Date:
20120720
Docket:
IMM-9812-11
Citation:
2012 FC 924
Ottawa, Ontario,
July 20, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
|
|
NUSHE DUHANAJ
SIMONE DUHANAJ
PREN DUHANAJ
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
primary applicant, Nushe Duhanaj, is a citizen of Albania. The other two
applicants are her children and are American citizens. The primary applicant
left Albania in 1993, when she was a teenager. She asserts that her parents
sent her to the United States because Albania had become very unsafe for young
women. When in the U.S., the principal applicant met and married her husband
and they had two children, who are the other two applicants in this judicial
review application.
[2]
The
principal applicant made an asylum claim in the United States that was denied.
In 2007, the principal applicant returned to Albania with her daughter, Simone.
Pren remained in the United States with his father. After they returned to Albania, the principal applicant and her daughter lived with the principal applicant’s
parents. In 2009, the principal applicant’s husband came to visit her and then
went to Switzerland for medical treatment. He died there of cancer in September
2009.
[3]
Shortly
thereafter, the principal applicant and her children came to Canada, where they made refugee claims. The principal applicant claims that one of her brothers, who
is a Canadian permanent resident, had in the interim sponsored her parents and
younger brother to come to Canada. She claims that she has no other family in Albania and that, accordingly, if she is returned to Albania, she will be forced to reside alone
because the sponsorship applications will be granted. She asserts as a woman
without a male protector in Albania she would be at risk, due to the level of
violence faced by women in Albanian society and to the risk of becoming a
victim of human trafficking.
[4]
In
a decision dated December 2, 2011, the Refugee Protection Division of the
Immigration and Refugee Board of Canada [RPD or the Board] rejected the
applicants’ claims. The Board held that as American citizens Simone and Pren
were not vulnerable. With regard to the principal applicant, the RPD found her
claim to be speculative and also held that she had failed to rebut the
presumption of state protection. The Board accordingly determined that none of
the applicants was a Convention refugee or person in need of protection, within
the meaning of sections 96 or 97 of the
Immigration and Refugee
Protection Act,
SC 2001, c 27 [IRPA or the Act].
[5]
In
this application for judicial review, the principal applicant argues that the
RPD committed three reviewable errors in rejecting her refugee claim. More
specifically, she alleges that the RPD erred in:
a. finding
the claim that she would be left alone in Albania to be speculative. She
asserts in this regard that, as her testimony was generally believed, the Board
ought to have accepted her evidence that her brother had sponsored her parents
and younger brother to come to Canada. The principal applicant further asserts
that the Board erred in considering that the outcome of the sponsorship
applications is uncertain;
b. failing
to give adequate consideration to the Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the
Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB,
Ottawa, March 9, 1993, Updated November 1996, as continued in effect by the Chairperson
on June 28, 2002 Pursuant to Section 159(1)(h) of the Immigration and
Refugee Protection Act, or the so-called “Gender Guidelines”; and
c. failing
to properly assess the information contained in the country documentation
regarding risks faced by women in Albania and state protection available to
them.
The applicable
standard of review
[6]
The
three errors alleged by the applicant all engage the reasonableness standard of
review as they are either errors of fact or of mixed fact and law and it is well-settled
that the reasonableness standard applies to both (Dunsmuir v New
Brunswick,
2008 SCC 9 at para 51, [2008] 1 S.C.R. 190 [Dunsmuir]; Dunkova v Canada
(Minister of Citizenship and Immigration), 2010 FC 1322 at para 17, 377 FTR
306).
In several cases like the present, where this Court was called upon to review
the RPD’s application of the Gender Guidelines in relation to factual
determinations that the Board had made, this Court has applied the
reasonableness standard of review (see e.g. Evans v Canada (Minister of
Citizenship and Immigration), 2011 FC 444 at para 8, [2011] FCJ No 589; Duhanaj
v Canada (Minister of Citizenship and Immigration), 2010 FC 199).
[7]
The
reasonableness standard is an exacting one and requires the reviewing court
afford deference to the tribunal’s decision; a court cannot intervene unless it
is satisfied that the reasons of the tribunal are not “justified, transparent
or intelligible” and that the result does not fall “within the range of
possible, acceptable outcomes which are defensible in respect of facts and law”
(Dunsmuir at para 47). In
applying this deferential standard, it matters not whether the reviewing court
agrees with the tribunal’s conclusion, would have reached a different result,
or might have reasoned differently. So long as the reasons are understandable
and the result is one that is rational and supportable in light of the facts
and the applicable law, a court should not overturn an inferior tribunal’s
decision under the reasonableness standard of review.
[8]
Moreover,
in
assessing the reasonableness of a tribunal’s
factual findings, it is trite law that the reviewing court cannot and should
not re-weigh the evidence (Khosa v Canada (Minister of Citizenship and
Immigration), 2009 SCC 12 at para 64, [2009] 1 S.C.R. 339; Nekoie v Canada
(Minister of Citizenship and Immigration), 2012 FC 363 at para 40, 214 ACWS
(3d) 572; Matsko v Canada (Minister of Citizenship and Immigration), 2008
FC 691 at para 11). That, though, is precisely what the applicants seek to have
me do in this application and, in short, is why their application cannot
succeed. Each of the alleged errors is discussed more fully below.
The Board did
not err in finding the applicant's claim she would be left alone to be
speculative
[9]
As
noted, the RPD held that the principal applicant failed to establish she would
be at risk because her claim that she would be left alone is speculative. The
Board premised this finding on two points. First, it held that the
documentation filed did not support the claim because the sponsorship
application did not contain any information indicating who was being sponsored.
Second, the RPD held that any sponsorship applications that might have been
made were still pending and, thus, it was not certain they would be granted. The
Board accordingly afforded the sponsorship application little weight.
[10]
This
conclusion was reasonably open to the Board. The documentary evidence did not
establish that the sponsorship applications had been made and, in any event,
the Board was correct in stating that, even if the applications had been made,
their outcome was not certain. The same must be said of any pending application
before any tribunal; to conclude otherwise would turn the adjudicative process
into a mere rubber stamp, which it is not. Therefore, the first basis upon
which the principal applicant alleges the decision is flawed is without merit.
The RPD did not
misapply the Gender Guidelines
[11]
The
second ground of review advanced is similarly without merit. The principal
applicant’s assertion that the Board incorrectly applied the Gender Guidelines
amounts to no more than a claim that the RPD ought to have weighed the evidence
differently because the principal applicant is a woman. In this regard, the
principal applicant does not point to any specific point at which the Board
misused the Guidelines but instead invokes them, like some sort of touchstone,
and asserts that the Board should have weighed the country documentation
differently by reason of the Guidelines. Such claims have been found to be
without merit upon numerous occasions by this Court (see e.g. Baksh v Canada
(Minister of Citizenship and Immigration), 2011 FC 1500 at para 25, 211
ACWS (3d) 192; Karanja v Canada (Minister of Citizenship and Immigration),
2006 FC 574 at para 5 [Karanja]; N(F) v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 738, 182 FTR 294 at para 17).
As was stated by Justice Pinard in Karanja, the Guidelines are not “a
cure for all deficiencies in the applicant’s claim or evidence. The applicant bears
the onus of proving her claim,” which the Board found the principal applicant
did not do in this case.
The Board did
not err in its assessment of the county documentation on Albania
[12]
The
principal applicant finally asserts that the RPD erred in concluding that she
had not discharged the burden of establishing that state protection in Albania is inadequate. The applicant filed no evidence on this point related to her
particular situation, and instead relied on the general documentation before
the RPD. She asserts that the RPD’s decision is unreasonable because it did not
specifically refer to a few passages in the documentation that reference
problems with domestic violence in Albania or that reference the risks in that
country in respect of human trafficking. Counsel for the applicants further
argues that the Board failed to correctly assess the significance of the fact
that Albania is on the “Tier 2 Watch List” in respect of the risk of human
trafficking, as noted by the UK Border Agency in its 2008 Operational Guidance
Note. More specifically, he alleges that the placing of Albania on this list means that young, single women in Albania are at risk of human trafficking.
[13]
The
documentary evidence before the RPD, however, establishes no such thing. Indeed,
the UK Border Report referred to by counsel for the applicants is much more
nuanced and notes that trafficking has decreased in recent years, that its
victims tend to be poor and lack education (which cannot necessarily be said of
the principal applicant) and, most importantly, that the government has cracked
down on human traffickers and has engaged in effective prosecutions of those
involved in the practice. The Report concludes that a “grant of asylum will not
... be appropriate” for most of those who claim to fear becoming victims of
human trafficking in Albania because “in general, sufficiency of protection is
available” in Albania (Certified Tribunal Record at p 119). In the absence of
any particular risk alleged by the principal applicant, this conclusion must
likewise apply to her.
[14]
Insofar
as concerns the risk of being a victim of domestic violence, even if such a
risk exists for women in conjugal relationships in Albania, it is completely
irrelevant to the principal applicant’s case as she is now widowed and premises
her claim on the risks she says she will be exposed to as a single woman.
[15]
Thus,
neither of the bases alleged for finding a flaw in the RPD’s state protection
analysis has any merit.
[16]
The
RPD’s state protection analysis, far from being flawed, was both careful and
balanced and accordingly reasonable. The Board referred to and fairly
considered the portions of the documentation that highlighted the challenges
and risks women face in Albania and also referred to the fact that a number of
avenues are open to Albanian women to obtain redress from violence they might
encounter. Accordingly, the RPD’s conclusion that the principal applicant
failed to discharge the burden of establishing that state protection in Albania is inadequate is reasonable.
[17]
For
these reasons, this application for judicial review will be dismissed.
[18]
No
question for certification under section 74 of the IRPA was presented and none
arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary J.L.
Gleason"
Email this Content