Date: 20030421
Docket: IMM-1089-02
Neutral citation: 2003 FCT 636
BETWEEN:
Sheko ZEFI and Fabiola ZEFI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A) INTRODUCTION AND BACKGROUND
[1] Sheko Zefi, a 46-year old widow and her daughter and only child, Fabiola, who was eighteen at the time of her hearing (the "applicants"), both citizens of Albania, challenge, in this judicial review proceeding, the February 11, 2002 decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") denying their refugee claim.
[2] They allege a well-founded fear of persecution as members of a particular social group: the family or clan involved in a blood feud. Fabiola arrived in Canada on July 17, 2000 and she was joined by her mother on October 27, 2000.
[3] In her Personal Information Form ("PIF") Sheko Zefi recites, after her marriage to her husband Gjeto Zefi in July of 1979, they went to live in his village of Velipoje, located in northern Albania.
[4] Mrs. Zefi states her husband was murdered on March 14, 1997 by members of the Frani family, also living in Velipoje and that his murder was in accordance with the "Kanun" (customary law) arising from an eighty-year old blood feud between the two families which had hibernated during the communist regime but reawakened in 1997 after a breakdown in law and order.
[5] Mrs. Zefi wrote she suspected her husband was murdered because he was the oldest male in the Zefi family or because he had no sons to avenge him. According to the "Kanun", she and her daughter should avenge his death by killing a member of the Frani family. She states she was pressured to do so by members of the Zefi family, but refused.
[6] In a strange twist, according to the "Kanun", Mrs. Zefi said if her husband's death was not avenged, the members of the Frani family had the right to kill again a member of the Zefi family because it was shameful for that family not to take revenge.
[7] Fabiola, according to the Kanun, would be, in the default killing scenario, the target of the Frani family.
[8] She was sent, in late spring or early summer of 1997, to live with her aunt in Berat; she stayed there for approximately two years. Fabiola was then discovered by members of the Frani family. She moved with her grandmother in Tirana from where she fled to Canada.
[9] In her PIF, Fabiola Zefi writes, in June 1999, she saw two men observing her near her school in Berat and, from their clothing, deduced they were from the North. A few days later, these same men, one of whom had a gun, tried to force her into their car but she successfully escaped when townspeople started yelling thus frightening her assailants.
[10] After completing her school, she went to live with her grandmother in the capital Tirana and, while there, was visited by her mother who took her three times to Macedonia to see a psychologist.
[11] Fabiola states she did not feel safe in Tirana because, as she put it, a lot of people from the North live there and she and her mother feared the Frani family would discover her whereabouts and kill her. She writes (applicants' record, page 41):
We did not go to the authorities for protection because we knew of other cases like ours and we knew that the authorities do not intervene in such cases.
[12] Mrs. Zefi tells in her PIF, after her daughter was sent to Berat, she remained in Velipoje to stand with her husband's family because, according to the "Kanun", the wife must stay where her husband is buried (applicants' record, page 30). After her husband's murder, she quit her job and basically stayed home, going out rarely and, when so, was always accompanied. She indicated she had permission of the Zefi family to leave the village to take her daughter to the psychologist in Macedonia but she always returned because, in her words, "had I not returned, it would have brought shame on the family. My brothers-in-law would then be entitled to kill me, according to customary law."
[13] According to her PIF, she lives in fear of the Zefi family who were pressuring her to avenge her husband's death and also lives in fear of the Frani family.
[14] With the help of family members, she sold her house in May 2000, in order to send her daughter to Canada in July 2000, but she continued to live in Velipoje until "I was able to make my own travel arrangements through an agent, and I left the country in October 2000."
[15] She concludes at paragraph 10 of her PIF (applicants' record, page 30) as follows:
I felt I had to leave Albania, because my husband's family would be shamed by my leaving the village, and would look for me anywhere I went in order to kill me. I also feared that the Frani family would track me down, as they did my daughter. I did not believe I could get effective protection from the government authorities anywhere in Albania.
B) THE TRIBUNAL'S DECISION
[16] My reading of the tribunal's decision leads me to conclude it rejected the applicants' refugee claims for two principal reasons: nexus and the implausibility of their story they would be expected to avenge the death of Gjeto Zefi.
[17] The tribunal averted to a problem with Mrs. Zefi's testimony about the route she took to travel from Albania to Canada but did not make any adverse credibility finding as a result of the "problem". In other words, the tribunal did not impugn Mrs. Zefi's credibility. It found as a fact Gjeto Zefi had been murdered by the members of the Frani family because of the blood feud.
[18] The tribunal found no nexus between their fear of persecution and one of the five Convention grounds, race, religion, nationality, membership in a particular social group or political opinion.
[19] It relied on a decision of Justice Heneghan in Bojaj v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1524. That case involved a refugee claim made by a nineteen-year old Albanian male who advanced a well-founded fear of persecution based on his fear of being murdered in a blood feud where revenge would be sought against him, the only male family member left in Albania. The claimant's grandfather had murdered a member of the Curri family before World War II.
[20] In the case before me, the tribunal ruled:
...the claimants are the wife and daughter of the murdered victim of a blood feud. I do not accept that victims of a blood feud/vendetta (victim of criminality) has a nexus ... to a Convention ground.
Also, I have not accepted as plausible testimony, that the claimants would be forced to avenge the death of Gjeto Zefi by his brothers. This act, if it were credible, would also be criminal and I would not accept this act as having a nexus to a Convention ground. [emphasis mine]
[21] The tribunal's implausibility finding stemmed from its analysis of the documentary evidence which led it to conclude Kanun law would not require the female claimants to avenge the death of Gjeto Zefi because Kanun law mandates only the victim's closest male relative to do the avenging, a task which would fall to Mr. Zefi's brothers.
[22] As a result of this finding, the tribunal concluded the applicants would not have an objective fear of being persecuted by members of the Frani family because the members of that family would not fear the applicants but Mr. Zefi's brothers. Also, because of that finding, the tribunal was of the view she had no fear of the members of the Zefi family because they would not expect her to do the avenging.
C) DISCUSSION
[23] Counsel for the applicants argued three points:
(1) the tribunal drew, without regard to the totality of the evidence, its implausibility finding the Kanun law of revenge would not include the wife and the daughter of their murdered husband (father) required to avenge his death;
(2) families involved in blood feuds in Albania should be recognized as a particular social group - one of the five enumerated Convention grounds; and
(3) the tribunal failed to take into account Guideline No. 4: Women Refugee Claimants Fearing Gender Related Persecutions. This Guideline concerns special problems which women may face in demonstrating that their claims are credible and trustworthy.
[24] I am of the view the applicants' arguments must fail.
[25] Concerning the implausibility finding made by the tribunal, the words of Décary J.A. in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) are apposite. He wrote at paragraph 4:
¶ 4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[26] The applicants argue the tribunal drew its implausibility finding without considering the totality of the evidence and, in particular, the documentary evidence that Kanun law, as currently practised in Albania, is distorted and has abandoned its medieval dictates where women and children were immune from involvement, either as avengers or as victims, in blood feuds. The tribunal, it is advanced by the applicants, ignored their personal testimony they were told by the deceased's family they were expected to avenge Gjeto Zefi's death.
[27] In my view, the tribunal's implausibility finding which concerns the objective basis of their fear was not unreasonably drawn. It should be recalled the applicants' fear is two-pronged: fear from Mr. Zefi's family who expects them to avenge Mr. Zefi's murder and fear from the Frani family who have the right to kill them because they did not avenge.
[28] The tribunal referred to documentary evidence in the form of country documents including IRB research to the effect the Kanun requires the victim's closest male relative to avenge the slaying, creating a cycle of murder and counter-murder that can force men into hiding for years. The tribunal also referred to other documentary evidence to the effect the Kanun excludes children and women from blood feuds acknowledging, however, several sources making reference to children and women being killed or threatened as a result of vendettas.
[29] My review of the record leads me to conclude the tribunal weighed the documentary evidence, took into account the fact the Kanun, in its current form, may contain impurities in terms of whom may be victims in blood feuds and came to the conclusion avengers in murders as a result of blood feuds did not include women and children. It was reasonably open for the tribunal to come to this conclusion.
[30] Reading the testimony of the applicants, I am convinced they had a subjective fear of Zefi and Frani family members but the point which the tribunal made is that their subjective fear was not objectively valid.
[31] The second point argued by the applicants is they constituted a particular social group - family involved in a blood feud.
[32] The tribunal did not analyse this point extensively basing its finding on two conclusions. First, considering the applicants as avengers, the act of revenge would be criminal and the tribunal did not accept this act as having a nexus to a Convention ground. Considering the applicants as victims, the tribunal did not accept that victims of a blood feud/vendetta - victims of criminality - has a nexus to a Convention ground.
[33] The applicants argued an Albanian clan subject to the Kanun, which mandates revenge in blood feud murders qualifies as a particular social group under the test elaborated by the Supreme Court of Canada in Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689. The applicant also raised an issue related to derivative claims.
[34] Justice La Forest in Ward, supra, wrote at page 739 the following concerning the meaning to be assigned to a particular social group:
¶ 70 The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, supra, Cheung, supra, and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person. [emphasis mine]
[35] Justice La Forest, in dissent, the majority not analysing the point, in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, commented extensively on the reasons he had rendered in Ward, supra.
[36] As I read Justice La Forest's reasons in Chan, supra, pertaining to whether a refugee claimant could be classified within a particular social group, the first step in the analysis is the determination of whether an issue exists concerning basic human rights because, as he stated, at page 642:
The "general underlying themes of the defence of human rights and anti-discrimination" were to remain the paramount consideration in determining a claimant's membership in any particular social group.
[37] In Bojaj, supra, Justice Heneghan said this at paragraph 17:
¶ 17 The Board reached the conclusion that the Applicant's fear of persecution related to an act of criminality, not to one of the reasons included in the definition of Convention refugee. Having regard to the evidence on the record, that conclusion seems to be reasonable.
[38] In Bojaj, supra, Justice Heneghan also undertook an analysis of whether the refugee claimant's fear was based upon the characteristics of his particular social group, namely, he was a male member of the Bojaj family involved in a blood feud. She decided the point based on jurisprudence related to derivative claims. She wrote at paragraph 16 of her reasons:
¶ 16 In the present case, it appears that the Applicant's grandfather is the primary victim of the alleged persecution. The grandfather committed a murder, not the Applicant. Now the Applicant fears that he will be murdered in a continuing act of revenge for the actions of his grandfather. Having regard to the basis of the decision in Klinko, supra, it would appear that the Applicant cannot now claim refugee status based on a derivative claim of persecution, even though "family" can constitute a particular social group. However, it is not inevitable that "family" will always constitute a particular social group within the definition of Convention refugee.
[39] I refuse recognition to a family, governed by Kanun customary law, involved in a blood feud in Albania as constituting a particular social group for the purpose of inclusion as one of the enumerated grounds in the Convention. In my view, such recognition would clearly breach two fundamental rules relating to the interpretation given by the courts in refugee law in Canada:
(1) as mandated in Ward, and Chan, supra, the first step in the analysis of what group may constitute a particular social group must find its anchor in the defence of human rights and anti-discrimination; and
(2) as expressed in Ward, supra, the Convention on refugees contains certain built-in limitations to the obligations of signatory states. One such limitation is that a well-founded fear of persecution must be "by reason" of one of the five enumerated grounds, one of which includes "a particular social group"; that is, be the cause of the persecution.
[40] It has been recognized by this Court and by the Federal Court of Appeal that criminality, revenge, personal vendetta, cannot be the foundation of a well-founded fear of persecution by reason of a Convention ground for the simple reason such a persecution is not related to one of Convention ground where the persecution must be because of a person's race, ethnicity, etc.
[41] Revenge killing in a blood feud has nothing to do with the defence of human rights - quite to the contrary, such killings constitute a violation of human rights. Families engaged in them do not form a particular social group for Convention purposes. Recognition of a social group on this basis would have the anomalous result of according status to criminal activity, status because of what someone does rather than what someone is (see Ward, paragraph 69).
[42] On the last point raised by the applicants, that is the failure of the tribunal to take into account Guideline No. 4, the applicants have failed to persuade me of its applicability in the particular circumstances of this case. The applicants' fear is not gender-related.
[43] For all of these reasons, this judicial review application must be dismissed.
[44] Counsel for the applicant raised two questions for certification as follows:
1. Can an Albanian clan subject to the traditional social code, the Kanun (or Cannon) of Lek (or Leke), constitute a particular social group such that members of the clan who fear becoming victims of a blood feud have a nexus to the definition of Convention refugee ?
2. Can a refugee claim succeed on the basis of a well-founded fear of persecution for reason of membership in a particular social group that is a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason ?
[45] I should mention that in Bojaj, supra, Justice Heneghan certified the following question:
Can young men, targeted for death under the Canon of Leke, form a particular social group in the definition of Convention refugee ?
[46] The respondent opposes certification on the grounds these questions are unlikely to be determinative of the judicial review application and should not be certified. Further, the respondent argues under the new Immigration and Refugee Protection Act, the Minister is the appropriate forum to raise fears of personal risk for non-Convention reasons. I agree with counsel for the Minister on the latter point.
[47] I do not think certification of this question is appropriate. I see no issue here of a derivative claim and it is settled law revenge vendettas have no link to a Convention ground.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
May 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1089-02
STYLE OF CAUSE: Sheko Zefi et al v. The Minister of Citizenship & Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 13, 2003
REASONS FOR Order : Lemieux, J.
DATED: May 21, 2003
APPEARANCES:
Ms. Brenda J. Wemp FOR APPLICANT
Ms. Caroline Christiaens FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister and Solicitor FOR APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada