Date: 20020731
Docket: IMM-3957-01
Neutral citation: 2002 FCT 834
BETWEEN:
ARBEN PEPA and FAVJOLA PEPA
Applicants,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a judicial review of an August 1, 2001, decision of the Immigration and Refugee Board finding that the Applicants, who are citizens of Albania, were not Convention refugees.
DECISION OF THE BOARD
[2] In its decision, the Board first set out the names and nationality of the Applicants and that their claim for refugee status was based on membership in a particular social group, Albanians bound by the Albanian Kanun of Lek.
[3] The Board next set out the allegations of the Applicants. It made no findings of fact with respect to these allegations. The Kanun of Lek is a traditional custom in Albania that governs a number of things including marriage. It requires that a marriage must be approved by the bride's parents and that a type of dowry be paid to the bride's parents by the groom. The Applicants married without the approval of the wife's parents and without the payment of a dowry. As a result, the wife's family threatened to kill the Applicants.
[4] The Applicants say that they are members of a particular social group, namely, persons who marry against the custom of the Kanun of Lek and that they have a well-founded fear of persecution from the wife's family as a result.
[5] In its analysis, the Board considered only one issue - whether the Applicants' fear of persecution was related to any of the grounds enumerated in the Convention refugee definition in section 2 of the Immigration Act. The Board found that the Applicants were the targets of a private vendetta - vengeance by the wife's family because the Applicants married against their wishes and that fear of persecution from the wife's family was not related to any of the grounds enumerated in the Convention refugee definition.
[6] The Board considered the characteristics of a particular social group enumerated in Canada (Attorney-General) v. Ward, [1993] 2 S.C.R. 689 at 739:
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.
[7] The Board considered only whether the Applicants were members of a group defined by an innate or unchangeable characteristic. It found that being the target of a vendetta did not constitute unchangeable characteristics and that the vendetta could be extinguished by the wife's family acceding to the marriage.
[8] As a result, the Board found the Applicants to be outside the ambit of the Convention refugee definition and found the Applicants not to be Convention refugees.
ANALYSIS
Errors by the Board
[9] The Board's reasoning in this case is difficult to follow. First, the Board seems to distinguish between a vendetta, or personal vengeance, on the one hand, and a well-founded fear of persecution by reason of being a member of a particular social group, on the other. The Board does not explain the assumption implicit in its finding that, as a matter of principle, a person who is the target of a private vendetta cannot claim to be persecuted by reason of membership in a particular social group. There is no explanation why, even if a person is only the target of a private vendetta, if the basis of the vendetta is the victim's race or any other Convention ground, the victim might not still come within the Convention refugee definition. In the absence of an explanation by the Board or some authority, as far as I am aware, there is no principle of law that provides that being the victim of a private vendetta and being a Convention refugee are necessarily mutually exclusive.
[10] Second, the Board found that the Applicants were not members of a group possessing an innate or unchangeable characteristic. In reaching that conclusion, the Board only focussed on the wife's family which, it notes, could accede to the marriage. That being the basis for its conclusion that the innate or unchangeable characteristics criteria is not applicable, it has focussed, incorrectly, on the perpetrators and not on the victims.
[11] Third, the Board ignored the other possible characteristics of a particular social group enumerated in Ward, supra. Even if the group to which the Applicants allege they belong is not defined by innate or unchangeable characteristics, the Board should still have assessed whether, in this case, association with a group, although voluntary, is unalterable due to historical permanence, i.e. the marriage without consent had taken place and was, thus, an unalterable fact.
Other Considerations
[12] Before this Court, the Applicants stated the issue to be whether the Board had based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the evidence before it. The Respondent addressed the same issues.
[13] However, it appears to me that there are a number of legal issues, or issues of mixed fact and law, that should be addressed. For example, what is the precise definition of the group to which the Applicants say they belong? Does such a group constitute a social group within the meaning of that term in the Convention refugee definition? For purposes of the Convention refugee definition, must the perpetrators of persecution be a government or government-like organization or can they be individuals or a single family?
[14] Further, even if the Board were to find that the Applicants are members of a particular social group, it would still be necessary to determine whether they could avail themselves of state protection in Albania or whether they have an internal flight alternative in that country.
[15] Finally, the Board did not assess the credibility of the Applicants' allegations. Nowhere does it make findings of fact, either accepting or rejecting the Applicants' allegations.
[16] In this case, it is not clear that the Applicants' allegations should necessarily be accepted as being true. The Board pointed out that the male Applicant was a failed Convention refugee applicant in the United States. His family resides there. He was deported to Albania from the United States in March 1999 and alleges that he married his wife, contrary to her family's wishes, just three months later in July 1999. It is not for the Court to make credibility findings and I do not purport to do so here. However, in view of the known facts in this case, it would be, I think, incumbent on the Board to assess the credibility of the Applicants' allegations.
CONCLUSION
[17] In view of the three errors of law identified above, I would allow the judicial review and remit the matter to the Board for redetermination by a different panel having regard to the considerations dealt with in these reasons.
"Marshall Rothstein"
J.A.
Ottawa, Ontario
July 31, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3957-01
STYLE OF CAUSE: ARBEN PEPA
FAVJOLA PEPA Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: July 8, 2002
REASONS FOR ORDER: ROTHSTEIN J.A. (ex officio)
DATED: July 31, 2002
APPEARANCES: Ms. Lori A. O'Reilly
For Applicant
Ms. Kerry A. Franklin
For Respondent
SOLICITORS OF RECORD:
O'Reilly Law Office
Calgary, Alberta For Applicant
Morris Rosenberg For Respondent
Deputy Attorney General of Canada