Ottawa, Ontario, March 27, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for clarification and precision)
[1] The Applicant is a native of Kosovo. He claims to be of mixed parentage in that his mother is Serbian and his father was Albanian. Although his father supported the Democratic League of Kosovo, his father did not support the Liberation Army of Kosovo (KLA) and refused to give the KLA financial donations. Allegedly, his father was killed and his mother subsequently moved back to Serbia.
[2] According to his Personal Information Form ("PIF"), the Applicant tried on three occasions (early 2000, end of 2001, and June 2003) to register for a United Nations Interim Administration Mission to Kosovo (UNMIK) ID card without success. During the last attempt, he was taken outside the building, threatened with a gun, and told they would kill him unless he left Kosovo. On July 2, 2003, he was again threatened. Whether there were three or four incidents was in dispute given his oral testimony. The Applicant then fled Kosovo and arrived in Canada, via ship, in September 2003. He made a refugee claim on September 19, 2003.
[3] The Refugee and Protection Division of the Immigration and Refugee Board (the "Board") rejected his refugee claim. It found him not to be credible, found that he had not established his mother was Serbian, and found that he had not established that he was at risk for persecution if returned to Kosovo.
[4] It is well established that findings of credibility are reviewed using the standard of patent unreasonableness (see Aguebor v Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732).
[5] The Applicant's two principal issue before me were that the Board:
a) ignored the evidence of Dr. Pilowsky who made a clinical assessment of the Applicant including psychological testing; and
b) ignored both its own and the UNHCR documentation attesting to the plight of children of mixed Serbian-Albanian marriages.
[6] The tribunal record shows that the medical record was introduced into evidence at the hearing and, thus, the Board was aware of it. Since it is based on the Applicant's PIF, it really contained no new information as it merely explained the Applicant's psychological state. While it would have been preferable to see that report mentioned in the Board's decision, the failure to do so does not amount to a reviewable error (see Mandybura v. Canada (Minister of Employment and Immigration) (1994), 73 F.T.R. 274, [1994] F.C.J. No 29 at para 22 and 23).
[7] As far as the evidence regarding children of mixed marriages is concerned, the Applicant never established that his mother was Serbian. Thus, the Board did not need to consider the evidence regarding children of mixed marriages. However, should the Applicant decide to file a Pre-Removal Risk Assessment application and be able to establish that his mother is Serbian, the evidence referred to in paragraph 5(b) above will become very relevant.
[8] Accordingly, I cannot find that the Board's finding of a lack of credibility was patently unreasonable. Therefore, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"Konrad W. von Finckenstein"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1094-05
STYLE OF CAUSE: FAHRI SURKISHI v. The Minister of Citizenship and Immigration
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: March 23, 2006
REASONS FOR ORDER
AND ORDER: Justice von Finckenstein
APPEARANCES:
|
J. Norris Ormston |
|
|
Deborah Drukarsh |
SOLICITORS OF RECORD:
|
J. Norris Ormston |
|
| John H. Simms, Q.C. Deputy Attorney General of Canada
|