TC0-10882

RAD File / Dossier de la SAR : TC0-10882 TC0-10883 / TC0-10884 / TC0-10885 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 23, 2021 Date de la décision Panel James Sloan Tribunal Counsel for the persons who are the subject of the appeal Jeffrey L Goldman Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This is an appeal of September 10, 2020 decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) denying the Appellants' claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA). [2] The Appellants, a husband (the male Appellant) and wife (the female Appellant) and their two children (both adults), are Albanian nationals. They claim that they fear persecution if they return to Albania based on the existence of a blood feud. [3] For the reasons that follow, I deny this appeal. FACTS AND ALLEGATIONS [4] In 2003, the male Appellant's father killed a member of the Fani clan. He was convicted of murder and sentenced to ten years' imprisonment; on appeal, his sentence was reduced to three years. Members of the Fani clan swore revenge. [5] In 2004 the male Appellant's brother was the victim of a grenade attack in which he lost an eye. The Appellants do not know who was responsible for the attack, but believe it was a revenge attack by the Fani clan. While the police were told about the blood feud, no arrest was made in connection with the grenade attack. [6] In 2016, threats were made against the Appellants by a member of the Fani clan. In October 2017, the male Appellant was followed by an unknown man. Both the female Appellant's mother and cousin saw that the man was concealing a gun. The male Appellant notified the police, but no arrest was made; they "were not able to find anything or help [the male Appellant]."1 A police officer told the male Appellant that there is often little police can do in blood feud cases. The male Appellant asked his superior at work, the mayor of the municipality, for help but was told that in blood feud situations there was nothing that the government could do. [7] Travelling on US visas they already held (their attempt to obtain Canadian visas was unsuccessful), they arrived in the US on XXXX XXXX, 2017. They crossed into Canada on XXXX XXXX XXXX 2018, smuggled in in the back of a truck. REQUEST FOR THE ADMISSION OF NEW POST-PERFECTION EVIDENCE [8] By means of a January 7, 2021 application, the Appellants submitted: 1) a January 5, 2021 affidavit from the male Appellant in which he states that his mother was attacked by two men from the Fani clan on July 16, 2020; that the men told her that they would have revenge on the Appellants; that, because his mother feared he would return to Albania and risk his life to protect her, she did not tell him about the attack; and that it was only in mid-November 2020-after their claim had been rejected by the RPD (on September 10, 2020) and two weeks after their appeal was perfected (on October 27, 2020)-that he learned of the attack; 2) a November 23, 2020 police attestation which describes a July 17, 2020 complaint from the male Appellant's mother in relation to an assault against her on July 16, 2020 by two young men seeking the male Appellant; it states that they punched her and said that "the day the Fani clan will take revenge is not far;" it notes that the "police commissariat completed the necessary investigations but then the case was closed because even though [the male Appellant's mother] was capable to describe the persons who attacked her, she was not able to identify them by name;" and, 3) a November 24, 2020 medical report stating that the male Appellant's mother sought medical assistance on July 16, 2020 for "hematomas to the face and to the chest, a 2 cm cut near the right eyebrow, [a] black eye on the right side, [and] scratches on both forearms and complained of breathing difficulty" and that she received the necessary treatment. [9] Rule 29(1) of the Refugee Appeal Division (RAD) Rules2 provides that an appellant who does not provide documents with his or her Appellant's Record must not use such documents unless allowed to do so by the RAD. Rule 29(3) provides that an appellant must provide an explanation of how the documents meet the requirements of subsection 110(4) of the IRPA and how the evidence relates to him or her. Subsection 110(4) limits the admission of evidence in an appeal before the RAD to evidence that: 1) arose after the RPD's rejection of the claim; 2) was not reasonably available at the time of the RPD's rejection of the claim; or 3) an appellant could not reasonably have been expected in the circumstances to have presented at the time of the RPD's rejection of the claim. Rule 29(4) provides: In deciding whether to allow an application, the [RAD] must consider any relevant factors, including a) the document's relevance and probative value; b) any new evidence the document brings to the appeal; c) and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. I will begin with an analysis of whether the documents meet the requirements of subsection 110(4) and, only where those requirements are met, to turn to the factors under Rule 29(4). [10] The Appellants argue that the evidence was not reasonably available to them before the September 10, 2020 rejection of their claim because the male Appellant did not learn of the attack against his mother until after that date, due to her decision not to let him know about the attack. In addition, they argue that the documents showing that the attack occurred are relevant to the issue of state protection because they show an inadequate response from the Albanian police. [11] For the reasons given by the Appellants, I find that the new evidence meets the requirements of subsection 110(4). [12] Turning to the relevant factors, including those set out at RAD Rule 29(4), I find that the reaction of the police to the attack against the male Appellant's mother is relevant to the issue of state protection (it relates to the treatment of similarly situated persons), probative, and new. Because the male Appellant was not made aware of the attack against his mother until November 2020 and because the Appellants' record was perfected on October 27, 2020, I find that they could not have provided it with the Appellants' record. [13] I find that the evidence is admissible. DETERMINATIVE ISSUE [14] The determinative issue in this case is the availability of state protection. STANDARD OF REVIEW [15] In my review of the RPD's decision, I will apply a standard of correctness.3 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.4 ANALYSIS [16] The RPD found: 1) the Appellants were generally credible in respect of their story of the blood feud and the events associated with it; however, it did not accept the male Appellant's testimony to the effect that he telephoned the police on the same day he saw the armed man in October 2017 (noting that their Basis of Claim (BOC) narrative stated that he contacted the police the next day); and 2) that they had not disproven the presumption that state protection exists in Albania because i) the male Appellant had not exhausted all available means of state protection, as required, and ii) the country condition evidence, while mixed, showed that the efforts on the part of the Albanian state to reform its laws and practices with respect to blood feuds had translated into effective protection. [17] The Appellants argue that the RPD's negative credibility finding was in error and that it erred in its state protection analysis. [18] I will not have regard to the credibility finding in this analysis. Instead, I will presume, without deciding, that the Appellants are credible and that the male Appellant called the police on the day the man with the gun was sighted, as per his testimony. State protection [19] The Appellants argue that the RPD erred in its state protection findings for the following reasons: 1) it mistakenly believed that a willingness to investigate amounted to state protection-rather than being aware that the test for state protection is adequacy-because it held that the police were "prepared to intervene in cases of blood feuds,"5 based on its analysis of a 2017 UK Home Office report;6 2) the facts show that the police and a government official (i.e., the mayor of the municipality, who was the male Appellant's superior at work) acknowledged that they could not help, and the Supreme Court of Canada held in Ward7 that this rebuts the presumption of state protection; 3) it relied on the UK Home Office report, which represented "government propaganda" because information in it, said to be from the UN was, "in reality, allegations of an ability to protect by an embarrassed Albanian government responding to facts it could not protect;"8 4) it erred in finding that the police's inability to apprehend the man with the gun in October 2017 was linked to a lack of information about him; the facts show that the efforts of the police were inadequate; they argue: The police couldn't protect when during the first incident a hand grenade was used, so there is never going to be a situation when more information is available. However, if the only way for a claimant to provide the police with more information about an attack or attacker is to actually be attacked, then police being able to investigate after the fact becomes irrelevant....The Supreme Court in Ward stated as a principle of law that past incidents of a failure to protect is the kind of evidence that will rebut the presumption. Protection after an attack is not protection.9 5) it is not enough that police were available to the male Appellant or that steps were being taken that may someday result in state protection; what is provided at the relevant time is what is relevant; state protection must be effective; 6) it erred because at paragraph 21 of the decision it held that Albania was not a parliamentary democracy with civilian control of security forces, but it nevertheless found state protection to exist without explaining why; 7) it failed to have regard to elements identified by the Federal Court to assist in analyzing the level of democracy in a state; according to the A.B. case,10 this includes the fairness of the electoral process, the absence of corruption, or whether there is a systematic erosion of the rule of law-all problems which exist in Albania; the Federal Court has found that even where there is a strong democracy, government corruption "will eliminate a presumption of state protection"11 and that "[w]ithout the Rule of Law, there is no State Protection."12 8) it failed to explain why they had not rebutted the presumption of state protection, in view of the incompetence and corruption in existence in Albania, or to explain why it did not rely on the evidence it mentioned in paragraph 23-26 of its decision; 9) previous panels of the Board have found that there is no state protection in Albania and this should determine the matter; 10) it failed to adequately consider important evidence that contradicted its state protection finding (contrary to the requirements of the Cepeda-Gutierrez case13) or to say how that evidence was weighed against that of the Appellants; in particular, it failed to refer to statements i) in a report in the National Documentation Package (NDP)14 that the Ombudsman viewed state efforts to protect families from blood feud killings as inadequate and that there is a tendency of people involved in blood feuds not to trust the police; or ii) in another report in the NDP,15 which states that police investigations did not always produce results; 11) Ward makes clear that a claimant is not obliged to put his or her life at risk to obtain state protection;16 12) Ward provides that the Appellants were only required to provide some clear and convincing evidence of the failure of the state to act to rebut the presumption of state protection (and that may include its effectiveness in relation to other persons in similar circumstances);17 13) it erred by favouring the country condition evidence over the male Appellant's personal knowledge about the failure of police to act in relation to blood feuds; he had expertise on the subject due to his role as the mayor of Temal commune; 14) it failed to cite the specific evidence in the country condition evidence (they argue that there was no such evidence) that refuted the male Appellant's evidence, thereby breaching natural justice by not letting the Appellants know of the case they had to meet or to explain ostensible contradictions; in particular, it erred in its reliance on the UK Home Office report, the CEDOCA report, or changes the Albanian government is making (to improve law enforcement, to create harsher penalties for blood feud-related murder, or to increase sentences for threatening to incite a blood feud) because that evidence does not refute the Appellants' testimony that the Albanian government cannot provide actual protection for them. [20] I will consider the Appellants arguments one-by-one: 1) I can see no basis upon which the RPD may be said to have equated investigation with protection-whether by reference to the UK Home Office Report at item 1.5 of the NDP or otherwise. The passage in the Home Office report referred to by the Appellants does not support its argument that the RPD conflated the two concepts. Indeed, the RPD made clear the importance of assessing whether or not state protection in the country is effective at paragraph 20 of the decision where it stated: "The primary question is whether the documented serious efforts on the part of the Albanian state to reform its laws and practices with respect of blood feuds have translated in[to] effective practice, such that the claimants could reasonably rely on the state to protect them." The RPD considered the effectiveness of efforts taken by the Albanian government to improve its protection in matters relating to blood feuds,18 e.g., it noted that all consulted experts agreed that police forces intervene in blood feud stations; that a police representative stated that police regularly contact or patrol the homes of confined families; and that, in general, people fearing non-state actors are "likely to be able to obtain state protection"-though each case must be considered on its own facts.19 2) The evidence is clear that, when the police were contacted by the male Appellant after the sighting of the man with a gun in October 2017, "[t]he officers told me they would investigate, but they ultimately were not able to find anything or help me. I returned later and met with an officer who told me that there is often very little they can do in these blood feud cases."20 The evidence also provides that the male Appellant, who was appointed the XXXX of the Temal commune (population 2,60021) in September 2014,22 approached his superior (the mayor of the municipality) for protection, but was told "that in blood feud situations there was nothing the government could do."23 This may be contrasted to the circumstances in Ward, where the state agents admitted the state's ineffectiveness as regards state protection.24 The statement by a single police officer cannot be said to represent a representation on behalf of the government. Nor did the police officer state that state protection was not available (as in Ward); he or she merely stressed that there was often little they could do. As to the comments from the mayor of the municipality, there is nothing in the evidence to indicate that the criminal pursuit of a suspect in a blood feud would fall within his jurisdiction or that he would have specialized knowledge of the subject by virtue of his mayoral duties. 3) The Appellants' claim that a July 2017 UK Home Office report25 is "propaganda," based upon reports which the UK claimed was "information provided to it by the UN [but which] were, in reality, allegations of an ability to protect by an embarrassed Albanian government responding to facts it could not protect."26 This argument is misplaced. A review of the June 2017 report shows that the reports from UN entities represent a small part of the material considered.27 For the most part the reports referred to by UK Home Office-from news organizations, the European Commission, the European Council, the US government, the organization for Security and Co-operation in Europe, UN agencies and treaty bodies, universities, NGOs, and this Board-were negative or mixed in content. I note that an argument that two other reports from the UK Home Office on blood feuds (one from 2016 and one from 2018) lacked balance, was raised by the Appellants' previous counsel28 and dismissed by the RPD at paragraph 24. This argument is not repeated at appeal. 4) I agree that past incidents of failure to protect-whether in relation to a claimant or to similarly situated persons-may provide evidence to rebut the presumption of state protection. This was made clear in Ward. The question, of course, is whether in this case, the Appellants have provided such evidence. I agree with the RPD that they have not. First, I disagree that the evidence makes clear that reaction of the police in October 2017 was inadequate. The police were faced with a claim involving someone unknown to the male Appellant, driving a vehicle with foreign plates, who fled the scene. While gun possession may well be a crime in Albania, given the nature of the incident-no one was attacked, and no threats were uttered-the police may well have prioritized other crimes ahead of it. It is not clear from the evidence whether the police were continuing to investigate when, two months after the sighting of the man, the Appellants left the country. Without knowing more about why the police were unable to find the man with the gun, it would be speculative of me to find that the police response to the October 2017 sighting was so inadequate that it showed a lack of state protection. As to the 2004 grenade attack, the male Appellant testified that the police came to question his brother when he was in hospital; however, no one was detained.29 The attacker was unidentified.30 He said that the police "did nothing"; however, he testified that the sole basis for this statement was that "nothing happened after that" and no one was detained.31 The male Appellant was asked by his counsel if his brother followed up with the police and he replied that he not because the police not had requested that he do so.32 Finally, while not related to a blood feud, the evidence shows that the police in Albania functioned sufficiently well to arrest the male Appellant's father for murder and its court system functioned well enough to sentence him to ten years' imprisonment and reduce his sentence to three years on appeal. As noted by the RPD, the jurisprudence is clear that police protection need not be perfect; it need only be adequate.33 The Federal Court of Appeal in Villafranca held: No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become Convention refugees simply because their governments have been unable to suppress the evil....[W]here a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.34 In the words of the Federal Court in Munoz, which relied on Villafranca: "No country, not even the greatest democracies, can guarantee the safety of its nationals at all times and in all places. It is sufficient that there be reasonable protective measures put in place by the state."35 Moreover, as the Federal Court of Appeal held: "When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful."36 It is clear from the evidence that the male Appellant's brother did not follow up with the police. While the male Appellant did return to the police after his initial complaint in relation to the sighting of the man with the gun, he accepted the advice of an officer who told him that oftentimes, there was very little they could do. He did not seek protection from the police officer's superior; nor did he make a complaint to an oversight authority, such as the Ombudsman. As the Federal Court held in the Burai case: With respect to the police, it is well-established law that local failures to provide effective policing do not automatically amount to a lack of state protection. It is simply insufficient for an applicant to give up trying merely because of a single bad experience with local police officials.37 Finally, as to the argument(s) in the quoted extract from the Appellants' memorandum above, I find the logic difficult to follow. I fail to see why the inability of the police to find the culprit who attacked the male Appellant's brother with a hand grenade would mean that there was never going to be a situation where there was more information. As to the claim that the police can only investigate after an attack, I do not see how this supports the assertion that state protection in Albania is inadequate. 5) The argument that the efforts of police must be successful is also made in their post-perfection submissions. The new evidence admitted at appeal-i.e. the November 23, 2020 attestation from the police regarding the male Appellant's mother's July 17, 2020 complaint of having been attacked on July 16, 2020-makes clear that the police "completed the necessary investigations but then the case was closed because even though Ms. XXXX was capable to describe the persons who attacked her, she was not able to identify them by name." The Appellants argue that the decision of the police to close the investigation because the male Appellant's mother could not identity her assailants was an inadequate response. In support of this, they rely on the Pinter case.38 The limitations of the Pinter case were set out in the Ruszo case,39 where the Chief Justice of the Federal Court made the following observation: [40] Relying upon Pinter..., the Applicants also asserted that the police had an obligation to investigate the complaint, even if their assailants were unknown. I do not read that case as standing for such a stark proposition. The failure of the police in that case to further investigate the applicants' complaints in relation to attackers who could not be identified was simply a matter that the Court described as "troubling" at the end of its decision, and after identifying other grounds for setting aside the RPD's decision. However, if I am wrong in this regard, then I respectfully disagree. I am not aware of any obligation on the police in Canada to take further steps to investigate in these types of situations, and it is settled law that claimants for refugee protection are not entitled to greater protection in their home country than is available in Canada (Smirnov v Canada (Secretary of State), 1994 CanLII 3545 (FC), [1995] 1 FC 780, at para 11; Syed v Canada (Minister of Citizenship and Immigration) (2000), 2000 CanLII 16201 (FC), 195 FTR 39, at paras 17-18 (FC); Mejia v Canada (Minister of Citizenship and Immigration), 2003 FC 1180, at para 12; Samuel v Canada (Minister of Citizenship & Immigration), 2008 FC 762, at para 13; Garcia Rivadeneyra v Canada (Minister of Citizenship & Immigration), 2010 FC 845, at para 26; Kotai v Canada (Minister of Citizenship and Immigration), 2013 FC 693, at para 14). There is no evidence to indicate that the police investigation was inadequate. It would be speculative of me to find that the police investigation was deficient merely because they closed the investigation because the male Appellant's mother was unable to identify her attackers by name. In the alternative, if the treatment of the male Appellant's mother's attack by the police is considered to be inadequate, I note that, once again, there is no evidence that the male Appellant's mother took further steps in pursuit of the matter when she was told by the local police force that the investigation was closed. 6) The RPD's finding at paragraph 21 about the state of Albania's democracy and the civilian control of its security forces was as follows: There is no serious dispute that Albania is not a parliamentary democracy or that elections held in June 2017 respected fundamental freedoms, but were marred by allegations of vote buying and pressure on voters. Nor is there serious dispute that civilian authorities do not [generally] maintain effective control over the security forces, or that human rights issues included pervasive corruption in all branches of government. While admittedly the phrasing is somewhat difficult to follow, the RPD was stating that Albania was a parliamentary democracy, that its elections in June 2017 did respect fundamental freedoms (despite problems), and that its civilian authorities do maintain effective control over the security forces. This is clear from its footnoted reference to item 2.1 of the NDP, which states: The Republic of Albania is a parliamentary democracy...In June 2017, the country held parliamentary elections. The Organization for Security and Cooperation in Europe (OSCE) reported the elections respected fundamental freedoms but were marred by allegations of vote buying and pressure on voters. Civilian authorities maintained effective control over the security forces. Human rights issues included pervasive corruption in all branches of government.40 7) In the A.B. case, Mr. Justice Grammond stated as follows: [W]hen assessing the quality of a democracy, one usually refers to several indicia that may not be directly related to the issue of state protection, such as the fairness of the electoral process, freedom of the press, civilian control of the military, access to government information, the absence of corruption, and so forth. Hence, characterizing a country as being democratic does not relieve the RPD and RAD from the duty of carefully reviewing the evidence regarding state protection. As Justice Donald Rennie (now of the Federal Court of Appeal) aptly summarized: "[d]emocracy alone does not ensure effective state protection" (Sow v Canada (Citizenship and Immigration), 2011 FC 646 at para 11).41 Nothing in the RPD's decision suggests that it took the view that Albania's status as a democracy alone ensured effective state protection. To the contrary, it relied on the country condition evidence, discussed above, showing not only that it was a parliamentary democracy, but that its 2017 elections respected fundamental freedoms and that civilian authorities maintain effective control over security forces. Nevertheless, the quality or "level" of the democracy is relevant. As the Federal Court of Appeal has held in Kadenko:42 When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. Undoubtedly corruption or failure to have regard to the of rule of law can undermine a democracy. Based on the objective evidence referred by the Appellants, such factors exist in Albania and are of concern. On this basis, and applying the logic of the Federal Court of Appeal, the Appellants were not required to do as much to exhaust all of the courses of action open to them in order to rebut the presumption of state protection as would have been the case if they had lived in a country with less corruption and greater human rights protections. However, the country condition evidence makes clear that Albania has "a fully functioning police and judicial system. Civilian authorities generally maintain effective control over the police but there are instances of corruption and of the police having committed abuses." In view of this, I agree with the RPD that the efforts taken by the Appellants to seek state protection were not sufficient to disprove its existence in Albania. 8) For the reasons outlined in answer to the other arguments made by the Appellants-Albania's level of democracy, the steps taken by the Appellants or similarly situated persons to seek protection, the country condition evidence showing improved state protection-I find that the RPD made clear why the Appellants had not rebutted the presumptions of state protection. And, for the reasons given, I agree. 9) Previous findings of the Board are not binding. As the Court held in the Szali case: "In Lakatos, Mr. Justice Diner observed that this Court "has repeatedly held that whether a state protection analysis will withstand scrutiny on judicial review is case-specific, and depends on how the decision-maker conducted its analysis in light of the evidence tendered with respect to the claimant's particular circumstances."43 10) The invocation of Cepeda-Gutierrez has become commonplace in appeals to the RAD where the RPD failed to make specific mention of evidence that runs contrary to its finding. It is true that the Federal Court held in that case that, where information is sufficiently important, the failure of a decision-maker to mention it in his or her reasons leads to the inference that the finding of fact was made without regard to it.44 At the same time, however, the Federal Court in Cepeda-Gutierrez, relying on the Federal Court of Appeal, made clear that the Board is not: required to refer to every piece of evidence that [it] received that is contrary to [its] finding, and to explain how [it] dealt with it. (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.45 The particular references from the country condition evidence that the Appellants refer to were insufficiently important for the RPD to fall foul of the Court's finding in Cepeda-Gutierrez. It made clear in its reasoning that the situation in Albania is "mixed,"46 described recourse to state protection as regards blood feuds to be imperfect,47 referred to problems of vote buying and pressure on voters in the 2017 election, acknowledged abuses and corruption by police, and noted various problems with of the judicial system. 11) The RPD has nowhere suggested that the Appellants must put their lives at risk in order to obtain state protection; nor does the record show any evidence that would suggest that their seeking protection would lead to them being harmed. 12) I accept the Appellants' understanding of Ward. I cannot see that the RPD acted in a way that was contrary to that understanding. 13) In Ward, the Supreme Court held that a presumption that a claimant's fear is well-founded is created when there is 1) a subjective fear of persecution, combined with 2) the state's inability to protect the claimant.48 The Supreme Court relied on the Court of Appeal in Rajudeen: "The subjective component relates to the existence of the fear of persecution in the mind of the refugee."49 In this case, where the Appellants have been found to be credible, the first element is not at issue. Here, the focus is on the second element: whether their fear is objectively justifiable. It is not enough for the Appellants to simply assert a subjective belief that protection is not available.50 They must be able to provide "clear and convincing confirmation" of Albania's inability to protect them.51 They have not done so. The male Appellant's status as an XXXX XXXX or XXXX in a commune of 2,600 people, does not, without more, make him an expert in police protection in Albania. 14) As discussed above, I find that the RPD did identify the country condition evidence that most heavily influenced its finding that the Appellants had not rebutted the presumption of state protection in Albania. The country condition evidence that was mentioned by it, as well as that which was not specifically mentioned, was part of the record and the Appellants and their counsel had access to it. Natural justice does not require that the RPD "confront" the Appellants by specifically advising it which documents in the NDP it will weigh against their testimony. CONCLUSION [21] Having found no errors in the RPD's state protection analysis, and because I adopt that analysis, I dismiss this appeal. (signed) James Sloan James Sloan March 23, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 23. 2 Refugee Appeal Division Rules (SOR/2012-257). 3 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 4 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 5 Exhibit RPD-1, RPD Record, at p. 9, para 26. 6 National Documentation Package (NDP) for Albania, September 30, 2019, at item 1.5. The RPD made its finding based on the September 30, 2019 version of the NDP for Albania. In their memorandum, the Appellants relied on the March 31, 2020 version. I note that, in addition to these two versions, I have also considered the current NDP (October 30, 2020) in assessing forward-looking risk in accordance with the Board's Policy on National Documentation Packages in Refugee Determination Proceedings, June 5, 2019 (https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx), at s. 5(II). 7 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85. 8 Exhibit P-2, Appellants' Record, at p. 47, para 19. 9 Ibid., at p. 55, para 42. 10 A.B. v. Canada (Citizenship and Immigration), 2018 FC 237 (CanLII). 11 Exhibit P-2, Appellants' Record, at p. 48, para 22. 12 Ibid., at p. 50, para 27. 13 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC). 14 NDP for Albania, item 7.1. 15 Ibid., at item 7.6. 16 Exhibit P-2, Appellants' Record, at p. 53, para 36. This argument seems to overlap with the argument summarized at item 4) above. 17 They rely on Garcia v. Canada (Minister of Citizenship and Immigration), 2007 FC 79 (CanLII), [2007] 4 FCR 385, at para 28, which considered the case of Canada (Minister of Employment and Immigration) v. Villafranca, 1992 CanLII 8569 (FCA) in light of the Ward case (supra endnote 7). 18 Exhibit RPD-1, RPD Record, at p. 9, para 25. 19 Ibid., at pp. 8-9, paras 22-23. 20 Ibid., at p. 23. 21 Ibid., Exhibit 1, at p. 121. 22 Ibid. 23 Ibid., Exhibit 2, p. 23. 24 Ward, supra endnote 7, at para 53: "...Ireland's inability to protect was established through evidence that state agents had admitted their ineffectiveness...." 25 NDP for Albania, item 1.5. 26 Exhibit P-2, Appellants' Record, at p. 47, para 19. 27 By my count, reports from four UN-related entities-the World Intellectual Property Organization, UN Women, the Committee for the Elimination of Discrimination against Women, and the UN International Children's Emergency Fund-were mentioned. None of the reports could even remotely be said to be propaganda of the Albanian government. A report from the European Commission was frequently referred to; however, it was "based on input from a variety of sources, including contributions from the government of Albania, the EU Member States, European Parliament reports and information from various international and non-governmental organisations." (European Commission - 2016 Albania Report, 9 November 2016 https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2016/20161109_report_albania.pdf, at p. 4). 28 Exhibit RPD-1, RPD Record, Exhibit 11, at pp. 445-448. The argument was based on commentaries from a UK barrister in May 2018 (Ibid., Exhibit 8, at pp. 364-375 and pp. 376-384). 29 Transcript of RPD hearing, at p. 33. 30 Exhibit RPD-1, RPD Record, at p. 22. 31 Transcript of RPD hearing, at p. 33. 32 Ibid. 33 See Cruz Rosales v. Canada (Citizenship and Immigration), 2008 FC 257 (CanLII), para 16, where the Court held "...I agree with the...conclusion of the Board that state protection must be adequate, not perfect and in this case, the state made serious efforts to provide protection." 34 Villafranca, supra endnote 17, at para 7. 35 Munoz v. Canada (Citizenship and Immigration), 2009 FC 478 (CanLII), at para 19. 36 Canada (Citizenship and Immigration) v. Kadenko, 1996 CanLII 3981 (FCA). 37 Burai v. Canada (Citizenship and Immigration), 2020 FC 966 (CanLII), at para 43. See also Zhuravlvev v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17128 (FC), [2000] 4 FC 3, at para. 31, relied upon by the RPD at para 19 of the Burai decision. (Exhibit RPD-1, RPD Record, at p. 7). 38 Pinter v. Canada (Minister of Citizenship and Immigration), 2012 FC 1119, at para 14; relied upon in Ignacz v. Canada (Citizenship and Immigration), 2013 FC 1164 (CanLII), at para 13. 39 Ruszo v. Canada (Citizenship and Immigration), 2013 FC 1004 (CanLII). 40 NDP for Albania (September 30, 2019 version), item 2.1, at p. 1. An updated version of the report, with substantially the same content, appears in the more recent versions of the NDP for Albania (March 31, 2020 and October 30, 2020), also as item 2.1. 41 A.B., supra endnote 10, at para 22. 42 Kadenko, supra endnote 36. 43 Szalai v. Canada (Citizenship and Immigration), 2018 FC 972 (CanLII), at para 29 relying on Lakatos v. Canada (Citizenship and Immigration), 2018 FC 367 (CanLII), at para 23. 44 Cepeda-Gutierrez, supra endnote 13, at para 27. 45 Ibid., at para 16. 46 Exhibit RPD-1, RPD Record, at p. 7, para 20. 47 Ibid. 48 Ward, supra endnote 7, at para 59. It held that the danger that this presumption could operate too broadly, was "tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced." 49 Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R., 129; relied on in Ward, ibid., at para 54. 50 M.C.I. v. Olah, Bernadett (F.C.T.D., no. IMM-2763-01), McKeown, May 24, 2002; 2002 FCT 595. The Court noted that the relevant evidence to determine the issue of state protection would include the documentary evidence and the personal circumstances of the claimant. However, the claimant's own subjective feelings on state protection would not be a relevant factor. See also Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089, where the Court confirmed that the test for determining whether state protection might reasonably be forthcoming is an objective one. In Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830, the Court noted that a refugee claimant does not rebut the presumption of state protection in a functioning democracy by asserting only a "subjective" reluctance to engage the state. 51 Ward, supra endnote 7, at para. 57. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-10882 TC0-10883 / TC0-10884 / TC0-10885 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français