Medarovik v. Canada (Minister of Citizenship and Immigration), 2002 FCT 61

Date: 20020118

Docket: IMM-522-01

Neutral citation: 2002 FCT 61

OTTAWA, ONTARIO, THIS 18^th DAY OF JANUARY 2002

PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER

BETWEEN:

                                                              SRGJAN MEDAROVIK

                                                                                                                                                    Applicant

                                                                            - and -

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                  REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "Board"), which determined that the applicant is not a Convention refugee.

[2]                 The applicant is a 31-year-old citizen of Serbian origin from the Republic of Macedonia. His problems began in 1991 with the outbreak of the Balkan conflict. That year, he became a member of the Serbian/Montenegrin Organization of Macedonia, a cultural organization.

[3]                 In 1994, the applicant was beaten by a group of nationalists who were opposed to organizations such as the Serbian/Montenegrin Organization of Macedonia. As a result of this beating, he sustained injuries to his hands and chest area.

[4]                 The applicant completed his university studies in 1995 and since that time, has been unable to find a position as a History teacher, his field of study. He attributes this to racial prejudice.

[5]                 In May of 1996, the applicant found a job as a truck driver but was fired in December of that same year because the new management did not want Serbians working for them.

[6]                 During the Kosovo crisis, Serb nationalist organizations in Macedonia were organizing men of military age to fight in Kosovo. The applicant was asked to join this group but he refused. He was, therefore, labelled a traitor by the Serbian people.

[7]                 On June 7, 1999, the applicant was accused by the police of being a member of a Serbian Nationalist Group. He was arrested, jailed for two days during which time he was beaten and tortured, and subsequently released due to lack of evidence.

[8]                 On June 22, 1999, many Serbians were beaten and jailed during a police raid. After this incident, the applicant, who had not been arrested by the police during the raid, began receiving threats from Serb Nationalists and relatives of those arrested. The applicant was beaten by Serb Nationalists two days after the raid. He reported the incident to the police but they refused to help. For these reasons, the applicant fled to Canada on July 14, 1999. His claim of persecution is based on his Serbian ethnicity.

[9]                 The Board found that the applicant's treatment did not result in consequences of a substantially prejudicial nature. It categorized the applicant's treatment as discrimination and not persecution.

[10]            The Board concluded that there was no persuasive evidence to indicate that there was a reasonable chance that the claimant would face persecution should he return to his country of origin.

[11]            The applicant submits that the Board erred when it held that the treatment the applicant received was only discriminatory in nature. More specifically, the applicant claims that the Board failed to consider the cumulative nature of the treatment he experienced.

[12]            While I agree with the applicant that in some circumstances discrimination will amount to persecution, these acts must be sufficiently serious and occur over such a long period of time that it can be said that the claimant's physical or moral integrity is threatened (N.K. v. Canada (Solicitor General) (1995), 107 F.T.R. 25).

[13]            In the case at bar, the alleged pattern of discrimination consists of the following events:

- the applicant's inability to find work in his field of study and his subsequent termination as a truck driver

- his beating by a group of Nationalists in 1994

- his arrest and mistreatment by the police on June 7, 1999

- his beating by a group of Nationalists in June 1999

[14]            While I agree with counsel on the seriousness of these incidents and that their cumulative effect may have convinced me that they do amount to persecution, I am unable to conclude that the Board's finding of facts, that is that these incidents amount to discrimination and not persecution, is patently unreasonable. Given the very high standard of review for findings of fact of the Board and given that there is no indication that it ignored the evidence before it, it is not my role to substitute my decision for that of the Board.

[15]            The applicant further submits that the Board ignored the documentary evidence demonstrating that there is a serious possibility that he will face persecution if returned to Macedonia. He relies on the following (Tribunal's Record at 33-34, 43-46):

- "ethnic Serbs are not named among the protected minorities in the Macedonian Constitution"

- "representatives of political parties and associations defending the rights of ethnic Serbs claimed that the latter face discriminatory practices"

- "orthodox Serbs along with the Vlach, the Turks and the Macedonian Muslims, claim to face religious discrimination in Macedonia, in particular they cannot freely practice their religion, or attend services in Serbian"

- NATO bombing caused social instability due to the sudden influx of refugees caused by the Kosovo conflict

[16]            Considering that the Board is entitled to decide the weight to be given to the evidence before it (Mahendran v. Canada (M.E.I.) (1991),14 Imm. L.R. (2d) 30 (F.C.A.); Hassan v. Canada (1992), 147 N.R. 317 (F.C.A.)) and considering the lack of convincing documentary evidence before it at the date of the hearing, again, I do not find that it was unreasonable for the Board to conclude that the evidence does not support the applicant's refugee claim. The Board acknowledged that discrimination against Serbs existed, but also noted that there were at least two political parties and one organization working to defend the rights of ethnic Serbs. Other factors that the Board took into consideration included the fact that the police released the applicant shortly after his arrest and the fact that the tension from the NATO offensive had dissipated to a large extent.

                                                                            ORDER

THIS COURT ORDERS THAT:

[17]            Overall, after reviewing the evidence and the transcript, I am of the view that the Board's findings were not capricious or based on irrelevant factors. For these reasons, the application for judicial review is dismissed.

                                                                                                                          "Danièle Tremblay-Lamer"

JUDGE