Docket:
IMM-10069-12
Citation: 2013 FC 982
Ottawa, Ontario, September
25, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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QAZIME TALO
JURGEN TALO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is the second judicial review proceeding involving
the Applicants. In Talo v Canada (Minister of Citizenship and Immigration),
2012 FC 478 (CanLII), Justice Campbell quashed the first negative decision of
the Immigration and Refugee Board [Board] and ordered a redetermination with
the following direction:
Because of her
vulnerability, Dejana should not be placed in the position of having to prove
her innocence and credibility a second time, and, therefore, the
redetermination will be conducted on the evidence in the present record
accepted as credible and on an application of the Chairperson’s Gender
Guidelines. The Applicants are at liberty to supply further evidence and
argument on the issue of state protection in Albania.
II. BACKGROUND
[2]
The Applicants in this judicial review are a
mother Quazime Talo and her son Jurgen. In the first judicial review, matters
focused on the daughter Dejana. All are citizens of Albania.
[3]
The family made their refugee claim in 2009
predicated on what had happened to Dejana in Albania. Dejana feared that she
would be kidnapped and forced into prostitution by human traffickers. She had
been approached numerous times by these traffickers and ultimately she was
raped by two men.
[4]
The mother continually expressed fear of these
human traffickers particularly if any of the family tries to interfere with
them.
[5]
The Board denied their first claim and this
decision was overturned by Justice Campbell on judicial review. Prior to
issuing his Direction, Justice Campbell made two important statements for his
decision:
[8] I find that
the evidence quoted by both the RPD in its decision and tendered by Counsel for
the Applicants raises a grave doubt that state protection exists for women in Albania.
[9] In
the result, I find that the decision under review is made in [sic]
reviewable error for two reasons: no proper application was conducted of the Chairperson’s
Gender Guidelines, and no fair analysis was given to the available
evidence.
[6]
In the subsequent Board hearing, the Applicants
(the mother and her son) called no evidence. Applicants’ counsel had written to
the Board indicating that “these claimants will not need to testify against [sic]
as there are no issues as to credibility”. Counsel again wrote that since
Dejana’s evidence was credible, the only issue to be addressed is that of state
protection in Albania.
[7]
At the hearing, the Board concluded that the
only issue was whether state protection would be forthcoming to the claimants.
[8]
In the second decision, the Board essentially
found that there was no basis for the mother or son’s fear of return to Albania.
III. ANALYSIS
[9]
The Applicants argue that there has been a
breach of procedural fairness because the Board did not question the mother and
did not consider all the evidence. As such, it is subject to a correctness
standard of review.
[10]
The Respondent submits that the real issue is
the Board’s conclusion on state protection; an issue which is governed by a
reasonableness standard of review (Adoni v Canada (Minister of Citizenship
and Immigration, 2012 FC 516 (CanLII)).
[11]
While the record of the hearing is not entirely
clear, it was the Applicants who chose not to call evidence on the issue of
fear because the Direction referred only to the issue of state protection.
[12]
However, the issue in this case is whether state
protection would be available to these particular individuals. This cannot be a
purely generic consideration of the availability of state protection to all individuals
in Albania.
[13]
Given that Justice Campbell indicated that the
Applicants “were at liberty to supply further evidence and argument on the
issue of state protection in Albania”, and that Applicants’ counsel chose not
to supply additional evidence, I cannot find that the Board erred in respect of
procedural fairness.
[14]
The real issue in this judicial review is the
Board’s decision that state protection was available to the Applicants. In this
regard the Board made findings inconsistent with a finding of available state
protection.
[15]
In considering this issue, the Board refers to a
report entitled “Trafficking in Persons report 2011” and makes the following
key conclusion:
The state’s efforts,
its capacity and the will to effectively implement that procedural framework
cannot be gleaned from the country documentation cited above.
[16]
Having reached that conclusion, the Board makes
no further analysis of state protection. It is not possible to reconcile the
above finding with the Board’s ultimate conclusion.
[17]
While the Court should not find ways to
undermine a decision (Alberta (Information and Privacy Commissioner)
v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654), the Court
cannot be left to guess at the basis for the state protection conclusion. This
type of problem has been addressed by this Court (see Contreras v Canada (Citizenship and Immigration), 2007 FC 589 (CanLII)) and found to constitute
grounds to quash a decision.
IV. CONCLUSION
[18]
Therefore, I am prepared to grant judicial
review, quash the Board’s decision and refer the the Applicants’ claim back to
be determined by a different Member of the Board. I am not going to issue a
Direction (it may have caused more unintended problems in this case). The
Member is, after notice to the parties, to determine the issues to be addressed
and the procedures to be followed.
[19]
There is no question for certification.
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