Docket: IMM-3163-13
Citation:
2014 FC 661
Ottawa, Ontario, July 7, 2014
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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NAIM CEKAJ
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Applicant
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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
[1]
This is the third application for judicial
review pursuant to section 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (the Act) of a Pre-Removal Risk Assessment (PRRA)
decision for this applicant. The respondent did not oppose leave and failed to
file a Record with submissions to support this decision. This leaves the Court
to infer that they do not disagree with the applicant otherwise some argument
would have been submitted to defend the decision.
I.
FACTS
[2]
The applicant is a 40 year-old male citizen of Albania who arrived in Canada on January 1, 2008 with his wife and two daughters. He claimed refugee
protection but his application was denied on August 20, 2010. In its decision
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) found that the applicant lacked credibility due to inconsistencies in
his testimony. This Court dismissed his application for leave and judicial
review of that decision. The applicant submits that he is at risk of
persecution or harm in Albania due to his involvement in a blood feud with the
Shabaj family.
[3]
The applicant applied for a PRRA on February 6,
2011 and a negative PRRA decision was rendered on October 12, 2011. He sought
judicial review of the PRRA decision and the respondent consented to have his
PRRA redetermined by a different officer on February 6, 2012. The second
negative PRRA decision was rendered on April 16, 2012 and the applicant again
applied for judicial review of the decision. I granted him a stay of removal on
May 30, 2012. Justice Rennie of this Court allowed the application for judicial
review of the second PRRA decision on December 20, 2012 in Cekaj v Canada
(Minister of Citizenship and Immigration), 2012 FC 1531 [Cekaj] and
the matter was sent back for redetermination by a different officer. The
current application concerns the March 4, 2013 decision of a Senior Immigration
Officer (the Officer) once again denying the applicant’s PRRA application.
II.
DECISION UNDER REVIEW
[4]
The Officer summarized the Board’s refugee claim
decision in great detail, focusing on the issue of credibility, following which
she found that the applicant had not rebutted the conclusions of the Board. The
Officer noted that the risks cited by the applicant in his PRRA application
were the same as those heard and assessed by the Board.
[5]
The Officer then assessed the documentary
evidence submitted in the PRRA application including two translated copies of
attestation letters by the Committee of Nationwide Reconciliation (CNR) which
confirmed its attempts to mediate the feud and two notarized statements by Adem
Isufi, a community elder involved in the attempted mediation. The Officer found
that these documents only confirmed that the blood feud was declared after the
applicant arrived in Canada and that he therefore could not reasonably have
been aware of the feud at the time he made his refugee claim on January 1,
2008.
[6]
The Officer concludes that the applicant has
failed to rebut the inconsistencies, implausibilities, and credibility issues
raised by the Board and that the evidence before her does not demonstrate that
the applicant would face additional forward-looking personalized risks that
were not contemplated by the Board if returned to Albania.
III.
ANALYSIS
[7]
The determinative issue in this application is
the Officer’s treatment of the documentary evidence submitted by the applicant
in support of his PRRA application. It was incumbent upon the Officer to
conduct an adequate analysis of this evidence, which I find she has failed to
do. The Officer’s treatment of the personal documentary evidence submitted by
the applicant as well as the country condition documents tendered to
demonstrate a lack of state protection, were both inadequate and unreasonable.
[8]
In Cekaj at para 18, Justice Rennie
considered a different PRRA officer’s treatment of the same documentary
evidence in the previous PRRA decision, namely the attestation letters from the
CNR, the letter from the community elder, as well as the letter from the applicant’s
brother, and found it to be unreasonable, stating:
In my view, the Officer’s treatment of the
evidence cannot be characterized as justified, transparent or intelligible. The
Officer displayed a pattern of rejecting evidence for reasons that do not
withstand scrutiny. It appears that the Officer employed standardized phrases,
such as considering the evidence vague, without actually engaging with the
content of the evidence in question.
[9]
In my opinion, the Officer in the present case
has once again failed to properly consider the documentary evidence submitted.
The Officer has rejected the probative value of these key pieces of evidence
without reasonable explanation and has made findings of fact that are not based
on the evidence before her.
[10]
When considering both the attestations from the
CNR as well as the letter submitted from Mr. Isufi, the Officer states that “they do not add to the information concerning personal risk
and do not enlighten as to new risk developments for the applicant in Albania” I disagree. The letters do provide new evidence of the blood feud and the
involvement of the CNR and community elders in attempted mediations of the feud.
Unless the Officer is of the opinion that there are concerns as to the
authenticity of the letters, they do present relevant evidence as to the
existence of present or prospective risk for the applicant were he to return to
Albania.
[11]
Further, while assessing the CNR letters, the
Officer notes that their author, Mr. Marku, “has not
provided corroborating evidence to support how he has come to know the reason
for the blood feud”. The letter dated February 10, 2012 mentions that
the CNR has worked with missionaries representing the elders of the villages in
the area and specifically names three of them, including Adem Isufi. I agree
with the applicant that is reasonable to assume that it is through this source
that the CNR came to have information about the feud. This is further supported
by the letter provided from Mr. Isufi where he states that he has “personal knowledge and experience for the continuing blood
feud between the Shabaj and the Cekaj families since February of the year 2008”.
While it was open to the Officer to assess whether the new evidence credibly
demonstrated new risk developments since the Board’s decision, her reasons for
discounting this evidence do not withstand scrutiny.
[12]
The Officer’s treatment of the letter submitted
from the applicant’s brother demonstrates the same errors in reasoning. The
Officer observes that the letter lacks credibility because it does not explain
how the applicant’s brother was able to obtain medication for his mother if the
entire family is in self-confinement and why only one of his daughters was
threatened. I find that it was not reasonable for the Officer to have
discounted this evidence based on these unfounded speculations.
[13]
The Officer’s analysis of the objective country
condition evidence demonstrated the same error found by Justice Rennie in Cekaj
at para 21 where he writes:
Finally, the Officer asserted that the
applicant’s country condition evidence did not assist his claim because it did
not demonstrate that the applicant faces a personalized risk. Country condition
evidence is not tendered to demonstrate the personalized nature of a claim.
Rather, it is relevant to the question of whether the applicant could
reasonably expect state protection.
[14]
Here, again, the Officer has failed to properly
consider the country condition evidence submitted, stating that:
While I accept that blood feuds exist in Albania, it is determined that these reports describe general country conditions or refer to
specific individuals, events or persons not similarly situated to the applicant
in Albania. The applicant is not mentioned by name in these submissions and he
has not linked the contents to his personal, forward-looking risk in Albania.
[15]
This is an unreasonable treatment of the country
condition evidence. There is no necessity that the applicant be named
personally in country condition evidence, which is submitted to demonstrate the
existence of state protection. As found by Justice Rennie in Cekaj at
para 27, since the country condition evidence shows that “there
may be individual cases where the protection is insufficient. In this context,
the error in rejecting the evidence with respect to the applicant’s particular
situation takes on greater significance”.
[16]
In summary, the Officer’s treatment of the
documentary evidence was inadequate and unreasonable. The decision does not
fall within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
IV.
DIRECTIONS
[17]
Given that this is the third application for
judicial review of the applicant’s PRRA, and considering that similar errors
were made in the treatment of the evidence as were previously found by Justice
Rennie in Cekaj, the applicant has asked the Court to issue a directed
verdict pursuant to section 18.1(3)(b) of the Federal Courts Act, RSC
1985, c F-7 to the effect that the applicant has met his evidentiary burden for
a positive PRRA decision.
[18]
While I recognize that the issuing of directions
that amount to a directed decision is within the jurisdiction of the Court under
section 18.1 (3)(b), it is “an exceptional power that
should be exercised only in the clearest of circumstances” (Rafuse v Canada (Pension Appeals Board), 2002 FCA 31). In the context of determinations of
whether an applicant is a Convention refugee or person in need of protection,
for example, the Court has issued these directions when the only conclusion
that was open to the Board was to find that the applicant was a Convention
refugee (Attakore v Minister of Employment and Immigration, (1989) 99 NR
168 (FCA) at 170; Bindra v Canada (Minister of Employment and Immigration),
(1992) 18 Imm LR (2d) 114 (FCA) at paras 17-18).
[19]
Where there are issues of fact that remain to be
resolved it is appropriate for the Court to refer the matter back for a new
hearing rather than issue directions amounting to a directed decision (Turanskaya
v Canada (Minister of Citizenship and Immigration), (1997) 145 DLR (4th)
259, 210 NR 235 (FCA) at para 6). This is the case here where there are still
factual determinations to be made.
[20]
Therefore, I would allow this application for
judicial review and order it be reconsidered by a different PRRA officer with
the following direction:
On the reconsideration
of the applicant’s application, the Officer must conduct a thorough and
adequate analysis of the documentary evidence submitted to determine if it is
established that the applicant would face a present or prospective risk if he
were returned to Albania regardless of whether or not he was at risk at the
time of his refugee claim, in accordance with the reasons given in this
decision as well as the earlier reasons in Cekaj.
V.
COSTS
[21]
At the hearing the applicant made a request for
costs in the amount of $5,000. I find that the respondent’s conduct in
appearing before this Court without having filed any Record to be unacceptable.
Such an action not only forces the applicant and the Court to participate in a
hearing that may have been unnecessary as the application for leave to commence
an application for judicial review was unopposed, it also deprives the Court of
having the benefit of arguments from both parties. I find that these
circumstances amount to “special reasons” for awarding costs in the context of
an application for judicial review under Rule 22 of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22 as the respondent has
acted improperly in these proceedings and has unnecessarily prolonged
proceedings (Johnson v Canada (Minister of Citizenship and Immigration),
2005 FC 1262 at para 26). In my opinion a reasonable lump sum award of costs in
the circumstances would be $2,500.00 and I will so order that it be paid by the
respondent.
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