Date: 20100223
Docket: IMM-2304-09
Citation: 2010 FC 199
Toronto, Ontario, February 23,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
HERIONA DUHANAJ
PASHK DUHANAJ
BERLINDA DUHANAJ
NIKOLETA DUHANAJ
JOSEPHINA DUHANAJ
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a Member of the
Immigration and Refugee Board of Canada, Refugee Protection Division, dated
April 22, 2009 wherein it was determined that the Applicants were not
Convention Refugees and not persons in need of protection. For the reasons
that follow I find that this decision in respect of the adult male applicant,
Pashk Duhanaj, is set aside and returned to the Board for redetermination by a
different member, the application is otherwise dismissed.
[2]
The
principal applicant, Heriona Duhanaj is an adult female person, a citizen of Albania, now married
to the male applicant Pashk Duhanaj with whom she has borne the three other
applicants, their children.
[3]
The
principal applicant Heriona Duhanaj was born in Albania and is a
citizen of that country. She was sent by her parents to the United
States of America when she was 15 years of age. She had sisters living in the
United
States.
She was sent there for fear that she would be kidnapped by human traffickers in
Albania and sold
into prostitution. She lived in the United States since 1995 without
making a claim for refugee protection there. Her parents and younger brother
remain in Albania although
this applicant’s evidence is that they intend to come to Canada under the
sponsorship of one of her brothers who lives in Canada.
[4]
The
adult male Applicant Pashk Duhanaj was born in what was then known as Serbia
Montenegro in the Kosovo area. He is a Catholic Christian. He arrived in the United
States of America in 1996, made a refugee claim there which failed.
Subsequent appeals were unsuccessful. Nonetheless he remained in the United
States,
without status until he came to Canada with the other
applicants in August 2007.
[5]
The
adult female and male applicants met in the United States of
America
and entered into a common law relationship in which the three other applicants
were born. In February 2007, shortly before coming to Canada, the adult female
and male applicants married in the United States of America. They and
their children came to Canada in August 2007 where as a family, a claim
for refugee protection was made. The adult female applicant Heriona was, for
some unexplained reason, named as the principal applicant.
[6]
The
basis for the claim for refugee status by the principal applicant Heriona was
made on the basis that she feared returning to that country because her husband
would not be allowed to accompany her and, as an unaccompanied and thus unprotected
woman, she was likely to be kidnapped and sold into prostitution, just as she
feared would happen to her when she left at age 15. The Board Member, I am
satisfied, gave a sympathetic hearing to her submissions and considered the
relevant evidence. Unfortunately for her, the Member found that her failure to
claim refugee status in the United States for more than a decade
meant that she had not established a well-founded fear of persecution. In any
event, the Member found that there was no evidence that she would be singled
out for kidnapping and that the state of Albania had in place a number of
measures to guard against such kidnapping which, even if not a hundred percent
successful, given the burden on the applicant to prove otherwise, was adequate.
[7]
I
find no reviewable error in respect of the findings and conclusion in respect
of the claim by the female applicant.
[8]
Similarly,
with regard to the three minor children, they are citizens of the United
States of America and there was no evidence as to any fear of their return to
that country. Their claim for refugee status was properly rejected.
[9]
The
matter is different with respect to the adult male claimant Pashk Duhanaj.
When he left Serbia Montenegro it was a single country with Kosovo being an
area within that country. Since that time Montenegro has become a
separate country and Kosovo has become separate from Serbia with unclear
status. Kosovo’s affairs are administered by a United Nations entity known as
UNMIK – United Nations Interim Administrative Mission in Kosovo. The evidence
in this case is that this administration is dealing with inherently unstable
transitions to democracy and centuries old bad habits such as a means of
settling age old grievances by murdering members of the presumably offending
clan, the so-called blood feud.
[10]
The
adult male applicant’s claim for refugee status was based on two grounds. The
first was that there was a blood feud between his clan and another in Kosovo
and he feared that he would be targeted, without adequate state protection,
should he return to Kosovo. The second basis for his claim was that he was a
Catholic Christian and would suffer discrimination and worse should he return
to Kosovo which was principally Muslim with a minority of Serbian Orthodox
persons. This second ground was not actively pursued by his counsel at the
hearing before me.
[11]
The
Board Member begins his reasons for dismissing the male applicant’s claim by pointing
out that he had “…the status as a refugee and enjoyed the protection of the USA, however, he
lost it because of his actions.” I agree that such a finding would be, in
any event irrelevant, however it seems to have coloured the Member’s view of
this applicant’s claim. Neither counsel before me could point to anything in
the record that would provide a basis for such a remark. The making of such an
unfounded statement creates doubt as to the reasonableness of subsequent
findings by the Member.
[12]
With
respect to a blood feud the Member found that, on a balance of probabilities,
the claimant’s family was involved in a blood feud. However the Member found
that the claimant had “failed to provide any probative evidence that
supports his belief that the international presence in Serbia/Kosovo is unable
or unlikely to provide adequate state protection….”
[13]
This
is simply not so. The evidence includes a paper by a Member of the Politics
Department of Brandeis University which endeavours to demonstrate the
uncertainties of state protection in Kosovo in respect of blood feuds. A
publication of the U.S. Department of State addresses problems in some areas of
abuse in UNMIK administered Kosovo. A website blog by a missionary in Kosovo
speaks to the prevailing attitudes in Kosovo that whoever kills will be killed.
[14]
It
is apparent that the Board Member simply failed to see the evidence or if he
did, he failed to give it appropriate consideration as to the ability of UNMIK
to deal with blood feuds. Having found that it was probable that this applicant’s
family was engaged in a blood feud, the Member was required to address this
evidence.
[15]
Accordingly,
I will allow the application in respect of Pashk Duhanaj.
[16]
Neither
counsel requested that a question be certified and I find no need to do so.
JUDGMENT
For the
reasons provided;
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is allowed in respect of the applicant Pashk Duhanaj. The decision
denying his claim for refugee status is set aside and the matter returned for
redetermination by a different Member;
2.
The
application in respect of all other applicants is dismissed;
3.
There
is no question for certification;
4.
There
is no order as to costs.
“Roger
T. Hughes”
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