TA4-00636

IMMIGRATION AND REFUGEE BOARD LA COMMISSION DE L'IMMIGRATION (REFUGEE PROTECTION DIVISION) ET DU STATUT DE RÉFUGIÉ (SECTION DE LA PROTECTION DES RÉFUGIÉS) IN PRIVATE HUIS CLOS TA4-00636 CLAIMANT(S) DEMANDEUR(S) XXXX XXXXX DATE(S) OF HEARING DATE(S) DE L'AUDIENCE September 19, 2005 DATE OF DECISION DATE DE LA DÉCISION October 19, 2005 CORAM CORAM George Z. Wang FOR THE CLAIMANT(S) POUR LE(S) DEMANDEUR(S) Gregory J. Lyndon Barrister and Solicitor REFUGEE PROTECTION OFFICER AGENT DE PROTECTION DES RÉFUGIÉS I. Kohler DESIGNATED REPRESENTATIVE REPRÉSENTANT DÉSIGNÉ MINISTER'S COUNSEL CONSEIL DE LA MINISTRE "You can obtain, within 72 hours, a translation or a copy of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB, 344 Slater Street, 14th floor, Ottawa, Ontario, K1A 0K1 or by sending a request to the following e-mail address: translation.traduction@irb.gc.ca or to facsimile number (613) 947-3213." "Vous pouvez obtenir la traduction ou une copie de ces motifs de décision dans l'autre langue officielle dans les 72 heures, en vous adressant par écrit à la Direction des services de révision et de traduction de la CISR, 344, rue Slater, 14e étage, Ottawa (Ontario) K1A 0K1, par courrier électronique à l'adresse suivante : translation.traduction@cisr.gc.ca ou par télécopieur au (613) 947-3213." XXXX XXXXX is a citizen of Serbia and Montenegro, former Yugoslavia, and claims refugee protection pursuant to section 96 and section 97(1) of the Immigration and Refugee Protection Act (IRPA). ALLEGATIONS The claimant alleged as follows in his PIF narrative: The claimant was of Albanian descent and advocated a peaceful solution of Kosova's political problems. In XXXX 1996, the claimant refused to answer a call-up notice to serve in the Yugoslav army. He XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX during skirmishes between the Serbian authorities and the Kosova Liberation Army (KLA) in 1998. In XXXX 1999, the claimant refused to join the KLA and remained hidden in order not to be forcibly taken into the KLA. In his absence, the KLA took his car as punishment. In XXXX 1999, the claimant escaped to Albania until XXXX 1999 when the United Nations forces occupied Kosova. By mid-2000, the Albanian people were deeply divided along political lines. The claimant always supported the Democratic League of Kosova (LDK) led by the President. In the XXXX of 2000, an LDK executive tried to encourage him to join the party and head the youth forum in the claimant's region. The claimant was almost persuaded to join the LDK when a prominent LDK candidate was kidnapped and his body was later found. The candidate was killed by the Democratic Party of Kosova (PDK) headed by the former leader of the KLA as the candidate was expected to win the region's seat in the election. Although the claimant decided not to officially join the LDK, he decided to use his XXXX XXXX the LDK, e.g. XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Because of his activities, the claimant was threatened during election campaigns in 2000 and 2001. In 2001, he was also attacked by extremists. After the elections in 2002, the claimant was threatened with the killing of his wife if he did not leave. The claimant was afraid to contact the police as they were closely connected to the PDK. In XXXX 2003, the street was barricaded in front of his house. In XXXX 2003, when a white sheet with a message ordering the claimant to leave Kosova was found draped over the claimant's front door, the claimant went into hiding. In XXXX 2003, his brother was robbed of 1200 euros by assailants who mistook the claimant's brother for the claimant. The claimant's brother told the assailants that the claimant had left Kosova and would never return.1 The claimant came to Canada with false documents and made a claim for refugee protection in January 2004. DETERMINATION The panel finds that the claimant is neither a Convention refugee nor person in need of protection because the claimant did not establish with credible or trustworthy evidence in his claim a well-founded fear of persecution on any of refugee Convention grounds, a risk of torture, or a risk to his life, or risk of cruel and unusual treatment or punishment should he return to his home country. ANALYSIS The panel accepts the claimant's identity as a citizen of Serbia and Montenegro on the basis of his testimony and documents issued by the United Nations Interim Administration Mission in Kosovo (UNMIK), e.g. marriage certificate.2 The determinative issue in his claim is the lack of credibility. The claimant based his claim on the grounds of membership in a particular social group and political opinion and alleged that he had a well-founded fear of persecution because of his refusal to answer a call-up notice to serve in former Yugoslav Army in 1996 and his activities for the LDK. However, according to his PIF narrative, the claimant was not threatened and attacked until after 1999 when he "refused to join the KLA" and "XXXX XXXX XXXX XXXX XXXX".3 No credible or trustworthy evidence was adduced to establish a connection between his alleged difficulties in Serbia and Montenegro after 1999 and his refusal to serve in former Yugoslav Army in 1996. The base for his claim boiled down to his affiliation with the LDK. In his PIF narrative, the claimant stated that "Unfortunately, by mid 2000 the Albanian people were deeply divided along political lines." The claimant allegedly always supported the LDK and asserted that "My involvement with the LDK made me a target of the militant wing of the PDK and their supporters."4 To corroborate his assertions, the claimant submitted a certificate from LDK branch in XXXX. The LDK's certificate stated that the claimant "since the beginning of the year 1994 has been an active member of the LDK branch in XXXX, and also been XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX for the last 2 mandates; the first mandate dating from 19XX-20XX and second mandate from 20XX-present."5 [sic] However, the panel did not find the LDK's certificate reliable, nor allegations regarding the claimant's association with the LDK credible because of the omissions and discrepancies identified in his testimony. The LDK's certificate indicated that the claimant was an active member of the LDK since 1994, whereas the claimant did not refer to any of his activities for the LDK until 2000 in his PIF narrative.6 When confronted with the inconsistency as to when he started to work for the LDK, the claimant replied that in 1994 he XXXX XXXX XXXX XXXX XXXX. The panel did not find the explanation satisfactory as the claimant stated in his PIF that he "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 'XXXX XXXX XXXX XXXX" without any reference to his affiliation with the LDK in 1994 or the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in that period. The claimant did not provide any evidence to indicate his affiliation with the LDK as early as 1994 either in his PIF narrative or in his testimony. The LDK's certificate indicated that the claimant was an LDK member since 1994, whereas the claimant stated in his PIF narrative that he "decided not to officially join the LDK" in 2000.7 When questioned with the inconsistency as to whether he was a LDK member or not, the claimant explained that he was not asked to become a member, and also, although he never joined the LDK, he did not think it necessary to be a member to perform duties of a member. The panel did not find the explanation satisfactory. The claimant stated in his PIF narrative that "In the XXXX of 2000, an LDK executive tried to encourage me to join the party and XXXX XXXX XXXX XXXX". He was allegedly almost persuaded, and eventually decided not to join the LDK because a prominent LDK candidate was kidnapped and found killed. Obviously, the claimant was asked, but he rejected to join the LDK. While the LDK's certificate was dated XXXX, 2004 and the claimant signed his PIF on February 5, 2004, the claimant amended his PIF narrative on September 11, 2005 by inserting that "I never applied for, nor received, a membership card. I was perceived by all concerned to be a member of the LDK."8 However, in the panel's opinion, being considered a member differed from being a member to the extent that it would be reasonable to expect the LDK branch in XXXX to declare the claimant to be a supporter or a supporter considered to be a member rather than a member. The evidence that the claimant stated he was only perceived to be a LDK member, whereas the LDK's certificate described him as an active member since 1994, caused the panel to draw a negative inference regarding the credibility of both the claimant's allegations about his political affiliation and the reliability of the LDK's certificate. The LDK's certificate indicated that the claimant was "selected as a member in the directing board such as LDK XXXX XXXX for the last 2 mandates: the first mandate dating from 19XX-20XX and second mandate from 20XX-present".9 However, the claimant did not refer to the XXXX XXXX except on one occasion in his PIF narrative, i.e. the XXXX of 2000. As alleged, in the XXXX of 2000, the claimant was encouraged by an LDK XXXX "to XXXX XXXX XXXX XXXX XXXX XXXX." However, the claimant asserted that "I decided not to officially join the LDK".10 As a result of his refusal to join the LDK, the claimant was obviously not offered the XXXX XXXX XXXX XXXX in the LDK's certificate. When questioned with the inconsistency regarding whether he was selected as a XXXX XXXX XXXX the LDK XXXX XXXX, the claimant replied that he represented the XXXX XXXX in the LDK. The panel did not find the explanation satisfactory. In his PIF narrative, the claimant never stated that he was XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in the LDK. He made reference in his PIF narrative to his XXXX XXXX to the LDK XXXX XXXX neither before nor after the XXXX of 2000. As mentioned above, the only occasion where he referred to the XXXX XXXX was the XXXX of 2000 when he allegedly refused to join the LDK subsequent to the attempts by an LDK executive to persuade him to join the party and XXXX XXXX XXXX XXXX in his region. Moreover, although the LDK's certificate indicated that the claimant was selected as a member in the LDK XXXX XXXX XXXX XXXX not only for the first mandate from 19XX to 20XX, but also for the second mandate from 20XX to present, the claimant repeated several times at the hearing that he contacted the LDK for the last time at the end of 2002, and from 2003 he did not attend LDK meetings or participate in activities for the LDK any more out of a concern for his safety. If the claimant stopped his activities for the LDK since 2003, it would be implausible for him to continue with his second mandate as a member of the LDK XXXX XXXX XXXX XXXX from 20XX until present. The inconsistency between the claimant's testimony and the LDK's certificate regarding his XXXX XXXX XXXX XXXX XXXX XXXX XXXX from 19XX to the present caused the panel to draw a negative inference on the claimant's overall credibility, and also caused the panel to further draw a negative inference on the reliability of the LDK's certificate and credibility of the claimant's allegations that he always supported the LDK. Although the claimant alleged that he was threatened and assaulted, none of these events were referred to in the LDK's certificate. When questioned about the inconsistency, the claimant responded that he complained to the LDK executive in his village, but he did not know whether the executive reported those events to the LDK branch in XXXX. The panel did not find the explanation satisfactory. If, as indicated in the LDK's certificate, the claimant's work for the LDK was "XXXX XXXX XXXX of the LDK branch in XXXX" and the claimant requested a certificate through his brother from the LDK branch in XXXX, it would be reasonable to expect the claimant to advise the LDK branch in XXXX of his difficulties in his home country because of his political activities for the LDK and also reasonable to expect the LDK branch in XXXX to be aware of the claimant's difficulties as a result of the claimant's affiliation with the LDK, if not prior to, at least subsequent to his request to the LDK branch in XXXX to verify the allegations in his refugee claim. The inconsistency between the LDK's certificate and the claimant's testimony regarding his troubles in his home country reinforced the panel's negative credibility findings about the claimant and the LDK's certificate. The claimant alleged in his PIF narrative that he did not approach the police for help because the police were closely connected to the PDK.11 However, currently Kosovo was under the administration of the UNMIK. As testified by the claimant, the LDK won local elections and national elections under the UNMIK and the LDK was presently the party in power in Kosovo. In the panel's opinion, no credible or trustworthy evidence was tendered to establish that the police in Kosovo were closely connected with the PDK, or no state protection would be available to the claimant if he approached the police for assistance. Because of the discrepancies between the claimant's testimony and the LDK's certificate as to when he started to be associated with the LDK, whether he was an LDK member, whether he was ever XXXX XXXX XXXX XXXX XXXX XXXX XXXX from 19XX to present, and whether he was threatened and assaulted, the panel finds that neither the claimant's testimony nor the LDK's certificate was credible, and concludes that the claimant did not establish his affiliation with the LDK or his mistreatment because of his connection with the LDK with credible or trustworthy evidence. The panel further concludes, nor did the claimant establish with credible or trustworthy evidence that, should he return to his home country, he would face a serious possibility of persecution because of his membership in a particular social group, or political opinion, or any other refugee Convention ground. Therefore, the claimant is not a Convention refugee. The panel then considered whether the claimant is a person in need of protection as defined under s.97 (1) of IRPA, should he be returned to his home country. Given its negative findings in regard to the credibility of the claimant's allegations about his association with the LDK and his suffering because of his political activities for the LDK, the panel, after a review of all the evidence, finds that the claimant did not provide credible or trustworthy evidence to establish that he would be subjected personally to a danger, believed on substantial grounds to exist, of torture within the meaning of the Convention Against Torture, or face a risk to his life or a risk of cruel and unusual treatment or punishment. Therefore, his claim for refugee protection under s.97(1) of IRPA fails as well. For these reasons, the claimant is determined to be neither a Convention refugee nor a person in need of protection and, accordingly, his claim is rejected. "George Z. Wang" George Z. Wang DATED at Toronto this 19th day of October, 2005. REFUGEE PROTECTION DIVISION / POLITICAL OPINION / MILITARY SERVICE / FORCED CONSCRIPTION / HIDING / INCONSISTENCY / EVIDENCE / DOCUMENTARY EVIDENCE / MALE / NEGATIVE / SERBIA AND MONTENEGRO 1 Exhibit C-1, Personal Information Form (PIF) narrative. 2 Exhibit C-3, UNMIK Marrigage Certificate 3 Exhibit C-1, PIF narrative 4 Exhibit C-1, PIF narrative 5 Exhibit C-6, LDK's Certificate 6 Exhibit C-1, PIF narrative 7 Exhibit C-1, PIF narrative 8 Exhibit C-9, Amendment of PIF narrative 9 Exhibit C-6, LDK's Certificate 10 Exhibit C-1, PIF narrative 11 Exhibit C-1, PIF narrative --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 TA4-00636 TA4-00636