MB7-02956

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : MB7-02956 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision October 15, 2018 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Gjergji Hasa Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] XXXX XXXX, a citizen of Albania, appeals a decision of the Refugee Protection Division (RPD) rendered on March 10, 2017, denying his claim for refugee protection. [2] The Appellant fears persecution or harm in Albania, where he is enmeshed in a dispute between his step-mother's brother and his father who brought dishonor to the family. He submits that the RPD erred in rejecting his claim on the basis that he failed to rebut the presumption that adequate state protection is available to him and that he can avail himself of an Internal Flight Alternative (IFA). [3] The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that he is a "Convention refugee" according to section 96 of the Immigration and Refugee Protection Act (IRPA) or a "person in need of protection" according to section 97. [4] After considering the Appellant's submissions and all of the evidence, I conclude that adequate state protection is available to the Appellant in Albania, which is determinative of the appeal. II. DETERMINATION [5] Pursuant to s. 111(1)(a) of the IRPA, I confirm the decision of the RPD, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. III. BACKGROUND AND OVERVIEW OF APPEAL [6] The Appellant is from XXXX, in Northern Albania. [7] The Appellant's father married XXXX XXXX in 2003 and the couple settled in XXXX. Initially, XXXX family objected to the marriage and her brother XXXX threatened to kill the Appellant's father. However, the family reconciled after the couple married. [8] In 2010, the Appellant's father asked XXXX to move out of the house but she refused. In response, XXXX informed the Appellant's father that if he tried to divorce her, she would tell her brother XXXX who would surely kill him. As such, the Appellant's father moved to Italy and the Appellant was raised by XXXX. [9] In 2012, XXXX informed her brother XXXX that she is estranged from her husband. XXXX declared that if the Appellant's father divorces XXXX, this will bring great shame upon their family. [10] The Appellant's father has not returned to the family home or spoken to XXXX since he relocated to Italy in 2010. [11] The Appellant spent 4 months visiting with his father in Italy in 2012, 2013 and 2014. During these visits, the Appellant worked and then returned to Albania to live with XXXX. [12] In November 2014, the Appellant engaged in a verbal altercation with XXXX. Following the dispute, XXXX threatened to kill the Appellant if he continued to speak badly about his sister. [13] On July XXXX, 2015, the Appellant refused to provide XXXX with his father's address. In response, XXXX beat the Appellant and threatened to kill him and his father. [14] On July XXXX, 2015, the Appellant made a police complaint against XXXX. The case was transferred to the District Attorney's Office of XXXX for further investigation. XXXX was declared a wanted person but has not been found. [15] The Appellant left for Italy on July XXXX, 2015 for his annual visit to his father's home. Prior to his departure, he had no news from the police. During his absence from Albania, the Appellant appointed his cousin XXXX to be his proxy with the police. [16] In October 2015, the Appellant, who was still in Italy, learned from his cousin XXXX that the police were unable to arrest XXXX. As such, the Appellant feared returning to Albania. Instead, the Appellant opted to go to Germany in November 2015, where he filed a refugee claim. [17] In June 2016, he decided to leave Germany (where his refugee claim remained unresolved) because he believed that no country in Europe would accept him as a refugee. He illegally boarded a vessel bound for Canada. [18] Arriving in Canada on November 20, 2016, he made a refugee claim.1 [19] The Appellant fears XXXX who seeks revenge in order to preserve his family's honour after the Appellant's father divorced his wife and left Albania. [20] While not raising any concern with respect to the Appellant's credibility, the RPD rejected the claim on the basis that the Appellant can avail himself of an IFA in Albania and that he did not rebut the presumption of adequate state protection. IV. DETERMINATIVE ISSUE [21] The Appellant submits that the RPD erred in finding that he can avail himself of an IFA in Albania and erred in the assessment of state protection. I consider that state protection is the determinative issue in this claim. V. SCOPE OF THE RAD APPEAL [22] The Refugee Appeal Division (RAD) reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.2 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.3 Unless specifically stated below, I have applied the correctness standard in the present case. VI. ANALYSIS 1. Did the RPD err by engaging in a selective review of the documentary evidence? [23] A central issue in this claim centers on the Appellant's ability to rebut the presumption of adequate state protection in the context of an honour-based crime. [24] On appeal, Counsel submits that the RPD erred in the assessment of state protection by engaging in a selective review of the documentary evidence. It is argued that the evidence is "mixed" but the RPD only gave weight to documentary evidence supporting the rejection of the claim. [25] With respect, I am not persuaded by Counsel's submission. [26] The RPD assessed the adequacy of state protection based on the available documentary evidence, including the NDP for Albania dated May 13, 2016. My review of the RPD decision reveals that the Panel member canvassed objective evidence from different sources4 and acknowledged that there is mixed evidence regarding the adequacy of state protection in Albania. [27] More specifically, the RPD reviewed the objective evidence regarding the state structure, the government's response to honour crimes and the results of those efforts. The RPD found that while there exists a fully functioning police system and an independent judicial system, there are instances of corruption and abuse which arise periodically, attributed to different factors, including poor infrastructure, a lack of equipment and inadequate supervision, unprofessional behavior, widespread corruption in the judicial system and the fact that the judiciary suffers from political pressure and interference.5 The RPD noted that while in the past, state protection was considered to be insufficient in areas where Kanun law predominates, since 2014, some regions, including XXXX, have established active policing and prosecution services.6 [28] The RPD also examined the documentary evidence regarding honour-based crimes and concluded that the Albanian government has taken steps to improve state protection, including the creation of a specialized police unit; revised instruction at the local level; criminalization of blood feuds and related killings, and stricter sentencing. The RPD concluded that affected families are offered protection and the perpetrators are persecuted.7 [29] The RPD also acknowledged that some sources express less optimism about efforts taken by the state to protect victims of blood feuds in Albania. The RPD noted that the Ombudsman found insufficient efforts have been undertaken to protect victims. Families complain of corruption, a lack of appropriate police intervention and the state's inefficient apparatus to guarantee their safety. The RPD also referenced another report prepared by the Swedish Migration Service, which found serious deficiencies in state protection, given corruption and limited capacity.8 [30] The RPD concluded that while objective evidence reveals that authorities in Albania have made significant efforts to combat honour-based crimes, some sources found that the state has not sufficiently implemented the measures it has adopted. [31] It is plain to see that the RPD set out different views about the adequacy of state protection in Albania. After canvassing the objective evidence, the RPD (as it is required to do9), went on to conduct a contextualized assessment of the case by applying the objective evidence to the particular circumstances of the present case. Ultimately, the RPD concluded that the Appellant did not rebut the presumption of state protection. [32] This manner of proceeding is correct. On the whole, I find that the RPD did not engage in a selective review of the documentary evidence. 2. Did the RPD err in finding that the Appellant failed to provide clear and convincing evidence that adequate state protection is unavailable to him? [33] On a balance of probabilities, the RPD found that the Appellant did not rebut the presumption of adequate state protection for the following reasons: - Following the Appellant's July XXXX, 2015 police complaint, the police transferred the case to the District Attorney who confirmed that the file is under investigation and that XXXX is declared a wanted person; - Given his decision to leave Albania, the Appellant appointed his cousin XXXX to act as his proxy with the police. When XXXX went to the police to inquire about the status of the investigation, he said that the police did not provide him with any information; - While the Appellant made some efforts to seek help from the authorities, his efforts were limited to the months after the initial incident. However, the Appellant did not approach the District Attorney's Office to inquire about his case; - While it is true the police have failed to arrest XXXX, they make no reference to operational limitations; - Although there is objective evidence of corruption amongst law enforcement in Albania, the Appellant did not demonstrate that XXXX could use official corruption to his advantage. It was not proven, on a balance of probabilities, that corruption renders the authorities unable or unwilling to protect the Appellant; - Although the state faces challenges implementing strategies to combat honour-based crimes and control widespread corruption, the Appellant was able to file a complaint on which the police acted, even if they fell short of an ideal result. [34] On appeal, it is submitted that the Appellant took all reasonable steps to seek state protection and protection was not forthcoming. It is submitted that the RPD failed to properly consider the critical issue of operational adequacy of state protection in Albania. [35] With respect, I consider that this submission has no merit. After considering the entirety of the evidence which includes a review of the available objective evidence regarding state protection in Albania10, I find that the RPD did not err in reaching the determination that the Appellant failed to rebut the presumption of adequate state protection in the present case. [36] In order to explain this finding, I begin by setting out a statement of the law with respect to state protection. Next, I provide a summary of the available documentary evidence regarding state protection in Albania, including efforts to prevent and protect those at risk of revenge of honour-based crimes. Finally, adopting a contextual approach, I apply the objective evidence to the facts of the present case. Statement of the law regarding state protection [37] A state is presumed to be capable of protecting their citizens, except when there is evidence that the state is in a complete situation of breakdown.11 In Ward, the Supreme Court explains that while this presumption increases the burden on the claimant, it "reinforces the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant."12 [38] To rebut this presumption, a claimant must adduce relevant, reliable and convincing evidence which satisfies the trier of fact, on a balance of probabilities, that state protection is inadequate.13 [39] As noted by Counsel, this requires an assessment of the operational adequacy of state protection, meaning that "regard must be given to what is actually happening and not what the state is endeavoring to put in place."14 [40] The Appellant has the onus of bringing forward clear and convincing evidence to rebut the presumption of state protection. This requires more than showing that state protection is not perfect or always effective.15 Objective evidence [41] Albania, with the assistance of international monitoring and supervision, has engaged in an ongoing process to strengthen weak state institutions, stabilize its political infrastructure and implement reforms following the collapse of communism in the 1990s. Focused on becoming a country which meets European Union (EU) standards, the Albanian parliament unanimously adopted a set of constitutional amendments in 2016, aimed at reforming the justice system. The amendments address corruption in the judiciary and strengthen its independence from organized crime, which includes a reorganization of the justice system and process for vetting judges and prosecutors.16 [42] A 2015 Response to Information Request (RIR) prepared by the IRB examined the police in Albania. Under the jurisdiction of the Ministry of Interior, the police is organized centrally and locally. The General Directorate of the Albanian State police is located in Tirana. There are also 12 Regional Police Directorates, each composed of 3 to 6 Commissariats. The Regional Police Directorates carry out the directions of the General Director, coordinate training and personnel matters and supervise the Commissariats and police stations within their region. There is a regional police directorate in XXXX District with 3 Commissariats.17 [43] The UK July 2017 Country Policy and Information Note on Albania states that there is a fully functioning police and judicial system. Civilian authorities generally maintain effective control over the police but there are instances of corruption and police abuse. This being said, the government has internal mechanisms to investigate and punish police abuse and corruption and are reported to carry out investigations and issue sanctions. Moreover, Albania has an independent ombudsman who process complaints, including complaints against police officers. While there is an established independent judicial system, it is affected by politicization, intimidation, limited accountability, insufficient resources, lengthy proceedings and backlogs.18 [44] The United States Department of State provided the following update in 2017 on the police in Albania: "Civilian authorities generally maintained effective control over police, the Guard of the Republic, the armed forces, and the SIS, although officials periodically used state resources for personal gain and members of the security forces committed abuses. Police did not always enforce the law equitably. Personal associations, political or criminal connections, poor infrastructure, lack of equipment, or inadequate supervision often influenced law enforcement. Poor leadership and a lack of diversity in the workforce contributed to continued corruption and unprofessional behavior. Authorities continued to make efforts to address these problems by renovating police facilities, upgrading vehicles, and publicly highlighting anticorruption measures. Impunity remained a serious problem, although the government made greater efforts to address it, in particular by increasing the use of camera evidence to document and prosecute police misconduct. While the government had mechanisms to investigate and punish abuse and corruption, police corruption remained a problem. The Service for Internal Affairs and Complaints received 3,811 telephone complaints via the anticorruption "green line" through July 31. The majority of the complaints involved "inaction of police officers," "unjust fine/ticket," or "violation of standard operating procedures." The office filed 43 administrative violations, recommending 57 police officers for disciplinary proceedings. The cases of five officers were forwarded to the Prosecution Office. During the year, the ombudsman also processed complaints against police officers, mainly concerning problems with arrests and detention.19" [45] A report from the European Asylum Support Office (EASO) cites sources indicating that law enforcement continues to improve and the police have a visible presence in large cities, however their response time is often poor due to limited resources. The report notes that "[c]itizens may submit complaints about the police to the Internal Control Service, which operates under the authority of the Ministry of the Interior or to the Professional Standards Department, an office within the Albanian police.20 While corruption remains an endemic problem in Albania, complaints filed have intensified and are routinely investigated.21 [46] The Appellant's Memorandum of Appeal emphasizes that the present case is akin to a blood feud. I retain from the evidence that XXXX physically assaulted and threatened to kill the Appellant to restore his family's honour after the Appellant's father left the family home and divorced XXXX sister. In other words, blood has yet to be shed in this conflict. [47] While the Appellant's situation has the characteristics of an honour-based crime, I have considered whether I should also canvas the objective evidence regarding state protection in the context of blood feuds. My review of the objective evidence points to the fact that the term blood feud is difficult to define in contemporary Albania. A recent report from the Belgium Commissioner General for Refugees and Stateless Persons22 explains that the "narrowest understanding" of blood feud is "a premeditated familial avenging of lost blood; that is, where the family of a murdered victim kills a member of the perpetrator's family to restore the honour and blood lost as a result of the initial murder." [48] However, the term blood feud has also been defined more broadly as "any revenge killing between families [...] regardless of any reference to the need to restore blood and honour or of guidance by any Kanun-related considerations."23 A report from the Swiss Refugee Council notes that the broadest definition of a blood feud comprises conflict between families even when a homicide has not occurred but physical harm or a violent dispute has taken place.24 [49] Since the broadest definition of blood feud is compatible with the factual presentation of the present case, I have also reviewed the objective evidence regarding the state response to honour-based crimes like vendettas/blood-feuds in Albania. [50] According to sources consulted in a 2015 RIR issued by the IRB25, the Albanian Criminal Code was amended to include harsher penalties for individuals who commit murder related to a blood feud. The amendments also include penalties for "serious intimidation for revenge or blood feud against a person in order to have him immobilized within the house" and inciting other persons for revenge or blood feud. The jurisdiction over such cases was transferred to Albania's Serious Crime Courts.26 [51] The RIR further mentions that some organizations such as the Ombudsman of Albania, the NGO Operation Dove and the 2013 Swedish Migration Agency Report do not consider that the Albanian police is able to manage blood-feud related cases. These organizations found serious deficiencies with regard to the capacity and prevalence of corruption in the police. The Albanian judiciary is also criticized for imposing lighter sentences on perpetrators of blood-feud related homicides.27 [52] This being said, the RIR further mentions that according to the UN Special Rapporteur in June 2012, the Albanian State Police launched a countrywide database which lists all identified individuals involved in a blood feud. This list includes cases submitted to court and those not followed up through official channels. According to the British Embassy, the authorities prosecute perpetrators of blood-feud related crimes. The Albanian Ministry of Foreign Affairs states that all feud motivated crimes are detected and perpetrators are punished by the courts.28 [53] With respect to the state's ability to prevent blood feuds or protect affected families, the RIR notes that according to the British Embassy in Tirana, police and criminal justice system representatives provide a degree of protection to affected families. This being said, the RIR further mentions that "Country Reports 2014 quotes the ombudsman of Albania as stating that the authorities' efforts to protect families or prevent blood feud killings were insufficient. Operation Dove similarly reports that very often, families involved in blood feuds complain about ...the widespread corruption, and the workflow of justice processes, explaining that there remains a lack of certainty of sentencing for those who committed crimes because of blood feud, a lack of ...appropriate police intervention, and an inefficiency of a state apparatus guaranteeing the safety of citizens who risk their lives because of reasons linked to blood feuds."29 [54] A 2016 EASO report also reviewed the situation regarding blood feuds in Albania, noting that there are still occasional cases, mainly in the rural northern areas of Albania. The report emphasizes that statistics about blood feuds vary considerably, depending on the sources that are consulted, however a UN Special Rapporteur reported in 2013 that the practice had decreased steadily. Following a report from the Ombudsman, Parliament adopted a resolution and recommendations to end blood feuds.30 It is noted that successive Albanian governments have taken measures to eliminate blood feuds and revenge killings. Amendments to the Criminal Code in 2013 and 2014 include lifetime penalties for blood-feud related murders.31 [55] A 2016 Report from the Swiss Refugee Council considers that the situation regarding blood feuds remains a problem in Albania.32 The report notes that corruption remains a major issue in the judiciary and police, partly attributed to low salaries, bribes and the importance of clans in society.33 The report notes that the Albanian Government has intensified its efforts to combat crimes based on vendettas by imposing strict sentences up to 30 years. However, there are few crimes that are prosecuted, which demonstrates that the authorities, including the police, prosecutors and courts, are ineffective.34 The police and judiciary remain passive in order to avoid exposing themselves to danger or becoming implicated in a vendetta. The Swiss Refugee Report cites sources indicating that government officials act with impunity, noting that government officials, politicians and affluent individuals were able to avoid prosecution in several cases.35 [56] The 2016 UK Country Information and Guidance Report regarding blood feuds36 notes that the Albanian state has taken steps to improve state protection, including better policing, specific criminalisation of blood feuds and blood feud killings; the creation of specialised police units; and the establishment of a high-level coordination committee.37 The report further notes that in areas where Kanun law predominates, particularly in northern Albania, those steps did not yet provide sufficiency of protection from Kanun-related blood-taking if an active feud exists. However, more recent information from the British Embassy in Tirana is to the effect that Kanun law no longer predominates. Most notably, a field visit found that the region of XXXX established an active policing and prosecution service. The current government (since 2013) has also made efforts to tackle blood feuds by issuing revised instructions to local police and toughening sentences to offenders through amendments to the Albanian Criminal Code. There is active monitoring of the affected families and there is active policing and prosecution of crimes.38 [57] The United States Department 2017 Country Report on Human Rights Practices in Albania mentions that alleged incidents of societal killings, including both blood-feud and revenge killings, occurred during the year, but as of August, authorities had reported only one case of a blood-feud killing. The Ombudsman reported that authorities' efforts to protect families or prevent blood-feud deaths were insufficient, although the government increased efforts to prosecute such crimes.39 [58] The 2017 report from the Belgium Commissioner General for Refugees and Stateless Persons40 conducted a fact-finding mission about blood feuds in present-day Albania, including an examination of the state response in terms of protection and prevention. The report notes that "interventions by the authorities (police and Prosecutor's Office) have become another possible characteristic of contemporary blood feuds. All the consulted experts agreed that the police forces nowadays try to intervene in blood feud situations and that police interventions can be of various kinds (identification, monitoring, prevention, arrest, etc.)" Even though there are various ways to file a complaint (in the office, by telephone, by e-mail or through a mobile phone application), many experts confirmed that people do not easily go to the police or to the prosecutor to denounce or to report a contemporary blood feud. [59] The report also notes that the Vice-Minister of Internal Affairs declared that the authorities are closely monitoring the known cases of contemporary blood feuds and that the phenomenon is largely under control. This statement was repeated in more detail by two sources at the Albanian police force who were met during the fact-finding mission. The General Director from the Albanian State police claimed that the police have made a lot of efforts to end the blood feud phenomenon since the National Action Plan. With respect to the prevention, tracking and fighting criminal acts of murder motivated by blood feuds, he mentioned that currently, each officer knows what to do and that good cooperation has been established between the police and several other organizations which facilitates quick intervention and arrest. [60] According to police sources, as soon as there are serious indications of an imminent crime (including threats) or that a crime was committed, these elements are transferred to the Prosecutor's Office for investigation and prevention. Moreover, in order to prevent new blood feuds, the damaged families are immediately monitored proactively in order to prevent that a blood feud will develop or prevent a revenge killing. The representative of the XXXX Regional Police Directorate indicated that negligence by police officers in matters related to blood feuds are now severely punished.41 [61] Both police sources argued that the implementation of directives launched by the government to halt the blood feud phenomenon has had a positive impact and has resulted in a decrease in the phenomenon. The 2017 Belgium report mentions that new cases of blood feud murders are very rare and that many non-governmental interlocutors referred to the police statistics as a reliable source.42 [62] Most notably, a local representative of the National Ombudsman who was consulted in March 2017, noted that while in the past, blood feud cases were not investigated at all, "the presence of the law has very much advanced nowadays. [...] Closed cases have been re-opened and potential blood feud cases are treated with particular attention, even in the remote areas. If something happens, the police will intervene [...]. The police will start a process of investigation and arrest those who pose a threat."43 Other sources contacted echoed that the police will intervene to assist the affected families threatened by a blood feud.44 [63] As noted above, the Prosecutor's office also plays an active role in combatting blood feuds. They conducted round tables in every county to investigate the number of people who are confined as a result of blood feuds. In 2013 and 2014, officers of the prosecutor went to every house which claimed a link to a blood feud to obtain enough evidence to start a case. The identified blood feuds are monitored by the authorities with the assistance of the police. The prosecutor's office collect information to assess whether a new crime case can be identified as a contemporary blood feud case. In 2015-2016, the Prosecutor's office increased cooperation with other institutions and re-opened old cases that had been closed because of a lack of evidence.45 [64] Multiple sources consulted by the Belgium fact finding mission state that the judiciary continues to be seen as the weak point, susceptible to corruption with respect to charges and sentencing for blood feud related killings. There is the perception that bribing a judge may result in a lower sentence or bribing a prosecutor may result in a reduced charge.46 This being said, one professor notes that poor citizens are not able to bribe a judge. Only those who have strong ties with politics are able to influence court decisions.47 [65] Another obstacle identified by the Prosecutor's Office is that many blood feud affected families do not want to collaborate with the judiciary and believe that only self-isolation can protect them.48 [66] In sum, the preponderance of the documentary evidence reflects that since 2016, Albania has been involved in an ongoing process aimed at strengthening state protection. This process has included legislative reform and the implementation of various operational measures. The police and prosecutors office have jurisdiction to assist affected families of honour-based crimes, including revenge and blood-feud related issues. This role also includes preventing and assisting families threatened with acts of revenge. While many sources acknowledge that Albania has made concrete efforts to improve state protection for blood feud related cases, some organizations express ongoing concerns about widespread corruption in the police and judiciary. Contextual analysis of state protection [67] After considering the objective evidence, I turn now to consider state protection in the specific context of the Appellant's case.49 i. Nature of the human rights violation [68] As noted above, the Appellant's father abandoned his wife in Albania in 2010 and moved to Italy which brought dishonour to the family. After his father left Albania, the Appellant was physically assaulted and his life was threatened by XXXX who targeted the Appellant to protect his family's honour. Being the subject of physical assault and death threats is a serious violation of the Appellant's basic human rights. ii. Profile of the agent of harm [69] XXXX is the brother of the Appellant's step-mother. He is a non-state agent of persecution. The Appellant is not in a relationship of dependency with this man. [70] The Appellant says that he heard from his step-mother that XXXX has a criminal background. When pressed by the RPD to provide further details, the Appellant stated that he has committed murder; he has threatened people and he is involved in illegal trafficking although he does not know the specifics.50 [71] The Appellant testified that since XXXX is a criminal, it follows that he can act with impunity by bribing the police not to arrest him or press charges. It is the Appellant's contention that XXXX has the ability to engage in corruption since he has not yet been arrested. [72] With respect, I disagree with this submission. To be clear, there is no cogent evidence before me that XXXX has connections to state officials including the police, politicians or the judiciary. There is no evidence that XXXX wields particular influence or wealth to the extent that he could benefit from corruption with the police or judiciary and act with impunity. I agree with the RPD that it was not proven, on a balance of probabilities, that XXXX profile is such that he could use official corruption to his advantage and that corruption rendered the authorities unable or unwilling to protect the Appellant."51 iii. Efforts of the Appellant to obtain state protection [73] The Appellant made a police complaint after he was physically assaulted and subject to death threats by XXXX on July XXXX, 2015. [74] After taking the complaint, the police said they would inform the Appellant if XXXX is arrested or not. The case was transferred to the District Attorney's Office for further investigation. XXXX was declared a wanted person but has not been found. [75] Prior to his departure to Italy in July 2015, the Appellant appointed his cousin XXXX to be his proxy with the police. In October 2015, the Appellant (who was still in Italy) contacted XXXX and asked him to obtain an update on the case. [76] While the Memorandum of Appeal states that the Appellant opted to make an asylum claim and decided not to return to Albania after he was informed by XXXX that "the police had done nothing to find, question, investigate, or arrest XXXX"52, I find that this submission is not compatible with the evidence before me. Rather, the evidence is that XXXX was informed by the police in October 2015 that XXXX has not been arrested. While he is still a wanted person, he has not yet been found. [77] After XXXX follow-up with the police in October 2015, there is no evidence that the Appellant took any further steps to make inquiries about the status of his file. Most notably, the Appellant and his proxy did not follow up with the District Attorney's office even though the file was transferred to them. [78] While Counsel argues that the Appellant was not required to do so, I disagree. The District Attorney's office is a public office representing the state to prosecute crimes. The District Attorney has jurisdiction to act in files related to honour-based crimes and the prevention of such crimes.53 Under the circumstances, it is certainly reasonable to expect the Appellant or his proxy to obtain an update of the file from the very office in charge of the dossier. [79] As per his request, the Appellant was granted generous leeway from the RAD (until September 17, 2018) to obtain and provide information regarding the status of his police complaint in Albania. However, no further information is forthcoming to the RAD. Three years following his initial complaint to the police, there is no evidence before the RAD that the Appellant or his proxy took any further steps to obtain an update from the police or District Attorney's office in charge of his file. There is also no explanation for their failure to do so. [80] The only evidence before the RAD is that the District Attorney's office was transferred the file and that XXXX is still a wanted person but has yet to be found. In the final analysis, it remains unknown why the authorities have not been able to apprehend XXXX. [81] Counsel further submits that the Appellant took reasonable steps to obtain state protection by making a police report and asking his proxy to follow up with the police in October 2015. It is argued that the RPD erred by failing to consider that state protection is not reasonably forthcoming because the state apparatus lacks operational adequacy.54 [82] While the Appellant asserts that he cannot expect state protection in this case, given the existence of operational limitations, I find that this statement is not supported by objective evidence. To be clear, the most recent documentary evidence canvassed in this decision reveals that the police and District Attorney have a clear mandate and take an active role in investigating honour-based crimes, arresting individuals who pose a threat, as well as assisting families who are threatened with or combatting honour-based crimes such as blood feuds and revenge killings in northern Albania.55 [83] In the final analysis, the Appellant's police complaint was referred to the District Attorney, as required. While it is true that XXXX has not yet been apprehended, he remains a "wanted person", which means that the authorities have determined that there is some basis on which to pursue the matter. The District Attorney is tasked with investigating and assisting the Appellant with his complaint. The Appellant (for unexplained reasons) has not contacted the District Attorney to follow up with his complaint and it remains entirely unclear why XXXX has not yet been found. The Appellant has not provided convincing evidence that other factors such as corruption, influence or operational inadequacy have impeded the investigation of the police complaint. VII. REMEDY [84] In sum, I have considered the nature of the harm feared, the profile of the agent of harm, the particular circumstances of the Appellant and the available documentary evidence regarding the adequacy of state protection in cases of honour-based crimes in Albania, including revenge and blood feud related crimes. I find that the RPD did not err in finding that the Appellant failed to rebut the presumption that adequate state protection is available in the present case. [85] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". [86] The appeal is dismissed. Patricia O'Connor Me Patricia O'Connor October 15, 2018 Date PO/dd 1 The BOC was received at the IRB on December 7, 2016. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras 78, 103 [Huruglica]. 3 Ibid., paras. 58, 59 and 70. Three Member panel RAD decision TB6-03419, May 17, 2017, as amended May 23, 2017, paras 70, 71, 116(b) [RAD panel decision]; X(Re), 2017 CanLII 33034 (CA IRB). 4 RPD decision, paras. 15-23. 5 RPD decision, paras. 15-17. 6 RPD decision, para. 18. 7 RPD decision, para. 19. 8 RPD decision, para. 22. 9 Gonzales Torres v. Canada (Minister of Citizenship and Immigration), [2011] 2 FCR 480, para. 37. 10 The issue of state protection is a forward looking analysis. In a letter dated June 15, 2018, the RAD gave notice to the Appellant's counsel that it was relying on the updated version of the NDP for Albania dated April 30, 2018. In response, Counsel provided supplementary written submissions on the issue of state protection on July 20, 2018, which were considered along with all of the evidence forming part of the record. On the same occasion, the RAD granted Counsel's request for an extension so that his client could obtain an update regarding the status of his case from the police in Albania. In a letter dated September 17, 2018, Counsel advised the RAD that despite his efforts, the Appellant was unable to provide any further information regarding the status of the criminal complaint against XXXX in Albania. 11 Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, p. 725. 12 Ibid, p. 692. 13 Flores Carrillo v Canada (M.C.I) [2008] 4 F.C.R. 636 (FCA) para. 30. 14 Garcia Bautista v Canada (Citizenship and Immigration) 2010 FC 126, para. 10. 15 Galamb v Canada (Minister of Citizenship and Immigration) 2016 FC 1230, paras. 38-39. 16 NDP for Albanian, 30 April 2018 Tab 2.5 Albania. Nations in Transit 2017, Freedom House 2017, p. 1. 17 Tab 10.1, The Albanian State Police (ASP) including its structure and locations; police corruption; police misconduct; procedures to submit a complaint against the police and responsiveness to complaints (2011-2015), IRB, 15 September 2015, s. 1-2. 18 Tab 1.5 Country Policy and Information Note. Albania: Background information, including actors of protection, and internal relocation. Version 2.0. UK home Office, July 2017, accessed 28 September 2017, s. 2. 19 Tab 2.1, Albania, Country Reports on Human Rights Practices for 2017, United States Department of State, 20 April 2018, pp. 4-5. The issue of corruption (bribery) is also echoed in Tab 10.3 Institute for Democracy and Mediation, Police integrity and corruption in Albania 2.0, 2016, accessed 4 August, 2017. 20 Tab 1.10, EASO Country of Origin Information Report, Albania Country Focus, European Asylum Support Office, November 2016, accessed 31 July, 2017, s. 3.1. 21 Tab 10.3, supra note 19, p. 9. 22 Tab 7.15, Blood Feuds in Contemporary Albania: Characterisation, Prevalence and Response by the State, Belgium. Commissioner General for Refugees and Stateless Persons, 29 June, 2017. 23 Tab 7.15, ibid, s. 2.4. 24 Tab. 7.8, Albanie: vendetta. Resneignement de l'analyse- pays de l'OSAR, Swiss Refugee Council Report 13 July 2016, p. 4. 25 Tab 7.1, Statistics on blood feuds; state protection and support services available to those affected by blood feuds, including whether individuals have been prosecuted for blood feud-related crimes (2010-2015), IRB, 10 September, 2015. 26 Ibid, s. 4 State Protection citing Articles 78/a, 83/a and 83/b of the amended Criminal Code for Albania. 27 Ibid. 28 Ibid. 29 Ibid. 30 Ibid, s. 5.3.3. 31 Ibid. 32 Tab 7.16, Albanie: vendetta, Renseignement de l'analyse-pays de l'OSAR, Swiss Refugee Council 13 July 2016. 33 Ibid, p. 5. 34 Ibid, p. 7. 35 Ibid, p. 9. 36 Tab 1.7, Country Information and Guidance, Albania: Blood Feuds, Version 2.0, United Kingdom, Home Office, July 6, 2016, p. 6. 37 Ibid, s. 2.5.2 38 Ibid, p. 7. 39 Tab 2.1, Albania, Country Reports on Human Rights Practices for 2017, United States. Department of State, 20 April 2018, p. 22. 40 Tab 7.15, Blood Feuds in contemporary Albania: Characterisation, Prevalence and Response by the State, Belgium Commissioner General for Refugees and Stateless Persons, 29 June 2017. 41 Ibid, pp. 32-33. 42 Ibid, p. 30. 43 Ibid, p. 34. 44 Ibid, p. 34. 45 Ibid, pp. 35-37. 46 Ibid, p. 38. 47 Ibid, p. 39. 48 Ibid, p. 40. 49 Gonzales Torres v. Canada (Minister of Citizenship and Immigration), supra note 9, para. 37. 50 Audio recording of the RPD hearing, 38:10-42:08. 51 RPD decision, para. 31. 52 Memorandum of Appeal, para. 31. 53 See paras. 58, 60 and 63 of this decision. 54 Memorandum of Appeal, para. 76. 55 See paras. 56-68 of the present decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-02956 2