Date: 20091208
Docket: IMM-1767-09
Citation: 2009 FC 1257
Ottawa, Ontario, December
8, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
STERBYCI
SOKOL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee Board
(the Board) dated March 5, 2009, wherein the applicant was determined not to be
a Convention refugee or a person in need of protection under sections 96 and 97
of the Act.
[2]
The
applicant requests that this Court set aside the Board’s decision.
Background
[3]
The
applicant is a citizen of Albania who based his refugee
claim on his fear of being killed in a blood feud with another family. His
story was recounted in his Personal Information Form (PIF).
[4]
The
applicant is from a remote area in the country’s north. The feud stems from his
uncle’s murdering of a member of the Lisi family in 1990. The applicant alleges
that although there was no formal declaration of war between the families, the
feud was on from that point, and eventually a different uncle of the applicant
was ambushed and murdered by members of the Lisi family in 1997.
[5]
According
to Kanun, the ancient code governing such conflicts, it was now his
family’s turn to take revenge. The applicant alleges that that is why in 2003
his cousin (son of the first uncle) ambushed and murdered Bajram Lisi.
[6]
The
applicant left Albania for the United States in 2000, and
other family members joined him in 2003. His claim for refugee status in the
U.S. was denied and he was deported back to Albania on June 6,
2007.
[7]
The
applicant alleges that during the roughly four months he spent back in Albania, he lived in
hiding with his aunt in Tirana and did not inform others of his return. As soon
as he got the necessary documents to facilitate travel, the applicant came to Canada with the
assistance of a smuggler.
Board’s Decision
[8]
The
Board determined that the applicant was not a Convention refugee under section
96 of the Act as criminality, including vendettas and blood feuds, do not have
a nexus to the Convention. Further, the Board determined that the applicant was
not in need of protection pursuant to section 97 of the Act as there is
adequate state protection in Albania.
[9]
The
Board noted the historical roots of Kanun and its powerful influence.
The Board also noted the implementation of new laws prohibiting blood feuds and
stronger sentences, but acknowledged that laws can only be as effective as the
persons enforcing them and the community going to the appropriate law
enforcement agencies for assistance. Evidence of the successful conviction of a
murderer in a particularly brutal blood feud case was discussed.
[10]
The
Board gave little weight to a letter provided by the applicant, allegedly from
a local police chief. The letter attested to the incidents causing the blood
feud, but stated that the police “…feel unable to take actions and solve the
problem as this is a nation-wide phenomenon…”. The Board found the letter’s
information lacked reliability and the applicant’s explanation for getting the
letter lacked credibility.
[11]
The
Board noted the applicant’s evidence that his family had engaged the efforts of
an organization to resolve the feud, but had been unsuccessful. While the
applicant testified that the Lisi family “…will strike when they see fit”, it
was noted that from 1998 to 2003, his brothers were not harmed in Albania. In the end,
the Board was satisfied that if the applicant was to go to the authorities, he
would receive adequate protection. The Board also noted that the applicant had
not gone to the authorities before seeking Canada’s protection
in 2007.
[12]
Even
if the applicant could rebut the presumption of state protection, the Board
felt that Tirana provided a viable internal flight alternative (IFA). The Board
noted evidence indicating that blood feuds were less common in the urban centre
of Tirana. The Board also concluded that the applicant could not provide clear
and convincing evidence that the Lisi family would track him down.
Issues
[13]
The
issues are as follows:
1. What is the standard
of review?
2. Did the Board err in
determining that state protection was available?
3. Did the Board err in
determining that an IFA was available?
Applicant’s Written Submissions
[14]
With
regard to the issue of state protection, the applicant submits that there were
multiple errors in the Board’s findings. First, the Board erred in assuming
that because the government enacted laws prohibiting blood feuds that it also
provided adequate protection. There was significant evidence of the ineffectiveness of
police in protecting individuals from blood feuds that the Board failed to
note, including the Board’s own document: Albanian Blood Feuds which
detailed the problems of blood feuds, the increased use of blood killing likely
due to ineffective law enforcement and lack of faith in state punishment,
ineffectiveness of convictions, as well as a statement from Albanian Ombudsman
admitting blood feud targets should be given asylum in Germany, and evidence of
the ineffectiveness of police in the applicant’s particular region, Shkoder. The
presumption that the Board considers all the evidence is rebutted when evidence
that is clearly contradictory to the Board’s central conclusion goes
unmentioned.
[15]
The
applicant also submits that the Board’s grounds for finding the applicant’s letter from
the police chief unreliable were unreasonable. The Board’s reason for not
believing the applicant on the credibility of the letter was based on an
erroneous question the applicant had no way of answering. The Board had asked
the applicant why the chief had written what he did (essentially “what was he
thinking?”), and drew a negative inference when the applicant answered that he
did not know.
[16]
With
regard to the issue of IFA, the applicant submits that the Board asked itself
the wrong question. The issue was not whether a blood feud would arise in
Tirana to place the applicant at risk, but whether the enforcers of a blood
feud could find him in Tirana. The Board placed an inappropriate burden on the
accused by requiring him to provide clear and convincing evidence that he would
be found in Tirana. The Board’s own evidence clearly showed that blood feuds
have a long reach.
Respondent’s Written
Submissions
[17]
With
regard to the allegation that the Board ignored evidence, the respondent
submits that the applicant still fails to rebut the presumption that the Board
considered all the evidence, even if it did not refer to something in its
reasons. The Board reviewed all of the documentary evidence on state protection
and referred to many specific pieces of evidence. It was only after all these
references to the evidence that the Board rendered its conclusion on state
protection.
[18]
Whether
an IFA exists is a factual matter within the Board’s expertise and should be
afforded deference. The Board properly articulated and implemented the IFA
test. Its conclusions were reasonable based in part on the following factors:
Tirana has less blood feuds than other areas of Albania and more
resources, the applicant did not provide any evidence to show how the Lisi
family would track him down, and the applicant can reasonably be expected to
find employment in Tirana.
Analysis and Decision
[19]
Issue
1
What is the
standard of review?
This case does not involve
statutory interpretation or matters of procedural fairness. The applicant in
this case directly challenges the Board’s findings of fact on two key issues.
In the issue of IFA, a legal issue arises regarding burden, however, this is
incidental to what is primarily a challenge to the Board’s ultimate factual
conclusion that an IFA exists.
[20]
I
note here that findings of fact by administrative tribunals brought before this
Court are subject to the standard of review imposed by paragraph 18.1(4)(d) of
the Federal Courts Act, R.S.C. 1985, c. F-7 which states:
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18.1(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
. . .
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
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18.1(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
. . .
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose; . . .
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[21]
The
Supreme Court in Canada ( Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] S.C.J. No. 12 (QL), recently referred to the impact of these
legislative instructions:
46 More generally, it is clear from s.
18.1(4)(d) that Parliament intended administrative fact finding to command a
high degree of deference. This is quite consistent with Dunsmuir. It
provides legislative precision to the reasonableness standard of review of
factual issues in cases falling under the Federal Courts Act.
[22]
Mr.
Justice Evans had earlier commented in Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No.
1425 (F.C.T.D.) (QL) at paragraph 14 that:
…Thus, in order to attract judicial intervention under section
18.1(4)(d), the applicant must satisfy the Court, not only that the Board made
a palpably erroneous finding of material fact, but also that the finding was
made ‘without regard to the evidence’.
[23]
With
that high standard of deference in mind, I now turn to review the Board’s
findings.
[24]
Issue
2
Did the Board err in
determining that state protection was available?
There is a presumption in refugee
law that democratic countries, even if they are developing democracies such as Albania, are capable
of protecting their citizens. It flows from this presumption that in order for
a refugee claimant to establish that his or her fear of persecution is
objectively well-founded, the claimant must rebut the presumption that the
state can provide adequate protection. This must be done with clear and
convincing evidence confirming the state’s inability to protect (see Hinzman v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 171,
282 D.L.R. (4th) 413, at paragraphs 42 to 44 citing Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 at 723 and 724, [1993] S.C.J. No. 74 (QL)).
[25]
In
Hinzman above at paragraph 45, the Federal Court of Appeal affirmed its
earlier ruling in Canada (Minister of Citizenship and Immigration) v.
Kadenko, [1996] F.C.J. No. 1376, 143 D.L.R. (4th) 532, where Mr. Justice
Decary elaborated on these principles and added that the more democratic a
country, the more a claimant must have done to seek protection there.
[26]
The
applicant argues that the Board ignored evidence showing that state protection,
in practice, was ineffective and inadequate for potential blood feud victims.
[27]
The
respondent asserts that the Board considered all of the evidence, but in the
end simply concluded that the applicant had not rebutted the presumption. The
respondent also asserts that the Board need not summarize all of the evidence
before it and is presumed to have considered all the evidence (see Florea v.
Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL)).
[28]
Under
paragraph 18.1(4)(d) of the Federal Courts Act, applicants may challenge
a tribunal’s findings of fact on the grounds that the finding was made without
regard to the evidence. Applicants who allege that evidence was ignored by the
tribunal, must rebut the presumption at common law that the tribunal did in
fact consider all of the evidence. When the duty of procedural fairness
requires that detailed written reasons be provided, such as with Board decisions,
those reasons can provide valuable clues as to whether all significant pieces
of evidence were considered.
[29]
Mr.
Justice Evans in Cepeda-Gutierrez above, articulated the principle that
the Board’s failure to mention or analyze important evidence in its reasons may
allow the presumption to be rebutted:
16 On the other hand, the reasons
given by administrative agencies are not to be read hypercritically by a court
(Medina v. Canada (Minister of Employment and
Immigration)
(1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to
every piece of evidence that they received that is contrary to their finding,
and to explain how they dealt with it (see, for example, Has-san v. Canada
(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. A statement by the agency in its reasons for decision that, in
making its findings, it considered all the evidence before it, will often
suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
17 However, the more important the
evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency over-looked the contradictory evidence when
making its finding of fact.
[30]
In
the impugned decision, there is almost no mention of the significant pieces of
evidence that would have gone directly to rebutting the presumption of state
protection. While this deficiency alone requires that the Board’s finding be
set aside, I also find that the analysis contains other errors.
[31]
The
Board discussed the requirements for the Albanian government as follows:
Although Blood feuds continue, the
Department of State report provides information that Albania is making serious efforts to address
this issue. The government need not have to eradicate blood feuds or show that
it has prevented blood feuds, but rather through actions and laws is addressing
the problem effectively.
[32]
The
Board went on to discuss new Albanian laws, but it did not appropriately discuss
how the problem of blood feuds were being adequately addressed.
[33]
The
Board discussed the problem of blood feuds in Albania, but seemed
to rely on a figure in the U.S. Department of State report which stated that of
the 96 murders reported in 2007, only two were related to blood feuds. There
was no discussion of the success of efforts by local police or other
organizations, of ending such feuds especially in the north where the Board
acknowledged that blood feuds persist. There was significant evidence calling
into question the accuracy of the above statistic and the ability of local
officials to combat the blood feuds, but this evidence was not discussed.
[34]
The
Board’s own issue paper: Albania: Blood Feuds, part of its National
Documentation Package, indicates that there is little the Albanian authorities
have been able to do to combat the problem. The paper also stated that even
those individuals who are arrested for murder often deny the murder was related
to a blood feud in order to receive a lesser sentence, but upon release are
often killed. The paper even addressed directly the inability of the police in
the applicant’s region to protect potential blood feud victims.
[35]
While
the Board did mention the paper, it was only to relate the story contained
therein of a successful prosecution of a blood feud murderer. In its totality,
the paper indicates that successful prosecutions in reality are few and far
between.
[36]
The
Board similarly failed to analyze a letter from the Nationwide Reconciliation
Committee (NRC), the NGO which seeks to resolve blood feuds by reconciliation
and negotiation, attesting in detail to the course of the blood feud between
the Sterbyci and Lisi families. The letter was signed by the NRC chair and
stated that the police and Albanian government have no adequate means to
protect families in revenge and blood feud situations.
[37]
In
my opinion, the Board was required to have some regard in its written reasons
to the significant body of evidence showing a lack of adequate protection in Albania. As a
result, the Board made an error in failing to assess this evidence.
Consequently, the judicial review must be allowed for this reason.
[38]
Issue
3
Did the Board err in
determining that an IFA was available?
The test to be applied in
determining whether there is an IFA is two-pronged: (i) there is no serious
possibility of the claimant being persecuted or subjected, on a balance of
probabilities, to persecution or to a danger of torture or to a risk to life or
of cruel and unusual treatment or punishment in the proposed IFA area, and (ii)
conditions in the IFA area must be such that it would not be unreasonable, in
all the circumstances, for the claimant to seek refuge there (see Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1
F.C. 589, [1993] F.C.J. No. 1172 (C.A.) (QL)).
[39]
Once
the issue of an IFA is raised, the onus is on the refugee claimant to show that
the option does not exist, by establishing that either of the two Thirunavukkarasu
above, criteria is not met.
[40]
The applicant challenges the legal basis for the Board’s
conclusion on the first prong. With respect to the fear that members of the
Lisi family might locate the applicant, the Board held that the applicant was
required to provide “clear and convincing evidence that he would be found.”
[41]
This was an inappropriate burden to place on the applicant. The
Federal Court of Appeal in Thirunavukkarasu above, stated that an
applicant need only provide clear and convincing evidence showing that there is
a serious possibility of being persecuted in the new location.
[42]
However, regardless of this legal error, and without analyzing the
impact it may have had on the Board’s conclusion, I find that the Board’s
ultimate conclusion on IFA suffers from the same problem as its previous
conclusion on state protection. The Board simply did not make any reference to
the significant evidence indicating that those enforcing blood feuds have a
long reach and great persistence. This omission was even more puzzling because
earlier in its reasons, the Board had a related story involving enforcers of a
blood feud traveling to London and claiming asylum there for the sole purpose of finding and
killing a member of the family they despised. The enforcers were arrested after
their return to Albania and the Board had related the story ostensibly to show an example
of effective enforcement. However, this story and other evidence regarding the
persistence of blood feud enforcers and the inadequacy of law enforcement,
provides ample grounds for an objective fear that a potential victim would not
be safe simply by moving to Tirana.
[43]
The applicant had in fact lived in Tirana for a short period in
2007. He testified before the Board that he spent this entire period in hiding.
[44]
It was not open for the Board to reject the applicant’s arguments
and find that an IFA existed without specifically addressing the significant
contradictory evidence (see Cepeda-Gutierrez above). I would
therefore allow judicial review on this ground.
[45]
The application for judicial review is therefore allowed and the
matter is referred to a different panel of the Board for redetermination by a
different panel of the Board.
[46]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[47]
IT
IS ORDERED THAT the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
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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.
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.
(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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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.
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.
(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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