Sahiti v. Canada (Minister of Citizenship and Immigration), 2005 FC 364

Date: 20050315

Docket: IMM-7198-04

Citation: 2005 FC 364

Ottawa, Ontario, the 15th day of March 2005

PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY

BETWEEN:

SHQIPE SAHITI

AGIM SAHITI

URIM SAHITI

NDERIM SAHITI

Applicants

and

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]        This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board or Panel) on August 3, 2004. In that decision, the Board determined that the applicants did not meet the definition of "Convention refugee" in section 96 or "person in need of protection" in section 97.

ISSUES

[2]        The issues are the following:

            1.         Did the Panel err in finding that the changes in circumstances in Kosovo were stable and durable and that there was no justification for an objective fear of persecution on the part of the applicants?

            2.         Did the Panel err in finding that the female applicant had actually been a victim of domestic violence?

[3]        For the following reasons, I must answer the first question in the negative and the second in the positive. The application for judicial review will be dismissed.

BACKGROUND

[4]        The applicants are all citizens of Kosovo. They claimed to have a well-founded fear of persecution for reasons of ethnic origin (Albanian) and political opinion. They said they feared the Serbs because they were mistreated during the war. They said they did not know where to go if they were sent back to Kosovo, as their house was destroyed during the war.

[5]        The principal applicant and his wife left Kosovo in 1998 because of the war that was raging. At that time, he was working as a taxi driver to support his family. He said he had to give up his work because of threats and abuse from the police, because he was of Albanian origin. It should be noted that Albanians are currently the ethnic majority in Kosovo.

[6]        In 1998, he received an order from the KLA military group to join their ranks and fight. When he refused, he and his family were regarded as disloyal to their country. The whole family left Kosovo in April 1998 and sought political asylum in Germany. They learned that their house and all their property were burned by Serbian paramilitary forces in 1999.

[7]        In 2001, they were ordered to leave Germany when their asylum application was dismissed. They found refuge with members of the female applicant's family in Alaska. They subsequently decided to go to Canada and claim refugee status.

[8]        The female applicant said her Personal Information Form (PIF) was filled out by her sister-in-law. She claimed she only learned of its contents when their lawyer called them to clarify certain points regarding domestic violence. She said her sister-in-law made up a story about domestic violence because her family did not like her husband. In an affidavit attached to her refugee claim, she denied all the allegations of domestic violence in her PIF.

IMPUGNED DECISION

[9]        First, the Panel found that the female applicant, a victim of domestic violence, had failed to rebut the presumption of state protection and could definitely get protection from Kosovo authorities. Second, according to the documentary evidence, in May 2004, when their application was being considered, Kosovo was administered by civilian and military authorities, a police force had been set up and political parties were active. The KLA was dissolved after 1998. Accordingly, the Panel found that the changes in circumstances in Kosovo were stable and durable and that there was no justification for an objective fear of persecution on the part of the applicants.

ANALYSIS

1.         Did the Panel err in finding that the changes in circumstances in Kosovo were stable and durable and that there was no justification for an objective fear of persecution on the part of the applicants?

[10]      Paragraph 108(1)(e) of the Act provides that the Panel should deny a claimant refugee status when the reasons for which the person claimed refugee status have ceased to exist. Paragraph 108(1)(e) reads as follows:

[11]      The changes in circumstances which have taken place in Kosovo are the crux of this matter. In Padilla v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 352 (T.D.) (QL), the Court noted that changes in circumstances were a question of fact and that only a patently unreasonable error warranted intervention by the Court (Frank N. Marrocco, The Annotated Immigration Act of Canada, loose-leaf, Thomson Carswell, Scarborough, Ontario, page 24.19).

[12]      As Jerome A.C.J. noted in Kwame v. Canada (Secretary of State), [1994] F.C.J. No. 1394 (T.D.) (QL) at paragraph 4:

The jurisprudence is clear that political changes in a claimant's country of origin constitute an essential element of the definition of Convention refugee, and are therefore properly evaluated by the Refugee Division in determining if a well-founded fear of persecution exists. . . .

[13]      In Kassim v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 888 (T.D.) (QL), Wetston J. of this Court mentioned that the analysis of changes in circumstances must be based on the specific facts of each claim and each country. A "change in circumstances" means a significant change in the political or social situation in the country in question (Mileva v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 79 (F.C.A.) (QL)). The impact must be determined in relation to the applicant (Rahman v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 487 (F.C.A.) (QL)).

[14]      In Mannou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1388 (T.D.) (QL), at paragraph 10, Cullen J. set out the following criteria:

. . . The decisions in De Chinelli, Alvarado and Mahmoud, supra, state that the criteria to be used as an objective basis for evaluating whether the fear of persecution has been negated by a change in country circumstances are: (i) the changes must be of a substantial political nature, (ii) the changes must be truly effective, and (iii) the changes must be shown to be durable.

[15]      In Mileva, supra, the Federal Court of Appeal said at paragraph 8:

. . . The fact that the political situation existing in a claimant's country of origin has developed in such a way as to remove the reasons causing him to fear persecution is obviously a fact relevant to the question of whether that person can validly maintain that he is a Convention refugee. The question raised by a claim to refugee status is not whether the claimant had reason to fear persecution in the past, but rather whether he now, at the time his claim is being decided, has good grounds to fear persecution in the future. . . .

[16]      And finally, in Mohamed v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1280 (T.D.) (QL), at paragraph 7, the necessary analysis of a change of circumstances is well summed up:

. . . On the basis of these decisions, it is clear that when making a finding on the issue of change in circumstances the tribunal must, at least, turn its mind to the objective basis of the applicant's fear of persecution, the alleged agents of persecution and the form or nature of the persecution feared in order to properly evaluate the effect of the change. This evaluation must relate to the particular circumstances of the applicant and the tribunal should provide a clear indication or explanation for its finding.

[17]      In the case at bar, the Panel relied on independent documentary evidence indicating significant political changes in Kosovo. The reasons for decision show that the Panel found these changes to be effective and durable.

[18]      Claimants must successfully establish that they have a reasonable subjective and objective fear of persecution (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at page 723, reiterated in Chan v. Canada, [1995] 3 S.C.R. 593, at paragraphs 119 and 120):

More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. . . .

[19]      The application of these two criteria is well explained by the comments of Rouleau J. in Ahmad v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 995 (T.D.) (QL), at paragraph 22:

Thus the assessment of the applicant's fear must be made in concreto, and not from an abstract and general perspective. The fact that the documentary evidence illustrates unequivocally the systematic and generalized violation of human rights in Pakistan is simply not sufficient to establish the specific and individualized fear of persecution of the applicant in particular. Absent the least proof that might link the general documentary evidence to the applicant's specific circumstances, I conclude that the Board did not err in the way it analyzed the applicant's claim under section 97. [Emphasis added]

[20]      That said, although the current situation in Kosovo does not provide perfect protection, that is not enough to show a well-founded fear of persecution. In fact, the objective evidence must be linked to the applicants' specific circumstances. In the case at bar, the applicants claimed they feared the KLA military group because of their refusal to join its ranks during the war. The Panel evaluated the effect of these changes in relation to the applicants' specific circumstances. The independent documentation expressly indicated that this organization was dissolved after 1998. In the Panel's view, since the war was over and Kosovo was under international administration, things had changed appreciably in Kosovo and the situation was such that the reasons for the applicants' fear had ceased to exist. The Panel member also found that the applicants' ethnic group - Albanians - was currently the majority group in Kosovo.

[21]      The following extracts from the transcript indicate why the Board found that the applicants had failed to show a well-founded fear of persecution:

[TRANSLATION]

PRESIDING MEMBER (to the female claimant)

. . .

Q.            Yes, or rather in Kosovo, in Yugoslavia. Whom do you fear?

A.            We fear the Serbs.

Q.            No, I am talking about you. Who is "we"? I'm talking about you.

Q.            I am very afraid of the Serbs.

. . .

FEMALE CLAIMANT (to the Presiding Member)

-               Because I have suffered greatly from the Serbs. I was abused at school, in the street, at home.

A.            But we are familiar with the situation in the years to which you refer. This is now . . . 2004, and I am asking you about the current situation, in 2004.

PRESIDING MEMBER (to the female claimant)

Q.            What do you fear now in 2004 if you had to go back to Kosovo tomorrow?

A.            Even now, I am afraid of the Serbs because they are still around.

Q.            What is the ethnic majority in Kosovo? Is it Serbs or . . . Albanians?

A.            Albanians are the ethnic majority.

Q.            Do you think that as a member of the Albanian majority you would have problems with the Serbian minority?

A.            Yes, I am afraid, I am very afraid.

Q.            Why do you think you personally would be targeted by the Serbs in Kosovo?

A.            I am really afraid because from the way they acted over the years, they will do the same again with us.

Q.            I . . . Madam, Kosovo was in a state of war. The international community intervened, and Kosovo is now under international administration. So the question is, why do you, personally, as an individual, think the Serbs will target you, out of all the other Albanians currently living in Kosovo?

A.            Yes, I am afraid because every day the Serbs beat . . . Kosovars, they have killed children. The mere presence of the . . . Serbs scares me.

. . .

Q.            Do you have any . . . anything else to add about your fear of returning to Kosovo?

A.            Yes, the fear of returning to . . . I personally am afraid of returning to . . . to Kosovo because they might kill my husband or my children. That is my fear.

(Emphasis added) (Court record, pp. 270-272 and 283-284)

. . .

PRESIDING MEMBER (to the male claimant)

Q.            But now, if you had to return to Kosovo, whom do you fear?

A.            I am afraid of both the Serbs and the KLA, . . . the Kosovo Liberation Army.

. . .

Q.            You are afraid because the KLA . . . what will the KLA do to you if you have to return?

A.            They might kill me.

Q.            The KLA might kill you? Why?

A.            Since I was working as a taxi driver, they thought I collaborated with the Serbs.

COUNSEL (to the male claimant)

Q.            Yes, look, that was in '98. Now, in 2004, why do you think the KLA might go after you, and even kill you?

A.            I don't know if they are still around, if they were killed or . . . the . . . the fear is still there.

. . .

PRESIDING MEMBER (to the male claimant)

Q.            But then, you cannot say they are going to kill you because you do not know if they are still around.

A.            Yes, it's true that I . . . I do not know because I . . . I was not in Kosovo during the war.

. . .

Q.            Now, according to the documentary evidence, the situation in Kosovo has stabilized, and some years ago the international community created an international administration with a military structure known as KFOR. Why do you think that you, sir . . .

. . .

Q.            . . . Agim Sahiti, if you were to return to Kosovo tomorrow, would have problems and would not be protected by the international community there?

A.            Yes, I . . . I am afraid that they would kill me. As it . . . as happened recently when they killed three children.

COUNSEL (to the male claimant)

Q.            But why do you think you personally would be in danger, sir?

A.            Yes, because I, I am afraid because the Kosovo Liberation Army might think I collaborated with the Serbs and the Serbs are still around.

PRESIDING MEMBER (to the male claimant)

Q.            But you said yourself that . . . as the documentary evidence also indicates, the army . . . the KLA no longer exists, it has been disarmed. So why . . . why do you think the KLA would be there waiting for you, after six years, to kill you?

A.            Well, it may have . . . stashed weapons.

(Emphasis added) (Court record, pp. 284-286 and 289-290)

[22]      In light of the objective evidence and the applicants' specific circumstances, I cannot find that the Panel made any patently unreasonable error. In my view, the applicants have not established that they would be specifically targeted by the Serbs.

2.         Did the Panel err in finding that the female applicant had actually been a victim of domestic violence?

[23]      I feel that the Board erred when it stated:

. . . the evidence on the record, notably Exhibit P-7, indicates that her husband was found guilty of assault by a justice of the Court of Quebec (Criminal and Penal Division) after she filed a complaint against him.

[24]      There is nothing in the record to support such a statement. A complaint of assault was filed against the male applicant by a third party. That complaint had nothing to do with domestic violence. The second document filed is a promise to appear by the male applicant but there was absolutely no evidence that it was in connection with a complaint by the female applicant. Moreover, in her affidavit, she stated that everything in her PIF about domestic violence was written by her sister-in-law and was false.

[25]      This error by the Panel is not critical. The Panel denied the applicants political asylum on account of changes in circumstances in Kosovo that would enable them to avail themselves of state protection.

[26]      The parties declined to submit any question for certification. The case does not raise any.

ORDER

THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.

Certified true translation

Peter Douglas

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                       IMM-7198-04

STYLE OF CAUSE:                                       SHQIPE SAHITI, AGIM SAHITI, URIM SAHITI, NDERIM SAHITI v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                 Montréal, Quebec

DATE OF HEARING:                                   March 9, 2005

REASONS FOR ORDER

AND ORDER BY:                                         THE HON. MR. JUSTICE BEAUDRY

DATED:                                                          March 15, 2005

APPEARANCES:

Eveline Fiset                                                                  FOR THE APPLICANTS

Mario Blanchard                                                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

Eveline Fiset                                                                  FOR THE APPLICANTS

Montréal, Quebec

John H. Sims, Q.C.                                                       FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec