Date: 20010906
Docket: IMM-3815-00
Neutral Citation: 2001 FCT 998
Between:
KOSANKA MOMCILOVIC,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon, J.
1. Introduction
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, Chap.F-7 as am., for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD), dated June 28, 2000, in which the CRDD determined that the applicant is not a Convention refugee. The CRDD's file number is T99-07656.
2. Statement of Facts
[2] The CRDD's decision is reproduced here:
These are the reasons for the negative decision in the claim of Kosanka Momcilovic, a citizen of Yugoslavia (FRY) to be a Convention refugee. The claimant based her claim on her ethnicity - Serbian.
The claimant is a 50 year old resident of Belgrade. She was born in Croatia, and lived in Sarajevo from 1986-1992. The claimant moved to Serbia in November 1992, where she was deemed to be a refugee on April 22, 1993. The claimant is an ethnic-Serb. The claimant's mother, sister and brother still reside in Belgrade.
The claimant alleges that she fears the Radical Party, Arkan, and various other right wing groups who are allegedly expelling Serbs who were born in Croatia. She alleged that as a Serb, she can no longer live in Croatia and has no right to citizenship in Yugoslavia (FRY).
The panel made a general finding of lack of credibility and determined there is insufficient credible or trustworthy evidence on which to base a positive determination.
Country of Reference
The claimant arrived in Canada on December 29, 1997, on a Yugoslavian (FRY) passport issued on December 13, 1997. She alleged that she paid 300 Deutsche Marks for the passport and that it was illegally obtained.
The claimant used the Yugoslav passport to obtain a Canadian Visitor's Visa in Belgrade. The aforementioned passport is currently in possession of Canada Immigration. A copy of the passport is on file.
There is no evidence before the panel that the claimant's passport is not a genuine passport and that the claimant is not entitled to Yugoslav citizenship, that such a document confers. Canada Immigration has not indicated that it suspects the document is false. Furthermore in oral testimony, the claimant stated "I do not think it is false, I obtained it in a false manner". She further stated "if it is issued in my name, maybe I am entitled to it".
In the panel's opinion, the claimant's evidence is not credible. While she may have paid someone to expedite the process (she received the passport in three months), the panel is not satisfied that the Yugoslav passport is not genuine. The panel believes the passport confers the rights and obligations of Yugoslav citizenship upon the claimant.
In her CVV application, made in December 1997, the claimant stated that she had applied for Yugoslav citizenship in September 1997, after her first application for a CVV was refused, because of a lack of a suitable travel document.
The claimant's September 1997 CVV application reveals that the claimant had an old SFRJ passport and a refugee card. Her December 1997 CVV application indicates that she acquired Yugoslav citizenship and has a new Yugoslavian passport.
In April 1999, the claimant alleged to an Immigration Officer that by virtue of her birth, she retained Croatian citizenship and could not apply for Yugoslav citizenship. However, she further stated to the interview officer that in 1997, the Yugoslav government began to grant citizenship to Serbian refugees.
The claimant did not present her birth certificate or her Croatian citizenship certificate to the panel. She stated her papers were in Belgrade and Sarajevo and she did not think it was necessary to obtain them. The panel is not satisfied with the claimant's explanation. The onus is on the claimant to establish her claim. In Kante the court stated that a claimant should bring all the documents necessary to establish his/her case.
The panel believes, it is reasonable to expect a highly educated person such as the claimant to be aware of the significance of providing documents to establish citizenship. The panel notes that the claimant did not state that the documents were unavailable, only that she did not think them necessary.
UNHCR News, January 2000 states that:
After the break-up of the Socialist Federative Republic of Yugoslavia, the citizenship law in FRY, came into effect in 1997. Article 48 specifically refers to refugees from BiH and Croatia. As at November 1998, some 83,000 applications for citizenship had been received from refugees of which 25,500 cases had been granted citizenship. According to the Ministry of Interior, no negative decisions were taken on refugee applications.
The panel prefers the documentary evidence to that of the claimant. It is from a reliable source and has no vested interest in the out come of the claim.
Given the evidence before it, the panel finds the claimant to be a citizen of the Federal Republic of Yugoslavia and will accordingly assess the claim at bar against the aforementioned country.
Objective Basis
The panel acknowledges that the situation in Yugoslavia is "chaotic" and that Serbian refugees from Croatia BiH may well be "traumatised", as the claimant asserted. The panel finds the claimant's assertion that as an ethnic Serb, she fears expulsion by Serbian right wing groups to be highly improbable and completely without basis.
The conflict in the former SFRY was fought on clearly demarcated ethnic lines. The panel finds it completely implausible that nationalist Serbs would expel fellow ethnic Serbs to Croatia or BiH to face discrimination or in some cases persecution. In the panel's opinion, the claimant's allegation was contrary to preponderance of evidence on the situation in Yugoslavia.
According to UNHCR, over a half a million refugees remain in FRY from the wars in Bosnia-Herzegovina (200,000) and Croatia (300,000). There is evidence that the economic situation is causing some resentment from the local population over the integration process, however there is no credible evidence before the panel that the FRY is expelling Serbs. The claimant herself could not point to any direct experience of such evidence. She gave extremely vague testimony about having heard of ethnic-Serbs being expelled to Croatia and BiH.
The panel does not find the claimant's evidence to be credible, regarding her fear of expulsion by Serb nationalists.
When asked what she feared, the claimant stated "the situation is chaotic" and "I have endured a lot'". The panel believes this is the true reason for the claimant's desire to remain in Canada and not her fear of "various groups" or "Arkan" (who is now dead).
UNHCR has helped voluntarily repatriate 6,000 refugees (4,300 to Croatia and 1,300 to BiH), while an estimated 38,000 are estimated to have returned on their own to these countries. Repatriation and return was carried out under the April 1998 Protocol signed between the Government of FRY and Croatia. The document notes that many of those repatriated are agricultural people. The panel prefers the documentary evidence to the evidence of the claimant. It is from a reliable source and has no interest in the outcome of the claim.
The claimant has lived in Belgrade since 1993. She has a German language instructor. Her sister is a public servant and her brother is an architectural technician. Her family owns a residence in Belgrade. The panel is of the opinion that the evidence indicates the claimant is well settled in Belgrade.
In the panel's opinion, based on the evidence before it, the claimant has failed to establish to the panel's satisfaction that her fear is objectively well-founded.
The claimant arrived in Canada on December 29, 1997. She did not make a claim until approximately a year later on November 4, 1998. The claimant requested two visa extensions. When her last extension was denied, she made a refugee claim. The claimant stated she only learned of her right to make a refugee claim in September 1998. The panel is not satisfied with the claimant's explanation.
The panel believes that a person fearing persecution would claim refugee status at the earliest opportunity. Furthermore, the panel notes that the claimant did not approach any community organization to seek assistance in making a claim.
The panel believes the claimant's actions are inconsistent with a subjective fear of persecution.
Accordingly, the panel is not satisfied that, on a balance of probabilities, there is a serious possibility the claimant would face persecution for a Convention ground if she were to return to Yugoslavia.
Each panel member finds that the claimant is not a Convention refugee and that there is no credible or trustworthy evidence on which the claimant could have been determined to be a Convention refugee.
Accordingly, pursuant to Section 69.1(9.), there is no credible basis for the claim. Therefore, for all of the above reasons the Refugee Division finds Kosanka Momcilovic, not to be a Convention refugee.
3. Issues
a. Did the CRDD err in law because it did not consider the documentary evidence filed after the hearing?
b. Did the CRDD make a perverse finding of fact?
4. Applicant's Submissions
[3] The applicant sought to enter her Croatian birth certificate into evidence. According to the date stamp, the CRDD received it on April 25, 2000, or twenty days after the CRDD's hearing. In its reasons, the CRDD indicated that the "claimant did not present her birth certificate or Croatian certificate to the panel." Contrary to what is stated by the CRDD, the extract from the citizenship records was presented in evidence in the attachments to the submissions. It indicated that the applicant had been born in Croatia in the Yugoslavian Republic of Palski.
[4] The applicant submits that the CRDD erred in law when it concluded that "the document was in the Serbo-Croatian language and was attested to by a Serbo-Croatian interpreter." A tribunal errs, says the applicant's counsel, when it ignores post-hearing submissions which were clearly received. This may well have been an administrative error, but, according to the applicant, it was an error nonetheless. The documents were received by the CRDD, or its date-stamp-wielding mail clerk, as evinced by the receipt stamp. In such circumstances, the applicant has discharged her onus of showing that material was before the CRDD, (or its mail clerk), and the CRDD erred in law by not referring to the post-hearing submissions. [See Yushchuk v. M.E.I. (1994), 25 Imm. L.R. (2d) 241 (F.C.T.D.)]
[5] The applicant submits that the CRDD made a perverse finding of fact when it concluded that the applicant was a citizen of Yugoslavia. The CRDD ignored the applicant's evidence that she did not have Yugoslavian citizenship. Contrary to what is asserted by the CRDD, the applicant testified in her vive voce evidence that it would have been impossible for her to obtain a legal passport given that she was only eligible to apply for Yugoslavian citizenship three months before her departure, and, that it would have taken her much longer to obtain one.
5. Minister's Submissions
Applicant's Affidavit
[6] In her Personal Information Form ("PIF"), the applicant did not indicate if she could read English, and therefore, it was necessary to have her PIF translated for her into Serbian. There is still no indication whether the applicant can now read English. The practice when dealing with affiants who cannot read the language in which an affidavit is written, as reflected by Rule 80 of the Federal Court Rules, is to include an affidavit from the interpreter attesting that the affidavit was translated. [see Rule 80(2) of the Federal Court Rules, SOR/98-206; 80(2); Kha v. Canada (Minister of State for Immigration) (1986), 5 F.T.R. 150 (T.D.); Dawson v. M.E.I. (1988), 6 Imm. L.R. (2d) 37 (F.C.T.D.)]. Because the applicant's affidavit is not accompanied by an interpreter's affidavit, there is no indication that the applicant understood what she was signing when she swore her affidavit, and no weight should be given to the applicant's affidavit.
Findings of Fact
[7] The Minister submits that it was open to the CRDD to find that the applicant was a citizen of Yugoslavia. The evidence before the CRDD revealed that:
a. The applicant traveled to and entered Canada on a Yugoslavian passport;
b. Though she claimed that the passport was false, she later admitted that it was genuine; or "I do not think it is false, I obtained it in a false manner".
c. The applicant admitted that she might be entitled to a Yugoslavian passport - "if it is issued in my name" - ; and
4. The applicant, on her visa application, indicated that she was a Yugoslavian citizen.
Evidence not ignored
[8] The Minister submits that the CRDD did not ignore evidence. The certificate was before the CRDD because it was attached to a letter stamped as having been received by the CRDD, and it can be inferred that the certificate was received and considered by the CRDD. That there is no specific mention of the certificate in the reasons does not mean that it was ignored.
[9] The Minister further submits that the error made in Yushchuk, supra, was not made here. The CRDD in Yushchuk refused to entertain new evidence which was placed before it after the hearing ended. In this case, there is no evidence that the CRDD did not consider this evidence.
[10] The Minister denies that the CRDD ever concluded that "the document was in the Serbo-Croatian language and was attested to by a Serbo-Croatian interpreter." This quote is not to be found anywhere in the CRDD's decision.
[11] Judicial review of a decision of a federal board, commission or other tribunal must proceed on the basis of the evidence, or other material which was before the decision-maker. Why? Because the tribunal, the parties and their respective counsel, and those members of the public, if any be admitted to witness the proceedings, are all present at the material time and place. These elements of the dynamic of a hearing cannot easily, if at all, be reconstituted and if so, at a demonstrably less propitious time than that for which notice has been given to all concerned. There is an abundant jurisprudence on this matter, centred on Walker v. Randall (1999) 173 F.T.R. 161, in which Mr. Justice Teitelbaum is reported at p. 171 as follows:
[32] In the case of Naredo and Arduengo v. Canada,..., Mr. Justice Cullen states at page 286:
[21] Regarding the remaining affidavits at issue, the case law is clear that the court is bound to the record filed before a federal board, commission, or other tribunal [...]. In Rahi v. Minister of Employment and Immigration,..., MacGuigan, J.A., dismissed an application for an extension of time to file a supplementary affidavit. Li v. Minister of Citizenship and Immigration,..., is a similar case. In Owusu v. Minister of Citizenship and Immigration,..., Reed, J., refused to consider new evidence that was not before the Immigration and Refugee Board (hereinafter, the "IRB"). Most significantly, Reed, J., stated at p. 2:
With respect to the new evidence, I do not think it is open to me to consider it, nor do I think it is open to me to refer the application back for a rehearing so that the Board can consider it. The appropriate avenue is for it to be considered in the back-end humanitarian and compassionate review process. That is the safety valve for dealing with evidence of the type in issue.
In Asafov v. Minister of Employment and Immigration,..., Nadon, J. comments that the application to introduce into the record new evidence which was not before the Immigration and Refugee Board when it rendered its decision would have the effect of transforming the judicial review process into that of an appeal.
[33] I agree with the statement made by Mr. Justice Gibson in Lemiecha et al. v. Minister of Employment and Immigration...:
[4] It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker. It is obvious that Dr. Newhouse's report post-dated the decision in question and thus constituted evidence not before the decision-maker. I sustained the objection. The judicial review thus proceeded on the basis only of evidence that was before the decision-maker.
[34] This being the case, the applicant, in filing an application for judicial review cannot, by means of filing affidavits introduce "fresh" or "new" evidence that was not before the CHRC. This, I am satisfied, the applicant is attempting to do.
[12] A hearing such as the one conducted by the CRDD herein, provides both parties in one dynamic on a fixed occasion to produce their respective evidence. This, of course, does not negate the tribunal's right to control its own proceedings (according to its rules and the law) by according a fair hearing at a later time, upon notice to all, to receive and consider some piece of evidence which is known to have been sought and is on its way to an adjourned session of the tribunal. That is quite different from the situation in which a party has in effect forgotten what is "needed" or did not foresee it, and "springs" new material onto the tribunal or the opposite party. Such new material is not receivable or admissible, on judicial review, and certainly not, without consent.
6. Order Sought
[13] The Minister requests that this application be dismissed. Such is the correct disposition, in accordance with the CRDD's decision dated June 28, 2000. The application is dismissed. Neither counsel proposed any question for certification.
Ottawa, Ontario
September 6, 2001
Judge