Docket: IMM-5210-10
Citation: 2011 FC 1048
Ottawa, Ontario, September
6, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NDRICIM PULAKU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of Pre-Removal Risk
Assessment Officer N. Bostjancic (the PRRA Officer) dated July 30, 2010,
wherein the Officer determined that the Applicant would not be subject to risk
of persecution, danger of torture, risk to life or risk of cruel and unusual
treatment or punishment if returned to Albania.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
Ndricim
Pulaku, the Applicant, is a citizen of Albania. He first
came to Canada in
April 1998 and made a refugee claim based on political opinion. The
(then) Convention Refugee Determination Division (CRDD) of the Immigration and
Refugee Board rejected the claim based largely on the Applicant’s lack of
credibility. The Applicant applied for leave and judicial review of the
decision. Leave was granted, but the judicial review was subsequently
dismissed in December 2000.
[4]
In
the interim, the Applicant returned to Albania, leaving Canada
approximately one month after the CRDD decision was issued, in August 1999. He
claims that there was an attempted kidnapping of his son, and he had to return
home despite the personal risk.
[5]
The
Applicant now alleges that the political persecution he formerly feared has
turned personal, and he is the target of a blood feud. He claims to fear
Edmond Koseni, former head of the Elbasan Police Commissariat. Six months
after his return, he got a phone call warning him that he would be found, even
if he hid in a “rat hole” (Applicant’s Record pg 28). In September 2000,
shortly before the local elections, the Applicant was arrested along with his
two brothers, Sami and Naim. They were detained for three days. During that
time, the brothers were beaten by Koseni and Xhaferr Elezi. Naim suffered a
life-threatening injury. The Applicant speculates that the detention was a
tactic to scare Democratic Party supporters; a characterization the Applicant
claims applies to him and his family.
[6]
Due
to the incident, Edmond Koseni was charged with attempted murder, but was later
acquitted. Amnesty International and the Albanian Human Rights Group reported
on the incident and condemned the police.
[7]
In
December, 2001 Naim was returning to Elbasan. He was stopped at a police
checkpoint and allegedly mistaken for the Applicant. He was beaten by Elezi
and Koseni, who also later threatened him in the hospital. As a result of this
incident, Koseni was detained for a few days and lost his job. It was at this
point that Koseni apparently declared a blood feud against the Applicant’s
family. The Applicant claims that as the oldest, he was the main target.
[8]
The
Applicant was repeatedly threatened by Koseni and his cronies. He reported
incidents to the Albanian Human Rights Group, since Koseni was still
well-connected with the police. However, he was told that they could not
protect him, so he had better leave the country.
[9]
The
Applicant finally decided to leave Albania in May 2008, when,
after visiting his mother-in-law, his car was struck with a volley of
Kalashnikov bullets. He went to the police, but they would not take a report
since the only witnesses were his family members.
[10]
He
arrived in Canada in June 2008
and attempted to make a refugee claim. He was determined to be ineligible due
to his previous unsuccessful refugee claim, but was given an opportunity to
make a Pre-Removal Risk Assessment (PRRA) application.
B. Impugned
Decision
[11]
The
PRRA Officer reviewed the Applicant’s submissions and concluded that they did
not establish, on a balance of probabilities, a political basis to the
Applicant’s allegations of harm. Amnesty International reported on the 2000
and 2001 incidents in which Naim was harmed, but the Officer found that this
report contained insufficient evidence to indicate that the attacks had
political undertones or were politically-motivated. Another Amnesty
International report referred to the beating of Naim in September 2000. According
to that report, Naim and his brothers were arrested on suspicion of stealing
car tires.
[12]
The
Officer noted, that although Amnesty International’s 2003 press release
reported that Koseni and Elezi returned to the hospital and threatened to
eliminate the Applicant’s brother and his family, the Applicant’s family has
continued to reside in Albania without coming to any
apparent harm.
[13]
As
for the allegation of a blood feud, the Officer found that there was a lack of
objective evidence to support the Applicant’s allegation that he was mainly
targeted as the oldest. The Officer also found the Applicant’s affidavit vague
and lacking specifics surrounding the declaration of a blood feud, and so
assigned the Applicant’s statements minimal probative value.
[14]
Although
the Officer acknowledged the existence of blood feuds and their continued
practice in Albania, he found
that the country condition documents highlighting the problem were general in
nature and not personalized to the Applicant. The document provided by the
Albanian Human Rights Group (AHRG) dated August 2008, did not mention that the
Applicant and his family were involved in a blood feud, even though AHRG is
well acquainted with the problems of the Pulaku brothers. Moreover, the
Officer found insufficient evidence to indicate that the Applicant approached
organizations such as reconciliation committees which specifically support and
assist with blood feud issues. The Officer concluded that there was
insufficient objective evidence on a balance of probabilities to indicate the
existence or declaration of a blood feud.
[15]
The
Officer found that the Applicant’s statements of a personal vendetta against
him provided no nexus to a Convention ground, and rather, he was a victim of
personal crime since his fear was not linked to race, religion, nationality,
political opinion or membership in a particular social group.
[16]
The
Officer also found that the Applicant had failed to rebut the presumption of
state protection with clear and convincing evidence. The Applicant visited the
police in 1998 when he was attacked and in 2008 when bullets were fired at his
car. The Officer was of the opinion that two visits to the police in a period
of ten years was insufficient to conclude that state protection would not be
reasonably forthcoming. Based on the information before him, the Officer found
that the Applicant did not attempt to seek assistance from a higher authority
when local police refused to help. The Officer also noted that seeking the
help of the AHRG did not equate to seeking state protection as the AHRG is not
a replacement or substitute for the state security apparatus.
II. Issues
[17]
This
application raises the following issues:
(a) Did the Officer err by referring
to a report that post-dated the Applicant’s submissions?
(b) Did the Officer err in failing
to interview the Applicant?
(c) Did the Officer make a
reasonable state protection finding?
III. Standard
of Review
[18]
The
appropriate standard of review to apply to findings of fact, or mixed fact and
law in a PRRA decision is reasonableness (Hnatusko v Canada (Minister of
Citizenship and Immigration), 2010 FC 18 at para 25). Judicial
deference to the decision is appropriate where the decision demonstrates
justification, transparency and intelligibility within the decision making
process, and where the outcome falls within a range of possible, acceptable
outcomes, defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[19]
Some
of the issues raised by the Applicant in this application relate to procedural
fairness and will be reviewed on a standard of correctness.
IV. Argument
and Analysis
A. Did
the Officer Err in Relying on Extrinsic Evidence?
[20]
The
Applicant submits that the Officer breached the duty of fairness owed to the
Applicant by relying on a 2009 US DOS report which was published after the
Applicant’s submissions were filed. The Applicant argues that he was not
afforded a chance to respond to the new evidence, which described many more anti-corruption
measures than the 2007 US DOS report (Selliah v Canada (Minister of
Citizenship and Immigration), 2004 FC 872, 256 FTR 53 at para 29).
[21]
The
Respondent submits that the Officer was required to rely on the most recent
country condition reports in preparing his decision and that advance disclosure
of such reports are limited to instances where the conditions are “novel and
significant” and where the evidence may affect the decision (Hassaballa v
Canada (Minister of Citizenship and Immigration), 2007 FC 489, 157 ACWS
(3d) 602 at paras 32 and 33).
[22]
The
Applicant has not specifically pointed the Court to the information in the 2009
report that is “novel and significant”, but suggests that had the Applicant had
notice, he would have commented on the more extensive anti-corruption measures
outlined in the 2009 report, and would have pointed out that the report shows
that these measures, relied on by the Officer, do not work.
[23]
The
2007 report stated that:
the overall performance of law
enforcement remained weak. Unprofessional behaviour and corruption remained
major impediments to the development of an effective civilian police force […]
[24]
The
2009 report states:
Notwithstanding police officer
recruitment reforms and other standardization by the Ministry of the Interior,
the overall performance of law enforcement remained weak. Unprofessional
behaviour and corruption, compounded by low salaries, remained major
impediments to the development of an effective civilian police force.
[25]
I
am not of the opinion that the country condition evidence referenced by the
Officer establishes a change in country conditions that may affect the
decision. In fact, the Applicant states that the 2009 report is equally
devastating regarding the state’s ability to protect its citizens. The
Applicant, through this submission, does not raise a breach of procedural
fairness, rather he disagrees with the Officer’s state protection finding.
B. Was
the Officer Required to Consider Whether an Oral Interview was Required?
[26]
The
Applicant submits that in assigning little weight to the Applicant’s sworn
statements that he is the victim of a blood feud, the Officer makes a
credibility finding. As such, pursuant to section 167 of the Immigration
and Refugee Protection Regulations (SOR/2002-227) (the Regulations),
the Officer was required to consider whether to hold an interview (Zemo v Canada (Minister of
Citizenship and Immigration), 2010 FC 800, 372 FTR 292 at para 18).
[27]
The
Respondent submits that there was no credibility finding. The only basis for
the Applicant’s allegation that he is the target of a blood feud is his own
assertion. The Respondent argues that this Court has held that even if an
applicant is found credible, an officer is not required to accept his or her
interpretation of events or speculative statements as reflective of objective
reality. Applying this to the present matter, the Respondent submits that
while the Applicant might believe that he is the target of a blood feud, it was
open to the Officer to find that there was insufficient evidence to support
that as the objective reality of the situation (Khan v Canada (Minister of
Citizenship and Immigration), 2002 FCT 400, 113 ACWS (3d) 324 at para 18).
[28]
It
is not always easy to distinguish between a claim that fails due to
insufficient corroborating evidence versus one that fails because a claimant is
not believed. The two findings often seem inextricably entwined, and there is
ample jurisprudence from this Court surveying the debate.
[29]
In
this case, the Officer attributed little weight to the Applicant’s statement
that he was embroiled in a blood feud because his affidavit was vague and
lacked details regarding this element of his claim. Furthermore, the existence
of a blood feud was not corroborated by any of the documentary evidence which
acknowledged the attacks on the Applicant’s brother, or by the letter provided
by the Human Rights organization familiar with the Applicant’s problems. The
Applicant also claimed that he was especially targeted as the oldest. The
Officer noted that there was no documentary support for that assertion. The
Officer did, however, accept the majority of events as relayed by the
Applicant, including that there was some kind of personal vendetta between the
Applicant and Koseni.
[30]
I
find that this case is properly characterized as one in which the Applicant
failed to provide sufficient evidence to prove, on a balance of probabilities,
that a blood feud was ever declared or existed. As such, procedural fairness
did not require that the Officer conduct a hearing. The burden of proof was on
the Applicant, and he failed to meet it. The Applicant only presented his
subjective belief that a blood feud existed, and this was not sufficient to
convince the Officer given the other documentary evidence (Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, 74 Imm LR (3d) 306).
C. Was
the Officer’s State Protection Finding Reasonable?
[31]
The
determinative issue turned out to be state protection, the Officer coming to
the conclusion that the Applicant failed to provide clear and convincing
evidence to show that state protection would not reasonably be forthcoming.
The Applicant argues that this finding is unreasonable.
[32]
The
Respondent submits that the Officer reasonably came to the state protection
finding based on the fact that the Applicant only approached the police once
since his return to Albania in 1999.
[33]
Based
on the evidence in the record, I regret that I have come to the conclusion that
the Officer’s finding was reasonable. The Applicant has documented that his
family was targeted by members of the police force. The record equally
supports that Koseni was removed from the police force due to his actions.
This supports the Officer’s finding that state protection is available.
[34]
Although
the documentary evidence shows that there is corruption in the police force,
the documentary evidence also suggests that the state is taking actions to
address these issues. The Applicant may have had his reasons for not
approaching the authorities before 2008, but unfortunately, his subjective
feelings on the efficacy of the authorities do not go a long way to showing
that the state is unable or unwilling to protect him.
[35]
Based
on the reasons above, this judicial review is dismissed.
V. Conclusion
[36]
No
question was proposed for certification and none arises.
[37]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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