Saturday, February 18, 2012

Shkabaki—blood feuds as political persecution, alternative modes of state protection

Shkabaki v. Canada (Citizenship and Immigration), 2012 FC 177

http://canlii.ca/en/ca/fct/doc/2012/2012fc177/2012fc177.html
Judge: Justice O’Keefe; Date heard: January 18, 2012; Date decided: February 8, 2012; Counsel for Shkabaki: Michael Brodzky; Counsel for Minister: Norah Dorcine; Place of Hearing: Toronto, Ontario.

The Applicants were a family from Albanian (although one child has US citizenship). After the principal applicant had married his wife, they discovered they were distant cousins, which was in violation of Kanun law. One family accepted the marriage, but the wife’s family did not, beginning a blood feud. The family was threatened, and the wife’s family rejected mediation and compensation. The Principal Applicant entered into traditional confinement. There were more threats and attempts to abduct the wife.

The RPD found that the Principle Applicant had not credibly established the elements of his claim, nor had the Applicants rebutted the presumption of state protection. The RPD also found that the Applicants, if victims, were victims of criminality which did not give them a nexus to the Convention.

The Applicants argued that there is a difference between most blood feud victims, where the issue may be related to criminality, and their blood feud, which was related to a customary law violation on the freedom to marry, which is an essential human right. Justice O’Keefe agreed, stating:

I do not agree with the respondent that this case pertains to revenge killings as in other blood feud cases. The facts in this case are not based purely on criminality, revenge or personal vendetta (see Zefi above, at paragraph 40). Rather, the persecution arises from a refusal to abide to customary Albanian law that limits the internationally recognized right to marry freely. As such, I find that the applicants fall within the scope of the “particular social group” category described by the Supreme Court as “groups defined by an innate or unchangeable characteristic”, and to a lesser extent also the category of “groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association” (see Ward above, at paragraph 70). Further, unlike the applicant in Ward above, whose fear arose due to his actions, the fear of persecution faced by the applicants in this case arose specifically due to their association in a social group of individuals that marry contrary to the Karun (see Ward above, at paragraph 79).

Furthermore, on the issue of state protection, the Court noted that (a) the Applicants did contact a mediation/reconciliation commission, to no avail; and (b) the documentary evidence was clear that the police tended not to get involved until after a violent crime had taken place.

Finally, the Court found that the credibility analysis was flawed in that it did not take all of the evidence into account, including the Applicants’ explanations for what were found to be flaws in their testimony.

JUDICIAL REVIEW ALLOWED

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