Docket: IMM-5345-15
Citation:
2016 FC 932
Montréal, Quebec, August 15, 2016
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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FATJON MARQESHI
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (RPD), dated November 4, 2015, in which the RPD found that the
applicant is neither a Convention refugee under section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], nor a person in need of
protection under section 97 of the IRPA.
[2]
For the reasons that follow, I conclude that the
application should be dismissed.
II.
Facts
[3]
The applicant, Fatjon Marqeshi, is a 29-year-old
Muslim man and a citizen of Albania. He alleges that in September 2011, he
began a relationship with a Catholic woman, Malvina Ndreu, whose family had
arranged a marriage for her to another man. When Ms. Ndreu’s brother caught the
couple together in March 2012, he allegedly threatened to kill the applicant.
[4]
The applicant claims that, in April 2012, he was
dragged from his car and beaten by a group of masked men. One of the men made a
call, and shortly thereafter two police officers arrived. The officers
encouraged the attackers, and then took the applicant in their car to the
outskirts of town, where they beat him again. The applicant claims that they
threatened to jail or kill him if he did not leave the area. The applicant was
hospitalized, and later learned from a friend of Ms. Ndreu, Eriksela, that one
of the men involved in the attack was Ms. Ndreu’s cousin.
[5]
The applicant alleges that his family went to
the local police to complain about the incident, but that they were unhelpful.
The family then allegedly went to the police headquarters in Tirana, who again
were unhelpful and even threatened them. The applicant, with his father and
uncle, later saw a lawyer who suggested that complaining to the police was
futile and dangerous. The lawyer directed the applicant to the Prosecutor’s
office. The applicant allegedly attended at the Prosecutor’s office and spoke
to a clerk, but did not hear anything back.
[6]
In June 2012, the applicant alleges that, while
he was staying at his sister’s home, the police broke into his family’s home.
One of the officers was Ms. Ndreu’s brother. The police alleged that the
applicant had kidnapped Ms. Ndreu, though she was in fact hiding from the
family in a women’s shelter. The police allegedly beat the applicant’s cousin,
and took him into custody overnight.
[7]
The applicant moved to another town, and in the
meantime his cousin allegedly stabbed another one of Ms. Ndreu’s brothers. The
police raided the cousin’s home and that of the applicant’s family, searching
for the two men. Ms. Ndreu’s family subsequently declared a blood feud against
the applicant’s family, vowing to kill for revenge.
[8]
In August 2012, the applicant fled to Greece,
and then traveled to Canada in October 2012.
III.
RPD Decision
[9]
The RPD found that the applicant was neither a
Convention refugee nor a person in need of protection.
A.
Credibility
[10]
The RPD first considered the applicant’s
testimony in relation to his Personal Information Form (PIF), finding that
there were sufficient inconsistencies to undermine the applicant’s credibility.
For example, the applicant testified that he thought that one of the officers
who beat him in April 2012, was Ms. Ndreu’s brother, and he later learned that
one of the masked men was her cousin. In his PIF however, the applicant stated
that Ms. Ndreu’s cousin was one of the policemen. It was accordingly unclear
whether the cousin was a masked man or one of the policemen. Moreover, the fact
that one of the policemen present at this incident was Ms. Ndreu’s brother was
omitted from the PIF (the brother’s alleged involvement was at the incident in
June 2012). When asked to explain this inconsistency, the applicant stated that
he may have forgotten.
[11]
The applicant’s testimony also differed from his
PIF with respect to his and his family’s attempts to complain to the police and
to the Prosecutor. In his testimony, the applicant stated that the police in
Tirana said they would follow up with the family, but they never did, and that
speaking to the local police and the Tirana police were the only attempts made
to get assistance from the authorities. When asked if the Tirana police offered
to follow up with the family, or rather threatened them, as the applicant had
stated in his PIF, he said that they had done both. When asked why he omitted
the visit to the Prosecutor in his testimony, the applicant said that he had
planned to speak about this but was not asked.
[12]
The RPD found neither of these explanations to
be credible. The applicant argued that these inconsistencies arose because he
is unsophisticated with a low level of education, but the RPD did not accept
that someone with a high school diploma and a decade of work experience could
confuse such significant events. This is especially true in that the only
effort to obtain state protection at which the applicant was personally present
that is mentioned in his PIF was the visit to the Prosecutor. The RPD was
unwilling to accept that the applicant would better recall incidents at which
he was not present.
B.
State Protection
[13]
The RPD subsequently considered whether the
applicant could have obtained state protection in Albania. The RPD cited
jurisprudence establishing that a state is presumed capable of protecting its
citizens unless there is a complete breakdown of the state apparatus. The
burden was on the applicant to demonstrate that there was reliable evidence
that the state was unable to protect him or that it was objectively reasonable
to not seek state protection given his circumstances. While the applicant
argued that he was unable to obtain state protection since it was the police
whom he feared, the RPD found that state protection in Albania, including state
agencies who investigate police misconduct, is adequate.
[14]
The RPD was not satisfied that the applicant had
taken all reasonable steps to obtain state protection. In particular, the RPD
noted that the country has gone through many positive reforms on fighting
corruption in recent years. Sources such as the US Department of State Report
and OSAC 2014 Crime and Safety Report have found that Albania is making
concerted efforts to investigate and punish abuse by officials, and in
particular to improve state protection against blood feuds. While corruption
and immunity remain problems in Albania, the RPD was not satisfied that the
evidence on the limitations of state protection were sufficient to overcome the
applicant’s obligation to seek it. The RPD concluded that while protection in
Albania is not overly robust, the evidence did not provide clear and convincing
proof that the state would be unable to protect the applicant.
IV.
Issues
[15]
The issues in this case are:
- Whether the
RPD’s negative credibility findings were erroneous; and
- Whether the
RPD’s finding that the applicant could have availed himself of state
protection was erroneous.
V.
Standard of Review
[16]
The two issues that 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 Carranza v Canada (Citizenship and
Immigration), 2010 FC 914 at para 16; with respect to the issue of state
protection, see Ndoja v Canada (Citizenship and Immigration), 2013 FC
163 at para 14.
[17]
Under the reasonableness standard, a reviewing court
must show deference and cannot substitute its own view of a preferable outcome
(Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59).
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).
VI.
Analysis
A.
Credibility
[18]
I am not persuaded that any of the RPD’s
credibility findings were unreasonable.
[19]
I accept the applicant’s assertion that the RPD
did not make a general finding that the applicant lacked credibility. Rather,
the RPD makes specific negative credibility findings. I address each of the
errors asserted by the applicant as regards credibility below.
[20]
The applicant asserts that the RPD erred in
stating that the applicant’s testimony was that Ms. Ndreu’s friend Eriksela
told him that one of the policemen involved in the April 2012 incident was her
cousin, whereas the PIF indicated that Ms. Ndreu was the source of this
information. In fact, the applicant’s testimony as to the source of this
information was consistent with his PIF. The RPD did indeed err on this point.
However, in my view this finding was not determinative. The RPD was less
concerned with the inconsistency concerning the source of the information than
the inconsistency in the applicant’s testimony as to whether it was Ms. Ndreu’s
cousin who was involved in the April 2012 incident or her bother. Here, the RPD
did not err. I agree with the RPD that the applicant’s testimony made it
unclear whether the cousin was a masked man or one of the policemen. A negative
credibility finding on this point was open to the RPD.
[21]
The applicant argues that the RPD demonstrated
some confusion between the April 2012 incident and the June 2012 incident when,
in discussion of the April 2012 incident, it referred to “the two beatings” taking place so close together, but
did not address the June 2012 incident until later in its decision. I see no
confusion. The applicant’s allegation was clear that he was beaten twice during
the April 2012 incident, once by the masked men and later by the policemen. In
my view, these are the two beatings that are referred to by the RPD.
[22]
The applicant also asserts that the RPD erred in
drawing a conclusion of negative credibility with regard to the applicant’s
failure to mention his alleged complaint to the Prosecutor. The applicant
argues that he did not mention the visit to the Prosecutor because he
understood the RPD’s questions to concern approaches to the police.
Having read the record, I am satisfied that the RPD’s questions were not so
limited and that the RPD was entitled to draw a negative conclusion from the
applicant’s failure to mention the complaint to the Prosecutor.
[23]
The applicant also challenges the RPD’s finding
of an inconsistency between the PIF, which states that the police in Tirana
threatened to arrest the applicant’s father and uncle, and the applicant’s
testimony, which stated that the police in Tirana indicated that they would
contact the applicant’s relatives by phone (though they never did). The
applicant acknowledges that he made an error here, and may have confused the
reaction of the Tirana police with that of the Prosecutor’s office. The
applicant argues that this was a genuine mistake and not an indication that he
was lying. That may be, but there was clearly an inconsistency in the
applicant’s story here and, in my view, it was not unreasonable for the RPD to
draw a negative conclusion therefrom.
B.
State Protection
[24]
Since some of the applicant’s allegations were
not tainted by any finding of negative credibility, it is necessary to address
the issue of state protection.
[25]
The applicant argues that the RPD erred in
considering the adequacy of state protection in Albania. Specifically, the
applicant argues that the RPD failed to recognize that state protection must be
adequate at the operational level, and that the state’s efforts at
protection are relevant only insofar as they have an effect.
[26]
I am satisfied that the RPD properly applied the
requirement of adequacy in state protection. The applicant’s insistence on
focusing on the term “operational level” does
not persuade me otherwise. The RPD correctly observed that “a refugee claimant is expected to approach authorities for
assistance unless he or she offers clear and convincing proof of the state’s
inability to provide protection”, and that “[w]ithout
compelling reasons for a claimant’s failure to pursue state protection, a refugee
claim will not succeed.” The RPD also observed that “[w]here it is alleged that state protection is inadequate, a
claimant must demonstrate that there is reliable evidence that the state is
unable to protect him or her or that it was objectively reasonable not to seek
state protection in the circumstances.”
[27]
The applicant notes several references in the
RPD’s decision to efforts at state protection rather than results.
However, these references do not amount to error unless the RPD lost sight of
the requirement for adequate protection at an operational level. In my view,
the RPD did not lose sight of the test to be applied. In addition to its
references to the state’s efforts at protection, it also notes results. I note
the following observations by the RPD:
- The US
Department of State Report referring to officers refusing bribes more
often after camera systems were installed in police cars;
- The OSAC 2014
Crime & Safety Report finding improvements in Albania’s law
enforcement and security infrastructure;
- The UK Home
Office Report finding that police and criminal justice system
representatives provide protection to families affected by blood feuds;
- The United
Nations Human Rights Council’s observations of various advances made in
terms of blood feuds; and
- The Council of
Europe’s Commissioner for Human Rights statement that positive results
were yielded from constitutional amendments limiting immunity for members
of the judiciary.
[28]
Moreover, paragraphs 34 to 36 of the RPD’s
decision (near the end of the discussion of state protection) are dedicated
exclusively to the issues of the results of Albania’s state protection efforts.
[29]
The applicant argues that the RPD approached the
evidence with a particular mindset in favour of finding that state protection
in Albania is adequate. However, it is not my role to re-weigh the evidence,
and I am not persuaded that the RPD’s assessment of the evidence was
unreasonable.
[30]
In my view, the applicant failed to provide
clear and convincing proof of Albania’s inability to provide protection.
VII.
Conclusion
[31]
This application will be dismissed. The parties
are agreed that there is no serious question of general importance to be
certified.
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