Date:
20130215
Docket:
IMM-3243-12
Citation:
2013 FC 163
Ottawa, Ontario,
this 15th day of February 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
PAULIN NDOJA, VALBONE NDOJA,
GERALDO NDOJA, AMARILDO NDOJA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review made pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27, of a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the “Board”
or “RPD”). In its decision rendered on February 27, 2012, the Board refused the
application for refugee protection made by Paulin Ndoja and his family.
[2]
The
applicants are Paulin Ndoja (the “principal applicant”), his wife Valbone and
their children Amarildo and Geraldo. They are citizens of Albania.
[3]
It
is not disputed that the principal applicant, while he was carrying out his
mandatory military service during the communist regime in Albania, would have been jailed and eventually released when the communist regime toppled.
The principal applicant was tortured and forced to perform hard labour, starved
and kept in solitary confinement during this time. He suffers from
post-traumatic stress disorder as a result of the treatment he received in
1998.
[4]
The
applicant’s family was known to be anti-communist and, as a result, the
principal applicant suffered at the hands of the then communist regime. A blood
feud with a neighbouring family, presumably fuelled by the same political
differences, resulted from the principal applicant’s brother killing one of the
men in that neighbouring family. Members of the said neighbouring family caused
a severe injury to Geraldo when, in January 2002, as they were looking for the
principal applicant, Geraldo fell from his mother’s arms. He suffered serious
burns which required medical treatment in the United States. According to the
record, the mother, Valbone, and Geraldo left for the United States six months after the injury was suffered and the principal applicant and
Amarildo followed three years later.
[5]
The
applicants failed in their application for asylum in the United States. They then came to Canada and made a claim for refugee protection the same
day, October 21, 2009.
[6]
The
applicants state in their Memorandum of Argument that “credibility is not an
issue. The RPD did not conduct a credibility assessment in the Decision. The
sole determinative issue is whether there is adequate state protection in Albania.” The Court agrees. In spite of some conflicting statements in the written
materials produced on behalf of the applicants, the parties stated clearly that
credibility is not an issue in this case.
Applicants’
argument
[7]
Basically,
the applicants argue that the Board erred in concluding that there is adequate
state protection in view of the on-going blood feud in Albania. In doing so, the applicants rely principally on the case of Precectaj v Canada (Minister of Citizenship and Immigration), 2010 FC 485, as they try to draw an
analogy between their situation and that present in that case. In Precectaj,
judicial review was granted where the Court concluded that the Immigration and
Refugee Board failed to fully consider the evidence before it, in the context
of a family feud having occurred in Albania and, in particular, it failed to
address individual circumstances in spite of an acknowledgement that there are
cases of insufficient police protection. In that case, the principal applicant’s
family had gone to the police twice, only to be advised that the case was
closed.
[8]
In
essence, the applicants in this case submit that the Board committed an error
in that it was critical of the fact that the applicants had not sought
protection from the authorities back in 2002, and the three years following.
Furthermore, the applicants submit that the panel overlooked the fact that the
principal applicant was detained and tortured by the Albanian police for
political reasons and it failed to consider that factor in assessing why the
applicants would not have gone to those same authorities for protection.
[9]
During
the hearing before the Board, the principal applicant explained that he had not
approached the authorities for protection in Albania with regard to the blood
feud with the neighbouring family because the authorities would do nothing to
help them, and because it might aggravate the said neighbouring family. An
attempt at reconciliation led by the Committee for National Reconciliation
proved to be unsuccessful.
[10]
Relying
on documentary evidence, the applicants argue that Albanian authorities are
unable to deal with blood feuds effectively or offer protection to its
citizens. Finally, the applicants complain that the Board did not address
sufficiently their submissions in denying them refugee status. As a result,
they claim, their submissions were not adequately considered.
Respondent’s
argument
[11]
The
respondent argues that the presumption of state protection has not been
rebutted in this case. Indeed, the applicants never went to the police or any
other authorities following the incident of June 2002. Contrary to the
applicants’ argument, the Board specifically assessed their particular
circumstances and found that they chose not to go to the police. It was opened
to the Board, according to the respondent, to find that the applicants had not
exhausted all avenues offered by the state. All in all, the Board noted both
positive and negative evidence and it acknowledged that the overall picture of
state protection was mixed with respect to blood feuds in Albania.
Issues
[12]
The
applicants put the following issues before the Court:
a. Did the
Board err in concluding there is adequate state protection for the applicants
due to the on-going blood feud in Albania between his family and another
family?
b. Is
the Board’s failure to refer to counsel’s submissions a reviewable error?
Analysis
[13]
As
repeated abundantly by the applicants’ counsel at the hearing, the sole issue
in this case is the availability of state protection, a mixed question of fact
and law.
[14]
As
has been found in many cases considering the issue of state protection in the
context of a family feud, the standard of review is one of reasonableness. It
follows that the decision will go undisturbed if it falls “within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para 47). The
decision must be sufficiently justified, transparent and intelligible. The
question is not whether or not the applicants had established a subjective
fear. Rather they had to satisfy the Board that the presumption of adequate
state protection had been rebutted in this case. That such a presumption exists
should not be disputed. In Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689, one can read at paragraph 50:
… a claimant might advance testimony of similarly
situated individuals let down by the state [page 725] protection arrangements
or the claimant’s testimony of past personal incidents in which state
protection did not materialize. Absent some evidence, the claim should fail, as
nations should be presumed capable of protecting their citizens. … Absent a
situation of complete breakdown of state apparatus, … it should be assumed that
the state is capable of protecting a claimant.
[15]
There
is no allegation of a complete breakdown on state apparatus in Albania, such that the existence of the presumption is not challenged. The question then
becomes whether the Board was unreasonable it reaching its conclusion that the
presumption has not been rebutted. I do not think that such unreasonableness
has been shown in this case.
[16]
Not
only are we faced with a case where the applicants failed to seek state
protection between 2002 and 2005, but the documentary evidence submitted in
order to show that Albania is incapable of protecting its citizens is at this
stage mixed. Case-by-case analysis is required.
[17]
The
Board addressed its mind to the issue before concluding at paragraph 16 of its
decision that “mechanisms of state protection do exist, although in any one
case they may not be effective, or may not operate.” Perfection is not the
test. Mere attempts at improving the situation may not suffice. But mechanisms
that are efficient without being perfect will. Deficiencies exist, concluded
the Board, but that does not mean that state protection is non existent.
[18]
Indeed
in this case the principal applicant did not submit evidence personal to him
and his family other than the incident in 2002. He stayed in Albania until December 2005, yet there is not any indication that he was in jeopardy then,
or that there is danger now. The issue of the blood feud was really a
generalization without much in terms of details or currency. The fact that he
did not go to the authorities for the matter to be prosecuted or addressed
suggests that the subjective fear of persecution was not prevalent, especially
in view of the fact that the principal applicant and one of his children
remained in Albania for some three years.
[19]
As
for the documentary evidence provided to the Board, it does not allow the
conclusion that state protection is inefficient. The burden on the applicants
is both evidentiary and legal: not only does the applicant need to introduce
evidence that protection will be inadequate, but that evidence must be
probative enough to meet the standard of balance of probabilities (see Minister
of Citizenship and Immigration v. Carillo, 2008 FCA 94).
[20]
The
applicants’ counsel, in his able submissions to the Court, insisted at some
length on Precectaj, supra. He saw in that case a significant
similarity which, he argues, must lead the Court to grant the remedy sought.
[21]
It
was noted by respondent’s counsel that the facts of the two cases differ, in
that the applicant’s family complained to the police twice in Precectaj.
I am not convinced that the cases can be distinguished on that sole basis. I
find much more telling that the Court has found in more recent cases that state
protection in Albania can be found to exist (see Trako v Canada (Minister of
Citizenship and Immigration), 2011 FC 1063; Krasniqi v Canada (Minister
of Citizenship and Immigration), 2010 FC 350; Llana v Canada (Minister
of Citizenship and Immigration), 2011 FC 1450; Pepaj v. Canada (Minister
of Citizenship and Immigration), 2012 FC 296, and Pulaku v Canada
(Minister of Citizenship and Immigration), 2011 FC 1048). The nature of
refugee protection is not static: it is forward-looking. Clear and convincing
evidence of the state’s inability to protect is needed.
[22]
More
importantly perhaps, the ratio decidendi in Precectaj is
concerned with the adequacy of the reasons given by the Board to conclude that
state protection was sufficient. As we have found out since, “reasons may not
include all the arguments, statutory provisions, jurisprudence or other
details, the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis”
(see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador
(Treasury Board), [2011] 3 S.C.R. 708 at para 16).
[23]
The
evidence before the Board allowed it to come to the conclusion it reached. It
is one of those decisions that falls within a range of possible outcomes. As it
was put in Andrade v Canada (Minister of Citizenship and Immigration),
2012 FC 1490, by my colleague Justice Gleason:
[11] …
the reviewing court must afford significant deference to the tribunal’s factual
findings, particularly where, as here, the impugned determination falls within
the core of the tribunal’s expertise. Assessments of risk and of the
availability of adequate protection for refugee claimants in foreign states
lies at the very core of the competence of the RPD and are matters that
Parliament has mandated to fall within the RPD’s jurisdiction (see IRPA at para
95(1)(b); Pushpanathan v. Canada (Minister of Employment and Immigration),
[1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 at para 47; Saldana Fajardo v.
Canada (Minister of Citizenship and Immigration), 2012 FC 830 at para 18; Kellesova
v. Canada (Minister of Citizenship and Immigration), 2011 FC 769 at para
11).
[24]
The
applicants complained that the Board failed to refer to counsel’s submissions,
refute them specifically. It seems to me that the Board addressed squarely the gist
of the submissions of counsel. Decision-makers do not have to refer to every
piece of evidence that is contrary to their finding and to give a full
explanation of how they have been dealt with (see Newfoundland and Labrador,
above, and Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35). In this case, the Board explained itself
sufficiently for everyone to know why the application was denied or, in the
words of Justice Abella, for the Court, in Newfoundland and Labrador, supra,
at paragraph 16:
… if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
[25]
In
the case at bar, the reasons of the Board were intelligible in my view and
transparent. Indeed, it was reasonable for the Board to conclude that clear and
convincing evidence has not been adduced to rebut the presumption of state
protection (Ward, supra).
[26]
The
fact that the principal applicant had been detained and allegedly tortured by
the communist regime of Albania can hardly be retained against a subsequent
regime. I see little point in the Board discussing this type of evidence.
[27]
As
a result, the application for judicial review has to be dismissed.
[28]
I
agree with counsel for the parties that this is not a matter for certified
questions pursuant to section 74 of the Immigration and Refugee Protection
Act.
JUDGMENT
The application for
judicial review of the decision made by the Refugee Protection Division of the
Immigration and Refugee Board of Canada on February 27, 2012 is dismissed.
“Yvan Roy”
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