Ottawa, Ontario, March 17, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
ARDIAN DERVISHI, MIRELA DERVISHI AND SEBELA DERVISHI
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Dervishi family claims to be at risk, if returned to Albania. A pre-removal risk assessment (PRRA) officer determined that the family does not face a risk of persecution, torture, risk to life or risk of cruel and unusual punishment under either section 96 or subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The family seeks judicial review of the negative PRRA decision.
I. Facts
[2] For clarity, I will refer to the applicants collectively as the applicants and, individually, by reference to their first names. Ardian and Mirela are husband and wife. Sebela is their child. They are citizens of Albania, came to Canada in 1996, and unsuccessfully claimed refugee status. They sought judicial review of that decision and leave was denied. They filed an H & C application, as well as a PDRCC/PRRA application. All applications were rejected. Before their removal from Canada, in July 2003, a second child was born, in Canada.
[3] After their removal, the family returned to Vlora, Albania and moved in with Ardian's parents. Ardian and Mirela claim that it soon became apparent to them that the environment was a poor one in which to raise children. Sebela was traumatized after witnessing two shootings: one in front of their apartment and the other at a table adjacent to that occupied by the family, while dining in a restaurant.
[4] Believing that Albania was not safe, the family moved to Greece and unsuccessfully attempted to obtain status there. In April 2004, they again returned to Albania and to Ardian's parents' home.
[5] During the Easter celebrations, Ardian and Mirela's Canadian-born daughter disappeared while playing with other children in front of their building. Ardian received a telephone call from an unknown individual who informed him that his daughter was safe and, in order for it to remain that way, Ardian should not call the police. The caller demanded 20,000 Euros for the safe return of the child. Ardian decided that it was too dangerous to involve the police and, in any event, he did not trust them. He borrowed 15,000 Euros, negotiated the amount, and paid for his daughter's return.
[6] Following that incident, the family again decided to leave Albania because it was not safe. After returning to Greece temporarily, Ardian and Mirela decided that only Canada could provide safe haven. The family arrived in Canada, for the second time, in June 2004.
[7] The first PRRA decision is dated March 26, 2003. Ardian claimed fear of persecution on the basis of political opinion and Mirela alleged that her life was at risk because of a blood feud. The officer concluded that because Ardian had acknowledged that he was no longer interested in politics, he was not at risk any more than any other citizen of Albania. Since the documentary evidence established that ancient custom directed that men of the extended family be targeted, Mirela would not be at risk due to a blood feud.
[8] The second PRRA was submitted on September 29, 2004. The negative decision, which is under review in this proceeding, was rendered on January 17, 2005 and communicated to Ardian on February 17, 2005.
[9] A request for a stay of removal was dismissed by this court on July 26, 2005. Leave to apply for judicial review of the second PRRA decision was granted on December 15, 2005. At the hearing of the application for judicial review, counsel advised that the Dervishi family remains in Canada.
[10] Subsection 113(a) of the IRPA mandates that where an applicant's claim for refugee protection has been rejected, an applicant must present new evidence (evidence that arose after the rejection or was not reasonably available, or that could not reasonably have been expected to have been presented at the time of the rejection). Subsection 161(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) requires an applicant to identify the new evidence and to indicate to the assessment officer its relevance to the applicant.
[11] The risk identified in the impugned PRRA decision identifies the Albanian state's inability to provide the family with protection, specifically against rampant human trafficking. Further, those who have returned from the West are targeted by Albanian kidnappers. This constituted new evidence of risk that was not identified in the first PRRA.
[12] The Dervishis claimed that their situation is unique in that the threat, from non-state actors, is a direct result of the state's inability to protect its citizens. Rampant human trafficking is of particular concern because the police are often participants in the trade. There is documentary evidence to the effect that people who have lived in the West and have returned to Albania are being targeted by kidnappers who perceive the returnees as having acquired some wealth. Kidnapping, they submitted, constitutes probative evidence of a risk to life within the definition of subsection 97(1) of the IRPA.
II. The Decision
[13] The PRRA officer determined that there was insufficient persuasive evidence to indicate that the state would be unwilling or unable to provide adequate state protection to the Dervishi family if required. The officer canvassed both the documentary evidence provided by the family's counsel and the country conditions reports. Relying on the presumption of state protection articulated in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689, the PRRA officer concluded that the Dervishi family failed to rebut the presumption.
[14] Although the evidence points to an inefficient judiciary and corruption within the police force, there is also evidence that the state is attempting to deal with those issues. The PRRA officer concluded that there are sufficient safeguards existing in Albania to provide the applicants with adequate protection if required. Thus, there is less than a mere possibility that the applicants would be at risk of persecution upon return to Albania on any Convention ground, or at risk by virtue of subsection 97(1) of the IRPA.
III. The Standard of Review
[15] I have previously indicated that I concur with and adopt the pragmatic and functional analysis conducted by my colleague, Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58 (F.C.). Accordingly, I consider the appropriate standard of review of a decision with respect to state protection to be that of reasonableness (see: Resulaj v. Minister of Citizenship and Immigration) 2006 FC 269.
IV. Analysis
[16] It will not be necessary to deal with the applicants' various allegations of error regarding the PRRA officer's decision. In my view, the submission that the officer failed to analyse the evidence is dispositive of this application.
[17] There is no dispute that the PRRA officer provided a comprehensive recitation of the documentary evidence. The summary of country conditions is comprised of 3 ½ single-spaced, typed pages. There was, as the respondent put it, a balanced account of both the positive and negative aspects of the situation in Albania. I agree.
[18] However, I do not accept the respondent's position that the officer analysed the evidence. The applicants submitted two grounds in support of their application: rampant human trafficking and the targeting, by kidnappers, of those who have lived in the West.
[19] The officer, upon completion of an extensive review of the documentary evidence, concluded that the presumption of state protection had not been rebutted. The officer did not make any connection between the grounds advanced and the evidence that had been recited or the penultimate conclusion that was reached. No analysis was provided in support of the conclusion.
[20] Unquestionably, it was open to the officer to conclude that state protection exists in Albania. That said, to arrive at such a conclusion on the basis of a summary of country conditions (such as those that are present in this case), without more, does not constitute a tenable explanation that withstands a somewhat probing examination: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55.
[21] Merely stating the evidence of the parties and stating a conclusion does not constitute adequate reasons. A decision maker must set out the findings of fact and the principal evidence upon which these findings were based. The reasoning process followed must be delineated: Via Rail Canada Inc. v. Lemonde, [2001] 2 F.C. 25 (F.C.A.) at para. 22.
[22] The applicants are entitled to the benefit of the officer's reasons as to why they failed to rebut the presumption of state protection on the evidence they adduced (which was apparently accepted by the officer). For the foregoing reasons, the application for judicial review will be allowed.
[23] It should be noted that these reasons do not constitute an expression of opinion regarding the availability or non-availability of state protection in the circumstances of this case. The application turns solely on the inadequacy of the PRRA officer's analysis.
[24] The applicants propose the question set out below for certification:
Are attempts by a government to address state protection issues sufficient or need the court address the practical effect of the efforts?
[25] The respondent opposes certification on the basis that the law, in the general sense, is settled and when dealing with the specific attempts by specific countries, the inquiry is fact specific.
[26] I believe that the question should not be certified because it does not provide the basis for my reasoning or my determination in this matter. Therefore, it cannot be said that it is a question that has been raised and dealt with by me. A question that does not arise, or a question that the judge decides need not be dealt with, is not an appropriate case for certification: Zazai v. Canada(Minister of Citizenship and Immigration) (2004), 318 N.R. 365 (F.C.A.) at para. 12.
JUDGMENT
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted to a different pre-removal risk assessment officer for determination.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3813-05
STYLE OF CAUSE: ARDIAN DERVISHI ET AL. v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 8, 2006
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| Howard C. Gilbert
|
|
| Negar Hashemi |
SOLICITORS OF RECORD:
| Howard C. Gilbert Barrister and Solicitor Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |