Date: 20101222
Docket: IMM-6271-09
Citation: 2010 FC 1316
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 22, 2010
The Honourable Mr. Justice Beaudry
BETWEEN:
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XHEVDET YMERI, JULJANA YMERI, BESMIR YMERI, BIRSEN YMERI
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the IRPA), of a decision of the Immigration and Refugee Board (the
panel), dated November 6, 2009, determining that Xhevdet YMERI (the
principal applicant), his spouse, Juljana YMERI, their son, Besmir YMERI, and
their daughter, Birsen YMERI, are neither Convention refugees under
section 96 nor persons in need of protection under subsection 97(1)
of the IRPA.
[2]
The application for judicial review shall be allowed
for the following reasons.
[3]
The applicants are all citizens of Albania. The
principal applicant’s spouse and children base their claims on that of the
principal applicant.
[4]
On January 12, 1998, the Xhabafti family
killed the principal applicant’s cousin, Floryan Ymeri. In December 1998,
the principal applicant’s cousins decided to take their revenge on the Xhabafti
family by killing Mustafa Xhabafti. Fearing a blood feud with the Xhabafti
family, the applicants decided to leave Albania. They went to Greece on
December 25, 1998, and had passports made for the whole family. They
returned to Albania in March 1999 and left again in May 1999 with the
intention of claiming refugee protection in Canada.
[5]
Upon arrival in the United States, they were
arrested and applied for refugee status; their application was denied on
October 10, 2004.
[6]
While the applicants were abroad, in 2003, Artan
Xhabafti was killed by the last cousin remaining in Albania, Ylli Ymeri, who
has been in hiding since.
[7]
The principal applicant was removed from the
United States to Albania on November 18, 2005.
[8]
When he arrived in Tirana, fearing for his life,
the principal applicant went to live with his mother. On March 23, 2006,
three masked individuals broke into her home and severely assaulted the
principal applicant. As a result, he was hospitalized until March 30,
2006. A forensic examination was performed at both the hospital and the police
station.
[9]
With the assistance of his brother-in-law and
some friends, the principal applicant, bearing a visa, arrived in Canada on
June 7, 2006. He asked for political asylum on August 17 of the same
year. The other applicants followed suit in 2007, but on different dates.
[10]
In analyzing the applicants’ claims, the panel
noted that the determinative issues were the following: no connection with the
Convention, credibility, state protection and internal flight alternative.
[11]
Insofar as the issue involves the panel’s
assessment of the evidence, the applicable standard of review is reasonableness
(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47).
[12]
In the case under review, the applicants do not
take issue with the panel’s finding that they are not Convention refugees under
section 96 of the IRPA. Rather they are challenging the panel’s reasons on
the issues of credibility, state protection and internal flight alternative.
[13]
With regard to their credibility, they submit
that their daughter had to intervene a number of times during the hearing to
correct translation errors made by the interpreter. They argue that the panel
focussed on minor contradictions in the description of the individuals who beat
up the principal applicant on March 23, 2006. They rely on Sheikh v.
Canada (Minister of Citizenship and Immigration) (2000), 190 FTR 225
(F.C.), at paragraphs 23-24, to point out that any inconsistencies found must
be significant and central to the claim in order for refugee protection to be
refused.
[14]
The applicants submit that the panel made a
material error when it decided not to attach any weight to Exhibit P-9
(Statement, Police Station No. 3, Tirana, September 13, 2006). They
add that the panel must give reasons for a decision not to consider evidence trustworthy
(Yabe v. Canada (Minister of Employment and Immigration) (F.C.A.),
[1993] F.C.J. No. 270 (QL), at para. 2).
[15]
Lastly, the applicants submit that the panel
rejected Exhibit P-5 (Statement of the Committee of Nationwide
Reconciliation) without valid reason (Simba v. Canada (Minister of
Citizenship and Immigration), 2000 CanLII 14777 (F.C.), at paras. 29
and 30).
[16]
The respondent argues that the questions raised
by the panel concerning the principal applicant’s credibility are reasonable. The
Court disagrees.
[17]
The first element concerns the revelation by the
Xhabafti family of who was responsible for Floryan Ymeri’s death. Having read
the transcript, the Court notes that there was some confusion about this at one
point but that it is impossible to infer a lack of credibility from it.
[18]
The second question is whether the individuals
who beat up the principal applicant in March 2006 were masked or not. The
Court finds this question to be secondary and that it should not have
undermined the applicant’s credibility, especially when independent evidence
confirms his hospital stay and injuries.
[19]
The third element is related to the fact that
the principal applicant allegedly did not mention in his written narrative that
the police could not intervene because this was a case of a blood feud. The
Court cannot accept that the lack of a written statement to that effect can
affect the principal applicant’s credibility given the particular context of
the case.
[20]
The panel also committed a reviewable error by disregarding
Exhibit P-9. The document from the Ministry of Public Order, the police
directorate of the Tirana area, corroborates the principal applicant’s story of
his attack on March 23, 2006, in every respect.
[21]
The same is true of Exhibit P-5 (Republic
of Albania, Committee of Nationwide Reconciliation, September 15, 2006),
which mentions the five murders, two in the principal applicant’s family and
three in the Xhabafti family. The same document also describes the two families’
efforts to reconcile with the help of mediators, to no avail however.
[22]
The errors described above warrant that the
matter be referred for redetermination.
[23]
No question was proposed for certification, and
none arises from this case.
JUDGMENT
THIS COURT ORDERS that
the application for judicial review be allowed. The matter is referred back to
a differently constituted panel for redetermination. No question is certified.
“Michel Beaudry”
Certified true
translation
Johanna Kratz
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