Date: 20080226
Docket: IMM-1673-07
Citation: 2008 FC 249
Ottawa, Ontario, February 26, 2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
EDUART GJOSHI
FLORA GJOSHI
MELISA GJOSHI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board of Canada (Refugee Protection Division) (Board) of March 29, 2007
determining that the Applicants are not convention refugees and are not persons
in need of protection.
Facts
[2]
The
male Applicant, Mr. Eduart Gjoshi, was born in 1978 in Albania. The other
Applicants are his wife and minor daughter, all citizens of Albania. They claim
to have a well-founded fear of persecution if they were to return to Albania, by reason
of their family being involved in a blood feud.
[3]
The
Applicants say that Mr. Gjoshi’s brother, Altin, founded a folksong group in
2004. The group apparently played for the public and the audience periodically
threw money into a drum case. In September, 2005 Altin caught the guitar player,
Luan Sula, taking money from the drum case and he fired Luan from the group.
The next day Luan, together with two of his cousins, stopped Altin in the
street and beat him requiring his hospitalization. After his release from
hospital Altin and their cousin Ardin, by way of revenge, confronted Luan and
badly injured him, requiring him to be hospitalized. Mr. Gjoshi says that a few
days later, their family home was shot at. In October the Applicant obtained
false passports for himself and his family and they left Albania. They first
spent some weeks in Greece and then went to Italy. In neither
country did they make a refugee claim. Upon arrival in Canada on March 27, 2006
they applied for refugee status. There is no dispute over these facts.
[4]
However,
when asked why his brother had not complained to the police about the attack on
him by Luan and his two cousins, the Applicant said that the police would not help.
However, he did in evidence say that when his brother beat Luan, Luan went to
the authorities for assistance. In the tribunal record there is a certificate
from a police commissariat in Albania certifying that Altin and his cousin
Ardin, who would have been the object of Luan’s complaints, were called to
report to the police station on September 26, 2005 and that they did not
report.
[5]
As
evidence of the existence of a blood feud, the Applicant submitted a
“certificate” from the “Association of Peace and Reconciliation Missionaries of
Albania” which is said to be a non-government organization attempting to
resolve blood feuds. The first certificate dated August 28, 2006 certified that
the Applicant’s family is in a conflict with the family of Luan Sula starting
on September 11, 2005. It relates a story much like the Applicants’. It says
however, that “as soon as our organization was notified we started working to
resolve the problem” which would suggest that it had no direct information as
to what had happened. The Board observed that “This letter was not produced
until August 28, 2006, nine months after the claimant’s [sic] came to Canada.
Accordingly, the panel has attached no weight to this document”. A further
certificate from this same Association, dated January 16, 2007, stated that on
August 26, 2006 two cousins of the Applicant were fired upon “by unidentified
people”. It went on to say that the Association believed that such incident
took place as a result of the family feud referred to earlier. The Board made
no reference to this certificate.
[6]
There
was considerable documentation in the form of country reports, most of them
drawn from the IRB’s own sources, and many of which were specifically relied
upon in the Applicants’ submissions. This documentation was largely to the
effect that blood feuds do exist in Albania, that they can be
started by something as simple as a fight, and that the police are ineffective
in stopping them. This documentation is not referred to in the Board’s
decision.
[7]
The
Applicants attack the decision on the basis that it is patently unreasonable
because the Board ignored some relevant evidence but gave credence to other
evidence. The Applicants’ case is not strengthened by the diffused form of their
attack. The Applicants also allege bias because the Board gave no weight to
their evidence, a breach of fundamental justice by failing to mention the
Applicants’ submissions in its decision, a breach of fundamental justice in not
warning the Applicants what they must prove, and a failure to consider evidence
including current country conditions.
Analysis
[8]
The
parties are in agreement that the standard of review with respect to fact
finding in such a proceeding is patent unreasonability. I accept that such may
be generally true but here the prime issue is whether the Applicants have
submitted sufficient evidence to rebut the presumption of state protection and
this is reviewable on a reasonableness standard: see Muszynski v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1075; and Saeed v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1016. There is a
presumption that a state is able to protect the claimant and he has the burden
of rebutting that presumption: Canada (Minister of Employment and
Immigration) v. Villafranca (1992), 18 IMM L.R. 2nd 130. I
believe that all of the diverse attacks on the Board decision by the Applicants
come down to whether it can be said that the Board’s conclusion on this point
was unreasonable. The allegations of bias are really complaints about decisions
on admissibility and weight, decisions which any tribunal must make. The
complaint that the Applicants were not told what case they must meet is not a
breach of fairness where the Applicants or their advisors must have known what
they would have to do to overcome the presumption. The Board erred in saying it
would give no weight to the certificate from the Association of 2006 concerning
the existence of a blood feud. There is no evident logic for rejecting the
document just because it was said to have been produced nine months after the
claimants came to Canada (in point of fact the Applicants arrived in Canada only
five months before the certificate was produced). However, even if it had been
admitted it could not have made any difference to the outcome of the case as
the certificate is intrinsically questionable. It is of course, hearsay, at
perhaps second or third hand and does not indicate that the Association has
actually investigated the situation, mentioning only that it was “notified” of
the existence of the feud. See Fontenelle v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1796, para. 15. For
similar reasons it is not fatal that the Board made no mention of the
certificate of January 16, 2007 concerning the shooting of the male Applicant’s
cousins.
[9]
While
no mention is made of the country reports describing general conditions in
Albania, in the matter of blood feuds, the Board had before it specific evidence
from the male Applicant himself that Luan had reported to the police the attack
on him by the male Applicant’s brother, Altin, and his cousin Ardin. Combined
with this was the police certificate of September 11, 2006 confirming that
Altin and Ardin had been summoned to report to the police station on September
26, 2005 and they did not report. The Board drew from that the conclusion that
the police in that area would take action if complaints were made to them.
[10]
Combined
with such evidence that the Applicants could have resorted to state protection
was the fact that they had spent many weeks in Greece and Italy without
making refugee claims there. It noted that the female Applicant’s family resides
in Italy. The Board
concluded that they did not have a genuine fear for their lives through being
ordered out of Greece or Italy to return to Albania as they
might have been. Nor did the Board find the evidence sufficient to establish
that the Applicants had been involved in a genuine blood feud, with a result
that it apparently did not find the documentary evidence relevant.
[11]
I
am therefore satisfied that it is not possible to say that the decision of the
Board was unreasonable.
Disposition
[12]
I
will therefore dismiss the application for judicial review. Counsel had no
questions to suggest for certification and none will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review of the decision of the Immigration Refugee
Board (Refugee Protection Division) of March 29, 2007 be dismissed.
“B.L. Strayer”
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