FIDAN KRASNIQI v. ERELEHTA KUQI, 2017 FC 890

Date: 20171006 Docket: IMM-3920-16 Citation: 2017 FC 890 Toronto, Ontario, October 6, 2017 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:FIDAN KRASNIQI ANDERELEHTA KUQI KRASNIQIApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADARespondent JUDGMENT AND REASONS [1] Mr. Fidan Krasniqi (the “Principal Applicant”) and his wife Ms. Erelehta Kuqi Krasniqi (collectively “the Applicants”) seekjudicial review of the decision of the Pre-Removal Risk Assessment Officer (the “Officer”) dismissing their Pre-Removal RiskAssessment (the “PRRA”) application. The Officer determined that the Applicants were not Convention Refugees or persons in need ofprotection as defined in

section 96 or subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the“Act”). [2] The Applicants are citizens of Kosovo. They left Kosovo on December 29, 2013 and sought refugee protection in Canada,pursuant to

section 96 of the Act, alleging a fear of members of organized crime.

Their claim for refugee protection was dismissed andthey claimed protection pursuant to the PRRA process, again claiming to be targets of organized crime. [3] The Officer dismissed their application on the grounds that the new evidence submitted by the Applicants, that is apsychological report relating to the Principal Applicant and police documentation relating to an assault upon his brother, was not “new“evidence; that the risk alleged was not forward-looking; and that the Applicants had failed to rebut the presumption of state protection. [4] The decision of the Officer, involving the assessment of evidence, is reviewable on the standard of reasonableness; see thedecision in Kathirkamanathan v.

Canada (Citizenship and Immigration), 2016 FC 761 at paragraph 14. [5] The reasonableness standard requires that a decision be justifiable, transparent, intelligible and fall within a range ofpossible, acceptable outcomes; see the decision in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph47. [6] The Applicants are effectively challenging the Officer’s assessment of the evidence.

Such findings are entitled to a highdegree of deference but are subject to review against the standard of reasonableness, outlined above. [7] In this case, I am not satisfied that the Officer’s findings about the new evidence submitted by the Applicants meets thatstandard. [8] I agree with the submissions of the Applicants that the report about the psychological health of the Principal Applicantrelates to an ongoing situation and could be considered “new evidence”.

The report about the assault upon the brother of the PrincipalApplicant relates to an event that post-dates the hearing before the Refugee Protection Division. The Officer’s rejection of this evidencewas unreasonable. [9] Although often a finding of state protection is dispositive of an application for judicial review, in this case, I am concernedthat the error of the Officer in assessing the status of the new evidence may have tainted the state protection finding.

The benefit of thedoubt in that regard will go the Applicants. [10] In the result, the application for judicial review is allowed, the decision is set aside and the matter remitted to a differentOfficer for re-determination. [11] There is no question for certification arising. JUDGMENT in IMM-3920-16 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted toa different Officer for re-determination. There is no question for certification arising. "E. Heneghan" Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3920-16 STYLE OF CAUSE: FIDAN KRASNIQI AND ERELEHTA KUQI KRASNIQI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA PLACE OF HEARING: Calgary, Alberta DATE OF HEARING: April 5, 2017 JUDGMENT and reasons: HENEGHAN J. DATED: October 6, 2017 APPEARANCES : Ram Sankaran For The Applicants Maria Green For The Respondent SOLICITORS OF RECORD : Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta For The Applicants Attorney General of Canada Edmonton, Alberta For The Respondent