Docket: IMM-2736-11
Citation: 2012 FC 430
Toronto,
Ontario, April 13, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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ERMAL DADO
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Applicant
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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 ORDER AND
ORDER
[1]
The
present Application concerns a young Albanian citizen who claims protection
from risk of serious harm should he be required to return to Albania. The
Applicant arrived in Canada in November of 2008 and claimed refugee
status based on his fear of another young man who, after threatening and
attempting to extort money from him, was investigated by the police, charged,
released on bail, and remanded for trial.
[2]
The
contentious issue in the present Application is whether the Applicant’s claim
before the Refugee Protection Division (RPD) was understood by Counsel and the
RPD Member to be based in a blood feud about which there exists a live
controversy about the availability of state protection. On the record,
including the Applicant’s own statements and the arguments advanced before the
RPD, there is no mention of a blood feud. Indeed, there is no mention of a
blood feud in the decision under review. However, there are two pieces of
evidence that support the contention that all concerned understood that the
Applicant’s claim is based on a blood feud.
[3]
First,
in the course of oral argument, Counsel for the Applicant requested an
opportunity to prove what is not apparent on the face of the record. Counsel
for the Applicant was provided with this opportunity and, as a result, provided
the following affidavit evidence from Mr. David P. Yerzy the Counsel who
represented the Applicant before the RPD:
I have represented many
Albanian clients. No less than 20 blood feud cases. The Refugee Board is well
aware that Blood Feuds are a real and serious issue in Albania. Any member on
the team would be aware of the phenomenon.
I have appeared before Mr.
Cliff Berry with respect to Blood Feud cases many times. I am well aware that
he has been a member of the team for a very long time and has extensive
experience with Albanian cases.
I believe he is well aware of
the phenomenon of Blood Feuds. I do not feel it necessary to explain the
phenomenon to him. Indeed it was my experience and it was reported to me by
other counsel that Mr. Cliff Berry would refuse Albanian Blood Feud cases on
the grounds that there was state protection available to victims of Blood
Feuds.
I also had the experience
where he found that victims of domestic violence in Albania could get state
protection.
I remember very well this case
of Ermal Dado. I did represent him in his refugee claim and Mr. Cliff Berry
was the Member who heard this case. Having known Mr. Cliff Berry’s knowledge
and understanding of Albania blood feud cases, my main focus was in protecting
the claimant’s credibility and in establishing that due to corruption state
protection was not available in this case.
I state that as well this
Member established the issue in my mind by focusing on the police
investigation. Given that he was interested in the investigation and what I
knew of his thoughts on state protection, I followed his lead and addressed
those issues only.
I referred to this as a s.97
case because it had already been established in the Albanian context that
conflicts including blood feuds are not dealt with under s.96 of IRPA. I had
no s.96 grounds upon which to reply.
Counsel for the Respondent was provided
with the opportunity to examine on Mr. Yerzy’s affidavit but chose not to do
so.
[4]
And,
second, two attestation letters appear on the Tribunal Record. An attestation
letter is a document that confirms whether a blood feud has occurred (see: Applicant’s
Book of Authorities, Tab 1, p.5). The first attestation reads:
This is to attest that Mr.
Ermal Jorgo Dado, born on 08.04.1987, is a resident of area “Hajro Cakerri”,
Rr. Sulejman Delvina, Vlore.
We also certify that on
03.10.08, this citizen was involved in a conflict for banal reason with Mr.
Klajdi Spaho who is also of the same age. The letter used firm arm shooting at
him, and for this reason the police intervened and detained Klajdi Spahaj and
his friend Klaudio Kulaj. The police have initiated the penal case against
them for the charge of Threat and Illegal possession of Fire arms.
We as local government have
advised Dado family to keep their son away until a final resolution of this
case, in order to avoid any incident that would be of concern for Dado family
as well as for the community where they live.
This attestation is issued
upon their request.
(Certified Tribunal Record, p.
113)
The second attestation reads:
This is to attest that Mr.
Ermal Jorgo Dado, boron on 08.04.1987, is a resident of “Hajro Cakerri”, Rruga
“Sulejman Delvina” Vlore.
On 03.10.2008 for banal
reasons this citizen was involved in a conflict with Klajdo Spahaj, of the same
age and the letter used fire arm shooting at Ermal.
The police was called right
away and they detained Klajdi Sahaj and his friend Klaudio Kulaj.
Our Mission has verified the
information and interfered by sending the missionaries of reconciliation, but
the case is in the hands of justice and law.
Our Mission has a concrete
plan of work to reconcile these young men and their respective families.
We already administer the
records of the penal case no. 1189 initiated on 06.10.2008 by the Prosecutor’s
office of Vlore against the defendants.
In order to resolve this
conflict we will continue to work with the justice department and all other
factors that will help to reconcile the parties.
Mr. Ermal Dado was forced to
leave Albania because his life was threatened and was not safe at all.
(Certified Tribunal Record,
p.115)
[5]
Given
the evidence which exists on the Tribunal Record that the prospective risk that
the Applicant faces should he return to Albania is based in a blood feud, the
importance of a proper determination of the Applicant’s claim for protection,
and the likelihood that a miscarriage of justice will occur if the blood feud
controversy just recounted is not clarified, I find that the decision under
review was made in reviewable error for failure of the RPD to clearly and
explicitly identify the nature of the claim.
[6]
In
my opinion, in the interests of justice, and given the unique facts of the
present case, the fairest result of the present Application is to have the
Applicant’s claim redetermined by the RPD member who rendered the decision
presently under review.
ORDER
THIS COURT
ORDERS that:
1. The
decision under review is set aside and the matter is referred back to Refugee
Protection Division member Mr. Cliff Berry for redetermination;
2. There is no question to certify.
“Douglas
R. Campbell”
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