Date: 20060505
Docket: IMM-3986-05
Citation: 2006 FC 566
OTTAWA, ONTARIO, MAY 5, 2006
PRESENT: The Honourable Mr. Justice Strayer
BETWEEN:
LUMTURI BECA,
GRISELDA BECA
DORIS BECA
MEGI BECA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENTAND JUDGMENT
[1] The applicants are Lumturi Beca and her three minor daughters. They are from Albania, having left there in November, 2002 and after some time in the United States arrived in Canada in July, 2003. Lumturi's husband remains in Albania.
[2] Upon their arrival in Canada the four applicants made application for refugee status. That application was rejected by the Immigration and Refugee Board (IRB) on June 10, 2004 and leave to apply for judicial review of that decision was denied on October 21, 2004. On January 21, 2005 the applicants applied for a Pre-Removal Risk Assessment (PRRA). They asserted to the PRRA Officer that they would be in danger if returned to Albania for three reasons: persecution because of their association with the Democratic Party; fear of being a victim of a blood feud declared against Lumturi Beca's husband; and fear that as a woman and children they might be subject to trafficking in human beings.
[3] By virtue of section 113 of the Immigration and Refugee Protection Act, and subsection 161(2) of the Immigration and Refugee Protection Regulations, in such an application for PRRA following rejection of a refugee claim, the applicant can present only new evidence that arose after the rejection by the IRB and must so identify the evidence and indicate how it relates to them. The applicants submitted letters from family, a photocopy of a newspaper article mentioning that Lumturi's husband is in danger by virtue of a blood feud; photocopies of newspaper articles on human trafficking in Albania and other criminal activities said to be prevalent there; a "certificate" from the "Peace Reconciliation Missionaries of Albania" certifying that the applicant Lumturi Beca had requested their assistance in protecting her husband from the blood feud; a report of the Albanian Human Rights Group and a copy of an article from an unidentified source on "trafficking in persons report" released by the "Office to Monitor and Combat Trafficking in Persons, June 14, 2004". The national origin of this article is not identified. All of this was submitted as "new evidence" to confirm the existence of persecution of members of the Democratic Party, blood feuds, and trafficking in women and children.
[4] The PRRA Officer (Officer) observed that the IRB, in dealing with the applicants' refugee claims, did not find Lumturi Beca's evidence to be credible. She compared this new evidence to country reports of the United Kingdom Home Office and a Department of State report and found them to support a somewhat contrary view. As a result she concluded that membership in the Democratic Party by their husband and father was not likely to lead to persecution of the applicants. With respect to the danger from a blood feud she found in the country reports some indication that the state is working to combat this danger. She relied on the presumption that a state is capable of protecting its citizens (see Canadav. Ward [1993], 2 S.C.R. 689). She concluded that the applicants had not satisfied the onus on them to rebut this presumption. There was no evidence before her, for example, that Mr. Beca, the principal target of the blood feud, had ever sought the help of the state. Further she concluded that, as the evidence indicated that blood feuds are most prevalent in the mountain regions, there was an Internal Flight Alternative available to the applicants, namely in southern Albania. With respect to the dangers from human trafficking, while she recognized that such remains a problem in Albania the government of Albania is making serious efforts to combat it.
[5] As a result the Officer concluded that state protection exists for these applicants in Albania and that they are not likely to be at risk to life, torture or cruel and unusual treatment or punishment if they return.
[6] In this application for judicial review the applicants essentially focussed on the blood feud danger. Their counsel attacked the Officer's conclusions on several grounds: that she relied on evidence (the country reports) that had not been provided to the applicants nor did she give the applicants an opportunity to rebut such evidence; that she misconstrued this evidence and wrongly declined to give weight to the applicants' new evidence; and in declining to give weight to the new evidence she was in effect making a credibility finding about the applicants which should have led under section 167 of the Regulations to a hearing.
Analysis
[7] First, with respect to the weighing of the evidence and findings of fact, I believe, and I think the parties agree, that the standard of review is patent unreasonability. I can find no patent unreasonability in the Officer's conclusions of fact. There was certainly evidence to support her conclusions even though it was not unequivocal or without some evidence to the contrary. But it was the responsibility of the Officer to weigh the evidence which she did.
[8] With respect to the Officer's consideration of the country reports, the applicants say that these were not registered at the documentation centre. While there was no sworn evidence on this that they were or were not registered, they were by their nature publicly available and an applicant has a responsibility to be aware of that. See Mancia v. Canada [1998] 3 F.C. 461 (F.C.A.). Whether or not these documents were in the documentation centre they were obviously available on internet and the failure of the Officer to provide them to the applicants is not a denial of fairness. See Huggins v. Canada 2005 F.C.J. No. 306, para. 5. The same cases confirm that whether there has been a denial of fairness in this respect is a matter for the application judge to decide. I find the Officer's decision to resort to these reports to be reasonable. The two United Kingdom reports appear to have been issued in April and December 2004. The Officer did not render her decision until May 11, 2005 and the applicants had made their last submissions in writing the day before it was issued. Had they sought and obtained these reports they could have made submissions on them.
[9] With respect to whether the Officer should have ordered an oral hearing by virtue of paragraph 113(b) of the Act and section 167 of the Regulations, I believe the standard of review is that of reasonableness, a matter of applying the standards established by the Regulations to the facts of the situation. I believe the Officer's conclusions were reasonable. The factors to be taken into account in determining if a hearing on the new evidence is required are cumulative: there must be "a serious issue of the applicant's credibility"; the evidence must be central to the decision; and the evidence if accepted would justify allowing the application for protection. It appears to me that the first factor was not present in this case. The applicants argue that because the Officer gave little weight to statements and letters from members of the applicants' family, or to a copy of a newspaper article reporting that their father and husband was in hiding from a blood feud, this amounted to a finding of credibility against the applicant Lumturi Beca and therefore came within paragraph 167(a) of the Regulations. But the credibility of the principal applicant had been found wanting by the IRB. The new evidence submitted, presumably to provide a new basis for a favourable finding, was not the evidence of the principal applicant but was from third parties and it was their authenticity and weight which the Officer found wanting. Therefore in my view it was reasonable for her to proceed without a hearing.
Conclusion
[10] I will therefore dismiss the application for judicial review. Neither party sought to have a question certified.
JUDGMENT
It is hereby ordered and adjudged that the application for judicial review be dismissed.
(s) "B.L. Strayer"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3986-05
STYLE OF CAUSE: LUMTURI BECA, GRISELDA BECA, DORIS BECA, MEGI BECA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: April 25, 2006
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT
AND JUDGMENT BY: Strayer D.J.
DATED: May 5, 2006
APPEARANCES BY:
Ms. Marjorie Hiley
Toronto, Ontario FOR THE APPLICANT
Ms. Sally Thomas
Toronto, Ontario FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Marjorie Hiley
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
Email this Content