Date: 20050217
Docket: IMM-10366-03
Citation: 2005 FC 261
Ottawa, Ontario, this 17th day of February, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
IDRIZ BAJRAKTARAJ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Bajraktaraj is a twenty-eight-year-old Kosovar (born in the former Yugoslavia) of Albanian ethnicity. He claims a well-founded fear of persecution based on political opinion as a Democratic League of Kosova (LDK) supporter who refused to join the Kosova Liberation Army (KLA). This is his application for judicial review of the decision of the Refugee Protection Division that found that there was no subjective or objective basis for the claim. I am unable to find any ground to interfere with that decision and will dismiss the application for the reasons set out below.
[2] Mr. Bajraktaraj was born and grew up in Istog. He went into hiding to avoid conscription by the Yugoslav army in May 1995, but in August of the same year he started university in Prishtina. He also joined the LDK at around this time and attended their evening meetings. In his oral testimony, he claimed that he was made assistant (or deputy) to the Chair of the LDK in Istog after his first year of university. While the LDK shared the political objectives of the KLA, they preferred to follow a moderate, nonviolent approach to achieving those objectives.
[3] When war broke out again in 1998, Mr. Bajraktaraj stopped attending classes and returned to Istog. He alleges that he was asked to join the KLA during this period but refused. In July 2000, he moved to Peje to be close to his ill father. His sister informed him that the KLA had come looking for him 4-5 times, wanting him to join in the fighting in Serbia and Macedonia.
[4] Mr. Bajraktaraj decided to leave Kosova. He was smuggled to Albania in September 2000, then through Italy, France, and England. He arrived in Canada on June 14, 2001 and claimed refugee protection five days later.
[5] The Board found, first, that there was no objective reason for Mr. Bajraktaraj to fear persecution in Kosova because of changed country conditions since his departure. Second, the Board found that there were credibility problems with the subjective element of the claim. It cites significant omissions in his Personal Information Form ("PIF), including the claim that Mr. Bajraktaraj was the assistant to the Chair of the LDK in Istog. The Board also found it implausible that the KLA would attempt to recruit someone who was as well-placed in the LDK as the applicant claimed to be, especially when the LDK was supporting the KLA, and that if such attempts took place, that it was implausible that the applicant did not report them to the LDK leadership.
[6] The Board found that the applicant had been asylum shopping because he did not make a claim during a 9-month sojourn in Italy. This was a factual error as Mr. Bajraktaraj actually spent this time in Albania and just one day in Italy.
[7] The applicant argues that the central issue in these proceedings is whether the Board misconstrued the objective evidence of the country conditions in Kosova. He points to several publications in the certified tribunal record that refer to continued violence in Kosova, following the intervention of the peacemaking forces, including the killing of the Mayor of Istog, who was also chair of the LDK in that city. Mr. Bajraktaraj also submits that the Board failed to properly assess the claim for protection under the consolidated grounds and did not adequately determine whether there would be a risk to him personally, not generally, if he returned to Kosova.
[8] As the respondent points out, the documentary evidence did not establish that the former KLA, now converted into a form of civil protection organization, was responsible for the incidents of violence described in the publications highlighted by the applicant. The most authoritative and objective sources relied upon, including the Department of State (DOS) Report, supported the Board's conclusion that the level of violence had diminished and what continued was not related to political differences. Indeed the DOS report states, at page 25, that while the level of violence, in general, had been reduced, the killings of Albanian Kosovars that had occurred were primarily related to family and economic rivalries and criminal activities.
[9] In effect, the applicant wants the court to re-weigh the documentary evidence in his favour. That is not the court's role in these proceedings. In any event, the quality of the sources relied upon by the applicant, including an article by a Serbian priest, hardly an objective observer, and a downloaded extract from an on-line encyclopaedia, "Wikipedia," that provided no references for its content, did not impress.
[10] The Board's assessment of the current conditions in Kosova was very thorough, in my view, and did not colour, as the applicant argues, it's assessment of his credibility. The omissions from the PIF were particularly troubling to the Board. Key was the fact that the applicant did not mention in the PIF that he occupied any official position in the LDK. This discrepancy was put to him at the hearing, but the Board found, and the transcript confirms ( at pp. 349-351, 364-65) that he did not provide a reasonable explanation. Other discrepancies were also put to him which he was not able to satisfactorily answer (at pp.352, 359-62).
[11] Mr. Bajraktaraj argues that even if he was found not to be completely credible, the Board must still consider whether the risk of persecution is nonetheless made out on the other evidence: Sinko v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1181; Kwiatkowsky v. Canada (Minister of Employment and Immigration), [1982] 2 S.C.R. 856.
[12] Mr. Bajraktaraj's alleged fear was entirely related to his claim that the KLA, in its current form, would persecute him for his failure to support them in the past. The Board concluded, and I see no grounds to interfere with this finding, that there was no reasonable basis for this claim. The applicant would not attract any particular attention if he returned to his home country by reason of his student, political involvement. The examples provided in the documentary evidence of targets of possibly politically related violence concerned individuals of a much higher profile.
[13] The Board's error in referring to the applicant's nine month "sojourn" in Italy to illustrate its conclusion that he had been asylum shopping, was not material in my view to the outcome of his claim. Counsel argued, and I accept, that one does not easily sojourn in Albania. Nevertheless, the evidence was clear that the applicant passed through Italy, France and England on his way to Canada and that his reasons for not claiming in those states were primarily economic. He thought he could find a better job here.
[14] No questions were proposed and none will be certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No questions are certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10366-03
STYLE OF CAUSE: IDRIZ BAJRAKTARAJ
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 16, 2005
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: February 17, 2005
APPEARANCES:
Allan S. Blott, Q.C. FOR THE APPLICANT
Ann Margaret Oberst FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALLAN S. BLOTT, Q.C. FOR THE APPLICANT
& ASSOCIATES
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario