Date: 20100921
Docket: IMM-6669-09
Citation: 2010 FC 945
Toronto, Ontario, September 21, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SHPETIM
LUSHNJANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Shpetim Lushnjani (the “Applicant”) seeks judicial review of the decision of
the Immigration and Refugee Board of the Refugee Protection Division (the
“Board”). In its decision of December 9, 2009, the Board determined that the
Applicant was neither a Convention refugee nor a person in need of protection
pursuant to section 96 and 97, respectively, of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
The
Applicant is a citizen of Albania. He sought protection
on the basis of being a person in need of protection. He claimed that he was in
danger and at risk from members of his family, primarily his brothers. The risk
arises from the Applicant’s personal situation. He was involved in a romantic
relationship with his niece, the daughter of one of his elder sisters and had
fathered a child with her.
[3]
The
Applicant claimed that his brothers had assaulted him at the end of March 2006,
in his mother’s house in the town of Elbasan. At that time his son
was approximately 5 years old, and lived with this mother in Durres, about 85
km from Elbasan. The Applicant, fearing for his life, went to an orphanage
in Durres seeking
shelter for his son. No shelter was forthcoming and the Applicant took his
niece and son to the Albania Red Cross in Tirana, the capital of Albania, located
between Durres and Elbasan.
[4]
The
Applicant returned to his home town of Elbasan and stayed
with a friend for nearly three months. He fled to Italy with the
help of a smuggler and arrived in that country on July 7, 2006. However, he did
not seek protection in Italy since one of his brothers lived in Italy and the
Applicant feared the brother would locate him and injure him.
[5]
Some
three months after his arrival in Italy the Applicant obtained
a false Italian passport that he used to travel to Canada. He arrived
in Canada on October
12, 2006 and claimed protection as a Convention refugee or person in need of
protection. The Board rejected the Applicant’s claim. It found that the
Applicant was not credible. It held that the Applicant had failed to establish
the existence of any siblings in Albania with the exception of
one sister. It found that the failure to claim refugee status in Italy indicated
that he lacked credibility, and that his behaviour undermined a subjective fear
of returning to Albania. Further, the Board found that the Applicant
had failed to rebut the presumption of state protection in Albania.
[6]
The
Board’s decision is reviewable on the standard of reasonableness; see Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190. This standard applies to the Board’s factual findings and
conclusions which are essentially, questions of mixed fact and law. No errors
of law or issues of procedural fairness are advanced by the Applicant.
[7]
In
my opinion, having regard to the record, the evidence of the Applicant that he
gave at the hearing, and the reasons for the decision, this application for
judicial review should be allowed.
[8]
The
Board made contradictory findings that undermine its ultimate conclusion that
the Applicant is not a Convention refugee or a person in need of protection.
[9]
The
critical finding made by the Board was that the Applicant’s brothers do not
exist. The existence of the brothers is fundamental to his claim that he will
be harmed, even to death, if returned to Albania.
[10]
At
the same time, the Board relied upon the existence of a brother in Italy as the basis
for rejecting the Applicant’s explanation for not having sought protection in Italy.
[11]
The
heart of the Board’s negative decision is the negative assessment of the
Applicant’s credibility. The credibility finding does not meet the standard of
reasonableness, having regard to the record that was before the Board.
[12]
In
the result, the application for judicial review is allowed and the matter is
remitted to a differently constituted panel of the Board for re-determination.
There is no question for certification arising.
ORDER
THIS COURT
ORDERS that the application for judicial review is allowed and the
matter is remitted to a differently constituted panel of the Board for
re-determination. There is no question for certification arising.
“E.
Heneghan”
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