Docket: IMM-3534-11
Citation: 2012 FC 28
Ottawa, Ontario, January 16, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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VALBONE KASTRATI and
PERPARIM KASTRATI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This decision
pertains to an application for judicial review of a decision by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board) that found the applicants were neither
Convention (United Nations’ Convention Relating to the Status of
Refugees, [1969] Can TS No 6 (the Convention)) refugees nor persons
in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA). For the reasons that follow, the
application is dismissed.
Facts
[2]
The applicant Mrs.
Kastrati, is originally from Kosovo. She was a member of the Democratic Party
and a councilor in Kosovo. In December 2001 her niece was raped by Shani Rexhepi,
a former Kosovo Liberation Army (KLA) soldier who apparently had influence with
the government in Kosovo. The rape was reported to the police but it is not
entirely clear from the record evidence by whom. Nonetheless, the applicant
claimed that Rexhepi began to threaten her, saying she would be “worse off” if
she continued to pursue the rape charges against him. Rexhepi was eventually
charged and convicted of rape. The conviction was set aside on appeal by
reason of errors made by the trial court with respect to the forensic evidence.
[3]
In 2006, a man named
Hajdar Hajdari (Haji) began construction of a mosque in the applicant’s neighbourhood to which she and her husband were
opposed. Haji began to harass and threaten the applicant and her husband and
spat upon them, calling them “infidels.” Even though the construction of the
mosque was suspended due to the absence of municipal approval, construction
continued. Apparently Haji used his influence to prevent the applicant’s
re-election to the city council in 2007. The applicants thus left Kosovo for Canada on March 13, 2009 and made claims for refugee protection on
March 24, 2009.
[4]
The applicant’s and her
son’s refugee claims were rejected. The determinative issues were credibility
and state protection. The applicants contend that the Board’s credibility
findings were “microscopic”, unreasonable and failed to take both the
applicant’s gender and her psychological condition evidence into account.
Issues
[5]
The issues in this
case are whether the decision of the Board that found that the applicant is
neither a Convention refugee nor a person in need of protection because
she lacked credibility and had not sought state protection is reasonable per Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[6]
The Board found that
based on “…cumulative credibility problems … on a balance of probabilities, the
claimant’s family does not face harm at the hands of Rexhepi [or Haji], as she
alleges.” A number of findings were supplied by the Board in support of this
conclusion which I will discuss before proceeding to the state protection
issue.
A. Credibility
[7]
The Board drew a
negative credibility inference from the inconsistent testimony the applicant
provided at the hearing with respect to whether she reported her niece’s rape
to the police. Negative credibility inferences were also drawn from the
inconsistent testimony she provided at the hearing with respect to how many
times she was summoned to court to give evidence in respect of the rape. The applicant
was given an opportunity to explain the inconsistency and suggested that she
had only helped her niece with a declaration rather than actually being
summoned to testify in court. The applicant also provided inconsistent
testimony as to where she testified. When prompted by the Board, the applicant
corrected her testimony.
[8]
The Board also
determined that the applicant detracted from her own credibility in respect of the
testimony she provided regarding Rexhepi and her interactions with him. For
example, when asked if Rexhepi had threatened anyone other than the applicant
herself, she answered in the negative but later claimed that her husband had
also been threatened. The Board drew a negative inference from the
inconsistent testimony. Moreover, the Board observed that in her Personal Information
Form (PIF) the applicant did
not recount an assault committed against her by Rexhepi.
[9]
The Board also gave
little weight to the claim that Rexhepi exerted influence over the Kosovo
government, as few details were advanced as to the nature of his influence and
its affect on the applicant.
[10]
The applicant made a
strong argument that the Board did not consider the Chairperson’s Guidelines on
Gender-related Claims into account, or consider the medical evidence as to the
applicant’s mental state and the effect it would have on her testimony. The
Board did indicate that it was aware of both, and, with respect to the
Guidelines said they were used to help understand the applicant’s testimony.
[11]
In sum, these findings
fall squarely within the decision of the Supreme Court of Canada in Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. The findings fall within a range of
possible, acceptable outcomes having regard to the record and the applicable
legal principles. Counsel for the applicant points out that other conclusions
could have been drawn, and I agree. The role of this Court is not, however, to
substitute its views on the evidence.
B. State Protection
[12]
Even if the applicant
had been found credible, her claim would fail on the basis of her failure to
both claim and rebut the presumption of state protection.
[13]
While it is true that
a refugee claimant need not always seek state protection to demonstrate that it
is inadequate, here the principal applicant failed to persuade the Board by
clear and convincing evidence that had she sought it and that it would not be
forthcoming.
[14]
Kosovo is a
functioning democracy with a significant United Nations presence and a
functioning Ombudsman’s Office. As such, the requirement of clear and convincing
evidence applies with considerable force. The applicant had no evidence apart
from her subjective perception that the state would not assist. Indeed, the
only evidence in the record, namely the prosecution and conviction of Rexhepi,
points to the opposite conclusion. Rexhepi was charged and initially convicted
of rape. Notwithstanding the demonstrated willingness of the state to
prosecute Rexhepi, she did not tell the police of subsequent threats she
received from Rexhepi.
[15]
The
application for judicial review is dismissed.
[16]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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