Docket: IMM-7074-13
Citation: 2014 FC 761
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, July 30, 2014
PRESENT: The Honourable Mr. Justice Locke
BETWEEN:
PELLUMB CELAJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
This is an application for judicial review of a decision
of the Refugee Protection Division (RPD), of the Immigration and Refugee Board
of Canada, in which the RPD found that the applicant was neither a Convention
refugee for the purposes of section 96 of the Immigration and Refugee Protection
Act, SC 2001, c 27 (IRPA) nor a person in need of protection under
subsection 97(1) of the IRPA.
II.
Facts
[2]
The applicant, an Albanian citizen born on April
1, 1975, claims to be the victim of a blood feud on the part of the Drekaj
family, with whom his own family had several disputes regarding property
boundaries.
[3]
During the first dispute, in 1996, the applicant
and his family reportedly received threats. A second dispute appears to have
occurred in 1997. During that dispute, the applicant’s father and uncle were
purportedly injured. The town’s council of elders was called upon to intervene,
whereupon the Drekaj family made it understood that no reconciliation between the
families would be possible unless the applicant’s family agreed to cede a plot
of their land, to which they consented.
[4]
In 2001, the applicant fled Albania for the United
States and filed an asylum claim, which was refused in 2004. The applicant
remained in that country illegally, following the refusal of his claim, until
2009, at which time he was deported from the United States and forced to return
to Albania.
[5]
In the meantime, in 2008, the applicant’s family
reportedly received new threats from the Drekaj family, who were now claiming a
larger plot of the land. The police allegedly refused to intervene.
[6]
In 2009, a third dispute appears to have erupted
when the Drekaj family built a barn that encroached on the applicant’s family’s
property. During that dispute, Prele, the cousin of the applicant’s father,
shot a member of the member Drekaj family, who lost an arm as a result.
[7]
Following this incident, the Drekaj family
purportedly declared a blood feud against the applicant’s family, forcing the
applicant to remain housebound for his own protection. The applicant’s family
tried in vain to negotiate an end to the conflict and the police apparently
declared that they could not intervene as long as the Drekaj family had not committed
any crime.
[8]
The applicant fled Albania in October 2011 and
arrived in Canada on October 22, 2011. He claimed refugee protection two days
later.
[9]
The hearing before the RPD was held on August
20, 2013.
III.
Impugned decision
[10]
The RPD declared itself satisfied with the
applicant’s identity, but nonetheless rejected his claim for refugee
protection. The RPD found that the applicant’s account lacked credibility and
that he was unable to rebut the presumption that Albania was capable of protecting
its citizens.
[11]
First, the RPD rejected the refugee protection
claim on the grounds that the applicant’s narrative contained significant
contradictions and omissions which undermined his credibility. For example, the
applicant provided different dates in response to the question as to which date
he was ordered deported from the United States. In addition, his testimony
and his personal information form differed with respect to the use of a false
identity and false passports. Furthermore, the applicant gave conflicting accounts
as to whether the police had in fact attempted to arrest Prele, a cousin of the
applicant’s father, following the third dispute between the two families, for
having shot a member of the Drekaj family; he also contradicted himself when
questioned about the availability of an internal flight alternative in Albania.
When confronted with all of these contradictions, the applicant was unable to
provide any convincing explanations.
[12]
Second, the RPD rejected the refugee protection
claim because the applicant was unable to rebut the presumption of state
protection. After reviewing the available documentary evidence, the RPD found
that in Albania there was a form of state protection for persons who are
involved in blood feuds. The applicant presented no clear and convincing
evidence of the state’s inability to protect its citizens, which he was
required to do in order to rebut the presumption of state protection, given
that Albania is a democratic country. Furthermore, according to his testimony,
the applicant failed to take measures to seek protection from the Albanian
state, which is fatal to his claim in this case.
IV.
Issues
[13]
The parties agree that the issues in this case
are the following:
A.
Did the RPD err in concluding that the applicant
was not credible?
B.
Did the RPD err in finding that the applicant
could have availed himself of state protection in Albania?
V.
Standard of review
[14]
Given that the two issues this Court must
dispose of relate to findings of fact (credibility) and to findings of mixed
fact and law (state protection), they are reviewable on a standard of reasonableness
(with regard to the issue of credibility, see Aguebor v Canada (Minister of
Employment and Immigration) (FCA), [1993] FCJ No 732 (QL) at para 4, 160 NR
315, and Carranza v Canada (Citizenship and Immigration), 2010 FC 914 at
para 16, [2010] FCJ No 1119 (QL); with respect to the issue of state
protection, see Hinzman v Canada ( Citizenship and Immigration), 2007
FCA 171 at para 38, [2007] FCJ No 584 (QL), and Ndoja v Canada (Citizenship
and Immigration), 2013 FC 163 at para 14, [2013] FCJ No 161 (QL) (Ndoja)).
[15]
Under the reasonableness standard, a reviewing
court must show deference and cannot substitute its own view of a preferable
outcome or reweigh the evidence (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59, [2009] 1 S.C.R. 339). The Court must therefore
limit its review to "the existence of justification, transparency and
intelligibility within the decision-making process" and "whether the
decision falls within a 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, [2008] 1 S.C.R. 190).
VI.
Analysis
[16]
I found a number of important weaknesses in the RPD’s
findings with regard to the applicant’s credibility. Despite those weaknesses,
the impugned decision in this case survives a review on a reasonableness
standard, as it was reasonable for the decision-maker to conclude that the
applicant had failed to rebut the presumption of state protection, an element
which was fatal to his claim for refugee protection.
[17]
In light of my foregoing conclusions, I will
limit these reasons to the issue of state protection.
A.
Did the RPD err in finding that the applicant
could have availed himself of state protection in Albania?
(1)
Applicant’s arguments
[18]
The applicant contends that the RPD based its
decision regarding state protection on the May 2012 version of a document, when
a more recent version from May 2013 was available at the hearing in August 2013.
Thus, the RPD used an inaccurate document which contained a passage that
indicated that the Albanian government was incapable of protecting its citizens
in cases of blood feuds in the country’s north. With respect to the inclusion
of a new provision in the Albanian Criminal Code, the applicant noted that it
is not enough for legislative measures to be enacted, they must actually be
enforced and be effective on an operational level, which is not the case. In
addition, the RPD is said to have rejected evidence adduced by the applicant
without valid reason.
[19]
More generally, the applicant further argues
that he had in fact rebutted the presumption of state protection, in particular
thanks to the documents he adduced as evidence. He pointed out that each case
must be reviewed on an individual basis and that a state protection analysis
should not merely be limited to the fact that a state is democratic. In this
case, the RPD ought to have verified the effectiveness of the state’s
structures and the reasons for which the applicant was unable to seek the
protection of the Albanian authorities. Furthermore, the applicant had in fact exhausted
all possible avenues available to him, given the circumstances, having not only
turned to the police for help, but toward the village’s council of elders as
well.
(2)
Respondent’s arguments
[20]
In the respondent’s view, the RPD’s decision
with regard to state protection in Albania is reasonable because the applicant
had not met his burden of proof. Indeed, given that there was no evidence of a
complete breakdown of the state apparatus in Albania, the country was presumed
to be capable of protecting its citizens. The onus was on the applicant to
prove, by means of clear and convincing evidence, that this was not the case
and that he had taken all reasonable measures to seek his country’s protection.
In this case, the police service purportedly refused to intervene on one single
occasion, which is generally not enough to rebut the presumption of state
protection. The RPD did in fact acknowledge that blood feuds posed a real
problem, but according to the documentary evidence, the country’s authorities
were making genuine efforts to correct the situation.
[21]
The respondent also addresses the applicant’s
claims. First, the RPD used the correct version of the disputed document, as it
was the version that was in Albania’s National Documentation Package, and the
updated version to which the applicant refers had simply not been included. The
applicant, who had been sent the package prior to the hearing, could have, if
he wished, filed the new version with the RPD in time. Lastly, the respondent
points out that the RPD is presumed to have considered all of the evidence
before it and that state protection need only be adequate, not perfect.
(3)
Determination
[22]
The RPD did not err in finding that the
applicant had failed to rebut the presumption that Albania was capable of protecting
its citizens and that finding therefore does not warrant this Court’s
intervention.
[23]
At the outset, I would like to respond to one of
the applicant’s concerns, which is that the RPD relied on an outdated version
of a document from the National Documentation Package on Albania; it allegedly
cited a 2012 version of the document entitled Operational Guidance Note
at Tab 2.4 of the package rather than the 2013 version. But, as the respondent noted,
the version of the document used by the RPD was in fact the one which was in
the National Documentation Package on Albania. Thus, it was perfectly
reasonable for the RPD to have relied on the 2012 version of the document at
Tab 2.4 of the National Documentation Package.
[24]
Moreover, had the applicant wished to cite the
2013 version of this document, the appropriate time for him to have done so
would have been before the RPD and not before this Court, whose analysis is
restricted to the evidence that was before the decision-maker (Sidhu v
Canada (Citizenship and Immigration), 2008 FC 260 at para 22, [2008] FCJ No
405 (QL); see for example Sandhar v Canada (Citizenship and Immigration),
2013 FC 662 at para 15, [2013] FCJ No 727 (QL)).
[25]
It is settled law that a state is presumed to be
capable of protecting its citizens, barring a complete breakdown of the state
apparatus (Canada (Attorney General) v Ward, [1993] 2
SCR 689, at page 709, [1993] SCJ No 74 (QL)). An applicant seeking to
rebut this presumption must “adduce relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.” (Canada
(Citizenship and Immigration) v Flores Carrillo, 2008 FCA 94 at para 30,
[2008] 4 FCR 636). It has also been established that state protection need not
be perfect, merely adequate (Canada (Minister of Employment and Immigration)
v Villafranca (FCA), 150 NR 232, [1992] FCJ 1189 (QL)).
[26]
In addition, the applicant submits that the RPD
did not examine all of the evidence. But it is well-established that an
administrative decision-maker is presumed to have considered all of the
evidence that was before it and does not have to comment on every single piece
of evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
157 FTR 35, [1998] FCJ No 1425 (QL), at para 17). I note however that in this
case, the administrative decision-maker, in this instance the RPD, nonetheless
carried out an overall assessment of the evidence after which it acknowledged
the problems posed by blood feuds in Albania yet still found that the Albanian
authorities were making genuine efforts to correct the problem and that,
furthermore, those efforts were yielding results. Indeed, according to the
evidence that was reviewed, the country’s Criminal Code was amended to combat
the phenomenon and the authorities had set up special units to that end, which
had resulted in a reduction in the number of blood feuds in the country (see
reasons for decision, at paras 19 and 20). Moreover, it was on the basis of
this evidence that the RPD examined the applicant’s claims.
[27]
In the case at bar, the applicant made no effort
to seek the protection of his state. In fact, the applicant’s only request for
assistance was made by his mother and aunt on his behalf. The applicant
contends that the RPD should have examined the circumstances that forced him to
remain confined to his house, but I am of the view that in light of the
aforementioned overall assessment of the evidence and subsequent findings made
by the RPD, it was perfectly reasonable to conclude that the applicant ought to
have done more to obtain the protection of the Albanian government.
[28]
In conclusion, the RPD preferred to assign
greater weight to the objective evidence rather than that adduced by the
applicant, as it was open to it to do, given that assessing the evidence is for
the RPD and not the Court (Mejia v Canada (Citizenship and Immigration),
2009 FC 354 at para 56, [2009] FCJ No 438 (QL)), and since the applicant was
unable to establish, on a balance of probabilities, that the state protection
provided by Albania was insufficient, it was reasonable for the RPD to find
that the presumption of state protection remained valid in this case.
[29]
Lastly, regardless of the RPD’s negative finding
with respect to the applicant’s credibility, the finding with respect to the
presumption of state protection, in and of itself, was enough to reject the
applicant’s refugee protection claim.
[30]
The parties proposed no serious question of general
importance for certification and none arises in this case.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is dismissed.
2.
There is no serious question of general
importance to certify.
George R. Locke
Certified true translation
Sebastian
Desbarats, Translator
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