Date: 19991209
Docket: IMM-355-99
BETWEEN:
MENSUDIN SMAJIC, EMSADA SMAJIC,
VILDANA SMAJIC AND NADIRA SMAJIC
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicants seek to have a decision of a visa officer that found them not to be convention refugees set aside. The applicants applied as Convention refugees seeking resettlement. Mr. and Mrs. Smajic originally lived in Sarajevo but fled to Germany during the war (he in 1992, she in 1994). They still reside in Germany, together with their two children who were born there. The hostilities in Bosnia having ceased, the family faces deportation from Germany, back to Bosnia, their refugee status in Germany being a temporary one.
[2] In order to qualify under the resettlement provisions, the applicants must first demonstrate that they are Convention refugees. The visa officer found that they were not. The applicants contend that the visa officer used an incorrect definition of persecution, misunderstood the facts, and misapplied the law. They also assert that the visa officer did not give them a fair hearing, was biased and prejudged their case.
[3] The visa officer's refusal letter is very cryptic. It states that both Mr. and Mrs. Smajic are Muslims, born in Sarajevo, that they do not have a well founded fear of persecution if they return there, and that "Muslims form a majority of Sarajevo's population". The letter also states that Mr. and Mrs. Smajic conceded that they would not face any persecution in that city.
[4] Mr. Smajic, in his affidavit, states that he and his wife did not concede that they would face no discrimination if they returned to live in Sarajevo:
| 53. Neither my wife nor myself ever conceded that we were not in physical danger. Nor did we concede that we will face no discrimination based on racial or religious grounds. In fact if the officer was listening to me at all - this is exactly what we said - we will face discrimination based on race and religion and we fear for our physical safety. The officer is mistaken and I am shocked that he recorded these comments. |
[5] The difference between persecution and discrimination is crucial to the applicants' claim. There are many decisions of this Court that state that discrimination and persecution are not synonymous. In order to be afforded protection as a Convention refugee, the harm that one fears, on return to one's country of nationality, must be of a sufficiently serious nature to justify the asylum country granting protection to the individual. Also, the persecution that is feared must be by reason of race, religion, nationality, membership in a particular social group, or political opinion.
[6] The applicants do not want to return to Sarajevo because they fear being ostracized and treated badly because they did not remain and fight during the war. Mr. Smajic wrote in his affidavit that on one of his trips back to Sarajevo, "you could feel the tension and hatred towards returning refugees especially the ones who escaped to a Western country who did not fight". On this occasion his car was damaged by some rock throwers, "[a]ll because I escaped from the war, had a car among other things while many people lost their loved ones and had nothing. I even tried to establish contact with my old friends but again had no luck." He states that he does not believe in nationalism and national segregation is endemic in Bosnia.
[7] Mr. and Mrs. Smajic returned to Sarajevo three times, while they were living in Germany, once with their daughter. Mr. Smajic returned a fourth time, by himself, when his father had an operation.
[8] It may be that the relevant law was not well explained to the applicants, but despite the cryptic nature of the visa officer's refusal letter, one cannot find that the officer misunderstood the law relating to the definition of persecution, misunderstood the facts, or the application of that law to the facts of this case. The type of harm that the applicants described they feared is not of the serious nature that engages international protection. Also, returning completely voluntarily, on several occasions, to one's country of nationality to visit family, is some evidence that a subjective fear of the type of harm from which an individual deserves international protection does not exist. The visa officer's emphasis on the fact that both applicants were Muslims born in Sarajevo and the majority of the population of Sarajevo is Muslim is related to the fact that the applicants were unable to relate the fear they alleged to a convention ground.
[9] The reviewing officer who concurred with the visa officer's decision, wrote:
| CONCUR: ... MANY, MANY ARE RETURNING FROM GERMANY TO SARAJEVO AND FINDING JOBS BASED ON THEIR EXPERIENCE/TRAINING/ |
| FLEXIBILITY ACQUIRED ABROAD. THEY [THE APPLICANTS] ARE MUSLIMS AND SARAJEVO IS MUSLIM MAJORITY. THEY HAVE VISITED SAFELY A NUMBER OF TIMES. |
[10] The applicants assert that they were denied a fair hearing because: the visa officer did not give them an opportunity to answer his questions; he requested the services of an interpreter when the male applicant did not want one; the visa officer was cold and stiff and the atmosphere in the room "electrified". It is also alleged that a reasonable apprehension of bias existed and that the visa officer had prejudged their case; he asked questions that they considered to demonstrate bias, such as whether or not they were happy with their immigration consultant's services and how much they had paid him.
[11] These allegations must be assessed in light of the fact that the visa officer had some understanding of the nature of the applicants' claim before Mr. and Mrs. Smajic were interviewed. Mr. Smajic had filled out a "Questionnaire for Refugees", in which he explained the circumstances under which he and his wife had left Sarajevo. He described why they feared to go back.
[12] While one cannot condone a "cold" or unsympathetic reception being given to the applicants, one can also understand that the visa officer, when interviewing the applicants, would be proceeding from the basis of the information that they had already provided in the Questionnaire. One can also understand a certain amount of irritation and frustration if the visa officer thought that they had been encouraged to pay a significant amount of money to a consultant whose advice to them had not been as objective as it might have been.
[13] In any event, the applicant explained in his affidavit what his evidence would have been with respect to his returns to Sarajevo had he not been "cut off", and what he feared if he was forced to return to live there. This evidence does not bolster the applicants' claim for Convention refugee status. It is consistent with fearing discrimination that does not amount to persecution.
[14] The applicants have failed to demonstrate that the visa officer committed reviewable error or failed to accord the applicants a fair hearing. The application will therefore be dismissed.
Judge
OTTAWA, ONTARIO
December 9, 1999
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