Isufi v. Canada (Minister of Citizenship and Immigration)

Between
Arlind Isufi, applicant, and
The Minister of Citizenship and Immigration, respondent

[2003] F.C.J. No. 1208
2003 FC 880
Docket IMM-5631-02

Federal Court
Vancouver, British Columbia
Tremblay-Lamer J.

Heard: July 10, 2003.
Judgment: July 15, 2003.
(33 paras.)

Aliens and immigration — Admission, refugees — Grounds, well-founded fear of persecution — Persecution, protection of country of nationality — Credible basis for claim — Refugee Division, composition of panel.

Application by Isufi for judicial review of a decision of the Immigration and Refugee Board that he was not a Convention refugee. Isufi was a citizen of Albanian ethnicity from Kosovo in Yugoslavia. He claimed to have a well-founded fear of persecution by reason of his race, nationality and political opinion. The Board found that Isufi was not credible because of inconsistencies between his personal information form and his testimony. It also found that he had an internal flight alternative and the availability of state protection. Isufi argued that the Board did not have jurisdiction because it heard the matter before a single-member panel without his consent. He argued that the hearing should have proceeded under the former Immigration Act, as his personal information form was filed prior to the enactment of the present Immigration and Refugee Protection Act. He also argued that the protection which the Board found was available to him was non-state protection.

HELD: Application dismissed. Isufi's claim had not been commenced before the coming into force of the new Act and the Board had the jurisdiction to proceed with a single-member panel. The Board was entitled to make its findings as to credibility. Its finding that state protection was available to Isufi was not unreasonable. The Board applied the proper test for the presence of an internal flight alternative. Isufi had the onus of demonstrating that it was unreasonable for him to seek refuge in other parts of Yugoslavia.

Statutes, Regulations and Rules Cited:

Immigration Act, R.S.C. 1985, c. I-2, ss. 68(2), 69.1(7), 69.1(8).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72(1), 170(h), 191.

Counsel:

Brenda J. Wemp, for the applicant.
Helen Park, for the respondent

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REASONS FOR ORDER AND ORDER
1 TREMBLAY-LAMER J.:— This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the "Act") of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 23, 2002, wherein the Board determined that the applicant was not a Convention refugee, and not a person in need of protection.

2 The applicant is a 25-year-old citizen of Albanian ethnicity from the province of Kosovo in the Federal Republic of Yugoslavia. He claims a well-founded fear of persecution by reason of his race, nationality and political opinion. He alleges that due to his Albanian ethnicity, he was harassed, beaten and persecuted by his Serbian neighbours.

3 The Board determined that the applicant was not credible because of inconsistencies between his Personal Information Form ("PIF") and his oral testimony:

. In his PIF, the applicant stated that he lived in a neighbourhood that is Serb-dominated. At the hearing, he testified that it was a mixed neighbourhood. When asked if there are more Serbians than ethnic Albanians in Mitrovica, he answered that "it's a mix." However, when shown the map of Mitrovica which indicates that there are 48,500 Albanians and 8,100 Serbians in the town, the applicant answered, "yes, it's probably true". There was no explanation for this inconsistency.

. In his PIF, he stated that he did not move to Albanian dominated areas of Kosovo because he feared being forced to join the Kosovo Liberation Army. (KLA) In his oral testimony, the reason he gave for not moving to Pristina was because he would not be secure and could not make a living there. He did not mention his fear of the KLA. When asked about this, he replied "The main reason is what I wrote over there. What I say today is extra". This explanation was not accepted as reasonable to the Board.

. The applicant testified that he was scared he would be forced to serve in the Serbian military. This concern was not mentioned in his PIF. When asked for an explanation for this omission in his PIF, and told that this is no longer a valid fear because the FRY government had introduced an amnesty program for military service evaders, he replied "I say that I don't want to serve in the Serbian military". The Board found the applicant's response evasive.

. The applicant presented an undated letter from his father telling him that the situation in Mitrovica is getting more and more difficult every day. Little weight was given to this letter because it repeated the wrong information that Mitrovica is "Serb dominated and led" which is contrary to the documentary evidence. The Board found this letter self-serving because it was written to serve as evidence in the applicant's hearing and the writer had a personal interest in the outcome of his son's claim.

4 The Board further determined that the applicant had the availability of protection in Yugoslavia. The applicant could have sought protection from KFOR troops (NATO-led peacekeeping force for Kosovo) or the security police but he did not seek protection. The documentary evidence indicated that although ethnic tensions still remain, the presence of United Nations security personnel in Kosovo ensures that protection is available to Kosovars of all ethnicity. State protection was available to the applicant if he sought it before leaving the country and would remain available if he returned.

5 The Board also found that the applicant had an internal flight alternative in South Mitrovica or in Pristina where ethnic Albanians compose the majority. Although North Mitrovica is Serb dominated, the applicant could have avoided the problems with his Serb neighbours by simply crossing the Ibar River to South Mitrovica, an area dominated by fellow Albanians, or he could move farther away to Pristina. When asked why he did not cross the bridge to South Mitrovica, the applicant alleged that it was totally under Serb control. The map of Mitrovica and the documentary evidence contradicted this allegation. The applicant also gave as a reason that he did not know anyone there and there is also nobody to support his family, no job and no assurance that the United Nations security personnel would remain. The Board noted that these fears were faced by all Kosovars and not the applicant alone. The applicant is a young man in good health and the Board noted that it is reasonable to expect that he could find a job safely in those areas.

ANALYSIS

6 The applicant first argues that the Board acted without jurisdiction by hearing the matter before a single-member panel.

7 Section 191 of the Act states as follows:

191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.

* * *

191. Les demandes et procédures présentées ou introduites, à l'entrée en vigueur du présent article, devant la Section du statut de réfugié sont, dès lors que des éléments de preuve de fond ont été présentés, mais pour lesquelles aucune décision n'a été prise, continuées sous le régime de l'ancienne loi, par la Section de la protection des réfugiés de la Commission.

8 The applicant submits that the hearing should have proceeded under the former Immigration Act, R.S.C. 1985, c. I-2 ("Immigration Act") as substantial evidence had been adduced, particularly the applicant's PIF and documentary material, prior to the coming into force of the Act.

9 According to the applicant, it was necessary that he explicitly consent to a single member panel of the Board pursuant to subsections 69.1(7) and (8) of the Immigration Act. There is no indication in the decision that the applicant consented thereto. As such, the Board acted without jurisdiction by hearing the applicant's claim by a single member panel without his consent. I disagree.

10 The filing of a PIF does not constitute substantive evidence. In Aquino v. Minister of Employment and Immigration (1992), 144 N.R. 315, the Federal Court of Appeal held that a PIF which was filed but not identified on the record nor entered as an exhibit at the hearing was not considered to be evidence adduced in the proceedings. I recognize that these remarks were made in the context of subsection 68(3) of the Immigration Act but I find that they are equally applicable to subsection 170(h) of the Act as both provisions contain similar wording.

11 As a result, the applicant's claim had not commenced before the coming into force of the Act and the Board had the jurisdiction to proceed under the Act with a single member panel.

12 The applicant further submits that the Board's negative credibility finding was based on errors with respect to the evidence.

13 It is well established that the Board is entitled to find that a refugee claimant is not credible because of inconsistencies and implausibilities in the claimant's evidence. In such circumstances, the Court should not disturb a credibility finding by the Board unless the finding is patently unreasonable, or if the finding was made in a perverse or capricious manner or without regard to the material before it (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (FCA)).

14 In the case at bar, the Board after considering the applicant's evidence, determined that he was not credible because of inconsistencies between his PIF, his oral testimony, documentary evidence, and omissions in his PIF. In its decision, the Board gave reasons on why it found the applicant not credible.

15 In my view, the Board's findings with respect to the applicant's credibility were all open to it based on the evidence. The applicant disagrees with the manner in which the Board interpreted his evidence. However, the applicant must not merely show that there was another explanation. He must demonstrate that the Board's findings were patently unreasonable. I am not satisfied that the applicant has succeeded in doing so.

16 In any event, the Board also determined that the applicant was not a Convention refugee because he had not adequately sought state protection and he had an internal flight alternative.

17 With regard to the availability of state protection, the applicant points out that the Board determined that protection was available from the KFOR and the UNMIK controlled security police, all non-state actors. According to the applicant, the Board erred in law by considering the ability of non-state actors to offer protection. The applicant argues that the jurisprudence clearly indicates that it is an error for the Board to consider protection that is available to a refugee claimant from non-state and non-police agencies. The applicant also submits that the Board erred in applying a presumption of state protection in a situation where there was clear and convincing evidence of a complete breakdown of the state's ability to offer protection.

18 In Chebli-Haj-Hassam v. Minister of Employment and Immigration (1996), 203 N.R. 222, the Federal Court of Appeal was asked whether the protection of the country included protection by a foreign force or whether such protection was limited to the national authorities. MacGuigan J. held at para. 4:

In the circumstances where there is a legitimate government supported by the forces of another government, and there is no difference in interest between the two governments in relation to a refugee claimant, the protection given to the claimant is adequate to establish an internal refuge.

19 In the case at bar, there is no difference in interest between the UN forces and the government of the Federal Republic of Yugoslavia. As such, the Board did not commit an error in determining that state protection was available to the applicant through non-state actors.

20 Furthermore, contrary to the applicant's submissions, there is no evidence of a complete breakdown of state apparatus or total collapse of internal order. The presence of UN forces is not evidence of a breakdown of the state apparatus in Yugoslavia or Kosovo. The UN forces and security police in Kosovo work in conjunction with the local Kosovo police service to maintain order. The documentary evidence indicates that there is a general improvement in peace and order in Kosovo. Thus, it was reasonably open for the Board to find that state protection was available to the applicant if he sought it before leaving the country and would remain available if he returned. The Board did not commit an error of law or fact in making this finding.

21 The applicant finally submits that the Board erred in determining that he had an internal flight alternative. The applicant argues that the Board applied the incorrect test. In assessing the reasonableness of his fear, the Board concluded that "these fears are faced by all Kosovars and not the claimant alone". The applicant submits that the reasonableness or unreasonableness of his internal flight alternative cannot be based upon a relative or comparative test of his situation as compared with the situation of other Kosovars.

22 In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, the Federal Court of Appeal summarized the test with respect to the existence of an IFA as follows at p. 597:

Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

23 In my view, the Board applied the proper test. The applicant had the onus of demonstrating that he had a well-founded fear of persecution, risk to life or risk of cruel and unusual punishment in every part of Yugoslavia, and that it would be unreasonable in all of the circumstances for him to seek haven in the safe parts of Kosovo. At the hearing, the Refugee Protection Officer pointed out to the applicant that he might have an internal flight alternative in South Mitrovica which is dominated by Albanians or to other parts of Kosovo where ethnic Albanians outnumber the Serbs. After hearing the applicant's evidence and considering the documentary evidence, the Board determined that the applicant had an internal flight alternative in South Mitrovica which is dominated by Albanians or to other parts of Kosovo where ethnic Albanians outnumber the Serbs.

24 Contrary to the applicant's assertion, the Board's comment that "these fears are faced by all Kosovars and not the claimant's alone" was not the test employed by the Board. Rather, it was in response to the applicant's allegation that he could not move to South Mitrovica because he did not know anybody there, there was nobody to support his family, no job, and no assurance that the United Nations security personnel would remain. The Board was indicating that these concerns did not negate his internal flight alternative. As stated by the Federal Court of Appeal in Thirunavukkarasu, supra, at p. 598:

[...] But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.

25 Therefore, I am of the view that the Board applied the correct test in determining that the applicant had an internal flight alternative.

26 The applicant further submits that in determining that he had an internal flight alternative, the Board made errors with respect to the evidence. The Board misconstrued the evidence by indicating that the applicant could have lived in safety by moving to North Mitrovica. The documentary evidence is clear that this area is dominated by Serbs. Furthermore, when the applicant indicated that he could not cross the bridge to South Mitrovica because it was Serb dominated, he was clearly referring to the bridge, not to South Mitrovica. The Board failed to take into account that the bridge crossing the Ibar river was controlled by Serbs, and that it was dangerous for ethnic Albanians to cross it.

27 With respect to the Board's statement that "by simply moving to North Mitrovica or Pristina, he could have lived in safety", this was obviously a typographical error committed by the Board. It is clear in the reasons that the Board found that the applicant could have sought refuge outside his home in North Mitrovica by crossing the Ibar River to South Mitrovica. South Mitrovica, which is dominated by Albanians, is the internal flight alternative, not North Mitrovica where the applicant lived. This is confirmed in the preceding sentence to the passage at issue, where the Board stated:

Although North Mitrovica is Serb dominated, the claimant could have avoided the problems with his Serb neighbors by simply crossing the Ibar River to the other side in South Mitrovica, an area dominated by his fellow Albanians or he could move farther away to Pristina. [...]

Tribunal Record at 8.

28 With regard to the applicant's statement that "it was totally under Serbs' control", I agree with the applicant that it is clear from the transcript that he was referring to the bridge, not to South Mitrovica. However, this does not support the applicant's claim that he was unable to go to South Mitrovica because the bridge was Serb dominated. A review of the transcript indicates that he was able to go to South Mitrovica, and the fact that the bridge was controlled by Serbs forced him to pass through the water. I have reproduced the relevant passage below:

By Ms. Wemp [to the applicant]

Q. You can't really do it on the map unless you – you know, you have to describe it. I guess I – did you stay in northern Mitrovice or did you go elsewhere?

A. For some time, we were going – during our way, we were staying at south Mitrovice.

Q. Well, how did you get there?

A. Because we walked. Because we walk, walk and walk and walk and in fact our father, our daddy, our father knew some places where to go and how. That mean he knew those – the way how to.

Q. Okay. Well, as I understand it, Mitrovice is divided by the river Ibar between north and south?

A. Yeah, during our walking, we passed the river. It was a place that it was not too much water on it and we were going through that.

Q. Okay. And why didn't you just go across the river at the main bridge?

A. Because the bridge, it was totally under Serbs' control.

Tribunal Record at 35.

29 Therefore, the fact that the bridge was Serb dominated did not prevent the applicant from going to South Mitrovica.

30 In summary, I am of the view that the Board did not err in determining that the applicant was not credible, that state protection was available, and that he had an internal flight alternative.

31 For all these reasons, this application for judicial review is dismissed.

32 Counsel for the applicant has requested that the following question be certified:

Does the Personal Information Form, submitted to the Immigration and Refugee Board prior to the coming into force of s. 191 of the Immigration and Refugee Protection Act and where the hearing is commenced after June 28, 2002, constitute "substantive evidence" that has been adduced such that the proceedings must be continued under the former Immigration Act by the Refugee Protection Division of the Board?

33 I am satisfied that this question has been addressed adequately in the case of Aquino, supra. Thus, a certified question is not necessary in the present case.

ORDER
THIS COURT ORDERS THAT

[1] The application for judicial review is dismissed.

[2] No question is certified.

TREMBLAY-LAMER J.