Date: 20060428
Docket: IMM-1644-05
Citation: 2006 FC 534
Halifax, Nova Scotia, April 28, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ERLIND TABAKU
Applicant
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated February 28, 2005, which determined that the applicant is neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order setting aside the decision and referring the matter for re-determination by a differently constituted panel of the Board.
Background
[3] Erlind Tabaku (the applicant) is a citizen of Serbia and Montenegro who was born and lived in the province of Kosovo. He is an ethnic Albanian of mixed religious background as his father is Roman Catholic while his mother is a Muslim. He claimed refugee protection on the basis of a fear of persecution at the hands of the Serbs in Kosovo. He testified that his family home was destroyed and his sister's husband was killed by Serbs.
[4] The turning point for the applicant occurred while he was pursuing his career as a photographer with a company called Photo Roka. In August 1998, three agents of the Serb Security Forces entered the store where the applicant was working and accused him of photographing and documenting the atrocities committed by Serbs in Kosovo. They beat the applicant, fracturing his elbow. The applicant left the store and stayed briefly with a cousin before going to live in the mountains. He then went to Turkey and found work as a photographer on a cruise ship. In January 2000, the ship arrived in the United States, where he claimed refugee protection. He remained in the United States while his claim was processed, heard and finally rejected. He next made his way to Canada in July 2003 and made a refugee claim.
[5] On February 28, 2005, the Board denied the applicant's claim. This is the judicial review of that decision.
Reasons for the Board's Decision
[6] Credibility was not at issue with the Board. The Board found that the applicant testified in a straightforward manner and there were no inconsistencies or contradictions in the evidence. The Board found, however, that the applicant's fear of persecution, assessed in a "forward-looking" manner (in other words, at the time of examination of his refugee claim) was not well-founded in an objective sense.
[7] The Board considered the documentary material with respect to the treatment of ethnic Albanians in Kosovo, including the issue of the mixed religions of the applicants' parents. The Board cited excerpts from a 2003 country assessment which indicated that the United Nations had been administering Kosovo on an interim basis since June 1999. The Board noted from this documentary material that ethnic tensions in Kosovo still existed and that the victims were primarily ethnic minorities such as the Serbs, although some ethnic Albanians have experienced difficulties as well. The evidence further indicated that there were differences between the Orthodox Church and Muslims, however, there was no indication of problems for Catholic Albanians on religious grounds. The Board concluded from the evidence that there was no serious possibility or a reasonable chance that anyone will persecute the applicant if he returned to Kosovo.
[8] The Board next considered the submissions of applicant's counsel that the change in circumstances in Kosovo was not effective, meaningful and durable. With respect to this matter, the Board concluded:
I accept that there may be some validity in counsel's submissions but find nonetheless that, given the claimants' circumstances, the country conditions have improved sufficiently despite the fact that more improvements are required. These changes have been in effect for sometime and in the panel's assessment remove the basis for the claimant's fear of persecution.
[9] Further, the Board determined that the exception under subsection 108(4) of IRPA did not apply. The Board stated that it had a duty to consider the level of atrocity of the act inflicted and the repercussions upon the applicant's physical and mental state. It found that the applicant's experience did not constitute a compelling reason not to return him to his country of origin.
[10] Finally, the Board considered whether the applicant was a person in need of protection. The Board found that the risk of harm to the applicant is indiscriminate or random such that it is faced by others in the country. The Board also found that based on current country conditions prevailing in Kosovo, the applicant faced no serious possibility or reasonable chance of torture at the hands of Serb authorities.
[11] The Board therefore concluded that the applicant was not a Convention refugee or a person in need of protection.
Issues
[12] The applicant submitted the following issues for consideration:
1. What is the appropriate standard of review?
2. Did the Board base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it?
3. Did the Board make a reviewable error in finding that the "compelling reasons" exception is not applicable?
Applicant's Submissions
[13] The applicant submitted that the appropriate standard of review of a decision of the Board, on questions of fact and mixed fact and law, is that of patent unreasonableness. This means that a court will only intervene if the decision is based on an erroneous finding of fact or is made in a perverse or capricious manner, without regard to the material before it (see Chowdhury v. Canada (Minister of Citizenship and Immigration), 2003 FCT 416 at paragraph 16).
[14] The applicant submitted that the danger that existed for him in Kosovo as a result of his employment as a photographer was the main issue identified at the hearing. The Board's reasons, however, merely recited his occupation. It was submitted that the Board ignored relevant evidence and that this is a reviewable error of fact.
[15] The applicant submitted that the Board failed to correctly apply the test to establish fear of persecution. The test is bi-partite: first, the claimant must establish subjective fear of persecution, and second, the fear must be well-founded in an objective sense (see Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 47). It was submitted that in the absence of a proper analysis of the applicant's subjective fear, there cannot be a proper objective analysis either.
[16] The applicant submitted that the change in circumstances or country conditions should have been considered in light of his subjective fear and personal concerns (see Rahman v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 487 at paragraph 3 (F.C.A.) (QL) and Venturav. Canada(Minister of Employment and Immigration) (1994), 81 F.T.R. 134 at paragraph 5 (T.D.)). The applicant submitted that his fear is not generalized, but specific to him, as he fears retribution upon his return because of his job as a photographer. The applicant submitted that the political changes in Kosovo will not prevent the Serbs from harming him upon his return to Kosovo.
[17] The applicant submitted that the Board erred in determining that the exception under subsection 108(4) of IRPA was not applicable. It was submitted that the Board set the bar too high by requiring a level of atrocity to exist in order for there to be "compelling reasons" for subsection 108(4) to apply (see Suleiman v. Canada (Minister of Citizenship and Immigration), 2004 FC 1125 at paragraph 21). It was further submitted that evidence of past physical abuse or violence is sufficient to warrant an exception under subsection 108(4) of IRPA (see Suleiman at paragraph 20) and the Board failed to consider that the applicant's arm and elbow was fractured in 1998. The Board also failed to regard evidence of the burning of the applicant's home, the murders of his friends, the disappearance of his sister's husband and sons, and his later beatings, as evidence of torture.
[18] The applicant submitted that the Board made an erroneous finding of fact when it failed to expressly consider that mixed Catholic-Muslim marriages were persecuted and continued to be persecuted in Kosovo.
Respondent's Submissions
[19] The respondent submitted that the Board clearly answered the relevant question, which is whether the evidence of country conditions in Kosovo gave rise to a serious possibility of persecution.
[20] The respondent submitted that the Board's finding that the objective documentary evidence did not establish that the applicant's fear was well-founded is sufficient to dispose of the applicant's claim.
[21] The respondent submitted that a case which raises the issue of "changed circumstances" is a case where the Board finds that the previous well-founded fear of persecution has been removed by a change of country conditions. It was submitted that the Board did not make any such finding in this case (see Kudar v. Canada(Minister of Citizenship and Immigration), 2004 FC 648 at paragraph 10).
[22] The respondent submitted that the Board found, in the alternative, that the applicant had not demonstrated compelling reasons for allowing his claim. It was submitted that the Board analysed relevant considerations, such as the nature of the past persecution, the level of atrocity of the act inflicted, and the effect on the applicant's physical and mental state. The respondent submitted that the Board did not impose the requirement that the past treatment be "atrocious" or "appalling" and therefore did not commit the error identified in Suleiman, a decision cited by the applicant.
Analysis and Decision
[23] The standard of review to be applied to determinations on the objective component of the definition of a Convention refugee (namely, whether or not the applicant would face more than a mere possibility of persecution if he were to return to his country of origin) is patent unreasonableness (see Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280).
[24] I propose to address the following issue: Did the Board err in finding that the applicant's fear of persecution was not well-founded in an objective sense?
[25] For the applicant to be a Convention refugee, it must be established that (1) the applicant subjectively fears persecution, and (2) the applicant's fear of persecution is well-founded in an objective sense (see Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 47). The Board found the applicant to be credible, thus, the first component of this test was satisfied. The Board, however, found that the second component was not met on the basis of the evidence of country conditions in Kosovo at the time of the examination of the applicant's refugee claim.
[26] The Board considered a country assessment dated October 2003, which indicated that the inter-ethnic violence in Kosovo had significantly decreased in the few years since the United Nations began administering the region on an interim basis, and hundreds of thousands of displaced ethnic Albanians had returned to Kosovo. The Board noted from the evidence that ethnic Albanians currently made up approximately 90% of the population of Kosovo.
[27] The Board found that, "Having considered the totality of the evidence, I find that there is not a serious possibility or a reasonable chance that anyone will persecute the claimant if he returned to Kosovo." I have reviewed the documentary material before the Board and I am of the view that this finding of the Board was not patently unreasonable. The Board properly applied a forward-looking definition of Convention refugee and determined that the evidence of the current situation in Kosovo was not such that would justify the applicant's claim on an objective basis. The Board did not ignore material evidence in making its assessment. The Board noted in its reasons that the applicant was a photographer and was accused by Serbs of photographing the atrocities committed by Serbs.
[28] The applicant further submitted that the Board erred in considering the change in circumstances and the "compelling reasons" exception under section 108 of IRPA. I would note here that the Board's finding that the applicant did not have a well-founded fear of persecution disposed of the claim, and there was thus no need for the Board to go on to address the arguments concerning a change in circumstances and compelling reasons exception which were advanced by the applicant's counsel at the hearing. In Kudar v. Canada(Minister of Citizenship and Immigration), 2004 FC 648, Justice Layden-Stevenson stated at paragraph 10:
Regarding the argument of "compelling reasons", in cases where there is no finding that at one time the applicant was a Convention refugee (or a person in need of protection), the cessation of protection does not come into play and consequently, the exception allowing compelling reasons arising out of past persecution cannot be triggered: Singh v. Canada (Minister of Citizenship and Immigration) (1996), 30 Imm. L.R. (2d) 226; Corrales v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1283; Diamanama v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 893. There may be situations where the board can be said to implicitly have found that a claimant was previously a refugee and, but for the changed country conditions, would still be a refugee. This is not such a case. The RPD found that police protection was available to Mr. Kudar. Thus, the board found that he was not a refugee. The changed country conditions do not apply, nor does the exception of compelling reasons in subsection 108(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 come into play.
[29] In the application at bar, the issue of cessation of protection under section 108 of IRPA was not engaged because the Board did not make any finding that the applicant was at one time a Convention refugee. As a result, any potential errors made by the Board in considering the changes in circumstances or the "compelling reasons" exception are not grounds on which to grant this application for judicial review.
[30] The application for judicial review is therefore dismissed.
[31] Neither party wished to propose for my consideration, a serious question of general importance for certification.
JUDGMENT
[32] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
ANNEX
Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
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95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
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Section 96 and subsection 97(1) define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Section 108 lists circumstances where a person is not a Convention refugee or a person in need of protection:
| 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality;
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
(e) the reasons for which the person sought refugee protection have ceased to exist.
(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).
(3) If the application is allowed, the claim of the person is deemed to be rejected.
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
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108. (1) Est rejetée la demande d'asile et le demandeur n'a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants:
a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité;
b) il recouvre volontairement sa nationalité;
c) il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) il retourne volontairement s'établir dans le pays qu'il a quitté ou hors duquel il est demeuré et en raison duquel il a demandé l'asile au Canada;
e) les raisons qui lui ont fait demander l'asile n'existent plus.
(2) L'asile visé au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1).
(3) Le constat est assimilé au rejet de la demande d'asile.
(4) L'alinéa (1)e) ne s'applique pas si le demandeur prouve qu'il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu'il a quitté ou hors duquel il est demeuré.
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