Date: 20020816
Docket: IMM-1788-00
Neutral Citation: 2002 FCT 874
Ottawa, Ontario, the 16th day of August 2002
PRESENT: PELLETIER J.
BETWEEN:
B. M.
KR. M.
KA. M.
I. M.
A. M.
G. M.
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision by the Convention Refugee Determination Division (the Refugee Division) dismissing the claim of the claimant, B.M., of his spouse G.M., and of their children Kr.M., Ka.M., I.M. and A.M. The parents and the two oldest children are nationals of the former Republic of Yugoslavia; the two youngest children were born in the United States at the time the parents resided there. Their application for refugee status having been rejected by the American authorities, the family arrived at the Canadian border and claimed refugee status on May 5, 1999.
[2] B.M. is a Serb while his wife is Romanian. B.M. alleges that he was involved in the Serbian opposition to Milosevic's regime, having been a member of the SPO party since
January 15, 1991. He says that he took part in a number of demonstrations, and this led to his arrest on March 5, 1991. He was imprisoned and tortured; his entire family was threatened with death. On May 8, 1992, B.M., a former soldier, was re-enlisted in the Serbian armed forces and underwent an additional two-week training period to prepare him for the war in Bosnia. Since he was opposed to Serbian nationalism and to the existing regime, B.M. decided to flee instead of taking part in the war. In July 1992, he came to the United States, while his wife and their children took refuge in Romania. On November 9, 1992, G.M. and the children went to Chicago to join B.M. They applied for refugee status in the United States, but on May 4, 1999, an order pursuant to the rejection of their application forced them to leave the United States. They came to Canada the following day to avoid being forced to return to Serbia.
[3] B.M. is claiming refugee status on the basis of an alleged fear of persecution for reasons of political opinion, his desertion from the Serbian armed forces and fear that his family will be considered enemies of Serbia as a result of the NATO bombing, led for the most part by the Americans. In particular, the fact that his two youngest children hold American passports and do not speak the Serbian language leads him to believe that his family would be subjected to persecution by the Serbian people. Moreover, G.M. alleged that she has a fear of persecution because of her Romanian nationality.
[4] The Refugee Division rejected the claimants' claim. It determined that B.M. was not credible in regards to his involvement with those who opposed the regime because he did not adequately answer questions on the policies and history of the SPO. Furthermore, the Refugee Division found that B.M. could have invoked the legislation giving amnesty to those who, prior to 1997, had refused to perform their military service. With respect to the reaction of the Serbs to this family, the Refugee Division could not help but take note of the fact that B.M. had sent one of his children of American citizenship to Serbia for a five-month period in 1996-1997, in order to be baptized. That child stayed in Serbia a second time for three months in 1997-1998. The Refugee Division found this inconsistent with the family's fear of persecution based on the time they spent in the United States. Ultimately, the fact that they had waited before applying for refugee status in America and that G.M. had never claimed refugee status in Romania led the Refugee Division to doubt their subjective fear of persecution.
[5] The claimants allege that the Refugee Division mistook the nature of their claim by failing to consider the effect of the bombing of Serbia by the U.S. Air Force on behalf of NATO. According to B.M., that air campaign created a climate of hostility towards those having any ties with the United States. He also submitted that his parents are threatened because their son is considered to be American and their grandchildren are, in fact, American.
[6] B.M. thinks it is unfair for the Refugee Division to undermine his credibility by relying on legislation that came into effect several years after he had left Serbia and which he knew nothing about. The documentary evidence on which the Refugee Division based its conclusions shows that the legislation is applied in a discretionary manner and is not applied universally to those who have left Serbia to avoid doing their military service. Moreover, the analysis made by the Refugee Division of his involvement in the SPO was not consistent with the facts, or these were so interpreted as to put the claimant at a disadvantage. As for the objective element of their fear, the claimants criticize the Refugee Division for basing its conclusions on documentary evidence that existed prior to the bombing of Serbia.
[7] The respondent submits that the fact that the amnesty legislation came into effect after the claimant left Serbia is irrelevant since the fear of persecution must be assessed as of the day of the hearing and not the day of departure. There was nothing unreasonable in the assessment the Refugee Division made of the credibility of B.M. with respect to his involvement in the opposition. The fact that B.M. sent his daughter, who holds an American passport, to Serbia on two occasions is inconsistent with a fear of persecution, although those visits took place before the bombing. The witness, Mr. Jovicic, called by the claimant to establish the current conditions in Serbia, did not support his arguments. That witness, a citizen of Canada, talked about the conditions that affected the overall population. He did not experience any problem with the
anti-American nationalists. The Refugee Division was ultimately entitled to conclude that there was a lack of subjective fear of persecution based on the claimants' delay in applying for refugee status in the United States.
[8] According to the claimant, his claim for refugee status and the claim of each member of his family must be assessed in the context that prevailed after Serbia was bombed. However, in order to argue that position, the claimant had to establish that the bombing changed the reception that he and his family could expect to receive if they returned to Serbia. The claimant stated that his parents were threatened because he was thought to be American. Proof of this depends entirely on the claimant's credibility. There was also the testimony of Dragisa Jovicic, a friend who was called by the claimant. This friend testified that since 1972, he has returned to Serbia for one month each year, his most recent visit being from September 15 to October 23, 1999, after the bombing. When asked what changes he had noticed on his last trip, he answered:
Q. While you were there during your last trip, what have you seen which were probably different from what was existing in the past?
A. Oh, bit [big?] difference. Last year was difference. Now is catastrophe. What they said NATO human catastrophe. The people have nothing. No job. They have no money. They just looking and ... And lots of immigrants from Bosnia, now from Kosovo, so many. And they cannot go back. Even the people have nothing to eat who is born there.
Q. What have you seen or what did you learn about maybe nationalist conflicts?
A. Nobody like anybody. They don't like immigrants. They came there, they have nothing to do. Everything is upside down. I couldn't live there. I was thinking to send my daughter, she says no, I will never go there anymore. My daughter is born here.
Q. Mr. Jovicic, what did you learn also regarding the feeling or what people think about American people, or American citizen.
A. Those people is friendly people but they said what they did that's not fair. Pull down for nothing to the innocent people. Even in the village, that village where his father made house, Ostronitsa, and they destroy all around.
...
Q. When you were there did you encounter any problems with nationalists?
A. No, no, you don't have problem with nationalist. Because I just bring my family some clothes and medicine what they need. There is no medicine. That's the problem. They need everything.
...
Q. When you say that you didn't feel or you didn't have any nationalist problem of what do you mean? Because as a Serb being in a Serb community I believe myself that you didn't have personally some problems, but what did you see if you were not a Serb?
A. That will be difficult. Difference, big difference. I didn't go around. I stay with my family in the village. But if you go in Belgrade, they don't like each other.
Q. Who doesn't like each other?
A. Nationalist. Somebody like one party and other one another party and they don't like you should. So I didn't go in city too much. I just stay around my family. Who is, for instance, not Serbian, they don't like him.
[9] That testimony tells us that life is difficult for everyone in Serbia as a result of the economic situation. The people found the bombing campaign unfair but the witness did not demonstrate the existence of a general animosity towards the Americans or those who had ties with them. Refugees are not received very well but even the witness who is Serbian would not venture outside his village. All this to say that there was no independent evidence of a general anti-American sentiment that might be expressed in the persecution of those who have ties with Americans.
[10] Therefore, there was no evidence, other than the claimant's allegations, that there was an anti-American climate that would result in acts of a persecutory nature against the claimant and his family. Since the Refugee Division found that the claimant was not credible, the claim based on the anti-Americanism of the Serbian people had no merit.
[11] As for the assessment of the credibility of the claimant and his wife, there was nothing unreasonable in the analysis made by the Refugee Division.
[12] For these reasons, the application for judicial review will be dismissed. If the parties wish to certify a question, they must communicate it to the Registry within ten days of the date of these reasons. The order dismissing the application for judicial review will be made at the end of that period.
J.D. Denis Pelletier
Judge
Certified true translation
S. Debbané, LLB.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-1788-00
STYLE OF CAUSE: B. M., Kr. M., Ka. M., I.M., A.M., G.M.
v. Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 28, 2001
REASONS FOR ORDER of the Honourable Mr. Justice Pelletier
DATE OF REASONS: August 16, 2002
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Moris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
At the request of the claimant, his name and the names of his family members will not appear in this decision.
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