Decka v. Canada (Minister of Citizenship and Immigration), 2005 FC 822

Date: 20050608

Docket: IMM-5849-04

Citation: 2005 FC 822

Toronto, Ontario, June 8^th, 2005

Present:           The Honourable Mr. Justice Mosley                                   

BETWEEN:

                                                                ARTUR DECKA

                                                                                                                                            Applicant

                                                                           and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The sole issue in this application for judicial review is whether the Refugee Protection Division (the "Board") erred in failing to consider the "compelling reasons" exception, where the grounds for which refugee protection was claimed have ceased to exist and the Board makes no express finding of past persecution.

[2]                Mr. Artur Decka is a 31-year-old Albanian who claims a well-founded fear of persecution and to be a person in need of protection because of his political opinion. Both he and his deceased father were members of the Democratic Party (DP) in Albania. He claims that he was active in the elections in 1996 and 1997 and that he was attacked and beaten by Socialist Party (SP) supporters and arrested and beaten by the police. He moved to Greece, obtained a work permit and remained there until January 2002. He says there were continued threats by SP supporters in Greece so he came to Canada and made an immediate claim for refugee protection.

[3]                The Board made no findings on credibility or past persecution. It accepted that Mr. Decka is Albanian and that he was a member of the DP. It found that in light of the changed country conditions in Albania, Mr. Decka has no well-founded fear of persecution there and is not a person in need of protection.

LEGISLATION

[4]                The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, are paragraph 108(1)(e), and subsection 108(4) which read as follows:

ARGUMENT & ANALYSIS

[5]                The applicant submits, and I agree, that as the question requires the proper interpretation of the statute, the appropriate standard of review when considering whether a Board should have applied the compelling reasons analysis is correctness. Review of the content of the analysis, had it occurred, would have been on the standard of reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

[6]                Mr. Decka argues that the Board erred in law in failing to consider whether subsection 108 (4) applied to his situation because of his past persecution in Albania: Yamba v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 388 (F.C.A.).

[7]                Subsection 108 (4) imposes an evidentiary burden on the refugee claimant to "establish that there are compelling reasons" for not returning to the country in which past persecution arose. Mr. Decka did not argue his claim before the Board on this ground as he does not agree that he is safe in returning to Albania and does not agree that there has been a change in circumstances. Nevertheless, he submits, the Board cannot avoid its responsibility to conduct a compelling reasons analysis by making no finding that past persecution occurred.

[8]                In Yamba the Federal Court of Appeal in words found at paragraph 4 of its reasons, upheld a decision by a motions judge that the former Refugee Division was required to consider the applicability of the compelling reasons exception once it was satisfied that refugee status could not be claimed by reason of a change in country conditions. This could be interpreted, as the applicant argues, as requiring that the Board must conduct the analysis whether or not it finds that there was past persecution.

[9]                However, the Court of Appeal went on to say the following, at paragraph 6, in reference to the comparable provisions of the former Immigration Act:

In summary, in every case in which the Refugee Division concludes that a claimant has suffered past persecution, but this [sic] has been a change of country conditions under paragraph 2(2)(e), the Refugee Division is obligated under subsection 2(3) to consider whether the evidence presented establishes that there are "compelling reasons" as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes subsection 2(3). [emphasis added]

[10]            The respondent argues that although the Board accepted that Mr. Decka was a member of the Democratic Party and politically active, it did not conclude that he had suffered past persecution. This is clear, the respondent submits, from its use of terms such as "alleged" in the reasons for the decision. Consequently, no obligation to consider subsection 108(4) arose as a result of the Board's finding that a change of country conditions would negate any well-founded fears the applicant might have.

[11]            The question of whether an analysis of compelling reasons is required, absent an explicit finding of past persecution, was considered in Naivelt v. Canada (Minister of Citizenship and Immigration) 2004 FC 1261 at para. 37 and Kudar v. Canada (Minister of Citizenship and Immigration) 2004 FC 648 at paras. 10-11.

[12]            In Naivelt the female applicant had suffered appalling abuse at the hands of captors but the applicants' claim was not based on that abuse but on subsequent events. Thus the Board did not make an explicit finding that the earlier abuse constituted persecution. Justice Snider held that the Board was not then required to consider whether there were compelling reasons for the applicants not to avail themselves of the protection of their country of origin in those circumstances.

[13]            This case is closer to the facts of Kudar, in which the applicant claimed to have been persecuted by a powerful politician and business competitor. By the time the claim was heard, the politician had been jailed for other crimes and the occasion for persecution had been removed. The Board made no finding with respect to the past persecution but held that the changed conditions had removed any objective basis for the applicant's fear.

[14]            At paragraph 10 of her reasons in Kudar, Justice Layden-Stevenson acknowledged that "[t]here may be situations where the board can be said to implicitly have found that a claimant was previously a refugee and, but for the changed country conditions, would still be a refugee." Justice Layden-Stevenson held that was not the case before her.

[15]            I have arrived at the same conclusion in this case. While I have some concern that a Board may deliberately choose to avoid the question of whether a claimant may be justified in refusing to avail herself or himself of the protection of his home country by not making a finding of past persecution, that does not appear to have occurred here.

[16]            The Board went directly to the question of the situation in the country and concluded that the turmoil that existed in the 1990s was no longer present. The political climate had matured and elections were being conducted in a competitive but more healthy manner allowing for the pursuit of political interests without the fear of violence. In those circumstances, the applicant had not established that he would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to Albania. That finding was not challenged in this proceeding.

[17]            Accordingly, I do not find that the Board erred in applying section 108 and this application will be dismissed.

[18]            Counsel proposed that I consider certifying as a question of general importance the issue addressed in these proceedings. I am satisfied that this issue was resolved by the decision of the Federal Court of Appeal in Yamba, supra and decline to certify any question.           

                                               ORDER

THIS COURT ORDERS that the application is dismissed. No question is certified.

"Richard G. Mosley"

                                                                                                   J.F.C.                            

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                           IMM-5849-04

STYLE OF CAUSE:                          ARTUR DECKA

Applicant

and

THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

Respondent    

DATE OF HEARING:                       JUNE 6, 2005

PLACE OF HEARING:                     TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                             MOSLEY J.

DATED:                                             JUNE 8, 2005

APPEARANCES BY:    

Wennie Lee                                           FOR THE APPLICANT                      

Kevin Lunney                                        FOR THE RESPONDENT

SOLICITORS OF RECORD:     

Lee & Company

Toronto, Ontario                                   FOR THE APPLICANT                    

John H. Sims, Q.C.

Deputy Attorney General of Canada      FOR THE RESPONDENT

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