Date: 20110623
Docket: IMM-4797-10
Citation: 2011 FC 759
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, June 23, 2011
PRESENT: The Honourable
Mr. Justice Simon Noël
BETWEEN:
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AGIM LAJQI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board that the applicant is not a
refugee or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The applicant
sought refugee protection in Canada after his claim in the United States was
rejected.
[2]
The
applicant is a native of Kosovo. He alleges that he fears the ethnic tensions
unique to the former Republic of Yugoslavia. More specifically, the applicant
raises three reasons in support of his alleged persecution. First, he indicates
that he worked for the Democratic League of Kosovo (DLK), which was opposed to
the war. He purportedly also fled Kosovo during the war. As a result, he was
apparently targeted as a “traitor” and beaten. Second, he fears persecution
because his father, now a German citizen, married a woman of Serbian origin,
which allegedly led to “illegal organizations” persecuting him. The applicant
was allegedly beaten on two occasions; one while he was with his father.
Finally, he alleges that he fears a blood feud with the Mugiri family. An
incident purportedly occurred in a German ship yard, where the applicant’s
brother apparently shot and injured a member of the Mugiri family. This attack is
allegedly part of the overall context of the blood feud between the two
families.
RPD’s decision
[3]
The
applicant was found not credible by the RPD. First, he apparently gave vague
answers with respect to the identity of the agents of persecution. The RPD faulted
him for significant discrepancies between his point of entry form (PEF), his
Personal Information Form (PIF) and his testimony at the hearing. The RPD did
not believe that his political opinion and involvement with the DLK were true
sources of persecution because the documentation indicates that the DLK won the
elections in the applicant’s home city a little more than a week after his
departure. The applicant’s opinion would therefore apparently have been shared
and accepted by the population. Therefore, the RPD indicated that it believed
that the applicant was the victim of random attacks.
[4]
Moreover, the
blood feud between the Mugiris and his family was minimized by the RPD. First, the
Mugiri family is not an “illegal organization”, yet that was what the applicant
initially described as his agent of persecution. The source of the alleged persecution
was therefore not sufficiently clear to the RPD.
[5]
The
supposed persecution resulting from his father’s second marriage to a woman of
Serbian origin was also minimized as the applicant did not indicate in his PIF that
ethnicity reasons were apparently involved in his claim. He did not speak of
his stepmother during his point of entry interview. Furthermore, the applicant
is himself a true Kosovar. His father’s marriage took place in Germany and this
marriage was not a source of tension before the war, by the applicant’s own
admission. Furthermore, the applicant’s father returned to Kosovo only in 1999
to rebuild the family home, and was then attacked. He returned to Germany a
little while later, and his Serbian spouse stayed in Germany the whole time.
[6]
The
applicant did not establish that the attack on him and his father was connected
to the alleged agents of persecution. The applicant himself indicated that the people
responsible for the attack were never identified. A second attack purportedly
took place, in which he was apparently treated as a traitor, and he attributed
this attack to the Mugiri family. The RPD ruled that there was no evidence, on
a balance of probabilities, establishing the responsibility and the identity of
the alleged agents of persecution.
[7]
Moreover,
the RPD criticized the applicant for failing to take reasonable steps with the
American authorities to obtain a copy of his asylum claim rejection.
[8]
Finally,
the RPD relied on the documentary evidence to establish that blood feuds are
apparently less and less of an issue in Kosovo. Moreover, in the applicant’s
PIF, the Mugiris are introduced in his account only when he mentions that his
brother and cousin were attacked in Kosovo in 2003 by “an extremist from the Mugiri
family”. The applicant indicated that, in 2007, members of the two families met
“by chance” in Germany and that a gun battle erupted. However, a newspaper
article reported that the meeting was not by chance, that the gunshot victim
and the applicant’s brother worked in the same ship yard and that an
altercation had taken place three years earlier. This contradicts the
applicant’s version of events.
[9]
Therefore,
the RPD is of the opinion that the blood feud between the families was not
established, especially since the Mugiri family members present in Kosovo were
not specified. The documentation also establishes that blood feuds are
purportedly less of an issue and that the authorities apparently put in place
programs to mitigate them. Even though the judiciary is in disrepute in Kosovo and
state protection is not perfect, the RPD indicated that the documentary
evidence establishes that this is improving. Therefore, the applicant did not
demonstrate the alleged source of persecution, or that the risk still exists if
he were to return to Kosovo and that state protection would not be available.
Standard of review and
analysis
[10]
The
determinative issue in this case is credibility. It has been well established
that assessing a refugee claimant’s credibility is a question of fact, which is
assessed by the Court on the standard of reasonableness (Aguebor v. Canada
(Citizenship and Immigration), [1993] F.C.J. No. 732 (FCA); Singh v.
Canada (Citizenship and Immigration), 2008 FC 408; Sahota v. Canada (Citizenship
and Immigration), 2004 FC 1256). Accordingly, the Court must pay particular
attention to the intelligibility of the decision, its factual and legal basis
as well as its reasonableness: the Court is not called upon to substitute its
judgment for that of the administrative decision-maker (Dunsmuir v. New Brunswick,
2008 SCC 9).
[11]
In this
case, the RPD began by assessing the applicant’s failure to provide written
reasons for his negative asylum claim in the United States. The applicant’s
lack of diligence in this respect was highlighted by the RPD. Considering that
the omissions and contradictions in the documentation and testimony provided by
the applicant were at issue, it was reasonable for the RPD to fault the failure
to take steps to obtain the evidence corroborating his refugee claim, including
the grounds for the refusal in the United States (Zareiaghdaragh v. Canada (Citizenship
and Immigration), 2008 FC 745; Ramanathan v. Canada (Citizenship and
Immigration), 2004 FC 862).
[12]
The RPD’s
findings with respect to the applicant’s persecution because of his political
opinion are also reasonable. By relying on recent election results, the RPD
determined that the applicant’s opinion was more common and accepted than the
applicant suggested. This is reasonable. Furthermore, it may be added that,
even if the applicant’s political party had received a lower percentage of
votes, the opinion shared by DLK supporters is not sufficient to establish that
they would be persecuted on this basis.
[13]
A
substantial disparity between the agents of persecution alleged is apparent in
the applicant’s documents and testimony. Initially, his political opinion was
at the forefront. Then, elements of ethnic tension due to his stepmother’s
ethnicity were added. Finally, it seems that he fears mainly the Mugiri family.
In addition to these disparities, the applicant’s statements are inconsistent
with the documentation submitted, namely, with respect to the source of his
brother’s altercation in Germany with a Mugiri. Faced with these elements, the
RPD made a negative finding with respect to the applicant’s credibility.
[14]
This finding
is reasonable as it relies on a realistic and thought-out assessment of the
evidence submitted by the applicant. As emphasized by counsel for the Minister,
it is open to the RPD to make a negative credibility finding when an important
element of the account is omitted at the point of entry (Eustace v. Canada (Citizenship
and Immigration), 2005 FC 1553) and when significant contradictions are identified
between the various statements and documents submitted (Sahota v. Canada (Citizenship
and Immigration), 2004 FC 1256).
[15]
The
application for judicial review is therefore dismissed. No question for
certification arises.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review is dismissed. No
question is certified.
“Simon
Noël”
Certified
true translation
Janine
Anderson, Translator
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