Docket: IMM-6870-13
Citation:
2015 FC 408
Ottawa, Ontario, March 31, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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HASIME TUSHA
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RINA TUSHA
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RINOR TUSHA
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RINESA TUSHA
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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
I.
Introduction
[1]
This is a judicial review of a decision by the
Refugee Appeal Division [RAD] in which the RAD confirmed a Refugee Protection
Division [RPD] decision that the Applicants were neither refugees nor persons
in need of protection.
II.
Background
[2]
The Applicants are from a small town in Kosovo.
Hasime Tusha is the mother of Rina Tusha, Rinor Tusha and Rinesa Tusha. On
appeal at the RAD, Hasime Tusha’s spouse, Kadri Tusha, was held to be a person
in need of protection. New evidence was submitted at the RAD in support of the Applicants’
appeals that was not presented at the RPD hearing.
[3]
On January 22, 2013, Kadri Tusha’s family became
involved in a blood feud when his cousin was stabbed to death by Kenan Pieva, a
14-year old minor. Kadri’s uncle, Ymer Tusha, called for a blood feud against
the Pieva family. Kadri Tusha refused to be complicit and was threatened by his
family for disloyalty.
[4]
Then, on February 12, 2013, Ymer Tusha and his
brother verbally and physically attacked Kadri Tusha and his brother,
threatened them with a gun and accused them of cowardice and bringing shame on
the family. Kadri Tusha received medical attention after the attack and sought
police protection, which was not provided. Assistance from a non-government
organization [NGO] was also unsuccessful.
[5]
The Applicants and Kadri Tusha made their
refugee claim in March 2013.
[6]
In dismissing the claim, the RPD based its
negative findings on the following:
•
it was not credible that a full blood feud had
erupted;
•
the Applicants do not face a serious possibility
of harm if they return to Kosovo; and,
•
the Applicants did not rebut the presumption of
state protection.
[7]
During the course of the RAD proceedings, the
Applicants submitted new evidence from the Kosovo police in Prishtina, from the
Red Cross in Kosovo and an affidavit from Kadri Tusha. The first two documents
attested to the existence of a blood feud. No oral hearing was deemed necessary
as the documents from the Kosovo organizations were deemed credible.
[8]
In its decision, the RAD followed the Newton
factors (Newton v Criminal Trial Lawyers’ Association, 2010 ABCA 399,
493 AR 89) which called for a more deferential approach to the RPD findings
than has been accepted by this Court; Huruglica v Canada (Citizenship and
Immigration), 2014 FC 799, is but one example of such Federal Court
decisions.
[9]
In the end result, the RAD found that Kadri
Tusha would be at risk if he returned to Kosovo and that the RPD’s conclusion
of the existence of state protection was unreasonable.
III.
Analysis
[10]
It is not necessary to address the RAD’s
conclusions on the applicable standard of review. The Federal Court, in several
decisions (Njeukam v Canada (Citizenship and Immigration), 2014 FC 859,
is an example), has addressed the merits of a RAD decision, whatever the
reservations as to standard of review, and examined what the RAD actually did
in its decision to determine what type of analysis was conducted.
[11]
It is impossible to determine what type of
analysis the RAD conducted. Its reasons range from suggesting a deferential
approach to one of an independent analysis. It is difficult to understand the
basis upon which the appeal was dismissed particularly as regards to the
individual claims of the Applicants, other than perhaps that of Kadri Tusha’s.
[12]
Given the debate on the applicable appellate
review/standard of review issue and considering that this decision is unclear
as to what type of analysis the RAD actually conducted and whose claim was
analyzed, this matter should be referred back for a new decision.
IV.
Conclusion
[13]
This judicial review will be granted. The RAD
decision will be quashed and the matter referred back to the RAD for a new
appeal.
[14]
Given the basis on which this decision is made,
it is unnecessary for the parties to make submissions on a certified question;
none exists here.
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