Date:
20121127
Docket:
IMM-856-12
Citation:
2012 FC 1369
Ottawa, Ontario,
November 27, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
|
|
SAMIRE GECAJ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 13 January 2012 (Decision), which refused the Applicant’s application to
be deemed a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 27-year-old citizen of the Republic of Kosovo (Kosovo). She
seeks protection in Canada from her father.
[3]
The
Applicant is an ethnic Albanian from Vranoc, Kosovo. Her father is a Muslim
Imam cleric. She grew up in a very traditional Albanian family. In September
2009, the Applicant
found out she was pregnant. She became pregnant while on vacation with her
family in August 2009, and after learning of the pregnancy she never heard from
her baby’s father again.
[4]
The Applicant
told her family about her pregnancy and they were very upset. It was not
acceptable in her religion or her culture. If people were to find out, the
Applicant’s father would lose the respect of his mosque. The Applicant’s family
wanted the Applicant to have an abortion or hide the pregnancy. They even had a
doctor come to the Applicant’s house to convince her to have an abortion. The
Applicant’s family threatened that if she did not have an abortion they would
take the baby as soon as it was born and give it up for adoption. They even
went so far as to say they would find someone to marry the Applicant against
her will, no matter who the person might be.
[5]
The
Applicant did not feel she could seek protection from the authorities in
Kosovo. According to her, there is too much corruption and the Applicant’s
father knows a lot of people who attend his mosque and who work for the
government, justice system, and the police. The Applicant went to a friend for
help. The friend arranged for a smuggler to take her to Canada.
[6]
The
Applicant arrived in Canada on 26 February 2010 and claimed refugee protection
on 10 March 2010. A hearing was conducted
on 17 November 2011.The RPD refused the Applicant’s claim for protection on 13
January 2012 and notified her of the Decision on 17 January 2012.
DECISION UNDER
REVIEW
[7]
The
RPD refused the Applicant’s claim for protection because it found that she was
not credible and she had not shown that Kosovo could not protect her if she
returned there. The RPD also found that the Applicant had an Internal Flight
Alternative (IFA), so her claim for protection under sections 96 and 97 of the
Act failed.
[8]
The
RPD reviewed the Applicant’s claim that her father insisted she have an
abortion due to the shame her pregnancy would bring on the family. The RPD
found this not to be credible. It said that it “is well known that Islam
forbids abortion unless the mother’s life is at risk. On a balance of
probabilities, I find that the claimant’s father would not demand an abortion
simply to save face with his neighbours and relatives.”
[9]
The
Applicant also claimed that if she returned to Kosovo her father would take her
child away from her and put it up for adoption. The RPD found, on a balance of
probabilities, that the Applicant’s father would not be able to do this. Most
of the Applicant’s submissions had to do with domestic abuse, and there was no
suggestion that anyone is capable of being above the law with respect to
kidnapping a child and putting it up for adoption. If the Applicant returned to
Kosovo she could seek state protection to stop her father from taking her
child. Further, the Applicant’s child is a Canadian citizen, so she would also
be able to seek assistance from a Canadian embassy or consulate. The RPD found,
on a balance of probabilities, that the Applicant’s father would be unable to
take her child and put it up for adoption without her permission.
[10]
The
RPD also found that the Applicant’s father would not be able to force her to
marry someone against her will. Based on the law in force in Kosovo, she cannot
be forced into an arranged marriage. If the Applicant’s father tried to do so,
she has recourse to the police or to the Ombudsman. The RPD stated that the
police are able to issue a restraining order in cases of emergency, so this
would be an option available to the Applicant.
[11]
The
RPD also reviewed the Applicant’s submissions about country conditions in
Kosovo. It found that Kosovo is policed not only by local police forces, but
also by EULEX, an international police force. An international police force
would not be influenced by local people, such as the Applicant’s father. The
RPD stated that although EULEX’s focus is primarily on crimes against humanity
committed during the war, it also shares authority over local police. The
Applicant’s counsel placed a lot of emphasis on corruption in the judiciary,
but the RPD found that the Applicant’s first step, should she be threatened,
would be to go to the police. There was no evidence presented that the police
would not respond effectively to allegations of domestic abuse.
[12]
The
Applicant claimed she did not seek state protection while in Kosovo due to her
father’s connections. The RPD found there was no evidence presented that
influential people have the ability to interfere with the police when called to
respond to a domestic situation. The RPD concluded that the Applicant had
failed to rebut the presumption of state protection.
[13]
The
Applicant was asked at the hearing whether she could live in Pristina, a much
larger city. The Applicant replied that her father would always be able to find
her. The RPD stated there is even less evidence that her father would hold any
influence in Pristina. He is a local Imam, and there is no evidence that he is
above the law. While the judiciary is biased and plagued by delays, the RPD
found that the state is taking steps to deal with the problem. The RPD found
that the Applicant would be able to get to Pristina and have access to the
police there for protection.
[14]
The
RPD concluded that the Applicant lacked credibility and had not rebutted the
presumption of state protection. The Applicant had not established that there
is a serious possibility she would face persecution or be subject personally to
a risk to her life if returned to Kosovo. The RPD found that the Applicant was
not a Convention refugee or person in need of protection and rejected her claim
under sections 96 and 97 of the Act.
STATUTORY
PROVISIONS
[15]
The
following provisions of the Act are applicable in this proceeding:
|
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
[…]
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
[…]
|
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;
[…]
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.
[...]
|
ISSUES
[16]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s credibility finding was reasonable;
b.
Whether
the RPD’s state protection finding was reasonable;
c.
Whether
the RPD’s IFA finding was reasonable.
STANDARD
OF REVIEW
[17]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[18]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister
of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max
Teitelbaum held that findings of credibility are central to the RPD’s finding
of fact and are therefore to be evaluated on a standard of review of
reasonableness. Finally, in Negash v Canada (Minister of Citizenship and
Immigration), 2012 FC 1164, Justice David Near held at paragraph 15 that
the standard of review on a credibility determination is reasonableness. The
standard of review on the first issue is reasonableness.
[19]
In
Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94,
the Federal Court of Appeal held at paragraph 36 that the standard of review on
a state protection finding is reasonableness. This approach was followed by
Justice Luc Martineau in Bibby-Jacobs v Canada (Minister of Citizenship and
Immigration), 2012 FC 1176, at paragraph 2. Further, in Chaves v Canada (Minister of Citizenship and Immigration), 2005 FC 193, Justice Danièle
Tremblay-Lamer held at paragraph that the standard of review on a state
protection finding is reasonableness. The standard of review on the second issue is
reasonableness.
[20]
The
existence of an IFA is a matter of mixed fact and law, and is reviewable on a
reasonableness standard (see Davila v Canada (Minister of Citizenship and
Immigration), 2012 FC 1116 at paragraph 26; Nzayisenga v Canada
(Minister of Citizenship and Immigration), 2012 FC 1103 at paragraph 25; M.A.C.P.
v Canada (Minister of Citizenship and Immigration), 2011 FC 81 at
paragraph 29). The standard of review on the third issue is reasonableness.
[21]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicant
Unreasonable
Credibility Finding
[22]
The
Applicant submits that the RPD’s finding that she was not credible was based on
unreasonable plausibility findings. The RPD only dealt with credibility in the
first paragraph of the Decision, finding that because Islam forbids abortion
the Applicant’s father would not demand an abortion simply to save face. The
Applicant submits that this is erroneous in two ways: firstly, the RPD confused
credibility with plausibility; and, secondly, the finding on plausibility was
based on unreasonable assumptions.
[23]
The
Applicant submits that credibility involves things such as the Applicant’s
demeanour, consistency in testimony, and contradictions or omissions.
Plausibility involves an assessment of what constitutes rational behaviour
considering the circumstances. The RPD’s finding of what it expected the
Applicant’s father would or would not do is a plausibility finding; the RPD did
not make a single finding of inconsistency, incoherency, or contradiction that
actually went to the Applicant’s credibility.
[24]
As
there was no clear adverse finding as to the Applicant’s credibility, her
testimony is deemed to be the RPD’s findings of fact (Addo v Canada
(Minister of Employment and Immigration), [1992] 142 NR170 (FCA)). There is
a presumption that sworn testimony is true unless there is reason to doubt its
truthfulness (Maldonado v Canada (Minister of Employment and Immigration),
[1980] 2 FC 302 (FCA) [Maldonado]). As such, the RPD should be
deemed to have accepted the Applicant’s testimony.
[25]
The
Applicant also submits that the RPD’s plausibility finding had no grounding in
the evidence before it. Plausibility findings must be approached with caution
and made only in the clearest of cases; different cultural backgrounds might
make plausible events appear implausible in a Canadian context (Divsalar v Canada (Minister of Citizenship and Immigration), [2002] FCT 653 (FCTD)).
[26]
When
it comes to drawing inferences about what a reasonable person would do in the
circumstances, the RPD is in no better position than the Court (Ilyas v
Canada (Minister of Citizenship and Immigration), [2004] FCJ No
1522). If the RPD makes a negative credibility finding based on inferences
about the plausibility of the evidence, there must be a basis in the evidence
to support those inferences (Miral v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 254 (FCTD)). The RPD had an obligation
to articulate why the Applicant’s testimony is clearly out of line with what
would be reasonably expected in the circumstances, and to include references to
the relevant evidence (Badri v Canada (Minister of Citizenship and
Immigration), 2000 CarswellNat 3052 (FC)).
[27]
The
RPD made a subjective assumption that a Muslim Imam would never encourage his
unwed daughter to have an abortion because it is contrary to Islam. This is an
unreasonable assumption, and there is nothing implausible about the Applicant’s
father strongly wanting to keep her pregnancy a secret. Under times of stress
people do not act in accordance with their religious beliefs; Imams are still
human. There is nothing about this scenario that suggests that it could “not
reasonably possibly have happened,” and the Applicant submits that the RPD’s
finding in this regard cannot stand.
State
Protection
[28]
The
Applicant also submits that the RPD misconstrued the evidence as to the police
and the judicial system in Kosovo, and selectively read the evidence about the
effectiveness of state protection. According to the United States Department of
State Country Report, 2010, Kosovo, EULEX stands for “EU Rule of Law
Mission.” This report says that EULEX possesses authority in areas such as
organized crime, corruption, war crimes, witness protection, money laundering,
terrorist financing, and international police cooperation. Its shared authority
with local police is limited to the Serb-majority areas in the north. The RPD’s
conclusion that EULEX would be of assistance to the Applicant does not make
sense. It is illogical to think that a specialized EU police force would have
anything to do with a domestic violence matter, especially a force that has
authority only in a very limited area of the country.
[29]
The
Applicant also submits that it was unreasonable for the RPD to consider the
police force and the judiciary separately, without recognizing that they are
each part of an overall system of state protection. The RPD essentially said
that even if the judiciary is corrupt and ineffective, if the Applicant went to
the police and they responded appropriately she would be adequately protected.
The police alone do not make up an entire state protection system; once the
matter is investigated it must be handed over for completion to the prosecution
and the courts.
[30]
Documentary
evidence was submitted that indicates the state protection mechanisms in place in
Kosovo for victims of domestic abuse are not effective. According to the 2010
United States Department of State Report, convictions for domestic violence are
rare. It says that “Traditional attitudes towards women in the male-dominated
society contributed to the high-level of domestic abuse and low number of
reported cases.” Another document prepared by the Kosova Women’s Network, says
that the culture in Kosovo is one that considers domestic violence an “internal
affair,” and that the police are hesitant to intercede in what are considered
private matters. It also says that women who report violence risk having their
children taken away by family members. This document also indicates a lack of
available shelters, and a tendency for officials to force abused women to
return to their homes. Poverty also plays a large role because a woman’s
economic situation may force her to return home.
[31]
A
document titled “Life in Kosovo Discusses Violence Against Women,” prepared by
the Balkan Investigative Reporting Network in December 2007, says that
legislation against domestic violence exists, but it is not being implemented.
The RPD concluded that a restraining order could be issued against the
Applicant’s father if necessary, but the Kosova Women’s Network document says
“Although courts are required to respond to protection order requests within
fifteen days and emergency protection orders within 24 hours from the date the
petition is filed, OSCE evidenced in its report four cases where the courts
delayed decisions for six weeks to nearly a year, placing victims in grave
danger.”
[32]
The
Applicant submits that it is clear upon review of the documentary evidence that
Kosovo is experiencing significant problems in providing state protection to
victims of domestic violence. The RPD did not discuss any of these issues in
its reasons. The RPD found that there was no evidence that influential people
would be able to interfere with police who are called to respond to an
allegation of domestic abuse; the Applicant asserts that the RPD again
misconstrued the evidence by looking only at the police and not at the justice
system. In fact, the RPD stated “the local justice system is biased and subject
to outside influence and is plagued by delays.”
[33]
The
RPD also found that Kosovo is taking steps to deal with corruption, but arrived
at this conclusion without conducting any meaningful analysis. The RPD cited
two instances where Kosovo officials were charged with corruption; this was the
extent of the analysis. There was no discussion of the effectiveness of the
measures, or how they relate to the availability of state protection to the
Applicant. The RPD also cited three documents in footnote 9 of the Decision to
support its findings on corruption, two of which do not discuss corruption at
all.
[34]
The
one document that does discuss corruption, the US Department of State Report,
does not support a finding that adequate state protection is available to the
Applicant. In fact, that document says that the government interferes with the
security forces and the judiciary, and that judicial inefficiency and
corruption are major problems. It says that laws are not implemented
effectively, and that problems of a lack of political will and weakness of the
judicial system are widespread. Essentially, the one relevant document cited by
the RPD supports the opposite conclusion to the one it reached.
[35]
In
addition, focusing only on a state’s efforts at state protection to the
exclusion of an analysis of the effectiveness of those efforts is an error (J.B.
v Canada (Minister of Citizenship and Immigration), 2011 FC 210 at
paragraphs 47 and 49; Bobrik v Canada (Minister of Citizenship and
Immigration), (1994) 85 FTR 13 (FCTD); Alli v Canada (Minister of
Citizenship and Immigration), 2002 FCT 479; Balogh v Canada
(Minister of Citizenship and Immigration), 2002 FCT 809). The
Applicant submits that the RPD ignored the issue of the effectiveness of state
protection, and in doing so ignored crucial evidence that supported the
Applicant’s assertion that she cannot avail herself of state protection in
Kosovo.
[36]
The
Applicant also says that it is troubling that the RPD appeared completely
unfamiliar with Kosovo, inquiring as to whether it was an independent country.
In fact, the RPD required the Applicant to submit post-hearing, written
submissions on this point, which are attached to the Applicant’s Affidavit as
Exhibit “D.” Though there is no clear indication as to how this affected the
Decision, the Applicant submits that it demonstrates that the RPD may not have
been fully prepared and familiar with the country conditions in Kosovo. In sum,
the Applicant submits that the RPD ignored important evidence about country
conditions in Kosovo, and this renders the Decision unreasonable.
Internal Flight Alternative
[37]
The
RPD also found that a viable IFA exists for the Applicant in the city of Pristina. It rejected the Applicant’s submission that her father would be able to find her
there, stating that there is no evidence that her father would have any
influence in Pristina, and that she would have access to the police there. The
Applicant submits that the RPD’s finding in this regard was purely speculative.
[38]
The
Applicant’s testimony was sworn and uncontradicted, and so must be accepted as
truthful (see above). The RPD submitted no evidentiary foundation for rejecting
her testimony that her father would be able to find her in Pristina. Further,
Pristina is a city of only 200,000 people, so there is no basis for simply
rejecting that the father’s influence would extend that far. The RPD’s
conclusion is simply a bald statement, unsupported by the evidence.
[39]
Further,
the RPD’s IFA analysis was based upon its state protection findings. The RPD
did not simply conclude that the Applicant’s father would not be able to find
her in Pristina; it also concluded that even if he did find her she would be
protected by the police. If the RPD erred in its state protection analysis,
those same errors apply to its IFA analysis. As previously discussed, the
Decision is unreasonable in this regards, and the Applicant requests that it be
quashed.
The
Respondent
Credibility
[40]
The
Respondent says the RPD’s finding that the Applicant’s father would not be able
take her child from her and put it up for adoption was reasonable. The RPD is
entitled to address plausibility based on common sense and rationality. The
Respondent submits that the RPD is entitled to dismiss uncontradicted evidence
if it is not consistent with the probabilities affecting the case as a whole (Kanyai
v Canada (Minister of Citizenship and Immigration), [2002] FCJ No
1124 at paragraph 11; Akinlolu v Canada (Minister of Citizenship and
Immigration), [1997] FCJ No 296 at paragraph 13; Aguebor v Canada
(Minister of Citizenship and Immigration), (1993) 160 NR 315 (FCA)
at paragraph 4; Shahamati v Canada (Minister of Employment and Immigration),
[1994] FCJ No 415 (FCA) at paragraph 2).
[41]
It
was open for the RPD to find, based on common knowledge of the Muslim faith,
that abortion is prohibited unless a mother’s life is at risk and that it is
improbable that an Imam would insist his daughter have an abortion. In any
event, this point is now moot as the child has been born. Further, the RPD’s
credibility findings in this regard were not determinative of the Decision.
[42]
The
Respondent submits that it was reasonable for the RPD to find that it was
improbable that the Applicant’s father would be able to take her child away
from her or force her to marry someone against her will. The onus was on the
Applicant to establish her claim, and she adduced no evidence indicating that
her father is above the law in Kosovo. As such, she would be able to avail
herself of the state’s protection, which is the issue that the RPD’s findings
turned upon.
State Protection
[43]
It
was reasonable for the RPD to find that the Applicant had the option of
approaching the police, or other authorities in Kosovo, but did not do so. The
onus was on the Applicant to rebut the presumption of state protection, and to
rebut this presumption she must produce “clear and convincing confirmation of a
state’s inability to protect” (Canada (Attorney General) v Ward, [1993]
2 SCR 689 at 709, 724-725). State protection need not be perfect, only adequate
(Hinzman v Canada (Minister of Citizenship and Immigration), 2007
FCA 171 at paragraphs 41, 43-44; Carillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at paragraphs 18, 30).
[44]
The
RPD found that if the Applicant’s father tried to kidnap her child and put it
up for adoption she would be able to approach the police for help. At no point
did the Applicant approach the authorities for help, but simply claimed that
she could not do so because her father’s influence spanned all of Kosovo. The
Applicant’s assertions in this regard are not enough to establish that this is
in fact the case, and absent this evidence she had an obligation to make
reasonable efforts to seek state protection. It was open to the RPD to consider
the reasonable probabilities of the case as a whole (i.e. that the Applicant
came from a small village), and find that the evidence did not support her
claims. It was reasonable for the RPD to find that there was no evidence that
her father had such sweeping influence that it would prevent her from receiving
state assistance anywhere in Kosovo.
[45]
The
documentary evidence also supports the RPD’s conclusions about conditions in
Kosovo. The state of Kosovo was recently established in 2008, and there is
extensive international support in the country, such as EULEX. There was
nothing unreasonable in the RPD referring to EULEX as a policing agent, as
there are many references in the documentary materials (see U.S. Department of
State Report; Exploratory Research on the Extent of Gender-Based Violence in
Kosovo and its Impact on Reproductive Health) to EULEX engaging in policing
functions and supporting the local police departments, specifically in northern
Kosovo, near where the Applicant lived.
[46]
There
is also little evidence that the police would not have assisted the Applicant
if necessary. The documentary evidence indicates that domestic abuse is a
problem in Kosovo, but the police receive special training in this regard and
there were no reports of them responding inappropriately. In fact, some of the
documentary evidence praises the way in which police officers in Kosovo have
responded to incidences of family violence.
[47]
The
Respondent submits that it was also not unreasonable for the RPD to find that
Kosovo is addressing its problems with corruption, as there were multiple
examples of arrests and investigations cited in the U.S. Department of State
Report in regards to corruption. The RPD is not obligated to cite every piece
of documentary evidence that contradicts its findings (Rachewiski v Canada (Minister of Citizenship and Immigration), 2010 FC 244 at paragraph 17).
Essentially, the Applicant is simply asking the Court to reweigh the RPD’s
findings in this regard. The Respondent submits that it was open to the RPD to
find that the Applicant had not rebutted the presumption of state protection,
and that this finding should not be disturbed.
Internal Flight Alternative
[48]
The
onus rests with the Applicant to demonstrate that her father had influence
throughout Kosovo, as that was the basis of her claim. If her father does not
present a risk outside her village, she has the option of moving to another
city and seeking police protection there. An individual is not a refugee if
state protection is available in other parts of the country, and it can be
reasonably expected that a claimant will move to the part of the territory
where protection is available (Rasaratnam v Canada (Minister of Employment
and Immigration), [1992] 1 FC 706 (FCA); Thirunavukkarasu v
Canada (Minister of Employment and Immigration), [1994] 1 FC 589
(FCA)). The RPD found that the Applicant had the option of moving to Pristina,
the largest city in Kosovo, and the Respondent submits that this was
reasonable.
[49]
The
Applicant merely asserted, based on her personal belief, that her father would
be able to find her anywhere in the country. The RPD was not obliged to accept
this; it had the option of finding there was insufficient evidence to support
this claim. It was open to the RPD to find that the Applicant had the option of
moving to Pristina, and though she has little education there are social
services available in Pristina for children and the Applicant is capable of
low-level entry jobs. Based on the evidence, this was a reasonable
determination. The RPD’s Decision was reasonable and this application should be
dismissed.
ANALYSIS
[50]
The
RPD tells us in its Decision that this “case turns on state protection and
credibility.” However, the only credibility finding in the Decision relates to
the abortion issue. This issue is now entirely moot because the child has been
born and is a Canadian citizen.
[51]
There
are no negative credibility findings concerning the rest of the Applicant’s
testimony, so that the presumption of truth operates in her favour. See Maldonado,
above.
[52]
The
Applicant testified clearly that she faces the following risks if returned to
Kosovo:
a.
She
fears her family, especially her parents and brothers (CTR, p. 319);
b.
If
she goes back, the family will kidnap her child (CTR, p. 322);
c.
If
she goes back, she will be forced to marry someone against her will (CTR, p.
322);
d.
Her
parents will seek revenge against her for the shame she has brought upon the
family, and she thinks they will kill her (CTR, p. 319, line 51, p. 320, line
51, p. 321, lines 6-8, p. 325, lines 37-41);
e.
She
would still be in danger in Pristina because, as she puts it, “I would be in
particular danger, because I would be a single mother with a young child not
married, a female. Yes, people can do anything to somebody unprotected” (CTR p.
326, lines 12-14).
[53]
As
is clear from the Decision, these risks are acknowledged and accepted by the
RPD.
[54]
Given
these risks, the RPD concludes that, if the Applicant returns to Kosovo, she
can seek the protection of the state and that she has failed to rebut the
presumption of adequate state protection.
[55]
The
Applicant did not seek state protection before leaving Kosovo, but she explains
why in her testimony:
a.
Her
father has many connections with the police and justice system and the people
who work within that system are Muslim who “go in the Mosque regularly, like my
father” (CTR p. 321 lines 32-36) and “her father is in the Mosque so they
respect my father a lot. These people go and ask my father to pray for them, to
offer prayers for them. So they know him and they respect them, they listen to
him” (CTR p. 322 lines 20-24);
b.
She
cannot go to a police station of a greater size because “Kosovo is a small
place and people know each other” and because “Domestic violence is widespread
in Kosovo and they do not help in these cases” (CTR p. 321);
c.
Lone
women like her do not receive help from the police in Kosovo and any shelter
provided is only temporary (CTR p. 323 lines 34-38).
[56]
As
regards the threat of kidnapping the child, the RPD says that there is “no
evidence that anyone is above the law with respect to kidnapping a child and
putting it up for adoption.” This is not really the issue. The Applicant’s
evidence is to the effect that women living in highly traditional families,
such as hers, have no real choice in these matters and that, if they complain,
no one will listen or come to their assistance.
[57]
The
cultural and social milieu to which the Applicant and her family belong are
never mentioned or assessed. Even in Canada we have had fairly recent examples
of fathers and brothers doing horrendous things to female family members who,
from a male perspective, are seen to be disrespectful to their family honour.
The Applicant’s evidence that she comes from a traditional, religious family
and that her father and brothers will revenge themselves on her is not
questioned. This may involve kidnapping her child, killing her, or both. The
unquestioned evidence is that the Applicant is at severe risk from her family
and others in a cultural milieu where women are controlled by their families
(particularly the male members). The RPD does not say that it does not believe
the Applicant when she says she is in danger; it says there is no specific
mention in counsel’s submissions that “anyone is above the law with respect to
kidnapping a child and putting it up for adoption.” There is no reference to
any particular law and there is no consideration of the reality that women face
within traditional families who have threatened them.
[58]
As
regards a forward-looking analysis on this issue, the RPD concludes that, if
the Applicant returns to Kosovo:
a.
She
can seek state protection with respect to keeping her child from the hands of
her father;
b.
The
Applicant’s son is a citizen of Canada. Should the Applicant have problems with
her father, she could also seek protection from Canada through an embassy or a
consulate.
No authority is
cited for these assertions.
[59]
Similar
findings are made in relation to the risk of a forced marriage:
a.
The
Kanun is not the law of Kosovo;
b.
Should
the Applicant’s father try to force her into a marriage against her will, she
has recourse to the police and to the Ombudsman;
c.
The
police can issue restraining orders in cases of emergency;
d.
In
addition to local police, Kosovo is also policed by EULEX, “an international
police force, which is not subject influence (sic) of local persons,
including the claimant’s father, a local Iman”;
e.
There
is no evidence that the police do not respond appropriately to rape or
allegations of domestic abuse;
f.
There
is no evidence that influential people can interfere with police who are called
to respond to allegations of domestic abuse.
[60]
My
review of the evidence pertaining to the mandate and role of EULEX shows that
EULEX’s international police officers, prosecutors,
and judges deployed in the country have broad discretion to intervene in any
particular criminal matter. However, as a practical matter, most policing
duties and responsibilities were in the hands of the local police. (CTR p.
66) [Emphasis added]
I think the evidence is clear that
EULEX is not a realistic possibility for someone in the Applicant’s position
and that she would have to seek assistance from local police.
[61]
As
regards the local scene, there was a considerable body of evidence before the
RPD that contradicts the RPD’s conclusions, and so should have been addressed
and weighed. See Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 at paragraph 17.
[62]
As
the Applicant points out
with
respect to how the police, prosecution and courts collectively respond to
domestic violence in Kosovo, the documentary evidence on record shows as
follows (underlining added for emphasis):
The law criminalizes rape; however, spousal rape is
not specifically addressed.
Observers believed that rape was significantly
underreported due to the cultural stigma attached to victims and their
families.
Domestic violence against women, including spousal
abuse, remained a serious and persistent problem. The law prohibits domestic
violence, and convictions carry prison terms of six months to five years. The
law treats domestic violence cases as civil cases unless the victim suffers
bodily harm. Failure to comply with a civil court’s judgment relating to a
domestic violence case is a criminal offense and can be prosecuted. When
victims did press charges, police domestic violence units conducted
investigations and transferred cases to prosecutors. According to the
special prosecutor’s office, family loyalties, poverty, and the backlog of
cases in both civil and criminal courts contributed to the low rate of
prosecution.
In November 2009 the OSCE provided an update to its
2007 report on domestic violence. OSCE monitors reported continued problems
in the adjudication of domestic violence cases, including unlawful delays in
scheduling hearings or in deciding on protection orders, failure to involve
representatives of the Center for Social Work in civil domestic violence
proceedings, misapplication of relevant laws by courts, and failure to
prosecute domestic violence crimes.
Convictions for domestic violence were rare, and sentences ranged
from judicial reprimands to imprisonment. Traditional social attitudes
towards women in the male-dominated society contributed to the high-level of
domestic abuse and low number of reported cases.
Women possess the same legal rights as men but
traditionally have a lower social status, which affected their treatment within
the legal system.
United States Department of State Country Report,
2010, Kosovo, page 138, under the subheading “Women”.
Experts have identified various reasons as to why
domestic violence is underreported, including a culture that considers
domestic violence an “internal affair”; extended families and informal
dispute resolution techniques; the hesitancy of SSOs and police to intercede
in private disputes; and the woman’s fear of bringing “shame” to herself or
her family. Women who report violence also risk being ousted from their home, having
their children taken away by family members, or vengeance from
perpetrators.
Kosova Women’s Network, Exploratory Research on the
Extent of Gender-Based Violence in Kosova and its Impact on Women’s Reproductive
Health, 2008, at page 159, paragraph 2 under the subheading “Domestic
Violence”.
Similarly, institutional violence (a term used more by
women’s NGOs than institutions) involves unequal access to public services
and programs because of one’s gender, such as education, justice,
and social support. Gender-based institutional violence in Kosova could include
the failure of the Ministry of Education to finance schoolbooks,
transportation, and other costs that would enable girls from economically
challenged homes to attend higher levels of education (currently boys in such
situations are sent because they have greater chances of securing employment
later in life); public institutions failing to actively hire more qualified
women to serve as public servants; public institutions not adopting and
implementing policies against sexual harassment in the workplace; the slow
processing of protection orders by the justice system, which places women
already experiencing violence in greater danger;
Kosova Women’s Network, Exploratory Research on the
Extent of Gender-Based Violence in Kosova and its Impact on Women’s
Reproductive Health, 2008, at page 170, paragraph 2.
The Ministry for Labour and Social Welfare (MLSW)
acts through the Department for Social Welfare (DSW), which has the
responsibility to protect children; prevent and reduce abuse and neglect of
children; support families experiencing difficulties; and address reports of
risk or violence to ensure safety and support. DSW coordinates the 32 Centres
for Social Work (CSWs) in each municipality (two in Mitrovica). MLSW is
responsible for monitoring the performance of CSWs. As a Ministry, MLSW must
ensure the implementation of the Kosova Constitutional Framework and human
rights conventions and declarations therein. Therefore, Social Service Officers
(SSOs) working at CSWs must ensure that they do not discriminate against women
in situations where gender-based violence has occurred, including domestic
violence.
If a SSO learns that a perpetrator has committed a
crime as defined by the Regulation on Protection against Domestic Violence and
the perpetrator is related to the victim according to the same Regulation, the
SSO must offer to assist with filing a protection order. SSOs must also ensure
that individuals experiencing violence understand the types of protection
available. If a CSW refers a woman to a shelter, the SSO remains responsible
for follow-up, monitoring, and issues that may affect the woman or her
children. Even after officers have placed clients in the care of a shelter,
they are still responsible for: assisting with the recovery of the client;
cooperating with the shelter; developing and implementing a plan in close
cooperation with the client; and communicating this plan and progress towards
its implementation with the shelter. During court cases, the CSW must provide
“an expert opinion” in cases related to divorce and custody rights.
Shelter representatives said SSOs rarely fulfil
these duties. Shelters often struggled to secure basic information from SSOs,
largely due to inadequate human resources and
finances in CSWs. OSCE monitored cases where CSW representatives should have
been present in domestic violence court cases to present their expert opinion
concerning children, but were not. Training for SSOs improved the performance
of some officers, shelter representatives said, but many problems persisted in
2007. “They have received training,” a shelter representative said. “We
attended the same training and saw them there. But they told us, ‘We don’t believe
in this gender nonsense. We’re just here to have a good time.’”
According to shelter representatives and UNICEF, some
SSOs preferred forcing women to return to violent family environments rather
than empowering women to identify and choose the best solution for their
future. “Due to a lack of resources and alternatives for victims of violence
there is still a tendency to try to effect reconciliation within the family,”
UNICEF wrote.
Kosova Women’s Network, Exploratory Research on the
Extent of Gender-Based Violence in Kosova and its Impact on Women’s
Reproductive Health, 2008, at page 196-197, under subheading 1.2.
At the same time, many SSOs interviewed expressed
frustration that they did not have adequate funding to carry out their
responsibilities:
We don’t have enough cars. For example, when the
police call us we don’t have a car to go there. Another problem is that we
can’t help them enough. For example, when she has to leave the shelter, she
doesn’t have a place to go. Very often she must return home again and in
most of these cases the situation is worse because the husband is angrier.
We give them [women who experienced violence]
information about their rights. But we can’t do anything about their economic
situation and very often it is their main need. Very often we don’t have space
for her children when we take the victim for an interview.
Also we don’t have budget for during the protection
process, for example buying water for her or buying something to eat. They are
closed in shelters, and in that way they are victimized to stay there like in
prison. The lack of professional services results in victims returning home
to the abuser where they don’t have protection from violence.
Also, the lack of material goods and transport is
another difficulty in our work. For example, when the client needs something
when we take her to the doctor, we have to buy something for her with our own
money. Another thing is the lack of an adequate approach toward violated
victims on behalf of institutions. For instance, we send a client to visit a
psychiatrist, and we have to wait with other people there.
Also KPS doesn’t have a special office for taking
her testimony, so the anonymity of client is at risk.
Kosova Women’s Network, Exploratory Research on the
Extent of Gender-Based Violence in Kosova and its Impact on Women’s
Reproductive Health, 2008, at page 198, paragraph 1.
Vuniqi and Macula pointed out that there were
laws, regulations and international conventions which protected women and which
had been approved by Kosovo’s parliament, but the problem was that the
institutions were not applying them in practice.
“They do exist in our legislation, but they are not
being implemented”,
Vuniqi said.
“Our government needs to take care of the
implementation, and to fill in the gaps that exist in the legislation”, Macula said.
Qosaj-Musa agreed with her saying that what
existed under the current law amounted to next to nothing in practice. She
blamed the existing legislature and the judicial system for not interpreting
and implementing the laws in the right way. Qosaj-Musa pointed out that
there were gaps in Kosovo’s Penal Code regarding domestic violence and the
trafficking of human beings.
Balkan Investigative Reporting Network, “Life in
Kosovo Discusses Violence Against Women”, December, 2007, page 256, paragraph 2
onward.
[63]
With
respect to the Member’s conclusion that a restraining order can be issued, and
failure to comply with civil court judgment is a crime that can be prosecuted,
the evidence shows that in fact this rarely happens:
Despite the introduction of new laws and mechanisms
like VAAD, judges and lawyers lack adequate training on sexual and domestic
violence and how to approach women who have experienced violence. The justice
system is slow to prosecute perpetrators, placing victims at high risk of
further violence. “The number of sexual violence and domestic violence cases
processed in courts was marginal compared with the number of such victims,”
UNFPA reported.
Indeed, from the 557 cases of domestic violence
reported from January to June 2007, KPS had on record only 26 protection orders
and 52 emergency protection orders, a mere 14 percent of reported cases. In
July 2007, the OSCE Department of Human Rights, Decentralization and
Communities, Legal System Monitoring Section expressed concern over the justice
system’s implementation of the Regulation on Protection against Domestic
Violence. OSCE reported that the health and safety of persons experiencing
violence may have been jeopardized by “unlawful delays” related to protection
orders and hearings.
Although courts are required to respond to
protection order requests within fifteen days and emergency protection orders
within 24 hours from the date the petition is filed, OSCE evidenced in its report
four cases where the courts delayed decisions for six weeks to nearly a year,
placing victims in grave danger.
OSCE was also “concerned” with “the failure of the
authorities to ex officio prosecute criminal offenses that occur during
domestic violence as required by law.” Further, CPWC wrote in 2003 that the
justice system was failing to prevent future crime by releasing perpetrators
with conditions or minimal sentences. When asked whether any action was taken
against the perpetrator after the most recent incident of violence, only 12 of
the 51 women interviewed by KWN said the perpetrator was arrested and in nine
cases issued a citation.
Kosova Women’s Network, Exploratory Research on the
Extent of Gender-Based Violence in Kosova and its Impact on Women’s
Reproductive Health, 2008, at page 200, paragraph 1.
[64]
It
is clear from the above evidence that state protection for victims of gender
violence in Kosovo is extremely problematic. The RPD discusses none of this in its
reasons.
[65]
There
is an IFA finding, but it is inadequate and is, in any event, associated with
state protection issues:
The claimant was asked if she could live in
Pristina. She replied that she could not because her father could always find
out. There is even less evidence that her father would be influential in
Pristina. He is a local Iman, who is not above the law and should he threaten
the claimant in Pristina, on a balance of probabilities, I find that the
claimant would have access to the police for protection.
[66]
First
of all, the father’s “influence” in Pristina is not the issue. The Applicant
has testified that her family intend to kill her to redeem family honour. This
evidence is not in question. So the issue is whether the father and brothers,
who want to harm her, could find her in Pristina, a city only approximately 50
kilometres away with a population of 200,000, and in a country where the
Applicant’s unquestioned evidence is that “Kosovo is a small place and people
know each other.” This issue is never addressed.
[67]
The
alternative finding that state protection would be available in Pristina is
fraught with the same problems as those referred to above in my discussion of
state protection generally.
[68]
In
this case, a young woman gives unquestioned evidence that her life is
threatened by her father and brothers in a country where, for cultural reasons,
women are highly vulnerable, and where there is considerable evidence that the
state has neither the will nor the ability to provide her with the protection
she needs. Notwithstanding what is at stake, the Decision is cursory and fails
to address the evidentiary record in an accurate or comprehensive way. This is
extremely worrying, and renders the Decision unreasonable.
[69]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is allowed. The Decision is quashed and the matter is referred back
for reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James Russell”
Email this Content