Date: 20000609
Docket: IMM-3086-99
BETWEEN:
REXHEP SANXHAKU AND OLI KUNDRAXHI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Rexhep Sanxhaku and his wife Oli Kundraxhi are citizens of Albania who claim to be Convention refugees.
[2] Mr. Sanxhaku is the principal claimant and he bases his claim to refugee status on the ground of his political opinion. Ms. Kundraxhi bases her claim on the ground of her membership in a particular social group, family. Her claim derives from her husband"s claim so that if Rexhep Sanxhaku is found not to come within the Convention refugee definition, her claim cannot be sustained.
[3] The Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board determined the applicants not to be Convention refugees. The applicants seek an order setting aside that decision.
FACTUAL BACKGROUND
[4] Mr. Sanxhaku claimed to be an active member of the Democratic Party in Albania. He was elected as chairman of a local commune and served as such from 1992 to 1998 when he left Albania with his wife.
[5] Mr. Sanxhaku alleged that he was attacked on a number of occasions and that these attacks were politically motivated. He testified that the Socialist Party had targeted his position as chairman of the commune in order to gain control at the commune level.
[6] Incidents described by Mr. Sanxhaku included:
| i) On October 16, 1997, he was attacked and beaten unconscious by three men; |
| ii) On December 17, 1997, he was again beaten and threatened with death if he did not resign from his position as chairman of the commune. He was hospitalized for five days as a result of this beating; |
| iii) On January 11, 1998, his home was blown up. His father who had stayed at home to watch the house while Mr. Sanxhaku and his wife went out was injured and died three days later. |
THE DECISION
[7] The CRDD determined Mr. Sanxhaku not to be a Convention refugee for two reasons.
[8] First, the CRDD found that Mr. Sanxhaku"s fear of persecution was not well- founded. The CRDD was not persuaded that the alleged attacks on Rexhep Sanxhaku were politically motivated. Relying on documentary evidence, the CRDD concluded that there was a decrease in politically motivated abuses of power in Albania and that it was often difficult to distinguish between political and "normal" crime. The CRDD stated:
| The principal claimant failed to explain why he, in particular, was singled out for attack whereas the chairmen of other communes were not. Even if we accept that he was attacked, there is no evidence to show he was attacked for his political opinions. |
[9] Second, the CRDD stated that there was not sufficient clear and convincing evidence that state protection was unavailable to Mr. Sanxhaku. From correspondence from police officials to Mr. Sanxhaku, which Mr. Sanxhaku put in evidence, the CRDD concluded that the police were willing to investigate the complaints, but that the investigation was impeded by the fact that in all instances Rexhep Sanxhaku had been unable to identify the perpetrators.
[10] The CRDD concluded that Rexhep Sanxhaku"s situation was very similar to that described by the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.). The CRDD quoted Villafranca, supra, to the effect that:
| ...it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. |
[11] The CRDD then concluded that there was no clear and convincing proof that state protection was not available to Mr. Sanxhaku.
THE ISSUES
[12] The issues raised on this application for judicial review are as follows:
| 1. Did the CRDD err in concluding that Mr. Sanxhaku"s fear of persecution by reason of his political opinion was not well-founded?; and, |
| 2. Did the CRDD err in its conclusion concerning the availability of state protection? |
ANALYSIS
(i) Fear of persecution by reason of political opinion
[13] The analysis of the CRDD which led to its conclusion that Mr. Sanxhaku"s fear of persecution by reason of his political opinion was not well-founded, is set out in the following excerpt from its reasons:
| From the testimony of the principal claimant it appears as if the basis of the attacks on him was because of his position as a chair of the commune. It was his belief that the Socialist Party wanted to take control of the commune by deposing him. However, the issue paper on Albania marked as Exhibit R-2 states that "...the DP [Democratic Party] and its allies control most of the country"s 49 towns and 212 communes." This is a clear indication that the support for the Democratic Party at the local level is very strong. The issue paper also states that "...due to the general levels of societal violence, it can be difficult to distinguish between political and normal crime". The principal claimant failed to explain why he, in particular, was singled out for attack whereas the chairmen of other communes were not. Even if we accept that he was attacked, there is no evidence to show he was attacked for his political opinions. |
[14] The CRDD"s statements that:
| (a) the principal claimant failed to explain why he was singled out for attack whereas other chairmen were not; and, |
| (b) there was no evidence to show he was attacked for his political opinions; |
are erroneous and were made without regard for the evidence before the CRDD.
[15] With respect to the first statement, the record shows that Mr. Sanxhaku testified before the CRDD on two occasions, in response to questions put by the presiding member, that the gangs who were working for the socialists targeted other commune chairs in the region. On another occasion he spoke of the killing on March 25, 1999 of the chairman of the commune of Polena.
[16] The statement that there was no evidence to support a political basis for the attack ignored evidence contained in a letter dated January 4, 1998 from the Chief of the Police Commissariat to Mr. Sanxhaku. This letter was found to be reliable and credible by the CRDD because it quoted from it for the purpose of concluding that state protection was available to Mr. Sanxhaku. The portion of the letter the CRDD quoted in its reasons was as follows:
| ...regarding the information of your incident dated December 17, 1997... This report has been investigated by our organs and we came to the conclusion that your beating has been politically motivated. |
[17] Also, Mr. Sanxhaku also testified, and stated in his Personal Information Form ("P.I.F."), that he was told by his attackers that he should give up his position as chair of the commune.
[18] In the face of that evidence, the CRDD"s conclusion that there was no evidence to show that Mr. Sanxhaku was attacked for his political opinions was made without regard to the material before the CRDD.
(ii) The availability of state protection
[19] The Minister argued that the determinative issue is the CRDD"s conclusion regarding state protection.
[20] In its reasons, the CRDD correctly set out the issue to be determined: whether state protection was available to the claimant and whether it was adequate.
[21] The CRDD considered, but found implausible, Mr. Sanxhaku"s testimony that the police were against all members of the Democratic Party. The CRDD quoted from two letters from the Police Commissariat and concluded from the claimant"s documentary evidence that the police were willing to investigate his complaints.
[22] The CRDD then considered the ability of the state to protect Mr. Sanxhaku and his wife, and stated:
| However, the investigation was impeded by the fact that in all the instances the principal claimant had been unable to identify the perpetrators. The Federal Court of Appeal in Villafranca3 stated that: |
| ...it is not enough for a claimant merely to show that his Government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today: its victims, however much as they may merit our sympathy, do not become Convention refugees simply because their governments have been unable to suppress the evil. |
| This quote clearly explains the principal claimant"s situation which is very similar. [footnote omitted] |
[23] However, in Villafranca, supra, the Court had before it a case involving a citizen of the Philippines who had served there as a policeman. He had fled his country because he had been marked for death by a terrorist guerrilla group.
[24] This is not, in my view, analogous to the facts before the Court in the present case. For that reason, it is important to consider the remaining portion of that paragraph from the Villafranca decision quoted and relied upon by the CRDD.
[25] In whole, that paragraph reads as follows:
| No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this Court found in the case of Zalzali v. Canada (Minister of Employment and Immigration) [See Note 2 below], a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection. |
| ___________________________________ |
| Note 2: [1991] 3 F.C., 605 |
[26] Thus, in my view, for Villafranca to be applied as the CRDD did in this case, one must find a state in effective control of its territory.
[27] Also instructive is the decision of the Federal Court of Appeal, subsequent to Villafranca, supra, in Mendivil v. Canada (Secretary of State), [1994] 23 Imm. L.R. (2d) 225 (F.C.A.).
[28] There, the Court considered the claim of a Peruvian mayor who was targeted by the Sendero Luminoso (the Shining Path guerrilla group). At page 232 of the report, the majority of the Court stated:
| [14] The case at bar does not appear to be one of a "complete break-down of state apparatus." The question the board members should address in assessing the evidence as a whole is whether, on the facts as shown, it can still be assumed that the state of Peru is able to protect the claimant or whether such a presumption has been rebutted by him. Isolated cases of persons having been victimized may not reverse the presumption. A state of profound unrest with ineffective protection for the claimant may, however, have reversed it. In such a case, as I understand La Forest J., a "subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded."19 [footnote omitted] |
[29] The CRDD acknowledged in its reasons that politics in Albania were "fraught with difficulties". In evidence before the CRDD was an Issue Paper prepared by the Research Directorate of the Immigration and Refugee Board which stated that by June 1997 Albania was in a virtual state of anarchy. It went on to note that the government claimed that most of the country had returned to government control by the autumn of 1997, but that close to a million weapons remained in circulation and that the police and judiciary were reportedly not completely effective at the end of 1997.
[30] It is not clear to me whether, before applying Villafranca in the manner which it did, the CRDD considered if the conditions then prevailing in Albania supported reliance upon Villafranca to the effect that the claimant must show more than the government"s "failure to suppress the evil".
[31] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the decision referenced by the Federal Court of Appeal in the last lines of the quote above in paragraph 26, the Supreme Court of Canada considered how the inability of a state to protect its nationals might be established. One example given was that a claimant might advance testimony of similarly situated individuals let down by the state.
[32] Here, Mr. Sanxhaku did this, testifying that:
| CLAIMANT #1: ... Based on what happened to me before and based what the Socialists are doing, presently doing, who are attacking and physically eliminating the Democrats which has happened even in most last days ... and another incident on March 25, 1999, chairman of the commune of Polena was killed, his name is Genci Agolli. |
| INTERPRETER: Genci is G E N C I, A G O L L I. |
| CLAIMANT #1: And he was one of my best friends, and we were very close to each other, and based on those facts they will still continue with the same rhythm which were working before, and like the case of my friend who I haven"t seen since 1997, Edi Malli. |
[33] Given the CRDD"s error, previously referred to, where it concluded that there was no evidence that the chairmen of other communes were targeted for attacks, I must conclude that the CRDD did not have proper regard to relevant evidence, that is the evidence of other similarly situated individuals, when considering the effectiveness of state protection.
[34] Given that error, and the CRDD"s apparent failure to consider the state of profound unrest prevailing in Albania as that related to the ability of the state to protect its nationals, I must conclude that the CRDD committed a reviewable error.
[35] For these reasons, I would allow the application for judicial review and refer the applicants" claims for redetermination by a differently constituted panel.
[36] The Minister submitted that this case raises no question which should be certified pursuant to subsection 83(1) of the Immigration Act, R.S.C. 1985, c.-I-2, as amended. The applicants" submitted the following question, if determinative:
| Once the Refugee Division has determined that state protection is not reasonably forthcoming, or that state protection is not effective, can the Refugee Division nonetheless find that a claimant is not a Convention refugee because the state is making efforts? |
[37] I do not find the question to be determinative and so no question of public importance is certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
June 9, 2000