B. (X.J.) (Re)

B. (X.J.) (Re)
Convention Refugee Determination Decisions [1992] C.R.D.D. No. 159

No. U91-07690

Immigration and Refugee Board of Canada Convention Refugee Determination Division Toronto, Ontario

Panel: H.R. Hanson and U.O. Ferdinand In camera

Heard: November 26, 1991

Decision: January 13, 1992

Yugoslavia (YUG) - Negative - Males - Agents of persecution - Change of circumstances in home country

Civil war - Civil and political rights - Conscientious Objection - Draft evaders - Ethnic persecution – Ethnic

conflict - Ethnic discrimination -Freedom of religion - Government - Group persecution - Human rights - Human rights violations - Internal conflict - International law - Military service - Political opinion - Religious groups.

Appearances:

Grant E. Black, for the claimant(s).

Beverly Monk, Refugee Hearing Officer.

REASONS FOR DECISION

The claimant, xxxxxxxxxxxxxxxxxx, is a thirty-two-year-old Citizen of Yugoslavia. He arrived in Canada on June 9, 1991 And made a Convention refugee claim on July 5, 1991. He claims to have a well-founded fear of persecution by reason of his race, religion and political opinion.

The hearing before the Refugee Division took place on November 26, 1991 at Toronto, Ontario. Grant E. Black, Barrister and Solicitor, represented the claimant. Beverly Monk, a Refugee Hearing Officer, assisted the panel. An interpreter proficient in the Croatian and English languages interpreted the proceedings.

The Refugee Division must decide whether or not the claimant is a Convention refugee as defined in section 2(l) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c.28, s.1]. The definition reads in part:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country...

The evidence presented at the hearing consisted of the claimant's oral testimony, his Personal Information Form [Exhibit C-1] (PIF) and documents submitted by the claimant's Counsel and the RHO. The RHO provided counsel with a copy of the index to the Standardized Country File (SCF) for Yugoslavia [Exhibit R-1, index to Standardized Country File: Yugoslavia, Immigration and Refugee Board, Toronto, May 1990] and advised him that the panel would use the SCF in assessing the claim.

The following is a summary of the claimant's oral and written testimony.

He came to Canada on June 9, 1991 on a visitor's visa to attend his cousin's wedding and to visit relatives. He is afraid to return to Yugoslavia because he is a Croat and a Roman Catholic, and because there is a war in the Republic of Croatia.

In Bosnia-Hercegovina, the claimant's home republic, twenty per cent of the population is Croat, thirty-five per cent is Serb and forty per cent is Muslim. The government is controlled by the Muslims. The leadership of the republic wants to separate from Yugoslavia and affiliate with Croatia, but the Serbs in the republic wish to be affiliated with Serbia.

This situation has resulted in arguments and misunderstandings among families, friends and colleagues. Consequently, the claimant does not feel safe among his friends and his colleagues at work. His employment with the Institute for Water Development in Sarajevo takes him to many places in Bosnia-Hercegovina, including the Serb-populated areas. Because of the feelings of animosity between the Serbs and the Croats, he fears for his life if he were to continue going into these areas. He would be recognized as a Croat by his name and language.

The claimant testified that he would also have problems because of his religion. He stated that any expression of religion must be kept hidden. He and his parents, however, regularly attended a Catholic church in Sarajevo. They lived just outside of Sarajevo. He did not have any problems as a result of his attending church because he went to a church where no one knew him.

The claimant testified that although the U.S. Country Reports [Exhibit R-1, item 4, United States Department of State, Country Reports on Human Rights Practices for 1990, p. 2350) states that almost all restrictions on the practice of religion in Yugoslavia have been removed, in reality this is not so. He said that people are harassed and teased by their colleagues at work for going to church.

The claimant stated that if war breaks out in Bosnia-Hercegovina, the Croats in Bosnia-Hercegovina would be at risk because seventy per cent of the officers in the Yugoslav army are Serbs.

He also stated that he does not wish to serve in the Yugoslav army now because he would be fighting against his people, the Croats, as well as against Macedonians, Muslims and Slovenes. He performed his compulsory military service in 1979-1981 and is eligible for call-up as a reservist.

He had no objections to serving in the military then because if he had objected, he would have been imprisoned. He added that it was his duty then, but it is not his duty now. He stated further that there was no war when he performed his compulsory military service.

The claimant stated that Bosnia-Hercegovina has announced that its citizens are not required to serve in the Yugoslav army because it is not at war with Croatia. He explained that despite this announcement, he would be required to serve if the Yugoslav army wrote to him. If he did not reply, the army would come and get him. He stated that he has not received a call-up letter from the Yugoslav army. He believes, however, that if he landed at Belgrade, on his return to Yugoslavia, he would have to serve in the army.

The claimant testified that he fears persecution from the Yugoslav army. He already had some difficulty with the army in 1984 when he was inspecting a construction project for the international bank. He had to submit his plan of movement to the army.

His father wrote him recently and advised him not to return to Yugoslavia because there will be war soon in Bosnia-Hercegovina. His father said that drunk soldiers are lawlessly roaming the streets and shooting off their rifles.

The claimant must satisfy the panel that there is a reasonable chance or a serious possibility [Adjei v. M.E.I., (1989) 2 F.C. 680 (C.A.)] of persecution for one of the reasons set out in the definition of Convention refugee if he were to return to Yugoslavia.

He claims to fear persecution because of his religion. However, he testified that he attended church regularly. He had to be discrete by attending a church which was not in his neighbourhood, so that he would not be harassed or teased by his colleagues at work. Harassment and teasing by one's associates for attending church services do not, in our opinion, constitute religious persecution. The documentary evidence [Exhibit R-1, item 4, United States Department of State, Country Reports on Human Rights Practices for 1990, at p. 1350] indicates that religious believers in Yugoslavia have long been free to practise their faith without direct persecution, and in 1990 freedom of religion expanded significantly. The documentary evidence also states that "In 1990 almost all restrictions related to the right to proselytize, publish, or sell religious materials, teach religion to young people, or own property were either eliminated or began to be ignored" [Ibid.].

The claimant also fears persecution because of his race, i.e. Croat. To support this claim, he referred to the massacre of Croats by Serbs in his republic and the retaliation by Croats during World War II, and the current agitation by Serbs in Bosnia-Hercegovina for the Serb-populated areas to be ceded to Serbia. He also believes that the conflict between the Yugoslav army and Croatia would soon spread to Bosnia-Hercegovina. If this happens, the ethnic minorities, including the Croats, would become the first casualties.

It is clear that the future of Yugoslavia is uncertain. The documentary evidence eloquently tells of the terrible destruction of life and property in Croatia as a result of the current civil war in that republic. However, none of these reports indicates that there is turmoil in Bosnia-Hercegovina. The claimant also indicated that there is no war in his republic.

The claimant has not suffered deprivations because of his ethnicity. He obtained a good education, qualifying as a civil engineering technician and obtaining a certificate in urban architecture and civil engineering [Exhibit C-4]. He has been employed in his field by the Republic's Institute for Water Development for twelve years.

The claimant testified that he does not wish to fight in the Yugoslav army because he does not want to fight against his own people, the Croats, as well as the Macedonians, Muslims and Slovenes.

The United Nations Handbook on Procedures and Criteria for Determining Refugee Status [office of the United Nations High Commissioner for Refugees, Geneva, January 1988] in paragraphs 167-174 provides helpful guidance on what reasons for avoiding military service are sufficient to base a Convention refugee claim. Paragraph 169 indicates that a claimant may be considered a refugee if he might suffer disproportionately severe punishment for avoiding the draft for one of the reasons in the Convention. We have no evidence that this would be the case in this claim.

The Handbook states in paragraph 171:

171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

Counsel submitted that Prime Minister Mulroney characterized the Yugoslav army as a rogue army. The newspaper articles [Exhibit C-6] submitted by counsel indicate the efforts by representatives of the European Community and the United Nations to bring about a cease-fire in Yugoslavia. However, we do not have sufficient evidence to conclude that the actions of the Yugoslav army have been condemned by the "international community as contrary to basic rules of human conduct". We, therefore, conclude that the claimant will not differ persecution if he is punished for refusing to serve in the army. For all the reasons mentioned above, it is our opinion that there is no serious possibility of persecution for any of the reasons in the definition of Convention refugee should the claimant return to Yugoslavia.

Accordingly, the Refugee Division determines xxxxxx xxxxxxxxxxx not to be a Convention refugee.

DATED at Toronto, this 13th day of January, 1992.

S.O. Ferdinand" Concurred in by: "Hugh R. Hanson" End of document.