Date: 201004220
Docket: IMM-4586-09
Citation: 2010 FC 426
Ottawa, Ontario, April 20, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
LEKSI
GJOKA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
test for state protection has been determined in the following terms by Justice Luc Martineau in
the case of Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, 295
F.T.R. 35:
[26] On the question of government protection, the Ward
test expressly requires careful review of the fear of persecution from the
standpoint of the refugee protection claimant and the objective conditions of
the country in question. A subjective fear of persecution, coupled with the
inability of state to protect the claimant, gives rise to the presumption that
the fear is justified. The risk that this presumption will be too broad in its
application is limited by the requirement of clear and convincing evidence that
the state is unable to provide protection. In order to rebut the presumption
that a state can protect its nationals, a claimant may put before the Board
testimony of similarly situated individuals. He can also rely on the
documentary evidence of record. He can, of course, relate his own experience (Ward,
supra, at paragraphs 49, 50 and 52).
II. Judicial Procedure
[2]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (RPD) finding
the Applicant, Mr. Leksi Gjoka, not to be a person in need of protection under
section 97.
III. Background
[3]
The
Applicant is a citizen of Albania and was born in Velipoje, Albania on November 2, 1981.
[4]
The
Applicant is the victim of a blood feud between his family and the Ramaj family
which began over a dispute involving fishing rights which the Applicant’s
family was given. It is that which led to the death of his cousin, Mark Gjoka.
Mark’s father refused to assist the police in their investigation of Mark’s
death in order to take revenge on the Ramaj family. This led to an escalation
of the blood feud and the Applicant went into hiding before coming to Canada.
IV. Decision under Review
[5]
The
RPD found that the Applicant is not a person in need of protection under
section 97 of the IRPA on the grounds that he did not provide clear and
convincing evidence of the inability of Albania to protect its citizens (Applicant’s Record (AR)
at p. 9).
[6]
The
RPD noted that the Applicant’s uncle did not inform the police about the
identity of his son’s murderer in order to seek revenge. The RPD concluded that
it was reasonable to assume that the adequacy of state protection was not
tested, as the police did not have sufficient information to investigate the
act which resulted in the origin of the blood feud (AR at p. 9).
[7]
The
RPD also noted that the Applicant did not go to the police to seek protection
after the declaration of a blood feud against his family, as he was of the
belief that the police could not protect him. The RPD concluded that the
Applicant is not in a position to say whether state protection in Albania is adequate or
inadequate because he failed to test that protection by going to the police.
The RPD cited the case of Ramirez v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1214, [2008] F.C.J. No. 1533 (QL) for the proposition
that doubting the effectiveness of state protection without testing it does not
rebut the presumption that the state can protect its citizens.
[8]
The
RPD further discussed whether state protection might reasonably have been
forthcoming had the Applicant gone to the authorities. The RPD noted
documentary sources showing that Albania is a parliamentary democracy with a functioning
judiciary. The evidence cited also showed that Albania has legislation in
respect of blood feuds and seeks to enforce it, although this enforcement has
been deemed insufficient at times (AR at p. 10).
[9]
The
RPD recognized that the Albanian police “may have limited capacity in dealing
with blood feuds” and that state protection may be imperfect. Nonetheless, the
RPD cited the case of Canada (Minister of Employment
and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130, 150 N.R. 232
(F.C.A.) for the proposition that where a state is in effective control of its
territory and has the apparatus and will to protect its citizens, the mere fact
that it is not always successful does not mean that it is not providing
protection (AR at p. 11).
[10]
The
RPD rejected (Exhibit C-5) the claims of the National Reconciliation Committee
(NRC) October 16, 2007 Report made specifically in regard to the Applicant’s
family. This Report stated that the Albanian government is “not able to offer
assistance or protection, because this would lead to further deterioration of
the blood feud” and “does not have the legal framework and the necessary tools
to place the Gjoka clan under protection” (AR at p. 40). This evidence was rejected
with reference to the legislation dealing in respect to blood feuds (AR at p.
12).
[11]
The
RPD rejected the argument that the Applicant is not required to place himself
at risk in order to prove the inadequacy of state protection on the basis that
seeking police protection when the Applicant is already the target of a blood
feud would not create additional risks towards the Applicant’s life (AR at p.
12).
V. Issue
[12]
It
has been determined by the Court that only one issue is pertinent to the RPD
decision under review: Did
the RPD fail to analyze the risks faced by the Applicant?
VI. Relevant Legislative Provisions
[13]
Sections
96 and 97 of the IRPA state:
|
Convention refugee
96.
A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
Person in need of protection
97.
(1) A person
in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person in need
of protection
(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de
la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne à protéger
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
|
VII. Positions of the Parties
The Applicant’s Position
[14]
The
Applicant submits the RPD erred by failing to analyze the risk Mr. Gjoka faces
in Albania. The Applicant cites
the case of Rivera v. Canada (Minister of Citizenship and Immigration), 2009 FC 814, 351
F.T.R. 267 for the proposition that a failure to properly characterize and
analyze an aspect of a claim is fatal to the determination of state protection.
The Applicant contends the RPD erred by citing legislation criminalizing blood
feuds as well as country condition evidence showing improvements in police
professionalism and then not linking those documents to Mr. Gjoka’s claim.
[15]
The
Applicant submits the RPD misstated the test for state protection by concluding
that Mr. Gjoka was not in a position to say whether state protection was
adequate. The Applicant states the RPD found Mr. Gjoka to be credible and erred
by dismissing his family’s efforts to get protection from the NRC. The
Applicant submits it was an error of law to find that Mr. Gjoka is unable to
rebut the presumption of state protection due to his failure of seeking the
help of the police. The Applicant notes that claimants can rebut the
presumption of state protection by showing that protection would not have
reasonably been forthcoming.
[16]
The
Applicant submits the RPD erred by ignoring evidence of the risk that going to
the police would have posed to Mr. Gjoka. The Applicant cites the case of Lopez
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1341, 168 A.C.W.S. (3d) 370 for the
proposition that the effectiveness of state protection must be examined in
light of the practical impact of the legal remedies that are available. The
Applicant also notes that the RPD must address contradictory evidence regarding
state protection. The Applicant submits there was relevant evidence regarding
the role of the NRC in blood feuds and the inadequacy of the Albanian police.
The Applicant concludes that the RPD erred in finding Mr. Gjoka was not in a
position to say whether state protection was available to him in light of his
assertion that the police could not protect him, in addition to the information
the RPD had before it from the documentary evidence regarding blood feuds.
The Position of the
Respondent
[17]
The
Respondent cites the case of Kadenko v. Canada (Solicitor General)
(1996), 143 D.L.R. (4th) 532, 206 N.R. 272 for the proposition that a refugee
claimant bears the burden of demonstrating that he exhausted all the courses of
action available to him before seeking refugee protection in Canada and that
this burden increases with the level of democracy in the state in question. The
Respondent submits that if a state has effective control of its territory and
makes serious efforts to protect its citizens, then the fact that it is not
always successful will not be enough to establish that persons are unable to
avail themselves of state protection. The Respondent contends that the RPD
considered the Applicant’s evidence and found that he had not provided clear
and convincing proof of the state’s unwillingness or inability to protect him
whatever the NRC said.
[18]
The
Respondent submits the evidence before the RPD demonstrates that the Applicant
never requested police protection and that sufficient state protection exists
both in theory and in practice in Albania.
[19]
The
Respondent argues the NRC letter was explicitly considered by the RPD. The
Respondent contends that seeking the help of the NRC does not equate to seeking
state protection, as the NRC has no power to act without the consent of both
sides of a blood feud.
[20]
The
Respondent also submits that the Applicant should have sought police
protection, as there is no compelling evidence that requesting help from the
police would have put him in any additional danger. The Respondent notes that
the police were investigating the murder of the Applicant’s cousin, but were
thwarted by the non-cooperation of the Applicant’s uncle. The Respondent
submits this evidence shows that the police were capable and willing to help
the Applicant.
[21]
The
Respondent concludes that the test for state protection is an objective one
that is based on clear and convincing evidence, not based on the Applicant’s
personal opinion that the police could not protect him.
VIII. Standard of Review
[22]
The
Court finds that the question of whether the RPD failed to properly analyze the
Applicant’s claim is to be reviewed on a standard of reasonableness, although the
Applicant’s contention that the RPD applied the wrong legal test when assessing
the availability of state protection is a question of law which should be
reviewed on a standard of correctness (Barajas v. Canada (Minister of
Citizenship and Immigration), 2010 FC 21, [2008] F.C.J. No. 8 (QL) at para.
23).
IX. Analysis
[23]
The
focus of inquiries under section 97 is on risk and, as Justice Tremblay-Lamer
held in Lopez, above: “an analysis of state protection does not occur in
the abstract.”
[24]
The
RPD emphasized evidence explaining Albanian efforts aimed at improving the
effectiveness of police and the judiciary in dealing with blood feuds. The RPD
also noted legislation criminalizing blood feud murders. While these efforts
are laudable, they are not determinative of the effectiveness of state
protection at the operational level.
[25]
It
is the Court’s conclusion that the RPD’s decision is unreasonable because it
failed to link general evidence to the point-specific problems faced by persons
in exceptional circumstances, such as those of the Applicant. It clearly
specified in an uncontradicted report by the National Reconciliation Committee,
of October 16, 2007, which is addressed to the Applicant’s family, that the
Albanian Government is “not able to offer assistance or protection, because
this would lead to further deterioration of the blood feud” and “does not have
the legal framework and the necessary tools to place the Gjoka clan under
protection” (AR at p. 40). This evidence was rejected with reference to the
legislation dealing in respect to blood feuds (AR at p. 12).
X. Conclusion
[26]
If
this Court is to follow the tradition of Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, although it must recognize that certain questions which
come before the RPD do not possess a single answer; however, the Court must
step in when the decision is not justifiable with regard to the facts and the
law.
[27]
For
all the above reasons, the application for judicial review is allowed
and the matter is remitted for redetermination by a differently constituted
panel.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed and the
matter be remitted for redetermination by a differently constituted panel.
“Michel M.J. Shore”
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