Date: 19970420
Docket: IMM-3489-97
BETWEEN:
SOKOL KABASHI
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that term in subsection 2(1) of the Immigration Act.1 The decision of the CRDD is dated the 17th of July, 1997.
[2] Not in dispute before the CRDD was the applicant's claim to be an ethnic Albanian. What was in issue was his claim to have been born Yugoslavian in the Province of Kosovo and to have lived in that province, all of his life, until he fled to Canada via Albania and Holland, arriving in this country on the 25th of October, 1996 when he would have been twenty-seven years of age.
[3] Given the length of time that the applicant claimed to have lived in Kosovo, the CRDD tested his Serbo-Croatian language skills "...by administering a very basic language test developed in conjunction with [the applicant's] counsel." The CRDD found the applicant's knowledge of that language to be "spotty". In its reasons, it explained this to mean that he did better when he was able to demonstrate to the CRDD what he knew, but not so well when he was invited to translate words chosen by the panel. The CRDD concluded:
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We think that the claimant, knowing that language testing is frequently used to help determine whether someone is really from Kosovo, has learned some of the language for purposes of this hearing. |
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[4] The CRDD also tested the applicant's knowledge of the geography of Kosovo. Once again it found that knowledge to be "uneven". It concluded:
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We were left with the impression that the claimant had tried to prepare for this hearing by studying answers to the more commonly asked questions. |
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[5] On the basis of this testing of the applicant's knowledge, despite the unacknowledged fact that the applicant had only a grade four education, the CRDD was clearly, if implicitly, left in doubt that the applicant was born and lived for more than twenty-five years in the province of Kosovo.
[6] The birth certificate produced by the applicant was not his original birth certificate but rather one that he alleged his father had obtained for him in 1992.
[7] He produced no "lichna carta" or identity document which he claimed had been issued to him in 1985. When asked to describe the identity document that had been issued to him, he misdescribed the form of the identity document that, according to the documentary evidence, would have been issued by Yugoslavian authorities in 1985. Further, he claimed to have been issued his identity document at a lesser age than that at which the documentary evidence indicates such documents were issued.
[8] The applicant produced a driver's licence which he claimed to have "bought" rather than to have obtained through normal channels. The CRDD found his explanation as to why he needed to obtain it more quickly than he could have through normal channels to reveal "serious internal inconsistencies" in his story.
[9] In the result, the CRDD concluded:
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We did not assign any weight to the driver's licence or to any of the other documents which were provided as proof of identity. The birth certificate was not an original and, from our specialized knowledge, having heard many similar claims, we are aware that the blank forms are readily available in Yugoslavia to purchase by the public. |
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Clearly, reading between the lines of the CRDD's quite unsatisfactory reasons, the CRDD found the applicant's demeanour, comportment before it, and manner of answering its questions to be determinative of his claim.
[10] In Aquebor v. Ministre de l'Emploi et de l'Immigration,2 Mr. Justice Décary wrote:
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There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
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The inference drawn by the CRDD in this matter is contained in the concluding paragraph of its reasons:
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Having considered all of the evidence, we are not satisfied that the claimant is from the Kosovo region of Serbia in Yugoslavia. We determine Sokol Kabashi not to be a Convention refugee. |
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Here, the inference drawn by the CRDD, based on the hearing before it and on the documentary evidence of origin presented by the applicant "[is] not so unreasonable as to warrant [this Court's] intervention..."
[11] The CRDD went on to consider a letter presented by the applicant allegedly received by him from his mother. It found it to be "quite obviously written for our benefit". Its analysis to support this conclusion is weak at best. The applicant also presented a "call-up notice" and a letter from the school the applicant allegedly attended and found them not to be genuine. In the absence of expert examination, it was not open to the CRDD to so conclude. That being said, I conclude that none of these elements of its analysis, and indeed not all of them taken together, are central to the CRDD's decision.
[12] For the foregoing reasons, this application for judicial review has been dismissed.
[13] Counsel for the applicant recommended certification of a question regarding the treatment of documentary evidence before the CRDD. Counsel for the respondent recommended against certification of a question on the ground that the issues that were before me in this matter are well settled in law. I agree with the position of counsel for the respondent. No question has been certified.
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Judge
Ottawa, Ontario
April 20, 1998
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1 R.S.C. 1985, c. I-2
2 (1993), 160 N.R. 315 (F.C.A.)
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