Ottawa, Ontario, March 1, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Mr. Zef Shpati, is a citizen of Albania. He bases his Convention refugee claim on an alleged fear of persecution by the current government of Albania by reason of political opinion and membership, risk of harm arising from a land dispute, and because his past 25-year internment in a labour camp in Albania are sufficient compelling reasons to deem him a Convention refugee.
[2] In a decision dated March 16, 2006, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board) determined that the Applicant was not a Convention refugee. The Board expressed three main reasons for rejecting the claim:
- The Board had credibility concerns regarding the Applicant’s oral evidence in two areas: that a land dispute exists; and that the Applicant received 8 years rather than 12 years of education.
- The Board found that the Applicant had an internal flight alternative (IFA) in Tirana, the capital of Albania.
- The Board was satisfied that the experiences of the Applicant in the first 25 years of his life in the labour camp were not “compelling reasons” within the meaning of s. 108(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) in that they did not reach the level of appalling and atrocious.
Issues
[3] The Applicant raised the following issues:
1. Did the Board err in its analysis of compelling reasons under s. 108(4) of the IRPA by:
(a) Failing to make a determination as to whether the Applicant’s past treatment in the Albanian labour camp amounted to persecution?
(b) Reaching a patently unreasonable conclusion that the past treatment was not “appalling and atrocious” and, thus, did not meet the level of compelling reasons for purposes of s. 108(4) of the IRPA?
(c) Failing to consider the United Nations High Commission for Refugees (UNHCR) assessment of the Applicant?
(d) Establishing too high a test by requiring that the Applicant’s experiences rise to the level of “appalling and atrocious”?
2. Did the Board make a patently unreasonable finding that the Applicant’s story of a land dispute was not credible?
3. Did the Board make a patently unreasonable finding that the Applicant had a viable IFA in Tirana?
Analysis
Issue #1: Compelling Reasons
[4] The Applicant was born in and spent the first 25 years of his life in a labour camp in Albania. In 1991, he was recognized as a “person of concern” by the UNHCR and entered the United States where he was granted permanent residence status. As described in his Personal Information Form (PIF), he was deported from the United States to Albania in April 2005 for illegal use of his wife’s green card. He immediately left Albania and made his way to Canada, arriving May 8, 2005 and making this refugee claim. Before the Board, the Applicant submitted that his experiences in Albania over the first 25 years of his life constituted compelling reasons as contemplated by s. 108(4) of the IRPA.
[5] Under the provisions of the IRPA, a claim for protection is rejected if “the reasons for which the person sought refugee protection have ceased to exist” (IRPA, s. 108(1)(e)). An exception to this clear statutory provision is contained in s. 108(4), which provides that:
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(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
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(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
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[6] Justice Michel Beaudry in Kotorri v. Canada (Minister of Citizenship and Immigration) 2005 FC 1195, [2005] F.C.J. No. 1457 at paras. 15-19 (T.D.) (QL), conducted a pragmatic and functional analysis on the proper standard of review of determinations of whether subsection 108(4) of the IRPA “compelling reasons” exception applies. Justice Beaudry concluded that the determination of whether there are “compelling reasons” sufficient to exempt the Applicant from being deemed to have ceased to be a refugee under subsection 108(1)(e) of the IRPA is a question of fact, and thus, is to be reviewed by a standard of patent unreasonableness. However, Justice Beaudry also observed that “the delineation of the concept of 'compelling reasons' is a question of law for which the Board has no specific expertise” to which he would apply a standard of correctness. I agree with and adopt the reasoning of my colleague.
[7] The Applicant submits that the Board erred in law by not making an initial determination on the evidence as to whether the Applicant had suffered past persecution on account of his internment in a labour camp for the first 25 years of his life. As this would be a question of the proper application of s. 108(4), this issue is reviewable on a standard of correctness.
[8] A review of the jurisprudence related to s. 108(4) of the IRPA or its predecessor legislation demonstrates that the Board is not required to consider the exception of s. 108(4) unless the claimant would have, at some time, met the requirements for protection (see, for example, Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739, 93 D.L.R. (4th) 144, [1992] F.C.J. No. 422 (F.C.A.) (QL); Ortiz v. Canada (Minister of Citizenship and Immigration), 2006 FC 1365, [2006] F.C.J. No. 1716 (T.D.) (QL); Brovina v. Canada (Minister of Citizenship and Immigration), 2004 FC 635, [2004] F.C.J. No. 771 at para. 5 (T.D.) (QL)). However, this does not mean, in my view, that a failure to make an explicit finding of persecution will automatically amount to an error of law. It is obvious, from reading the reasons, that the Board was satisfied that the Applicant’s treatment during his 25 years in the labour camp amounted to persecution; otherwise, the Board would not have considered the application of s. 108(4). Even if the Board erred by not making an explicit finding of past persecution, any error is immaterial to the Applicant’s case, given that the Board did consider whether there were “compelling reasons”.
[9] The Applicant also argues that the Board’s conclusion that the past treatment did not rise to the level required for s. 108(4) was not reasonable. The Applicant submits that the Board ignored evidence related to conditions of the camp the Applicant lived in. I disagree. It is clear from the reasons and the review of the transcript that the Board recognized the poor treatment of the Applicant in the labour camp; specific reference is made in the reasons to the testimony of the Applicant. The Board concluded that the conditions the Applicant endured in the camp were terrible but not sufficient so as to reach the level of “appalling and atrocious.” The Applicant has not established that the Board ignored evidence, but only that the Board did not weigh the evidence in the Applicant’s favour.
[10] The Applicant submits that the UNHCR document was ignored. As noted above, this document describes the Applicant as a “person of concern” and appears to have been the basis for his asylum in the United States. There are two problems with this argument. The first is that the UNHCR document was not ignored; it is referred to in the Board’s decision. Secondly, while the document may have been helpful in establishing that the Applicant had suffered past persecution, it does not assist the Applicant in showing that the past treatment was “appalling and atrocious”. The document states only that, as of 1991, the Applicant was a “person of concern” to the UNHCR. The Applicant’s UNHCR status in 1991 does not mean that the Applicant is protected from refoulement or can be considered to be a refugee under Canadian law (see Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (F.C.) (QL)).
[11] In sum, the finding that the Applicant’s treatment in the Albanian labour camp did not constitute “compelling reasons” was not patently unreasonable.
[12] Finally, in oral submissions before me, the Applicant raised, for the very first time, the argument that “appalling and atrocious” is too high a standard for s. 108(4). He refers to the case of Dini v. Canada (Minister of Citizenship and Immigration), 2001 FCT 217, [2001] F.C.J. No. 389 (F.C.T.D.) (QL), where Justice Frederick Gibson certified the following question:
In relation to a determination under s. 2(3) of the Immigration Act, does a finding of “compelling reasons” require a finding of “appalling” or “atrocious” past persecution?
[13] I decline to consider this argument because it was not raised in the Applicant’s Memorandum of Facts and Law. Further, except for this one case (where, in fact, Justice Gibson answered the above question in the affirmative but agreed to certify the question), there is no jurisprudence that raises a doubt about the correctness of this test. The level of persecution required for a finding of “compelling reasons” appears to have been first established by the Federal Court of Appeal in Obstoj, above. In that case, Justice James Hugessen stated that the exception should be available only to “those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.” [Emphasis added]. This test has been consistently in use since at least that time.
Issue #2: Land Dispute
[14] The Applicant submits that the Board erred in its interpretation of the evidence regarding the danger to the Applicant with respect to future land disputes in Albania.
[15] The Board’s finding that it disbelieved the Applicant’s claim of a land dispute is one of fact that will only be overturned if it was patently unreasonable.
[16] In my view, finding of negative credibility was not based upon any perverse or capricious erroneous findings of fact. Nor was it made without regard to evidence before it; on the contrary, the Board draws from evidence in front of it to make this conclusion. The Applicant simply disagrees with the manner in which the Board weighed the evidence – against the Applicant’s favour, and this is not a ground for judicial review (Aguebor v. Canada (Minister of Employment and Immigration), 42 A.C.W.S. (3d) 886, 160 N.R. 315, [1993] F.C.J. No. 732 (F.C.A.) (QL)).
[17] The Applicant relies on Yaliniz v. Canada (Minister of Employment and Immigration),
9 A.C.W.S. (3d) 369, 7 Imm. L.R. (2d) 163, [1988] F.C.J. No. 248 (F.C.A.) (QL). There, the Federal Court of Appeal found the Board’s opinion that “the evidence supplied by the Applicant was not credible” was patently unreasonable. However, this case differs from the case at hand because the Federal Court of Appeal also found that:
...this opinion of the Board was not based, at least if we rely on the reasons given for decision, on discrepancies or contradictions in the Applicant's testimony but merely on the feeling that there were obvious exaggerations in what he was recounting. [Emphasis added.]
[18] It is clear from the discrepancies in the Applicant’s PIF and oral testimony, that the Board had reasons for making the finding that the Applicant’s story was not credible.
[19] As well, the Applicant relies on Shahaj v. Canada (Minister of Citizenship and Immigration), 2005 FC 1044, [2005] F.C.J. No. 1292 (F.C.) (QL), wherein the applicant was an Albanian claiming Convention refugee status due to a blood feud. This case is in stark contrast to the case at hand because the applicant’s family in Shahaj was already engaged in a feud, and there was evidence of such a feud involving the applicant’s brother, including documentary evidence that the brother’s death was a homicide. In the case at hand, the Board noted that there was no documentary evidence of such a feud.
Issue #3: Internal Flight Alternative
[20] In oral submissions, the Applicant raised, for the first time, an argument that the Board’s finding of a viable IFA was patently unreasonable. I decline to consider this argument since it was not contained in the Applicant’s Memorandum of Facts and Law.
Conclusion
[21] For the above reasons, this application for judicial review will be dismissed.
[22] The Applicant proposed that I certify the same question certified by Justice Gibson in Dini, above. Since the argument regarding the issue of the test for “compelling reasons” was not properly before this Court, I decline to certify any question. In any event, I am satisfied that the answer to the question is settled law. No question will be certified.
ORDER
This Court orders that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
“Judith A. Snider”
___________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1801-06
STYLE OF CAUSE: ZEF SHPATI v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 22, 2007
APPEARANCES:
Daniel L. Winbaum FOR THE APPLICANT
Maria Burgos FOR THE RESPONDENT
SOLICITORS OF RECORD:
Klein, Winbaum & Frank FOR THE APPLICANT
Barristers and Solicitors
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada