Date: 20071004
Docket: IMM-4009-06
Citation: 2007 FC 999
BETWEEN:
ALEKO SHOLLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated July 27, 2006, wherein
it determined that the applicant was not a “Convention refugee” or a “person in
need of protection” as defined in sections 96 and 97 respectively of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
* * * * * * *
*
[2]
The
Board held that the central issue was state protection. The Board noted that
the threshold for rebutting the presumption of state protection is higher in
democracies but held that Albania was an emerging
democracy and thus the threshold was low. The Board found that although the
general situation with respect to the availability of state protection in Albania was less
than adequate, the applicant had failed to rebut the presumption of state
protection.
[3]
The
Board held that there was no effective state protection in 1997 when the
applicant made a police complaint about his cousin’s murder, but that in the
spring of 2002 this changed. The police investigated, arrested, and charged an
individual who was subsequently convicted and served a sentence. The Board held
the police had shown by their actions that they were prepared to take action
when they have sufficient evidence and that the courts are prepared to proceed
when they have evidence. The applicant had not explained why he was no longer
prepared to try to seek assistance from the police to deal with the continuing
threats being made against his family. The Board noted that the applicant had
no reason to believe that the police are not prepared to act as they did in the
spring of 2002.
[4]
The
Board noted that it was not possible to go through all of the documentary
evidence, but referred to one report which indicated that Albania had asked
the European Union for support to assist in the control of corruption. The
report notes that the President of Albania made a statement that the government
has already taken significant reform. The Board held that the different
response by the police in the spring of 2002, compared to the police response
in 1997, is evidence of this reform.
[5]
The
Board concluded that
. . . I am not satisfied that the fact
that in 1997 the police did not respond in an appropriate way that then forever
after, gives the claimant in this particular case, justification to never trust
the police again. I believe that because on its face the police appeared to
provide an appropriate response in 2002, then subsequent to that response there
is an obligation on the claimant to again turn to the authorities before coming
and asking for the protection of Canada.
* * * * * * *
*
[6]
This
matter raises the following issues:
- Did the Board apply the
correct test for state protection?
- Did the
Board reasonably determine that the applicant had not rebutted the presumption
of state protection?
- Did the
Board fetter its discretion by referring to the Pre-Removal Risk Assessment (PRRA)
process in its decision?
* * * * * * * *
Test
for state protection
[7]
The
applicant submits that the Board applied the wrong test for state protection by
finding that serious efforts to provide state protection, rather than effective
state protection, are required. The applicant points to the following finding
of the Board as evidence that the Board applied the wrong test:
In
conclusion, I am satisfied that the state of Albania is making serious efforts to provide
adequate, although certainly not perfect protection, for individuals such as
the claimant.
[8]
The
applicant’s argument seems to be that, because the Board used the words
“serious efforts” instead of “effective protection”, the Board did not consider
whether effective protection was available. I do not agree. The Board did
consider whether effective state protection was available when it found that
. . . They have shown those serious efforts
in their treatment of the claimant in 2002, and I am satisfied that the
claimant failed to rebut that those efforts would not provide him with
protection if he was to return to Albania
today.
[9]
In
my view, the Board considered not only whether Albania had made serious efforts
to provide state protection but also considered whether these serious efforts
resulted in adequate state protection for the applicant.
Board’s finding on the
availability of state protection
[10]
The
applicant submits that the Board erred in finding that effective state
protection was available by basing its assessment on one factor only – the
State prosecuted the applicant’s assailant in 2002. The applicant submits that
the Board failed to consider the documentary evidence which indicates that the
state protection in Albania is inadequate.
[11]
The
respondent submits that the applicant should have taken reasonable steps to
avail himself of state protection by seeking the assistance of the police,
given that they demonstrated that they were willing and able to take action
against criminal activity. The respondent further submits that it was open to
the Board to prefer the documentary evidence that the government of Albania was
undertaking reform to the applicant’s explanation as to why he did not seek
protection.
[12]
The
Board need not summarize all the evidence or refer to every piece of evidence (Hassan
v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.) and Florea v. Canada
(M.E.I.), [1993] F.C.J. No. 598 (F.C.A.) (QL)); however, if the Board
fails to specifically mention important evidence, a court may be willing to
infer from the silence that the decision-maker made an erroneous finding of
fact (Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425 (T.D.)
(QL)).
[13]
In
the present case, I am not convinced that the Board’s failure to specifically
mention the documentary evidence on the availability of state protection in Albania suggests that the Board
made an erroneous finding of fact. My conclusion in this regard is based on the
following statement by the Board:
Counsel
took me through a generalized appraisal of the situation of state protection
and I agree with counsel that the generalized picture of conditions in Albania is certainly less than adequate. However, I have to take
the evidence for this particular matter and mirror it, or superimpose it over
the generalized appraisal as outlined by counsel.
[14]
This
indicates that the Board was aware that the documentary evidence showed that,
generally, state protection was less than adequate. Therefore, I am satisfied
that the Board did not ignore the documentary evidence.
[15]
Unless
a state has collapsed there is a presumption that the state is willing and able
to protect a claimant. It is up to the applicant to rebut this presumption with
some clear and convincing evidence (Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689). Providing documentary evidence of generalized country
conditions will not always be enough to rebut this presumption. In my view, it
was entirely reasonable for the Board to find that generalized documentary
evidence indicating that state protection was generally less than adequate was
not sufficient to rebut the presumption of state protection in light of the
fact that the applicant had received state protection in the past. The
applicant made no attempt to seek state protection even though the state had
previously provided protection. In these circumstances, I find that the Board’s
conclusion that the applicant was obliged to try to seek state protection in Albania was reasonable.
Fettering of discretion
[16]
The
applicant also
submits that the Board fettered its discretion in referring to the PRRA
process. The paragraph that the applicant takes exception to reads as follows:
I would
agree with counsel’s submission that if very strong evidence, or even
sufficient evidence to suggest that someone would be killed if they were to
return to their country of origin that they should be protected in Canada. If in fact that is the case
here I would only respond that there is a pre-removal risk process that looks
specifically at that issue. Even though I may find that the efforts of the
state would provide adequate although not necessarily perfect protection. This
finding would not preclude the claimant from being protected from removal.
[17]
The
applicant submits that this comment shows that the Board believed that
alternative protection was available from within Canada.
[18]
The
respondent submits that the Board referred to the PRRA process in only a
hypothetical context, in response to submissions of the applicant’s counsel.
The respondent submits that there was no fettering as the Board fully analyzed
the applicant’s claim and found that he had not adequately rebutted the
presumption of state protection and rejected his claim on this basis.
[19]
The
Board’s comments are puzzling and they seem to suggest that the Board did not consider
it within its scope of responsibility to consider whether the applicant would
be killed if he returned to Albania. Nevertheless, I do not
see how these comments are evidence that the Board has fettered its discretion,
particularly in light of the Board’s comments in the following paragraph:
. . . If in fact there is evidence to
satisfy another panel with a different mandate; that in fact he would be killed
if he were to be returned; that recourse could be sought. I certainly have
not made a finding that he would be killed if he were to be returned. (Emphasis
added.)
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[20]
For
all the above reasons, the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
October
4, 2007
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