Docket: IMM-1532-15
Citation:
2015 FC 1343
Ottawa, Ontario, December 4, 2015
PRESENT: The
Honourable Mr. Justice Camp
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BETWEEN:
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PASHKO
RAZBURGAJ
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LULE RAZBURGAJ
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KLAUDIA
RAZBURGAJ
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GYSTINA
RAZBURGAJ
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PREK RAZBURGAJ
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JACOB RAZBURGAJ
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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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JUDGMENT AND REASONS
UPON hearing this
application for judicial review in Ottawa, Ontario, on November 19, 2015;
AND UPON reviewing the
materials filed with the Court, including the certified tribunal record, and
hearing the arguments and submissions of the parties;
AND UPON concluding that this
application for judicial review should be dismissed for the following reasons:
[1]
This is an application for judicial review of a
negative pre-removal risk assessment (PRRA) decision of a senior immigration
officer (the Officer). The Officer’s decision is dated January 30, 2015.
[2]
The applicants are six members of a family of
seven. The principal applicant is Pashko Razburgaj. He and his wife, Lule
Razburgaj, have five children. Mr. and Ms. Razburgaj were born in Albania and
are Albanian citizens, along with their oldest daughters Juljana and Klaudia.
The family fled Albania for the United States. The youngest three children were
born in the United States between 2000 and 2007. They are citizens of America
and Albania. The oldest daughter, Juljana is not involved in this application
as she is now married. Hearings before the Refugee Protection Division (RPD) of
the Immigration and Refugee Board were held in late 2012.
[3]
A PRRA application was filed on May 8, 2014, and
an application for permanent residence based on humanitarian and compassionate
grounds (H&C) was filed on September 2, 2014. It is decisions in those two
applications which are now under review by this Court. This judgment deals with
the PRRA. The decision regarding the review of the H&C decision is dealt
with in a sister decision by this Court.
[4]
The Officer determined that the applicants, if
returned to Albania, would not be subject to a risk of persecution, danger of
torture, risk to life, or risk of cruel and unusual treatment or punishment.
[5]
In support of their PRRA application, the
applicants submitted affidavits, letters from relatives, the death certificate
of an uncle in Albania, and country-of-origin documentation. The applicants
also submitted declarations from Razburgaj and Pepaj family members in Albania
confirming the blood feuds. The Officer found the letters and declarations
proffered on the application to be vague and lacking in detail. The Officer
noted that the applicants were unable to obtain any official state recognition
of their alleged blood feuds. In general, the Officer found that the evidence
presented by the applicants was materially the same as that presented before
the RPD. The Officer noted that the PRRA process is not an appeal or a
rehearing of the RPD decision and the evidence to be considered on a PRRA is
limited by subsection 113(a) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], which provides:
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113. Consideration of an application
for protection shall be as follows:
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113. Il
est disposé de la demande comme il suit :
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(a) an applicant whose claim to refugee protection has been
rejected may present only new evidence that arose after the rejection or was
not reasonably available, or that the applicant could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection;
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a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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[6]
Ultimately, the Officer found that the
applicants failed to overcome the prior findings of the RPD, failed to rebut
the presumption of adequate state protection, and failed to establish a new
risk development. The Officer found the likelihood that the applicants would
face persecution to be no more than a mere possibility, and that it was
unlikely the applicants, upon returning to Albania, would face risks or
dangers. The Officer therefore concluded the applicants did not meet the
definition of either Convention refugees or persons in need of protection under
sections 96 or 97 of the IRPA.
I.
ISSUES
[7]
The applicants raise the following issues in
respect of the PRRA Decision:
1)
Did the Officer breach his duty of procedural
fairness by denying the applicants’ an oral hearing?
2)
Were the applicants’ denied procedural fairness
because their former counsel failed to produce a document to the Officer?
3)
Did the Officer err in concluding the applicants
had presented insufficient evidence to corroborate their allegations of risk?
4)
Did the Officer err in his assessment of
adequate state protection in Albania?
[8]
In my view there are two issues:
1)
Were the applicants denied a fair hearing as a
result of incompetence on behalf of the applicants’ former counsel?
2)
Was the PRRA decision reasonable?
II.
STANDARD OF REVIEW
[9]
The applicants submit that issues concerning the
oral hearing and counsel incompetence are matters of procedural fairness,
warranting a correctness standard of review. The applicants also raise
procedural fairness concerns in respect of the Officer’s assessment of adequate
state protection, as they claim the Officer unfairly relied on extrinsic
evidence.
[10]
The respondent submits the applicable standard
to review the PRRA decision is one of reasonableness, including the decision of
whether or not to conduct an oral hearing: Kulanayagam v Canada (Citizenship
and Immigration), 2015 FC 101 at para 20; Bicuku v Canada (Citizenship
and Immigration), 2014 FC 339 at paras 16-20.
[11]
The line of authority cited by the respondent
supports the conclusion that the Officer’s decision of whether or not to conduct
an oral hearing warrants a reasonableness review, given the unique
discretionary authority conferred by section 167 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [the Regulations]. In
my view, aside from the applicants’ submissions concerning counsel incompetence
and reliance on country documentation without notice – both issues which raise
fairness concerns – I agree with the respondent that a reasonableness review is
appropriate for the PRRA decision.
III.
POSITIONS OF THE PARTIES
A.
Were the applicants denied a fair hearing as a
result of incompetence on behalf of their former counsel?
[12]
The applicants allege incompetence on behalf of
their former counsel for failing to provide the Officer with a letter from
Father Mikel Pllumaj, a priest from Albania, as evidence confirming one of the
blood feuds. In this letter, dated February 26, 2013, Father Mikel writes that
the Pepaj family is in a blood feud with the Sufaj family, and that his
reconciliation attempts with the families have been as of yet unsuccessful.
[13]
The applicants submit their former counsel’s
failure to submit the letter constituted incompetence, and that a miscarriage
of justice occurred because the document affirmed the existence of the blood
feuds and attempts at reconciliation. The applicants refer to the Officer’s
reasons on this very point:
I further note that the applicants did not
provide affidavits or letters from village elders, the police, parishes, or
other organizations who family members state were aware of, or involved in,
reconciliation attempts.
[14]
The respondent submits the decision of counsel
not to include the letter from Father Mikel was not negligent but deliberate
and strategic. The respondent notes that counsel did include the letter in
support of the H&C application, but chose not to include it in the PRRA
application. The respondent notes that the applicants’ former counsel did not
include the letter because, in his view, it did not constitute new evidence of
risk, and because its veracity could not be verified. Thus, according to the
respondent, it is speculative to suggest the result would have been different
had this document been assessed by the Officer. Moreover, it is submitted that
the letter would not have disturbed the Officer’s finding with respect to state
protection. As such, the respondent takes the position that no miscarriage of
justice occurred.
B.
Was the PRRA decision reasonable?
(1)
Oral hearing
[15]
As already noted, the Officer rejected the PRRA
application because the evidence with respect to the blood feuds was
insufficient, and because adequate state protection was available. The
applicants submit that the Officer’s first basis for rejecting their claim was,
in effect, an acceptance of the RPD’s negative credibility findings. They
contend the Officer couched his credibility concerns in the language of
insufficiency of evidence, a practice condemned by Justice Roger Hughes in Uddin
v Canada (Citizenship and Immigration), 2011 FC 1289 at para 3. Thus, it is
submitted by the applicants that the only way they could have overcome these
credibility findings was through an oral hearing. By relying on the negative
credibility findings of the RPD without an oral hearing, it is submitted the
Officer placed an onus on the applicants they could not possibly meet.
[16]
The respondent submits the Officer was not
entitled to provide the applicants with an oral hearing. The respondent submits
that subsection 113(b) of the IRPA and section 167 of the Regulations
provide that the circumstances warranting an oral hearing are exceptional,
requiring a dispositive issue of credibility: Matute Andrade v Canada
(Citizenship and Immigration), 2010 FC 1074 at para 30. The respondent
submits the Officer made no credibility finding in this case, but rather rested
his decision on the insufficiency of the applicants’ evidence: Ferguson v
Canada (Citizenship and Immigration), 2008 FC 1067 at para 34. Moreover,
the respondent submits the issue of state protection was determinative, thereby
dispensing of the need for an oral hearing in any case: see also Razburgaj v
Canada (Citizenship and Immigration), 2014 FC 151 at para 22.
(2)
Corroborating evidence of risk
[17]
The applicants submitted six new letters from
family members corroborating the existence of the blood feuds and attempts made
at reconciliation. The applicants contend the Officer failed to consider the
relevance of this evidence, particularly as it corroborates their claim of risk
and rebuts the negative credibility findings of the RPD. As their claim turned
on credibility, the applicants submit that it was illogical for the Officer to
assign low weight to this evidence – either it ought to have been accepted as
corroborating evidence that substantiated the claim, or assigned no weight at
all.
[18]
The respondent submits that the applicants’
arguments invite the Court to reweigh the evidence, which is beyond the proper
scope of a reasonableness review. As the applicants’ PRRA application was based
on, materially, the same submissions and evidence as that before the RPD, the
respondent submits that it was open to the Officer to find the applicants’ had
failed to meet their onus to justify a positive PRRA result, even with the new
supporting evidence. The respondent notes the Officer found the new evidence to
be vague, lacking in detail, and ultimately of little probative value. This
assessment of the evidence, according to the respondent, was reasonable, and
rationally supports the Officer’s decision to reject the application.
(3)
Adequate state protection
[19]
It is the position of the applicants that the
Officer unfairly relied on documentary evidence regarding state protection in
Albania. The applicants note that their submissions on the PRRA application
were dated May 2014, but the Officer relied on a June 2014 report from the Home
Office of the Government of the United Kingdom. While the applicants concede
that the Officer has a duty to examine the most recent sources of country
information in conducting a risk assessment, it is submitted that the Officer
must disclose this information where the evidence is novel and significant, and
where it discloses material changes in the general country conditions: Rizk
Hassaballa v Canada (Citizenship and Immigration), 2007 FC 489 at para 32.
As the applicants provided new documentary evidence contradicting the availability
of adequate state protection in Albania, they submit the Officer had a positive
duty to disclose the updated country documentation to the applicants and
provide them with an opportunity to respond.
[20]
The applicants also submit the Officer’s
assessment of state protection was unreasonable. First, it is contended the
Officer failed to give due consideration to the applicants’ personal
circumstances, and, in particular, the heightened risk that results from two
blood feuds rather than one: Gonzalez Torres v Canada (Citizenship and
Immigration), 2010 FC 234 at para 37. Second, the applicants submit the
Officer failed to address their evidence that adequate state protection is not
available in Albania: Junusmin v Canada (Citizenship and Immigration),
2009 FC 673 at paras 26-30; Vigueras Avila v Canada (Citizenship and
Immigration), 2006 FC 359 at para 36; Rigg v Canada (Citizenship and
Immigration), 2010 FC 341 at para 13; Erdogu v Canada (Citizenship and
Immigration), 2008 FC 407 at paras 30-32. By failing to refer to their
documentary evidence and explaining why it was discounted, the applicants
submit that one is left to infer the Officer failed to consider the totality of
the evidence in arriving at his decision.
[21]
The respondent submits the Officer was entitled
to find the country conditions had not changed since the decision of the RPD.
According to the respondent, it was reasonable for the Officer to conclude,
just as the RPD found, that adequate state protection in Albania was available.
The respondent submits that no unfairness resulted from the Officer failing to
provide notice to the applicants of the publically available documentary
evidence that it relied on, especially since this evidence simply confirmed the
findings of the RPD and did not introduce significantly new information.
IV.
ANALYSIS
A.
Were the applicants denied a fair hearing as a
result of incompetence on behalf of the applicants’ former counsel?
[22]
The applicants rely on El Kaissi v Canada
(Citizenship and Immigration), 2011 FC 1234 at para 21 [El Kaissi],
where Justice Near found that procedural unfairness results where the
incompetence of counsel prevented the decision-maker from considering critical
evidence, which then leads to a negative credibility finding that permeates the
entire decision. The applicants point out that the Officer expressly noted the
lack of evidence from parishes corroborating the allegations, and the letter
from Father Mikel directly addressed this concern.
[23]
In my view, following the direction of the
Supreme Court of Canada in R v GDB, 2000 SCC 22 at para 29, this
argument can be disposed of without having to decide the question of whether
the omission of counsel constituted incompetence. I am of the view the
applicants fail to prove a reasonable probability that the decision would have
been different but for the alleged incompetence. Unlike El Kaissi, it
cannot be said that failure to provide the Officer with Father Mikel’s letter
led to a negative credibility finding. The applicants’ claim failed on the
basis of insufficiency of evidence, and it is unlikely, in my view, that this
letter would have been sufficient to tip the balance in the applicants’ favour.
Nor does the letter rebut the presumption of state protection. Therefore, I am
unable to agree with the applicants that the failure to provide this letter to
the Officer resulted in a miscarriage of justice, even assuming the omission
was owing to incompetence as the applicants allege. On this latter point, the
respondent submits the decision by counsel to omit this letter was deliberate
and strategic, given concerns with its reliability and because it did not
constitute new evidence of risk. It is reasonably probable that the Officer
would have had similar concerns.
B.
Was the decision reasonable?
[24]
Whether an applicant is entitled to an oral
hearing on a PRRA is a matter of discretion, guided by subsection 113(b)
of the IRPA and section 167 of the Regulations:
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113. Consideration of an application
for protection shall be as follows:
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113. Il
est disposé de la demande comme il suit :
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…
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[…]
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(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
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b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
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167. For the purpose of determining
whether a hearing is required under paragraph 113(b) of the Act, the
factors are the following:
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167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après
servent à décider si la tenue d’une audience est requise :
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(a) whether there is evidence that raises a serious issue
of the applicant's credibility and is related to the factors set out in
sections 96 and 97 of the Act;
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a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux
articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui
concerne la crédibilité du demandeur;
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(b) whether the evidence is central to the decision with
respect to the application for protection; and
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b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
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(c) whether the evidence, if accepted, would justify
allowing the application for protection.
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c) la
question de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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[25]
Even if it can be said that the applicants’
evidence raised serious and central issues of credibility, I am of the view
that the decision not to grant an oral hearing was reasonable in light of
subsection 167(c) of the Regulations. The Officer’s finding that
adequate state protection existed, notwithstanding the applicants’ evidence to
the contrary, was a dispositive competent of the PRRA application. In my view,
this finding would not have been disturbed even with a positive credibility finding
with respect to the blood feuds.
[26]
With respect to the remaining arguments raised
by the applicants, I am of the view that the decision of the Officer was fair
and reasonable. Dealing first with the fairness argument, I agree with the
respondent that the UK Home Office report was not novel and significant, and
did not disclose any material change in the general country conditions unknown
to the applicants. The Officer specifically noted that the report did not
disclose any change in the country conditions from the findings of the RPD. The
fact that this documentary evidence might have contradicted the applicants’
documentary evidence on state protection does not trigger any obligation of
disclosure on behalf of the Officer.
[27]
I am also of the view that the Officer’s
conclusion on state protection was reasonable. The Officer stated that he had
considered the applicants’ documentary evidence but ultimately found that the
presumption of adequate state protection had not been rebutted. While the
Officer did not explain why the applicants’ documentary evidence was discounted
specifically, the reasons disclose a preference for the documentation cited by
the RPD and the June 2014 report of the UK Home Office. In preferring this
evidence, the applicants’ evidence was tacitly rejected. As such, I am unable
to agree with the applicants that the Officer failed to consider the totality
of the evidence in arriving at his decision.
[28]
This leaves the applicants’ arguments concerning
the evidence of risk. The applicants submit the Officer’s tendency to assign
“low” weight to the evidence is simply a veiled method of adopting the negative
credibility findings of the RPD. In light of the corroborating evidence
provided to the Officer, it is submitted that the Officer should have either
rejected their claim wholesale for want of credibility, or accepted their claim
as substantiated. I agree, however, with the respondent that the Officer’s role
on the PRRA application was to assess whether new evidence justified
protection. The Officer is entitled to consider the sufficiency of this
evidence, particularly in the context of what was already presented to the RPD.
V.
CONCLUSION
[29]
To the credit of counsel, these applications
were rigorously argued. I note that the incompetence of counsel arguments were
narrowly argued, focusing on two discrete and specific examples, as the law
requires, rather than on the overall tenor of the applicants’ representation by
their former lawyer. Ultimately, however, the question is whether a miscarriage
of justice resulted from the incompetent representation. In the PRRA decision,
the Officer found no sufficient evidentiary basis to substantiate the alleged
blood feuds, and found that state protection was available in any event. In my
view, given the evidence before the Officer, these conclusions were reasonable,
and were not affected by the alleged incompetence. Accordingly, I dismiss this
application for judicial review.
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