PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] The fact that the Immigration and Refugee Board (Board) stated that the Applicant provided “no evidence to support his story about a family feud” does not establish that it ignored or misconstrued the evidence submitted before it. Hence, it is open to the Board to assess the evidence and give it little or no probative value. (Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102.)
[2] In general, the Court should not interfere with the Board’s credibility findings, regardless of whether it agrees with the inferences drawn by the Board, unless the Board based its conclusion on irrelevant considerations or ignored evidence. Furthermore, the Board, as the primary finder of fact, is entitled to reject evidence if it is not consistent with the probabilities affecting the case as a whole. Moreover, the Board is entitled to make an adverse finding of credibility based on the implausibility of the Applicant’s narrative and can make reasonable findings based on common sense and rationality. (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL), at paragraph 4.)
JUDICIAL PROCEDURE
[3] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Board rendered on March 21, 2006, wherein the Board found the Applicant to be neither a Convention refugee nor a person in need of protection pursuant to section 96 and subsection 97(1) of the IRPA.
BACKGROUND
[4] The Applicant, Mr. Anton Perjaku, is a 23-year old citizen of Albania. On March 17, 2002, Mr. Perjaku entered Canada with a fake Greek passport, after traveling through Italy, Spain and the Dominican Republic. He claimed refugee protection upon arrival.
[5] Mr. Perjaku alleges a fear of persecution on the basis of his political opinion as a member of the Legality Party (LP) and his membership in a particular social group, namely males belonging to the Perjaku extended family who are involved in a blood feud with another family.
[6] In his first Personal Information Form (PIF) narrative in 2002, Mr. Perjaku alleges that he and his family were members of the LP that supported the return of King Leka. In 1990, an opposition party was formed, the Democratic Party (DP). The LP, along with the DP, joined a coalition of parties to form the opposition. In 1992, the DP was brought to power and again in 1996. In 1997, new elections were called and the Socialist Party (SP) defeated the DP. The coalition of democratic parties returned to the opposition and the Applicant alleges that his family continued to be harassed and persecuted by the police and government agents.
[7] Mr. Perjaku alleges that he was arrested twice by the police due to his political involvement; once on June 18, 2001, for putting up posters in the wrong place and the second time, on June 30, 2001, because he was parked in the wrong place. Both times, he was kept overnight in jail. The Applicant states that these were political excuses to arrest him. Other members of his family, especially his father were also persecuted by the government. Mr. Perjaku also stated that his father owned a restaurant which was the target of police raids.
[8] In his second PIF narrative, dated February 2006, Mr. Perjaku alleges that although the DP is presently governing the party in Albania, he continues to fear the police in Albania because the LP is at this time a member of the opposition of the DP government. He also alleges that his life is even more in danger now because of a blood feud between his family and the Kola family that erupted in July 2005. The Applicant alleges that if he returns to his country, he would be forced into isolation to avoid being killed by the members of the Kola family.
DECISION UNDER REVIEW
[9] The Board determined that the narrative of the Applicants did not provide trustworthy information to reveal that Mr. Perjaku was indeed very politically active in his country.
[10] With respect to Mr. Perjaku’s fear of persecution on the basis of his political opinion, the Board noted that the Applicant was a full-time high school student at the time of the alleged political activities and found that he did not have a very high political profile.
[11] Moreover, the Board found that the Applicant’s reasons as to why he would be in greater danger than his father, the person more directly involved with the LP, were vague and evasive. Furthermore, the Board found that the documentary evidence did not support the Applicant’s allegations that he would be persecuted even if he resumed his political activities upon his return to Albania.
[12] With respect to Mr. Perjaku’s fear of persecution on the basis of an alleged blood feud between his family and the Kola family, the Board found that the Applicant’s testimony was vague and evasive and his allegations not credible. Moreover, the Board found that the documentary evidence on the issue of blood feuds did not support the Applicant’s allegations. Specifically, the documentary evidence indicates that the government of Albania has taken serious measures to control criminal activities and alleged blood feuds by establishing stricter laws and penalties against the feuding parties in recent years. Finally, the Board believed that because the governing party in Albania had changed, the Applicant had presented the new story of blood feud to further enhance his narrative.
ISSUE
[13] Did the Board make a patently unreasonable finding of fact without regard to the evidence before it?
STATUTORY SCHEME
[14] Section 96 of the IRPA reads as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
[15] Subsection 97(1) of the IRPA states the following:
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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STANDARD OF REVIEW
[16] With respect to questions of credibility, the proper standard of review is that of patent unreasonableness. The Board is a specialized tribunal and has complete jurisdiction to assess an Applicant’s credibility on the basis of implausible testimony, contradictions and inconsistencies in the evidence. Where the Board’s inferences and conclusions are not so unreasonable as to warrant the Court’s intervention, its findings are not open to judicial review, regardless of whether the Court agrees with the inferences or conclusions drawn. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph 14; Aguebor, above, at paragraph 4.)
ANALYSIS
Did the Board make a patently unreasonable finding of fact without regard to the evidence before it?
Credibility finding
[17] Mr. Perjaku argues that the Board erred in its treatment of the evidence relevant to the issue of state protection, as well as the evidence regarding the blood feud declared against his family in Albania. In this regard, the Applicant states that the Board ignored two documents supporting his allegations of a blood feud – a letter from his uncle (declaration) and a letter from the Peace Missionaries.
[18] Given the numerous contradictions and inconsistencies between the Applicant’s documentary evidence and his testimony, the Board’s conclusion that Mr. Perjaku’s narrative was not credible was not patently unreasonable.
[19] It is well-established that, unless proven otherwise, the Board is presumed to have taken all of the evidence into consideration, regardless of whether it indicates having done so in its reasons. Here, the Board expressly stated that it had examined the Applicant’s personal documents adduced in support of his claim. Moreover, as the Federal Court of Appeal noted in Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 (QL), “The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to it's decision.”
i) The Board did consider the declaration
[20] In light of the transcripts of the hearing, it appears that the Board specifically questioned the Applicant at length about the declaration, with the Refugee Division member, having noted that the declaration was one of Mr. Perjaku’s personal documents. (Transcripts of the hearing, at pages 14-21.)
[21] Moreover, the Board drew attention to the fact that the Applicant’s oral testimony contradicted the declaration. For example, Mr. Perjaku testified that he believed that Ndue Kola, the alleged person to have declared the blood feud, was a member of the secret services. The Board pointed out that the declaration stated that the Ndue Kola was an ex-police. (Applicant’s record, at page 117; Transcripts of the hearing, at page 14.)
[22] Similarly, the Applicant testified that he did not know if anyone other than Ndue Kola had firearms, but the declaration stated that gunshots were exchanged. The Board pointed out that this statement in the declaration necessarily implied that more than one person was armed, and that this contradicted his testimony. The Applicant did not provide an explanation at first and then stated that his uncle had a firearm. (Transcripts of the hearing, at pages 14-15.)
[23] Another contradiction noted by the Board between the declaration and the Applicant’s testimony pertains to the statement in the declaration that “after the Democratic Party came to power, I re-appealed to the police for help…” At the hearing, when asked specifically if anything had happened between the federal elections of July 3, 2005 to December 25, 2005, the Applicant stated that his family had been in confinement. He did not mention any re-appeal to the police after the new party came into power. (Transcripts of the hearing, at page 20.)
ii) The Peace Missionaries letter had no probative value
[24] The fact that the Board stated that Mr. Perjaku provided “no evidence to support his story about a family feud” does not establish that it ignored or misconstrued the evidence submitted before it. Hence, it is open to the Board to assess the evidence and give it little or no probative value. (Woolaston, above.)
[25] The Board found that it had difficulty believing that the alleged feud between the families had a political basis. Given this finding, the letter from the Peace Missionaries stating that the conflict began with a quarrel between the parties for political reasons had little probative value, as the information it contained was disbelieved by the Board.
iii) The credibility finding was not patently unreasonable
[26] In general, the Court should not interfere with the Board’s credibility findings, regardless of whether it agrees with the inferences drawn by the Board, unless the Board based its conclusion on irrelevant considerations or ignored evidence. Furthermore, the Board, as the primary finder of fact, is entitled to reject evidence if it is not consistent with the probabilities affecting the case as a whole. Moreover, the Board is entitled to make an adverse finding of credibility based on the implausibility of the Applicant’s narrative and can make reasonable findings based on common sense and rationality. (Aguebor, above, at paragraph 4.)
[27] The following findings made by the Board are clear and detailed and outline the various inconsistencies, contradictions and implausibilities in the Applicant’s documentary evidence and testimony:
(1) The Board found the Applicant’s testimony to be vague and evasive. Even on the central issue of the alleged blood feud, the Applicant was unable to give proper details, and his testimony contradicted the declaration given by his uncle. He also gave very vague testimony as to why his family had not sought the help of the government regarding the feud. (Decision of the Board, at page 6.)
(2) The Board found it difficult to understand why the Applicant would be more at risk on political grounds than other members of his family, given his testimony that his father had been more politically active. (Decision of the Board, at page 4.)
(3) The Board found it implausible that, after the governing party in Albania had changed to a party that the Applicant supported, the Applicant’s family should become involved in a blood feud, given that the documentary evidence on blood feuds did not support the Applicant’s allegations. Furthermore, the Board disbelieved that the blood feud had a political basis, in light of the Applicant’s contradictory, unconvincing and vague evidence. (Decision of the Board, at page 6.)
[28] As such, the Board did not err in bringing to the forefront the inconsistencies, contradictions and implausibilities in the evidence before it, and thus making a negative inference as to the credibility of the Applicant. In fact, Justice James Hugessen of the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. No. 571 (QL) states the following:
…unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence.
[29] Moreover, as the Board found the Applicant not to be credible generally, it was open to it to make the overall finding that the Applicant’s testimony was not credible. As noted by Justice Mark MacGuigan in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL):
…even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.…
(Reference is also made to: Chavez v. Canada (Minister of Citizenship and Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré v. Canada (Minister of Citizenship and Immigration), 2005 FC 964, [2005] F.C.J. No. 1213 (QL), at paragraph 10.)
[30] Consequently, the conclusion of the Board was reasonable and the intervention of the Court is not justified.
State protection
[31] Mr. Perjaku argues that the Board erred by stating that his family had not sought the help either from the police authorities or from the people they knew in the government following the blood feud incident.
[32] While the Applicant testified that his family reported the matter to the police (and not the federal government), it is clear that the Board did not find his testimony credible as it found that the documentary evidence did not support his story. Moreover, the only alleged attempts to access state protection made by the Applicant’s family were two reports, one lodged in July and the other in December, to the police. They did not try to access assistance from the courts or the newly-elected federal government, which may have included people they knew and had supported.
[33] When the state in question is a democratic state, as in the present case, the Applicant must do more than simply state that his family made two reports to the police. The burden of proof that rests on the Applicant is directly proportional to the level of democracy in the state in question: the more democratic the state’s institutions, the more the Applicant must have done to exhaust all the recourses of action open to him. Given that the Applicant’s family only allegedly attempted to access state protection, it was open to the Board to find that Mr. Perkaju had given no clear and convincing evidence to indicate that there was no protection available in his country, regarding the alleged blood feud. (N.K. v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376 (QL), at paragraph 5.)
[34] The Board reasonably determined that adequate and effective state protection was available to the Perkaju family in Albania. The Board assessed the Applicant’s evidence and the objective documentary evidence on country conditions in Albania. The conclusion that state protection is available to the Perkaju family was amply supported with references to various sources. For example, the Board pointed out a US Department of State Report which referred to the new government’s efforts to fight crime and corruption. It was therefore open to the Board to find that the documentary evidence did not support the Applicant’s allegations.
[35] The issue of the availability of state protection is a question of fact within the jurisdiction and expertise of the Board and, as such, is to be accorded significant deference. (Jahan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 987 (QL), at paragraphs 9-10.)
[36] This Court has had the opportunity to review the assessment of state protection in Albania in several recent judicial review applications. These cases reinforce the Minister of Citizenship and Immigration’s view that, where there is some evidence which supports the Board’s conclusions and where the Board has referred to relevant documentary evidence, the Court should not interfere. The Board is not obliged to find that there is perfect state protection available to the Perkaju family. (Canada v. Minister of Employment and Immigration v. Villafranca, [1992] F.C.J. No. 1189 (QL) (F.C.A.); Agastra v. Canada (Minister of Citizenship and Immigration), 2006 FC 548, [2006] F.C.J. No. 690 (QL); B.R. v. Canada (Minister of Citizenship and Immigration), 2006 FC 269, [2006] F.C.J. No. 337 (QL).)
[37] The Board’s conclusions on the issue of state protection were reasonably open to it on the evidence before it.
CONCLUSION
[38] For all the above reasons, the judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2008-06
STYLE OF CAUSE: ANTON PERJAKU v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2007
APPEARANCES:
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D. Clifford Luyt
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Asha Gafar
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SOLICITORS OF RECORD:
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WALDMAN & ASSOCIATES Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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