Date: 20070507
Docket: IMM-2008-06
Citation: 2007
FC 496
Ottawa, Ontario,
May 7, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ANTON
PERJAKU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The fact that the Immigration and Refugee Board (Board) stated
that the Applicant provided “no evidence to support his story about a family
feud” does not establish that it ignored or misconstrued the evidence submitted
before it. Hence, it is open to the Board to assess the evidence and give it
little or no probative value. (Woolaston v. Canada (Minister of Manpower and
Immigration), [1973] S.C.R. 102.)
[2]
In general, the Court should not interfere with the Board’s
credibility findings, regardless of whether it agrees with the inferences drawn
by the Board, unless the Board based its conclusion on irrelevant
considerations or ignored evidence. Furthermore, the Board, as the primary
finder of fact, is entitled to reject evidence if it is not consistent with the
probabilities affecting the case as a whole. Moreover, the Board is entitled to
make an adverse finding of credibility based on the implausibility of the
Applicant’s narrative and can make reasonable findings based on common sense
and rationality. (Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (QL), at paragraph 4.)
JUDICIAL PROCEDURE
[3]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of
the Board rendered on March 21, 2006, wherein the Board found the Applicant to
be neither a Convention refugee nor a person in need of protection pursuant to
section 96 and subsection 97(1) of the IRPA.
BACKGROUND
[4]
The Applicant, Mr. Anton Perjaku, is a 23-year old citizen of Albania.
On March 17, 2002, Mr. Perjaku entered Canada with a fake Greek passport, after
traveling through Italy, Spain and the Dominican Republic. He claimed refugee
protection upon arrival.
[5]
Mr. Perjaku alleges a fear of persecution on the basis of his political
opinion as a member of the Legality Party (LP) and his membership in a
particular social group, namely males belonging to the Perjaku extended family
who are involved in a blood feud with another family.
[6]
In his first Personal Information Form (PIF) narrative in 2002, Mr.
Perjaku alleges that he and his family were members of the LP that supported
the return of King Leka. In 1990, an opposition party was formed, the
Democratic Party (DP). The LP, along with the DP, joined a coalition of parties
to form the opposition. In 1992, the DP was brought to power and again in 1996.
In 1997, new elections were called and the Socialist Party (SP) defeated the
DP. The coalition of democratic parties returned to the opposition and the
Applicant alleges that his family continued to be harassed and persecuted by
the police and government agents.
[7]
Mr. Perjaku alleges that he was arrested twice by the police due to his
political involvement; once on June 18, 2001, for putting up posters in the
wrong place and the second time, on June 30, 2001, because he was parked in the
wrong place. Both times, he was kept overnight in jail. The Applicant states
that these were political excuses to arrest him. Other members of his family,
especially his father were also persecuted by the government. Mr. Perjaku also
stated that his father owned a restaurant which was the target of police raids.
[8]
In his second PIF narrative, dated February 2006, Mr. Perjaku alleges
that although the DP is presently governing the party in Albania, he continues
to fear the police in Albania because the LP is at this time a member of the
opposition of the DP government. He also alleges that his life is even more in
danger now because of a blood feud between his family and the Kola family that
erupted in July 2005. The Applicant alleges that if he returns to his country,
he would be forced into isolation to avoid being killed by the members of the
Kola family.
DECISION UNDER REVIEW
[9]
The Board determined that the narrative of the Applicants did not
provide trustworthy information to reveal that Mr. Perjaku was indeed very
politically active in his country.
[10]
With respect to Mr. Perjaku’s fear of persecution on the basis of his
political opinion, the Board noted that the Applicant was a full-time high
school student at the time of the alleged political activities and found that
he did not have a very high political profile.
[11]
Moreover, the Board found that the Applicant’s reasons as to why he
would be in greater danger than his father, the person more directly involved
with the LP, were vague and evasive. Furthermore, the Board found that the
documentary evidence did not support the Applicant’s allegations that he would
be persecuted even if he resumed his political activities upon his return to Albania.
[12]
With respect to Mr. Perjaku’s fear of persecution on the basis of an
alleged blood feud between his family and the Kola family, the Board found that
the Applicant’s testimony was vague and evasive and his allegations not
credible. Moreover, the Board found that the documentary evidence on the issue
of blood feuds did not support the Applicant’s allegations. Specifically, the
documentary evidence indicates that the government of Albania has taken serious
measures to control criminal activities and alleged blood feuds by establishing
stricter laws and penalties against the feuding parties in recent years.
Finally, the Board believed that because the governing party in Albania had
changed, the Applicant had presented the new story of blood feud to further
enhance his narrative.
ISSUE
[13]
Did the Board make a patently unreasonable finding of fact without
regard to the evidence before it?
STATUTORY SCHEME
[14]
Section 96 of the IRPA reads as follows:
|
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.
|
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.
|
[15]
Subsection 97(1) of the IRPA states the following:
|
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.
|
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.
|
STANDARD OF REVIEW
[16]
With respect to questions of credibility, the proper standard of review
is that of patent unreasonableness. The Board is a specialized tribunal and has
complete jurisdiction to assess an Applicant’s credibility on the basis of
implausible testimony, contradictions and inconsistencies in the evidence.
Where the Board’s inferences and conclusions are not so unreasonable as to
warrant the Court’s intervention, its findings are not open to judicial review,
regardless of whether the Court agrees with the inferences or conclusions drawn.
(Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2
S.C.R. 100, Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph 14; Aguebor,
above, at paragraph 4.)
ANALYSIS
Did the Board make a patently
unreasonable finding of fact without regard to the evidence before it?
Credibility
finding
[17]
Mr. Perjaku argues that the Board erred in its treatment of the evidence
relevant to the issue of state protection, as well as the evidence regarding
the blood feud declared against his family in Albania. In this regard, the
Applicant states that the Board ignored two documents supporting his
allegations of a blood feud – a letter from his uncle (declaration) and a
letter from the Peace Missionaries.
[18]
Given the numerous contradictions and inconsistencies between the
Applicant’s documentary evidence and his testimony, the Board’s conclusion that
Mr. Perjaku’s narrative was not credible was not patently unreasonable.
[19]
It is well-established that, unless proven otherwise, the Board is
presumed to have taken all of the evidence into consideration, regardless of
whether it indicates having done so in its reasons. Here, the Board expressly
stated that it had examined the Applicant’s personal documents adduced in
support of his claim. Moreover, as the Federal Court of Appeal noted in Hassan
v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 946 (QL), “The fact that some of the documentary evidence was not
mentioned in the Board's reasons is not fatal to it's decision.”
i) The
Board did consider the declaration
[20]
In light of the transcripts of the hearing, it appears that the Board
specifically questioned the Applicant at length about the declaration, with the
Refugee Division member, having noted that the declaration was one of Mr.
Perjaku’s personal documents. (Transcripts of the hearing, at pages 14-21.)
[21]
Moreover, the Board drew attention to the fact that the Applicant’s oral
testimony contradicted the declaration. For example, Mr. Perjaku testified that
he believed that Ndue Kola, the alleged person to have declared the blood feud,
was a member of the secret services. The Board pointed out that the declaration
stated that the Ndue Kola was an ex-police. (Applicant’s record, at page 117;
Transcripts of the hearing, at page 14.)
[22]
Similarly, the Applicant testified that he did not know if anyone other
than Ndue Kola had firearms, but the declaration stated that gunshots were
exchanged. The Board pointed out that this statement in the declaration
necessarily implied that more than one person was armed, and that this
contradicted his testimony. The Applicant did not provide an explanation at
first and then stated that his uncle had a firearm. (Transcripts of the
hearing, at pages 14-15.)
[23]
Another contradiction noted by the Board between the declaration and the
Applicant’s testimony pertains to the statement in the declaration that “after
the Democratic Party came to power, I re-appealed to the police for help…” At
the hearing, when asked specifically if anything had happened between the
federal elections of July 3, 2005 to December 25, 2005, the Applicant stated
that his family had been in confinement. He did not mention any re-appeal to
the police after the new party came into power. (Transcripts of the hearing, at
page 20.)
ii) The
Peace Missionaries letter had no probative value
[24]
The fact that the Board stated that Mr. Perjaku provided “no evidence to
support his story about a family feud” does not establish that it ignored or
misconstrued the evidence submitted before it. Hence, it is open to the Board
to assess the evidence and give it little or no probative value. (Woolaston,
above.)
[25]
The Board found that it had difficulty believing that the alleged feud
between the families had a political basis. Given this finding, the letter from
the Peace Missionaries stating that the conflict began with a quarrel between
the parties for political reasons had little probative value, as the
information it contained was disbelieved by the Board.
iii) The
credibility finding was not patently unreasonable
[26]
In general, the Court should not interfere with the Board’s credibility
findings, regardless of whether it agrees with the inferences drawn by the
Board, unless the Board based its conclusion on irrelevant considerations or
ignored evidence. Furthermore, the Board, as the primary finder of fact, is
entitled to reject evidence if it is not consistent with the probabilities
affecting the case as a whole. Moreover, the Board is entitled to make an
adverse finding of credibility based on the implausibility of the Applicant’s
narrative and can make reasonable findings based on common sense and
rationality. (Aguebor, above, at paragraph 4.)
[27]
The following findings made by the Board are clear and detailed and outline
the various inconsistencies, contradictions and implausibilities in the
Applicant’s documentary evidence and testimony:
(1) The
Board found the Applicant’s testimony to be vague and evasive. Even on the
central issue of the alleged blood feud, the Applicant was unable to give
proper details, and his testimony contradicted the declaration given by his
uncle. He also gave very vague testimony as to why his family had not sought
the help of the government regarding the feud. (Decision of the Board, at page
6.)
(2) The
Board found it difficult to understand why the Applicant would be more at risk
on political grounds than other members of his family, given his testimony that
his father had been more politically active. (Decision of the Board, at page 4.)
(3) The
Board found it implausible that, after the governing party in Albania had
changed to a party that the Applicant supported, the Applicant’s family should
become involved in a blood feud, given that the documentary evidence on blood
feuds did not support the Applicant’s allegations. Furthermore, the Board
disbelieved that the blood feud had a political basis, in light of the
Applicant’s contradictory, unconvincing and vague evidence. (Decision of the
Board, at page 6.)
[28]
As such, the Board did not err in bringing to the forefront the
inconsistencies, contradictions and implausibilities in the evidence before it,
and thus making a negative inference as to the credibility of the Applicant. In
fact, Justice James Hugessen of the Federal Court of Appeal in Canada
(Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. No. 571
(QL) states the following:
…unless one is
prepared to postulate (and accept) unlimited credulity on the part of the
Board, there must come a point at which a witness's contradictions will move
even the most generous trier of fact to reject his evidence.
[29]
Moreover, as the Board found the Applicant not to be credible generally,
it was open to it to make the overall finding that the Applicant’s testimony
was not credible. As noted by Justice Mark MacGuigan in Sheikh v. Canada
(Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990]
F.C.J. No. 604 (QL):
…even without
disbelieving every word an applicant has uttered, a first-level panel may
reasonably find him so lacking in credibility that it concludes there is no
credible evidence relevant to his claim on which a second-level panel could
uphold that claim. In other words, a general finding of a lack of credibility
on the part of the applicant may conceivably extend to all relevant evidence
emanating from his testimony.…
(Reference is
also made to: Chavez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré
v. Canada (Minister of Citizenship and Immigration), 2005 FC 964,
[2005] F.C.J. No. 1213 (QL), at paragraph 10.)
[30]
Consequently, the conclusion of the Board was reasonable and the
intervention of the Court is not justified.
State
protection
[31]
Mr. Perjaku argues that the Board erred by stating that his family had
not sought the help either from the police authorities or from the people they
knew in the government following the blood feud incident.
[32]
While the Applicant testified that his family reported the matter to the
police (and not the federal government), it is clear that the Board did not
find his testimony credible as it found that the documentary evidence did not
support his story. Moreover, the only alleged attempts to access state
protection made by the Applicant’s family were two reports, one lodged in July
and the other in December, to the police. They did not try to access assistance
from the courts or the newly-elected federal government, which may have
included people they knew and had supported.
[33]
When the state in question is a democratic state, as in the present
case, the Applicant must do more than simply state that his family made two
reports to the police. The burden of proof that rests on the Applicant is
directly proportional to the level of democracy in the state in question: the
more democratic the state’s institutions, the more the Applicant must have done
to exhaust all the recourses of action open to him. Given that the Applicant’s
family only allegedly attempted to access state protection, it was open to the
Board to find that Mr. Perkaju had given no clear and convincing evidence to
indicate that there was no protection available in his country, regarding the
alleged blood feud. (N.K. v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1376 (QL), at paragraph 5.)
[34]
The Board reasonably determined that adequate
and effective state protection was available to the Perkaju family in Albania. The Board assessed the Applicant’s
evidence and the objective documentary evidence on country conditions in Albania. The conclusion that state protection
is available to the Perkaju family was amply supported with references to
various sources. For example, the Board pointed out a US Department of State
Report which referred to the new government’s efforts to fight crime and
corruption. It was therefore open to the Board to find that the documentary
evidence did not support the Applicant’s allegations.
[35]
The issue of the availability of state
protection is a question of fact within the jurisdiction and expertise of the
Board and, as such, is to be accorded significant deference. (Jahan v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 987 (QL), at
paragraphs 9-10.)
[36]
This Court has had the opportunity to review the
assessment of state protection in Albania in several recent judicial review applications. These cases
reinforce the Minister of Citizenship and Immigration’s view that, where there
is some evidence which supports the Board’s conclusions and where the Board has
referred to relevant documentary evidence, the Court should not interfere. The
Board is not obliged to find that there is perfect state protection available
to the Perkaju family. (Canada v. Minister of Employment and Immigration v. Villafranca, [1992] F.C.J. No. 1189 (QL) (F.C.A.); Agastra
v. Canada (Minister of Citizenship and Immigration), 2006 FC 548, [2006]
F.C.J. No. 690 (QL); B.R. v. Canada (Minister of Citizenship and Immigration), 2006 FC 269, [2006] F.C.J. No. 337 (QL).)
[37]
The Board’s conclusions on the issue of state
protection were reasonably open to it on the evidence before it.
CONCLUSION
[38]
For all the above reasons, the judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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