Date: 20161012

Docket: IMM-5481-15

Citation: 2016 FC 1136

[ENGLISH TRANSLATION]

Ottawa, Ontario, October 12, 2016

PRESENT: The Honourable Mr. Justice Bell

BETWEEN:

SHKELZEN BAJRAKTARI

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

JUDGMENT AND REASONS

I.                   Nature of the matter

[1]               This is an application for judicial review of the November 18, 2015, decision by the Immigration Appeal Division [IAD] in which the IAD allowed the appeal of the Minister of Citizenship and Immigration and declared Shkelzen Bajraktari [Mr. Bajraktari] inadmissible because there were reasonable grounds to believe that he committed crimes against humanity, in violation of subsection 35(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. For the reasons that follow, I am dismissing the application for judicial review.

II.                Background and Immigration Division decision

[2]               Mr. Bajraktari is a 77-year-old Albanian citizen. He is married with three children. He arrived in Canada alone in January 1996 and applied for refugee protection. He obtained refugee status on October 20, 1997, and applied for permanent residency in Canada in 1998. He updated his application in 2012, and it is still pending.

[3]               Mr. Bajraktari graduated with a law degree from the University of Tirana. In 1961, he was appointed to be a judge in the city of Puke, but chose instead to work for the Albanian communist government in the Ministry of Interior. While working, Mr. Bajraktari also completed a psychology degree in 1963 through a correspondence program. In total, Mr. Bajraktari worked for the Albanian communist government from 1961 to 1993, holding several different high-level positions in the Ministry of Interior. He was also a member of the communist party of the time, the Albanian Labour Party. Near the end of his career in the Albanian communist government, Mr. Bajraktari was paid as if he had the rank of colonel in the army, even though the ranks were abolished in 1966.

[4]               The Albanian communist regime lasted 45 years before collapsing in 1991. Documentary sources show that during Enver Hoxha’s dictatorship, Albania was the poorest, most isolated country in Europe; all forms of religious practice and freedom of expression and association were banned. Albania did not allow its citizens to own land or travel outside the country. The private practice of law was forbidden, and there were no independent courts, as the judicial system was entirely controlled by the Albanian Labour Party. The central government and the Albanian Labour Party met disobedience and opposition with brutal retribution, including internal exile, long-term imprisonment and execution.

[5]               In 1996, Mr. Bajraktari and eight other members of the communist party were tried in absentia for crimes against humanity under the Albanian Penal Code. In September 1996, Mr. Bajraktari was convicted in the first instance; the nine convictions were upheld by the Albanian Appeals Court in November 1996, but were quashed, in September 1997, by the Albanian Cassation Court. The Cassation Court held that retroactively applying the relevant Albanian legislation was against the constitution.

[6]               A report under paragraph 44(1) of the IRPA recommended that Mr. Bajraktari should be found inadmissible in Canada because of his complicity in the commission of crimes against humanity by the Albanian communist government while he was working for the Ministry of Interior from 1961 to 1993. Finding the report relevant and well-founded, the minister referred the affair to the Immigration Division [ID] of the Immigration and Refugee Board of Canada for investigation.

[7]               In its January 20, 2014, decision, the ID found that Albania committed crimes against humanity against its population, including through its administrative internment practices and confessions obtained by ill treatment. The ID did not analyze the other practices of the Albanian communist government that could constitute crimes against humanity. The ID determined that the allegations of complicity in crimes against humanity made against Mr. Bajraktari under paragraph 35(1)(a) of the IRPA were unfounded according to the parameters set out in Ezokola v. Canada (Citizenship and Immigration), [2013] 2 SCR 678, 2013 SCC 40 [Ezokola]. More specifically, the ID found that the minister did not establish through credible and trustworthy evidence that Mr. Bajraktari voluntarily made a significant contribution to the crimes or criminal purpose of the Albanian communist government. The ID also found that Mr. Bajraktari’s testimony was credible and trustworthy and that his duties related to prosecution and investigation in the Albanian communist government were legitimate and indispensable.

III.             Preliminary questions

[8]               As a preliminary measure, the respondent asked this Court to modify the style of cause to remove the Minister of Citizenship and Immigration as respondent and to replace this with the Minister of Public Safety and Emergency Preparedness [the minister]. The minister also brought the Court’s attention to a spelling error in the applicant’s surname in the style of cause of this request for authorization for judicial review. The minister asked this Court to amend the style of cause so the applicant’s name would read Shkelzen Bajraktari, not Shkelzen Bjaraktari.

[9]               I agree that the appropriate respondent in this case is the Minister of Public Safety and Emergency Preparedness. With the parties’ consent, I authorize the style of cause to be changed so that the respondent is the Minister of Public Safety and Emergency Preparedness and the applicant’s name is spelled Shkelzen Bajraktari, in accordance with rule 76 of the Federal Courts Rules, SOR/98-106.

IV.             Decision under appeal – IAD

[10]           The minister appealed the ID decision to the IAD. The minister submitted that the ID erred in applying the complicity test set out in Ezokola to the facts of this case. The IAD held a new hearing and gave the parties the opportunity to submit new evidence. It considered both the evidence submitted to the ID and the evidence submitted in the appeal. The IAD noted that the applicable standard of evidence for a finding of inadmissibility under section 33 of the IRPA is that of “reasonable ground to believe.”

[11]           The IAD examined the question of whether the Albanian communist government committed, outside of Canada, acts that would constitute an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC 2000, c. 24. If yes, the resulting question is whether there are reasonable grounds to believe that Mr. Bajraktari was complicit in the perpetration of any of these crimes against humanity.

[12]           To answer the first question, the IAD examined the many documentary sources on the communist regime in Albania. The IAD found a plethora of documentary sources listing the following acts defined in subsection 7(1) of the Rome Statute and committed by the Albanian communist government, including during the periods when Mr. Bajraktari worked for the communist regime from 1961 to 1991: murder; imprisonment or other severe deprivation of physical liberty; deportation or forcible transfer of population; torture; persecution on political, cultural and religious grounds; and other inhumane acts intentionally causing great suffering, or serious injury to body or to mental or physical health. The IAD applied the factors listed by the Supreme Court in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40, at paragraph 119 [Mugesera] and found that the minister established the conditions to find that crimes against humanity were committed.

[13]           For the second question, the IAD found that the minister met the burden of proof by demonstrating the existence of reasonable grounds to believe that, during his career with the Ministry of Interior, Mr. Bajraktari was complicit in the perpetration of numerous crimes against humanity committed by the Albanian communist regime. More specifically, the IAD determined that there were reasonable grounds to believe that Mr. Bajraktari made a significant voluntary contribution to certain acts committed by the Albanian communist government and listed in paragraph 12 above. Therefore, the IAD found Mr. Bajraktari inadmissible under paragraph 35(1)(a) of the IRPA and issued a removal order against him under subsection 67(2) of the IRPA and paragraph 229(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].

[14]           The IAD analyzed the six factors identified in Ezokola, namely: (i) the size and nature of the organization; (ii) the part of the organization with which the applicant was most directly concerned; (iii) the applicant’s duties and activities within the organization; (iv) the applicant’s position or rank in the organization; (v) the length of time the applicant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the applicant was recruited and the applicant’s opportunity to leave the organization (Ezokola, above, at paragraph 91).

(1)        The size and nature of the organization

[15]           The IAD held that the Albanian communist regime maintained itself in power through brutal retribution, including internal exile, long-term imprisonment, and execution. However, it also held that for years the Albanian communist government and its Ministry of Interior carried out state functions and provided state services such as police and firefighting. The IAD therefore held that the Albanian communist government and its Ministry of Interior could not be considered organizations with limited and violent purposes.

(2)        The part of the organization with which the applicant was most directly concerned

[16]           The IAD examined the various positions held by Mr. Bajraktari during his thirty-year career and found that he was directly associated with the then-most important and powerful ministry in the Albanian communist regime: the Ministry of Interior. The IAD found that Mr. Bajraktari held positions related to investigations for approximately 20 years. Specifically, he was an investigator in the Investigative Branch from 1961 to 1971; chief investigator in the Criminal Investigations Branch in the District of Fier from 1975 to 1982; head of the 8^th Branch, Anti-Terror, Organized Crime and Anti-Drugs, from 1982 to 1984; and head of the Administrative Branch of the Ministry of Interior from 1985 to 1993. According to an Amnesty International publication, investigators readily used violence and other forms of coercion to obtain detainee confessions or cooperation. On this point, the IAD found Mr. Bajraktari’s testimony that he was always able to obtain a confession from everyone he interviewed throughout his career not credible.

(3)        The applicant’s duties and activities within the organization

[17]           The IAD found that Mr. Bajraktari was complicit in the perpetration of the crime of deportation by proposing the internment in 1976 and in 1979 of two families after one of these family had been found guilty of political crimes. This finding is based on the charges against Mr. Bajraktari as recounted in the documents of the Albanian Courts in the first and second instances and on undisputed facts in the decision of the Albanian Cassation Court. The IAD explained that the Cassation Court quashed the conviction in the previous instances because it was made under a retroactive law and because the criminal acts were not committed in wartime. However, the IAD found that the facts in the matter were not disputed by the Cassation Court and that they must be considered in assessing complicity.

(4)        The applicant’s position or rank in the organization

[18]           The IAD noted that, although military ranks were abolished in 1966, then reinstated in 1992 or 1993, Mr. Bajraktari’s pension was calculated as if he had the rank of colonel. The IAD found that such a rank generally means, according to Ezokola, that an individual had knowledge of the organization’s objectives and the crimes it committed and could demonstrate significant support for these objectives and greater control over actions.

[19]           In addition to his rank, the IAD noted that at the end of his studies in law, Mr. Bajraktari had the highest average in his cohort, taught penal law, and for part of his career as an administrator, signed internment orders. Mr. Bajraktari’s claims that his signature was only a formality and that he had no control over these decisions were deemed inadmissible by the IAD. Moreover, the fact that he was a law professor at that time shows that he had knowledge of the existence of the internment process, including that it affected innocent people.

(5)        The length of time the applicant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose

[20]           According to the documentary evidence, the Albanian communist regime was in power for 15 years before Mr. Bajraktari joined the Ministry of Interior in 1961. Considering his education, the IAD is of the view that Mr. Bajraktari had significant knowledge of how the Albanian communist regime operated even before he started working there. The IAD also considered the fact that, over the years, especially when he worked in the Investigations Branch, teaching law, and as an administrator in the Ministry of Interior, Mr. Bajraktari gained practical and theoretical knowledge of the Albanian communist regime. Moreover, the IAD found that it was implausible that Mr. Bajraktari could move up in the ranks with the government and finish his career with the rank of colonel without being aware of the objectives and operation of the Albanian communist regime. Therefore, based on his long and flourishing career with the Ministry of Interior, the IAD found that Mr. Bajraktari made a knowing, significant contribution to the crimes and criminal purpose of the Albanian communist regime.

(6)        The method by which the applicant was recruited and the applicant’s opportunity to leave the organization

[21]           The method by which Mr. Bajraktari was recruited to the Albanian communist government is entirely typical. However, the IAD made several important findings about his ability to leave the country and his work with the Ministry of Interior.

[22]           The IAD did not believe Mr. Bajraktari’s claim that it was impossible for him to request a transfer or leave the country. The IAD noted that Mr. Bajraktari was able to refuse his 1961 appointment as a judge and that his request for a different position was accepted. Mr. Bajraktari was also transferred to a less stressful position in 1984 due to health problems. Accordingly, the IAD held that Mr. Bajraktari was unable to satisfactorily and credibly demonstrate why he was unable to request a transfer during his career. The IAD also noted that he had many opportunities to leave Albania when he travelled abroad as part of his work for the Ministry of Interior. Although Mr. Bajraktari explained that he did not want to flee the country without his family, the IAD noted that he did not hesitate to separate himself from his family when he left Albania for Canada alone in December 1995.

V.                Issues

[23]           Mr. Bajraktari claims that the IAD erred in finding that he was complicit in the listed acts committed by the Albanian communist government. He claims that the IAD’s assessment of his credibility was unreasonable. He also claims that the IAD should have taken into account the decision of the Albanian Cassation Court on crimes against humanity in Albania rather than the decisions of the trial division and the Appeals Court.

VI.             Standard of review

[24]           The standard of review for a finding of inadmissibility concerns questions of fact and law. Consequently, the reasonableness standard of review applies (Williams v. Canada (Citizenship and Immigration), 2015 FC 917, [2015] FCJ No 978, at paragraph 14; Qureshi v. Canada (Citizenship and Immigration), 2012 FC 335, [2012] FCJ No 375, at paragraph 12; Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, 2009 SCC 12). It is important to remember that questions of evidence and credibility require this Court to show a high level of judicial deference to the IAD (Mugesera, above, at paragraph 38). This Court must only intervene if the IAD’s decision-making process fails to be justified, transparent and intelligible, and if the decision does not “fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at paragraph 47).

VII.          Relevant provisions

[25]           The relevant sections of the IRPA and the IRPR are attached below as Appendix A.

VIII.       Analysis

A.                Credibility

[26]           Mr. Bajraktari claims there is nothing in his file that could cast doubt on the credibility of his testimony, other than an example of a crime against humanity published in an Amnesty International report entitled The 1984 AI Publication, Albanian Political Imprisonment and the Law. This report refers to a Greek citizen who was allegedly detained for 13 months at the Fier police station in 1979 and beaten during interrogations with the goal of making him confess. The IAD noted that this incident occurred when Mr. Bajraktari was chief investigator in Fier. The IAD also noted that Mr. Bajraktari previously told an officer that he was aware of everything that happened in this “small building” in Fier where five investigators worked. The IAD therefore held that it was unlikely that he was unaware of the event. Mr. Bajraktari disputed the admissibility of such evidence and argued that it was an anecdotal story not documented by credible sources. I do not share Mr. Bajraktari’s opinion on this point. Let us not forget that the applicable test is whether there are reasonable grounds to believe that Mr. Bajraktari was complicit. I am of the opinion that the IAD’s finding in this matter is a decision made through logical reasoning based on the evidence on file, a consequence deemed probable under the circumstances and based on the facts of the matter (Zhang v. Canada (Citizenship and Immigration), 2008 FC 533, [2008] FCJ No 678; Osmond v. Newfoundland (Workers’ Compensation Commission), 2001 NFCA 21, 200 Nfld & PEIR 203, at paragraph 134; Miller v. Newfoundland (Workers’ Compensation Commission), 2001 NFCA 20, 199 Nfld & PEIR 186, at paragraph 11).

[27]           On the other hand, I agree that the IAD must favour direct evidence rather than lending too much weight to general statements, even if they come from reliable sources (Bedoya v. Canada (Minister of Citizenship and Immigration), 2005 FC 1092, [2005] FCJ No 1348, at paragraph 16; Jalil v. Canada (Minister of Citizenship and Immigration), 2006 FC 246, [2006] FCJ No 320, at paragraph 39 [Jalil]). The IAD must demonstrate diligence when deciding whether there are reasonable grounds to believe that an individual committed acts listed in sections 34 to 37 of the IRPA (Jalil, above, at paragraph 40). Based on a close reading of the reasons described by the IAD, it is clear that it did not base its inferences of lack of credibility solely on this event reported by Amnesty International. This inference was one of many. The IAD provided several examples of the many contradictions, inconsistencies and improbabilities in Mr. Bajraktari’s testimony, including:

[96]      The tribunal considers that the respondent has attempted to minimize the quality of his education, the duration of his investigator positions, the importance of his assignment as the Head of the 8^th Branch and the charge brought against him in Albania in 1995. This impacts negatively on the respondent’s testimony on the importance of his duties and activities.

[97]      The tribunal considers that the respondent did not provide the same information to the same questions in the immigration documents he provided from 1996 to 2012 and that it affects his credibility negatively.

. . .

[109]    The respondent tried to avoid questions in relation to his knowledge of the crimes against humanity committed by the regime and the ones committed by the other investigators and by the people in his teams when he was chief of investigation in Fier and chief of investigations for the 8^th Branch.

. . .

[111]    . . . It is not credible that a regime that had no tolerance for criticism or perceived criticism would have had patience for the respondent, a free thinker, as he called himself, for thirty years.

. . .

[115]    . . . the tribunal does not find credible that the respondent who saw the abuses of the new government quickly had no knowledge of any similar abuses done during his career under the communist regime.

. . .

[129]    . . . The tribunal considers that there are contradictions in the respondent’s testimony on the control he had over his team as a chief investigator in Fier for eight years (1974-1982) or in charge of the 8^th Branch in Tirana (1982-1984) . . .

[130]    The respondent’s testimony was guarded when he was questioned on his role in investigation, on his knowledge of the widespread violence and ill-treatment in Albanian investigations, during his career. The respondent repeatedly tried to avoid answering these questions by coming back to the description of the various parts of the Ministry of Interior and of other institutions of the communist Albanian state, subject that he felt at ease with and on which he tried to keep his testimony.

[28]           Moreover, Mr. Bajraktari testified that he did not accept a position as a judge in 1961 because his family and children were in Tirana. Yet he previously stated that his children were born in 1963 and 1974, and in 1961, he was not married.

B.                 Decision of the Cassation Court

[29]           Concerning the decisions rendered in Albania, Mr. Bajraktari claims that the IAD lent too much importance to the decisions of the trial division and the Appeals Court. The minister, on the other hand, maintains that it was reasonable for the IAD to take these decisions into consideration on the following grounds: (i) the IAD recognized in its reasons for decision that the decisions of the District Court and the Appeals Court were quashed by the Cassation Court; (ii) the Cassation Court allowed that Mr. Bajraktari did commit the alleged acts; and (iii) although Mr. Bajraktari was not present at the District Court trial, he was represented by an attorney, and there would have been a “test of the facts.” I also note that the Cassation Court, in quashing the previous decisions, examined questions of law related to the constitutionality of the applicable legislation, rather than questions of fact.

[30]           The IAD is not bound by the strict rules of evidence in admissibility hearings: Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2006] FCJ No 1512. This interpretation is consistent with paragraph 175(1)(b) of the IRPA. Moreover, paragraph 175(1)(c) of the IRPA provides that the IAD “may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.”

[31]           I agree that it was reasonable for the IAD to take into consideration the decisions of the District Court and the Appeals Court. Moreover, it is clear from the IAD’s reasons that these decisions were not the only evidence on which the inadmissibility decision was based. The IAD refers to them only at the end of its assessment of the third criterion in the complicity test, Mr. Bajraktari’s duties and activities within the organization. The IAD therefore considered all of the evidence before finding Mr. Bajraktari complicit.

[32]           I will add that it is the IAD’s mandate to weigh the probative value of the evidence before it, and it is not for this Court to reweigh the evidence or to substitute its own opinion for that of the IAD (Torre v. Canada (Citizenship and Immigration), 2015 FC 591, at paragraphs 16 and 61). It is also important to remember that the standard of evidence on the existence of reasonable grounds to believe is lower than the standard on a balance of probabilities, though it does require more than a mere suspicion (Mugesera, above, at paragraph 115).

IX.             Conclusion

[33]           I am of the opinion that the IAD carefully weighed Mr. Bajraktari’s testimony and came to a reasonable conclusion in light of the evidence and an accumulation of contradictions and inconsistencies at the heart of Mr. Bajraktari’s testimony. Based on the criteria in Ezokola, the IAD’s finding that there are reasonable grounds to believe that, due to the nature of his duties and positions he held, Mr. Bajraktari was complicit in the perpetration of certain crimes against humanity committed by the Albanian communist regime, is entirely reasonable. Intervention by this Court is therefore not justified.

JUDGMENT

THIS COURT’S JUDGMENT is that:

1.                  The style of cause is modified to change the spelling of the applicant’s name to Shkelzen Bajraktari and the respondent from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness.

2.                  The application for judicial review is dismissed.

3.                  There is no question to be certified.

4.                  No costs are awarded.

“B. Richard Bell”

APPENDIX A

 

FEDERAL COURT

SOLICITORS OF RECORD

	Docket:	IMM-5481-15
STYLE OF CAUSE:		SHKELZEN BAJRAKTARI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING:		Montréal, Quebec
DATE OF HEARING:		August 10, 2016
JUDGMENT AND REASONS:		BELL J.
DATED:		October 12, 2016

APPEARANCES:

Éric Taillefer	For the applicant
Patricia Nobl Normand Lemyre	For the respondent

SOLICITORS OF RECORD:

Éric Taillefer Handfield & Associés, Avocats Montréal, Quebec	For the applicant
William F. Pentney Deputy Attorney General of Canada Montréal, Quebec	For the respondent