Date:
20120620
Docket:
IMM-9306-11
Citation:
2012 FC 784
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Montréal,
Quebec, June 20, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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FATMIR AVDULLAHI
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
crux of the claim concerns ethnicity. The documentary evidence on the country
in question supported the applicant’s allegations. In the ethnic context of the
applicant’s country of citizenship, it was not reasonable to question the
applicant’s ethnicity because it had not been officially corroborated. Nor was
it any more reasonable to assess the [translation]
“the percentage of the [applicant’s] minority blood” to [translation] “calculate” the proportion of
Ashkali ethnicity. This procedure is not consistent with the jurisprudence of
this Court (see para 29).
[2]
Based
on this reasoning, the subsequent analysis of state protection conducted by
the Refugee Protection Division [RPD] is not reasonable, considering the
subjective evidence and the extensive objective evidence in the entire context.
II. Legal proceeding
[3]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision by
the RPD issued November 23, 2011, which determined that the applicant is
neither a Convention refugee as defined under section 96 of the IRPA nor a
person in need of protection under section 97 of the IRPA.
III. Facts
[4]
The
applicant, Mr. Fatmir Avdullahi, is a citizen of Kosovo.
[5]
The
applicant is invoking his Ashkali background. He says that his grandfather, Mr. Ramadan,
married two women consecutively, one an Albanian and the other, the mother of the
applicant’s father, an Ashkali.
[6]
The
applicant states that the children of his grandfather’s first wife never liked
his father, Musli, who was the son of an Ashkali woman. He was subjected to
violence in an attempt to exclude him from his inheritance.
[7]
In
1974, in a fight between Musli and his half‑brothers, Musli injured one
of them, Fazli, who died of his injuries. Convicted of murder, the applicant’s
father was sentenced to prison and released in 1985.
[8]
After
the 1999 war, the applicant states that the villagers felt even more hatred
towards his family because of its Ashkali background. Inter alia, his
family did not receive any post‑war construction material.
[9]
The
applicant claims that Fazli’s children persecuted him and that he was beaten
unconscious in 2002.
[10]
The
applicant reported his assailants to the United Nations police but nothing
happened.
[11]
The
applicant arrived in Montréal on March 25, 2009, and claimed refugee
status at the airport.
IV. Decision that is the subject
of this judicial review
[12]
On
the one hand, the RPD found that the applicant was not credible for the
following reasons:
a. the
lack of evidence corroborating his Ashkali background;
b. the
lack of evidence corroborating the medical attention he received;
c. his
failure to mention in his Personal Information Form [PIF] that one of the
individuals who beat him was a former police officer.
[13]
On
the other hand, the RPD determined that the applicant did not rebut the
presumption of state protection. The RPD found that Kosovo, a functioning democracy,
has the resources to protect its citizens and that the applicant did not seek protection.
V. Issues
[14]
(1)
Did the RPD breach procedural fairness?
(2) If not, is
the RPD’s decision reasonable?
VI. Relevant statutory
provisions
[15]
The
following provisions of the IRPA apply to this case:
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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.
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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.
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VII. Position of parties
[16]
The
applicant submits that the RPD erred by not taking into consideration the
applicant’s Roma background when it dealt with state protection. It thus
disregarded the relevant documentary evidence. Consequently, the applicant
questions the RPD’s credibility finding because the RPD did not consider the
applicant’s explanation as to why he was unable to provide evidence
establishing his Ashkali background. Moreover, the applicant maintains that
there was a breach of procedural fairness since he did not receive the report
of the study on the translation problems that led to the RPD’s decision after
the first hearing.
[17]
The
respondent contends that the applicant did not raise the breach of procedural
fairness issue at the earliest opportunity, i.e. at the beginning of the second
hearing. He maintains that the RPD properly questioned the applicant’s
credibility because of the lack of evidence corroborating significant aspects
of his narrative. Moreover, the respondent submits that the analysis on the
availability of state protection is reasonable and does not ignore the
applicant’s ethnic background.
VIII. Analysis
(1) Did the
RPD breach procedural fairness?
[18]
This
question is reviewable on a correctness standard (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[19]
First,
the Court notes that the report of the translation study, which was ordered at
the end of the first RPD hearing, is in the Tribunal Record [TR] (TR at pages
55‑59). Contrary to the applicant’s submissions, it was therefore
absolutely not kept secret.
[20]
The
Court agrees with the respondent’s arguments and notes that the applicant did
not ask for a copy of this document when he had the opportunity to do so at the
beginning of the second RPD hearing (Kamara v Canada (Minister of
Citizenship and Immigration), 2007 FC 448).
[21]
Furthermore,
the applicant does not challenge the credibility findings because of the
translation.
[22]
Accordingly,
the applicant’s procedural rights are safe.
(2) Is
the RPD’s decision reasonable?
[23]
Because
of the RPD’s expertise in assessing facts related to the claim, this Court
should not intervene if the decision is reasonable (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62, [2011] 3 S.C.R. 708).
Applicant’s
ethnicity
[24]
At
the outset, the Court observes that the RPD did not assign sufficient weight to
the applicant’s ethnic background, which is at the core of the claim, although
the applicant alleged, no less, that he was the victim of a family vendetta.
[25]
The
RPD’s requirement for a certificate supporting the applicant’s Ashkali background
demonstrates a misunderstanding of the ethnic context of this case. Roma
ethnicity cannot necessarily be authenticated like a nationality. In this
regard, tab 13.1 of the National Documentation Package dated April 27,
2011, entitled “Minority Rights Group International (MRG). N.d. ‘Kosovo Overview’.
World Directory of Minorities”, states the following:
Accurate demographic data is lacking. The last census in Kosovo
took place in 1991, but this was largely boycotted by ethnic Albanians.
Important demographic changes took place during the 1998-1999 war and
subsequent ethnic violence. Exercising the right to self-identification is
difficult in Kosovo, mainly because people are afraid to openly state their
ethnicity for fear of discrimination, but also because others do not
necessarily respect people’s identity, for example international and local
actors often grouping Roma, Ashkalia and Egyptians into one. A census was
planned for 2007. Most estimates put the ethnic Albanian population at 90 per
cent and Serbs at five‑six per cent.
Most of the estimated few thousand Ashkalia speak Albanian as
their first language and practice Islam. Until the 1990s most Ashkalia
identified themselves as Roma. In the 1990’s, they began to identify
themselves as a distinct group. They have not been accepted by the Albanian
community. They are widely discriminated against and excluded from economic
life. Although the Ashkalia have one reserved seat in the Kosovo Assembly, they
have been excluded from real participation in political life and are excluded
from discussions on the future status of Kosovo.
[Emphasis added].
[26]
In
this case, the applicant invoked his Ashkali identity. The documentary
evidence supported the applicant’s explanation that he was unable to obtain an
official document confirming his ethnic background. It was not appropriate
to require evidence corroborating his testimony, in any event, without
explaining why its truthfulness was doubted (Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302 (QL/Lexis)).
[27]
In
this case, it should also be noted that the RPD questioned the applicant in
order to engage in a curious calculation. The result of this calculation is
that the applicant is “one quarter” Ashkali. It appears that the RPD assigned
importance to the [translation]
“percentage of [the applicant’s] minority blood”, as the transcript of the
hearing shows:
[translation]
BY THE PRESIDING MEMBER (to the person who is
the subject of the proceeding)
. . .
- The other thing, sir,
you said the first time that there were some members of your family who were
Roma.
Q. Are there members of
your family who are Roma?
A. Ashkalis belong to the
Roma group.
- OK.
. . .
Q. What documents do you
have, sir, or corroboration that you have Roma or Ashkali blood?
A. When, when Yugoslavia
existed, we were registered as Yugoslavians, and we are not registered as
Albanians or Romas.
- But there are
associations of Romas that could have corroborated that your family members
were Romas.
A. Ashkalis.
- Ashkalis, OK.
Q. Did you try to obtain
any evidence, birth certificate or a letter from someone, one of the leaders of
the Ashkali organizations in Kosovo, who could collaborate that your family, on
your father’s and his mother’s side are Ashkalis and you are one‑quarter Ashkali?
A. There’s no birth
certificate issued that indicates you are Ashkali, Albanian. Everyone there is
described as Kosovar.
Q. So, you’re not able to
obtain any document from anyone that could corroborate that your father is half?
A. No, I can’t have an official
document because it doesn’t exist.
- OK.
Q. Then, how could you be
persecuted for being Ashkali if there is no official document anywhere that
would identify you as one‑quarter Ashkali?
(TR at pp 274‑275).
[28]
In
addition, at the first hearing, the following was said:
[translation]
BY THE PRESIDING MEMBER (to the person who is the
subject of the proceeding)
[...]
Q. Why do you identify yourself as Roma?
A. Because my father’s mother, my grandmother
was Roma.
- But, OK. That’s a minority of the blood
in your body.
A. It’s a mixed family.
- I understand that. The mix is seven‑eighths
non‑Roma.
Q. Why do you identify
with what is one‑eighth, which is by far a minority?
A. Because our society there where we live
considers it that way.
(TR at page 209).
[29]
History
teaches that people were victims of the worst atrocities because they were
perceived as belonging to a certain ethnicity without the need for official
evidence. According to generally known facts, the genocide of the Jews in the
Second World War during the Hitler regime and, before that, the Armenian
genocide by the Turks and also recently the Tutsi genocide in Rwanda by the
Hutus and the massacres of Muslims in the former Yugoslavia, knowing that these
genocides took place where millions of people were killed without corroborating
evidence by blood. This type of reasoning calculating the degree of blood
reflects a perception of aberrant echoes recognized as racist.
[30]
By
analogy with the analysis regarding presumed political opinions, this Court has
established that the perspective to adopt is that of the agent of persecution.
In other words, this is the relevant question: was the claimant perceived as
belonging to an ethnic group and was the claimant persecuted because of this? (Ali
v Canada (Minister of Employment and Immigration), [1993] FCJ No 610, 64
FTR 229 (QL/Lexis) at paragraph 27; Kandiah v Canada (Minister of
Citizenship and Immigration), [1994] FCJ No 1876, 87 FTR 72 (QL/Lexis); Guerassimova
v Canada (Minister of Employment and Immigration), [1994] FCJ No 509
(QL/Lexis)).
[31]
In
this case, the question was not asked since the applicant, in addition to being
perceived as Asashkali by his persecutors, also testified about his actual
ancestry.
[32]
This
Court is of the opinion that this error by the RPD vitiates the entire decision
because, in all likelihood, it tainted the state protection analysis that the
RPD wanted to be separate from the credibility analysis.
State protection
[33]
It
is not this Court’s role to decide whether state protection was available to the
applicant. Nonetheless, it must determine whether the decision is reasonable.
[34]
In
this case, the RPD did not analyze in its reasons the contradictory evidence
that supported the applicant’s allegations. In fact, the RPD did not direct its
mind to the evidence that indicated the problems faced by Kosovo’s ethnic
minorities.
[35]
However,
it is recognized that the RPD should discuss relevant evidence that is contrary
to its findings or risk committing a reviewable error (Avila v Canada
(Minister of Citizenship and Immigration), 2006 FC 359, 295 FTR 35; Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35).
[36]
Thus,
according to the document entitled “Report of the Council of Europe
Commissioner for Human Rights’ Special Mission to Kosovo”, 23 – 27 March
2009:
6.4 Roma, Ashkali and Egyptian communities
130. It is estimated that there
are approximately 35 000 to 40 000 Roma, Egyptian and Ashkali living in Kosovo
and an estimated 70 000 – 100 000 outside Kosovo who left during and after the
1999 conflict. The Kosovo Roma, Ashkali and Egyptian communities face
significant challenges to their everyday life. Years after the conflict,
thousands remain IDPs in Kosovo (approximately 18%) or refugees in other Balkan
countries and EU states, and many of them remain practically stateless. Members
of the community face marginalization and discrimination in the areas of
education, social protection, health care and housing. Poverty and unemployment
touch them more profoundly than the rest of society. Security remains a concern
and according to a number of sources, ethnically-motivated incidents continue
to go unreported.
(TR at page 130).
[37]
Moreover,
tab 2.2 of the National Documentation Package dated April 27, 2011, entitled “Human
Rights Watch. 2010. ‘Kosovo’. World Report 2010: Events of 2009” adds
the following information:
Kosovo
The lack of international agreement on Kosovo's
status continues to impede efforts to protect the human rights of its
inhabitants. Caught between disagreements among its member states, and between
Belgrade and Pristina, EULEX struggled in 2009 to fully deploy throughout
Kosovo and execute its task of building a functioning justice system.
The Kosovo authorities again failed to demonstrate unequivocal commitment to
minority rights and the rule of law.
Protection of Minorities
According to data from the UN Mission in Kosovo
(UNMIK), 275 inter-ethnic incidents took place during the first eight months of
2009. Roma, Ashkali, and Egyptian (RAE) communities
remain the most vulnerable in Kosovo. [Emphasis added].
[38]
Although
the RPD conducted a detailed analysis of this Court’s jurisprudence on state
protection and outlined the applicant’s burden of proof, it did not answer the
questions raised in this case, specifically, the question of ethnic persecution
(RPD’s decision at paragraphs 18‑28).
[39]
In
such a unique context, a finding that protection is generally available is not
sufficient because the documentary evidence must be analyzed in light of the
applicant’s personal situation. After reviewing the entire record, the Court is
of the view that the applicant’s personal situation was not properly
considered.
[40]
However,
it is for the RPD, in a reconsideration of the circumstances of the case, to
assess the alleged fear from the perspective of the subjective and objective
evidence.
[41]
Consequently,
this Court’s intervention is warranted.
IX. Conclusion
[42]
For
all the foregoing reasons, the RPD’s decision is set aside, the application for
judicial review is allowed and the case is remitted for reconsideration by a
differently constituted panel.
JUDGMENT
THE
COURT ORDERS that the
application for judicial review is allowed, and the case is remitted for
reconsideration by a differently constituted panel. There is no question of
general importance to certify.
“Michel
M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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