Date: 19980828
Docket: IMM-4281-97
BETWEEN:
AIDA SIRI XHEKO
and BAJRAM QAZIM XHEKO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 9th of September, 1997.
[2] The applicants are citizens of Albania. They base their claims to Convention refugee status on an alleged well-founded fear of persecution if required to return to Albania, by reason of their political opinion, real or perceived, and membership in a particular social group.
[3] The father of Aida Siri Xheko (the "principal applicant") was closely affiliated with the Albanian monarchy prior to the Communist take-over in 1944. Following the Communist take-over, the principal applicant and her family were very harshly treated. The family home was confiscated in 1946 and turned over to two senior Communist Party officials who, to the time of the hearing before the CRDD, continued to occupy the home with their families.
[4] In 1992, the Communist Party was ousted from power in Albania. The principal applicant's father commenced activities directed to the recovery of the family home. During July of 1993, he was killed in an automobile accident under mysterious circumstances.
[5] Two months after the death of the principal applicant's father, her brother went to the former family home where he became embroiled in a dispute. He was charged and convicted of assault and possession of a gun.
[6] Thereafter, the principal applicant and her husband, Bajram Qazim Xheko (the "secondary applicant") began to receive anonymous threatening calls. On one occasion, a rock was thrown through a window of their apartment. On another occasion, they were confronted on the street, the secondary applicant was struck, and they were threatened with death if they did not leave Albania. The applicants attempted, on at least two occasions, to obtain help from the police, in each case without success.
[7] In September of 1994, the applicants came to Canada where the secondary applicant, a university professor, attended a conference. They stayed on in Canada and made their claims to Convention refugee status in December of 1994.
[8] The CRDD determined there was no nexus between the claimants' fear of persecution in Albania and a Convention reason, including the reasons of political opinion and membership in a particular social group. The CRDD wrote:
| In the case before us, the principal claimant's problems were caused by the fact that she wanted the house of her father back. After the fall of the communist regime in Albania, the principal claimant and her father did not suffer as a result of their political opinion in any way. Their problems started when they asked for the house back. If [the occupants of the home] used some criminal elements to threaten the claimants, that was not for any of the reasons set out in the definition of a Convention refugee. [The occupants of the home] wanted to keep the house and nothing else. The panel notes that the principal claimant's father did not suffer, after the fall of the communist regime, as a result of his political opinion. The panel accepts that the father of the principal claimant might have suffered under the former communist regime, but the Convention refugee definition is prospective, and the panel has to assess if the claimants before us face a "reasonable chance or a serious possibility" of persecution, should they return to Albania. |
[9] In his further memorandum of argument on behalf of the applicants, counsel raised some sixteen issues. Before me, counsel's submissions focussed more directly on whether or not the CRDD erred in a reviewable manner by ignoring relevant evidence, misinterpreting the evidence, making erroneous findings of fact and placing reliance on irrelevant evidence. In essence, counsel urged that the decision was simply patently unreasonable.
[10] I am satisfied that the decision of the CRDD was reasonably open to it on the totality of the evidence before it.
[11] In Rivero v. The Minister of Citizenship and Immigration2, Mr. Justice Pinard dealt with a matter where the CRDD concluded, as here, that what the applicants feared was properly characterized as a "private vendetta or personal vengeance... and thus constituted criminal activity, not persecution." He wrote:
| In the final analysis, this conclusion is one which is essentially based on facts. In light of the evidence before the Board, I am of the opinion that the latter did not base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Furthermore, the applicants have failed to show that the inferences drawn by the Refugee Division, a specialized tribunal, could not reasonably have been drawn.... |
[12] I adopt the forgoing as fully applicable in respect of this matter.
[13] In the result, this application for judicial review will be dismissed.
[14] Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
August 28, 1998
__________________2 22 November, 1996, Court File IMM-511-96 (F.C.T.D.) (unreported).