Resulaj v. Canada (Minister of Citizenship and Immigration)

Resulaj v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-09-14
Neutral citation
2004 FC 1142
File numbers
IMM-7205-03
Decision Content
Date: 20040914
Docket: IMM-7205-03
Citation: 2004 FC 1142
Calgary, Alberta, September 14, 2004.
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
BLERINA RESULAJ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
(Delivered from the bench and subsequently written for clarification and precision)
[1] This is an application for judicial review of the decision of a Pre-Removal Risk Assessment (PRRA) Officer dated July 30th, 2003 that the applicant would not be subject to a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Albania.
[2] The applicant is a 23 year-old citizen of Albania. Her refugee claim was denied on May 17th, 2001. Her husband, who had also claimed refugee status, returned to Albania prior to the hearing.
[3] The applicant then submitted a PDRCC, claiming fear of being persecuted by reason of her husband's political activity and as a single woman facing risk of being trafficked. In November 2001, a PDRCC Officer rejected this claim. The applicant subsequently filed a PRRA Application, the subject of these proceedings, in which she claimed fear of being sexually exploited by her husband and being forced into prostitution.
[4] The PRRA Officer dismissed the application, concluding that, while the applicant was at risk of being a "victim of crime", this did not constitute a nexus ground which would sustain a PRRA claim. Alternatively he concluded that if the applicant was at risk, she had failed to establish that state protection would not be available to her.
[5] Given that the Applicant's claim was framed in terms of abuse to women and all of the evidence was tendered on this basis, the PRRA Officer was obliged to consider the claim from that perspective. The evidence suggested that the applicant had been subject to previous domestic violence and that she and her family would likely have an ongoing violent relationship with her ex husband.
[6] The PRRA Officer gave as reason for rejecting the evidence or the claim for domestic abuse that the Applicant had divorced her abusive husband. The Officer asserted that "however if he believes she owes him money , he may demand that she repay him. In addition he may make threats to induce her to find whatever well-paying work she can find in order to begin repayment." (Tribunal Record p. 15) No reason was given why the husband's behaviour was expected to change so drastically. This is all the more astounding as the DOS Country Report on Albania for 2002 (to which the PRRA decision refers) states: " Many men... still followed the traditional code-thekanun- in which women are considered to be, and are treated as chattel."
(Applicant's Record p. 80).
[7] Nothing prevents a woman from being both a victim of domestic abuse and a victim of crime. It is well established that a women subject to domestic violence constitute a particular social group entitled to convention refugee protection. See: Diluna v. Canada (M.E.I.), [1995] F.C.J. No. 399; Narvaez v. Canada (M.C.I.), [1995] 2 F.C. 55.
[8] Consequently, I find that the PRRA Officer made a patently unreasonable decision and committed a reviewable error by:
- failing to explain why he had rejected the evidence of domestic abuse
- failing to explain why he expected the husband's behaviour to so drastically change
- looking at the claim solely from the perspective of the victim of crime and not from the perspective of abused women, and
- failing to consider the evidence regarding state protection in Albania for abused women.
[9] Accordingly this application will be allowed.
ORDER
THIS COURT ORDERS that the decision of the PRRA Officer of 30/07/2003 is set aside and the matter is referred back to another PRRA officer for reconsideration.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7205-03
STYLE OF CAUSE: BLERINA RESULAJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 17, 2004
AMENDED REASONS FOR
ORDER AND ORDER : VON FINCKENSTEIN J.
DATED: September 14, 2004
APPEARANCES: Krassina Kostadinov
For the Applicant
Andrea Hammell
For the Respondent
SOLICITORS OF RECORD: Krassina Kostadinov
Waldman & Associates
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040818
Docket: IMM-7205-03
BETWEEN:
BLERINA RESULAJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER
AND ORDER