Date: 20010614
Docket: IMM-5209-00
Neutral citation: 2001 FCT 656
BETWEEN:
MIMOZA NIKA
KRISTIAN NIKA
XHULIA NIKA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] Mimoza Nika (the applicant) a citizen of Yugoslavia, claimed Convention refugee status for herself and her two minor children on the basis of their Albanian ethnicity. Their claim was rejected by the Convention Refugee Determination Division (CRDD) because the applicants failed to establish their identity as ethnic Albanians living in Kosovo. The applicants seek judicial review of this September 5, 2000 decision.
[2] The applicant states she was living in the village of Skivjan in Kosovo. In November 1998, the Serbian army, police and paramilitary came to her village, beat the men, looted and burned down houses. On April 2, 1999, the police and military came to her home looking for her husband. Although they left when the applicant told them her husband was not home, they returned at 2:00 a.m., at which time they raped her twice in front of her terrified children, who were themselves kicked and pushed.
[3] On April 5, 1999, the Serbian forces ejected the applicant and her children from their home, which the forces later burned. The applicants fled their village for Montenegro in the company of extended family and other villagers. Their final destination was Albania where upon their entry the applicant was given a document to use upon her exit from the country.
[4] Once in Albania, the applicant lost contact with her extended family, but found a smuggler who arranged for her and her children's flight to Canada.
[5] In addition to the exit document, the only other document in the applicant's possession was a family certificate which she had brought from her home in Kosovo. Her neighbours had advised her to take only her family certificate, and in the limited time she had before being forced from her home, she grabbed only that document.
[6] The CRDD concluded the applicants were not Convention refugees, since they had failed to establish their identity as ethnic Albanians from Kosovo, thereby failing to establish the required nexus to one of the Convention grounds.
[7] The CRDD gave two reasons for questioning the applicants' ethnicity. First, the CRDD noted that the family certificate did not have an identification number. The panel stated that: "the ID number is an essential part of the document especially for people from the Kosovo region." The CRDD, therefore, did not accept the authenticity of the document.
[8] Second, the CRDD found it implausible that when Serbian forces burned down 200 to 600 homes in a city seven kilometres from the applicants' village, that the fire would not have affected them.
[9] Having concluded that the applicants had failed to establish their identity, the panel did not consider any further aspects of the claim.
[10] The applicants submit the CRDD erred in determining the family certificate was not authentic without reference to any evidence to support its finding. Further, although the exit document did not establish the applicants were from Kosovo, it did corroborate the applicants' evidence. The applicants argue the failure to consider this additional document, which is central to their claim, also constitutes reviewable error.
[11] Lastly, the applicants submit the CRDD's finding that they were unaffected by the fire in a neighbouring city was patently unreasonable.
[12] In Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10 (F.C.T.D.), the CRDD's finding regarding the validity of a birth certificate was at issue. In that case, Dubé J. held that: "... identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise..." Further, he held: " In this instance, the Board challenged the validity of the birth certificate without adducing any evidence in support of its contention and, clearly, the matter of foreign documents it is not an area where the Board can claim particular knowledge. That, in my view, constitutes a reviewable error on the part of the Board."
[13] In the present case, there was no evidence with respect to this type of document, nor was there any evidence that this type of document will always have an identification number or that it is an essential part of the document. I agree with Dubé J.'s reasons in Ramalingam, supra, and conclude that the CRDD's finding with respect to the family certificate in the absence of any evidence constitutes reviewable error.
[14] As the CRDD's finding regarding the family certificate was central to its conclusion concerning the applicants' identity, it is not necessary to consider the remaining issues raised by the applicants.
[15] Accordingly, the application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hensen"
J.F.C.C.
Toronto, Ontario
June 14 , 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5209-00
STYLE OF CAUSE: MIMOZA NIKA
KRISTIAN NIKA
XHULIA NIKA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: TUESDAY, June 12, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HANSEN J.
APPEARANCES: Mr. Micheal Crane
For the Applicants
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Mr. Micheal Crane
Barrister and Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010614
Docket: IMM-5209-00
BETWEEN:
MIMOZA NIKA
KRISTIAN NIKA
XHULIA NIKA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER