falsified;
-
The
applicant claimed that she was tired and stressed when she wrote her story at
the port of entry (RPD’s record, page 265). The applicant also explained that
the interpreter told her that in her story she should only include the elements
of her story which could be established by corroborating documents (RPD’s
record, page 271). The RPD believed that this undermined the applicant’s
credibility since she was assisted by counsel, and that the interpreter would
certainly not have given erroneous advice of that nature;
-
Finally,
the RPD found that the applicant did not attempt to avail herself of protection
from the Albanian State by admitting to her physician that her husband had
beaten her when the physician asked her whether he had.
[11]
In my
opinion, each of the RPD’s findings regarding the applicant’s credibility as
well as the opportunity she had to avail herself of the protection of the
authorities of her native country, is sufficient, correct and well founded. The
record indicates that the applicant’s conduct was inconsistent with her story,
that she failed to ask for the protection of the authorities in her country and
to claim protection at the first opportunity. I find that there is no basis to
intervene.
[13]
For these
reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS THAT:
- The application for judicial review be
dismissed and no question will be certified.
“Simon Noël”
Judge
Certified true
translation
Kelley A. Harvey, BA,
BCL, LLB
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