Date: 20010907
Docket: IMM-6231-99
Neutral Citation: 2001 FCT 1003
BETWEEN:
LAKICEVIC, PREDRAG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] This is an application for judicial review of the December 9, 1999 decision of the Convention Refugee Determination Division ("CRDD") wherein the applicant's claim for Convention refugee status was rejected.
[2] The applicant, a citizen of Yugoslavia, claimed refugee status on the basis of his nationality and conscientious objection to military service. Prior to his arrival in Canada, the applicant lived in the southern part of Serbia near the Kosovo border.
[3] According to the applicant's Personal Information Form and his testimony at the hearing, he served in the Yugoslavian army from September 1988 to September 1989. When the conflict broke out in Bosnia-Herzegovina in 1991, he received a call-up notice to serve in the army again. As he did not want to take part in the war, he did not report for service and went into hiding because the military police "would just show up at your door and pick you up". From 1991 to 1993, the applicant states he avoided the military police by moving from town to town. During this period, he also worked for varying periods of time at a restaurant in Leskovac, his home town.
[4] In 1993, the applicant fled Yugoslavia and lived in South Africa for one year. He did not make a refugee claim in South Africa because he hoped things would improve and he could return to Yugoslavia which he did in 1994. Shortly after his return to Leskovac, his friends told him the military police were still looking for him. Again, he moved from town to town to avoid the military police returning at various times to work at the restaurant in Leskovac.
[5] In July 1995, when "the army was being collected for Kosovo" the applicant fled to Greece where he remained for five months. He did not make a refugee claim in Greece. He returned to his home town in early 1996. From 1996 to 1998 he worked at the post office in Leskovac but would leave for periods of time fearful of being arrested by the military police. The applicant also travelled to Germany and Italy in 1996 but did not claim refugee status in either country.
[6] The applicant states that in 1997 he was arrested and remained in custody for two months for having evaded military service. He was released after a bribe was paid and immediately began to make preparations to come to Canada. He obtained a visa, valid until August 1998, based on an offer of temporary employment as a musician at a restaurant in Toronto.
[7] The applicant arrived in Canada on February 16, 1998. When he first came to Canada, the applicant states it was with the intention of waiting out the turmoil in his own country, then returning. However, after four months the situation had deteriorated in Yugoslavia and his apartment and car had been destroyed during the bombings. The applicant first stated his intention to make a refugee claim in July 1998. He states he is a conscientious objector, and did not want to return to Yugoslavia for fear he would be conscripted into the army and would be persecuted for taking this position.
[8] The CRDD rejected the applicant's claim stating:
...the claimant has not met the burden of establishing the veracity of his allegations....
In spite of the fear expressed by the claimant to participate in war, he appears to stay and work in his small town for extended periods of time. He returned to his country of origin at the time when the conflict in Bosnia was still on. He is able to get a passport in 1998 and leave the country without any problem. At all these times he has never been spotted by the military police and has successfully evaded arrest. Based on this ... the panel has assessed the credibility of the claimant on criteria such as rationality and common sense and finds the claimant not to be credible. There is no basis for the claim that the claimant has sought refugee status for valid reasons of conscience.
[9] In reaching its conclusion regarding the applicant's credibility, the CRDD relied exclusively on its findings of implausibility and not on any inconsistencies or contradictions in the applicant's evidence.
[10] The applicant takes issue with each of the CRDD's findings of implausibility arguing that the findings are based on a misapprehension of the facts and are not supported by the documentary evidence. Only three of the issues raised by the applicant will be considered in these reasons as they are determinative of the outcome of this judicial review.
[11] In its reasons, the panel found it implausible that the applicant could have evaded the military police for such an extended period of time while working in his home town. The panel stated:
The claimant's employment history shows that he worked at the post office in Leskovac, his home town, from January 1996 to February 1998. In addition the claimant also gave testimony that he had worked for three years in the restaurant business form 1989 to 1992, 1993 to May 1993, May 1994 to July 1995, all of them in his home town. Leskovac is a small village with a population of 100,000 people. The claimant stated that in this small town everybody knew everybody else. If this were so then one wonders how the claimant managed to escape the ever-powerful watch of the military police....
Counsel for the applicant submits this finding is not supported by the evidence and that it is entirely within the realm of plausibility that the applicant could have avoided the military police.
[12] I accept this submission. In its reasons, the panel failed to address the applicant's explanation that when he learned from his friends and neighbours the military police were looking for him he would go into hiding moving from town to town to avoid arrest. Similarly, at times of active recruitment he took unpaid leaves from his work and went into hiding. Nor did the panel consider the documentary evidence regarding the significant number of conscientious objectors and deserters who avoided military service by going underground. Although the CRDD is entitled to rely on rationality and common sense in its assessment of credibility, it must consider the totality of the evidence and provide its reasons for rejecting an explanation which, on its face, is plausible. In my view, to reject the applicant's evidence in these circumstances on the basis of implausibility alone constitutes reviewable error.
[13] The next finding of implausibility with which the applicant takes issue concerns the applicant's account of his departure from Yugoslavia in 1993. The applicant testified he was not questioned at the border "because there was such a mix-up... a lot of people were running away". With respect to this evidence the panel stated:
... He was neither checked at the border crossing nor was he questioned about leaving the country at a time when the country was engaged in a war. The claimant's response that there was a mix up and that several people were running away, is not a reasonable explanation for the panel to accept particularly since his town of Leskovac was close to Bosnia.
[14] The panel was clearly in error regarding the proximity of the town of Leskovac to Bosnia. As counsel for the applicant pointed out, Leskovac is close to the eastern border of Yugoslavia while Bosnia is on the western border of the country. Counsel for the respondent conceded the panel was in error but maintained that the location of Leskovac was not material to the panel's ultimate decision. While the location of the town itself is not a material fact, it is the reliance on the erroneous fact to conclude the applicant's testimony is not credible that gives rise to a reviewable error.
[15] The applicant also submits the panel's finding that the applicant's fear of conscription was not credible was based on a misapprehension of the applicant's evidence. The panel disbelieved the applicant's fear of being conscripted, in part, because despite his fear he obtained "... a passport in 1998 with a letter from the court stating that he had no convictions against him". Although the applicant had testified earlier in the hearing he had obtained a court certificate for the purpose of obtaining his passport and visa in 1993, with respect to his departure in 1998 the applicant testified that since he already had a passport for his earlier travels, he simply renewed his passport. Clearly, the panel was in error regarding the court certificate. A further concern is that the panel did not provide any evidentiary basis for the inference it drew from the fact the applicant obtained a passport without any difficulty.
[16] For these reasons, the application for judicial review is allowed, the December 9, 1999 decision is set aside, and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
September 7 , 2001