J. (R.M.) (Re), Convention Refugee Determination Decisions

J. (R.M.) (Re)
Convention Refugee Determination Decisions
[1991] C. R. D. D. No. 369

NO. M90-02813 (T)

Immigration and Refugee Board of Canada Convention Refugee Determination Division Montreal, Quebec

Panel: J.-C. Desmarais and D. Bubalo In camera

Heard: September 26, 1990

Decision: February 11, 1991

Yugoslavia (YUG) -- Negative -- Males -- Political activities -- Credibility -- Detention -- Forced conscription -- Draft evaders -- Freedom of expression -- Social group persecution -- Persecution for political opinion -- Military service -- (Indexed).

Appearances:

Francois Dostaler, for the claimant(s).

Michel Byczak, Refugee Hearing Officer.

REASONS FOR DECISION

Mr. xxxxxxxxxxxxx, a citizen of Yugoslavia, aged 21, rived in Canada in April 1990. He claimed refugee status, alleging a well-founded fear of persecution by reason of his Albanian nationality and his secessionist political opinions manifested as a resident of Kosovo.

Kosovo is an "autonomous province" in southern Yugoslavia under the "sovereignty" of the Republic of Serbia. The population of Kosovo is about 90 percent Albanian, the vast majority of whom are Muslims; other ethnic groups include a Serbian minority (200,000), who are Slavs and Orthodox Christians.

After first dissolving the Kosovo parliament on July 5, 1990 and dismissing the local government, Serbia, at the time of the hearing, was preparing to announce a new Constitution (which it has since done) aimed at ending the "secessionist claims" of Kosovo's Albanian community. As a brief reminder of events, we should point out that the process of amending the Constitution was announced and began in November 1988 after a "turbulent summer" in Kosovo. The Albanians reacted to this initiative by organizing a five-day protest march. In February 1989, protest movements organized by the Albanians and their Serbian political opponents intensified shortly before the adoption of the constitutional amendments. Then, following their adoption, on March 27 and 28, 1989, the popular uprising degenerated into riots, leaving 24 dead. The central government managed to restore order by imposing special measures (curfew, restrictions on freedoms) and mobilizing the army in Kosovo to support the intervention of the federal militias. However, the situation returned to normal in the spring of 1989.

Between January 23 and February 4, 1990, violent confrontations pitted militant Albanians against the republican militias in Kosovo. Twenty-six young Albanians between the ages of 16 and 25 died. At the same time, rallies were being held in Serbia in support of the Serbian government. The special measures were re-imposed and the army was redeployed in Kosovo from February 1, 1990 until February 7, 1990, when the federal government decreed a pacification program for Kosovo including the lifting of the special measures.

As was stated above, the Kosovo parliament was dissolved and its government dismissed in July 1990. Then, on September 23, 1990, the Serbian government passed a new unitary and sovereign constitution for the Republic of Serbia. On September 15, 1990, the former Albanian members of parliament, for their part, proclaimed the Republic of Kosovo.

The evidence in this case should be viewed in this political context. The facts according to the claimant are as follows. The claimant took part in the popular demonstrations held in the summer of 1988, was arrested by the police, beaten on the soles of the feet and detained for 60 days, the statutory duration. On his release, he gave a written undertaking not to demonstrate again. However, this did not restrict his activities, as he took part in other demonstrations in 1989 and in January and February 1990.

The claimant alleges that between April 5, 1990 [sic], after the riots, and March 2, 1990, the day before his departure from the country, the Serbian police visited his parents' home many times in search of him. According to the claimant, the Serbian police had taken it upon themselves to hand over to the army all previously arrested young Albanian demonstrators whose call-up was imminent. This was how a conscription order came to be issued to the claimant on February 16, eleven days after the first visit by the police. The federal order directed him to report to the military barracks on March 18, as he was about to turn 21 on xxxxxxxxx, 1990. Again according to the claimant, military service in Yugoslavia becomes compulsory only at age 21.

Fearing "discriminatory" military treatment because of his secessionist political opinions and his Albanian nationality (according to the claimant, the Yugoslav army and the Serbian police are in league with each other to control the young Albanian rebels), the claimant did not report for military service as required.

He now apparently presumes that he would be treated as a deserter and would therefore be subject to the maximum sentence of six years' imprisonment. This, in his opinion, constitutes persecution.

The claimant's testimony was marked by exaggeration. He contradicted himself several times, even according to his own counsel. This seriously undermines his credibility. However, since the major weakness of the claimant's testimony concerns the age of compulsory military service, we will deal exclusively with this element. Documentary evidence from credible sources such as Amnesty International [Amnesty International, Conscientious Objection to Military Service, London, 1988, p. 23] and the Canadian Embassy in Belgrade [IRBDC, Ottawa, September 8, 1989), filed by the claimant's own counsel and by the Refugee Division, indicates that all able-bodied young men aged 18 are required to do twelve months of military service.

The claimant, who confirmed that he did not benefit from any special exemptions, maintains, even after being confronted with the documentation contradicting him, that he was not called up until age 21, the age, according to him, at which all able-bodied young men must do military service.

As the claimant's testimony as a whole seemed rather implausible, we chose to determine the case on the basis of the information contained in the documentary evidence. According to this information, in 1988, the police did not have to wait until the claimant turned 21 before handing him over to the military authorities. They were required to do so because the claimant was 18 at the time of his arrest. And we believe they did. The claimant, contrary to his claims, has, we believe, already completed his military service. This would explain his problems accounting for his time between 1988 and 1990 and would therefore exclude his current grounds for fearing the Yugoslav army.

The fact remains, however, that the Yugoslav army used sucessive force on the demonstrators when it was called on by the Serbian government to restore political order to Kosovo. Can such measures arouse in the claimant a reasonable fear or persecution because of his "participation" in the political demonstrations?

The answer to this question might be yes if the claimant had actually taken part in demonstrations in January and February 1990. However, we are by no means certain that he did participate in public demonstrations prior to 1988.

His story regarding his political activities was too erratic and confusing to convince us that they were real. To simple questions, the claimant replied that he had totally forgotten because of his young age, and then, as though he had thought better of it, he recalled his participation in a number of protests in the context of labour conflicts that took place not far from his home. At the start of his testimony, the claimant maintained that he was a political organizer with links to the student population, a status which he subsequently completely refuted by admitting that he was unemployed and an occasional protester. Several times, he had to change the dates on which he took part in the "Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country... [Immigration Act, s. 2(1)]

The panel was given no cause to doubt the claimant's testimony, and we accept it as described above.

There is a question in the panel's mind about the extent of the subjective fear alleged by this claimant. He left his country of nationality to attend a college in Canada. He did not claim Convention refugee status until some seven months after arriving. Since claiming that status he has approached his embassy for the renewal of his passport. These are not, in the view of the panel, the actions of a person with a strong subjective fear of persecution in his homeland.

Is the claimant's unwillingness to serve in the army reserve because of his political views, combined with the possible consequences of ignoring a potential call-up, sufficient grounds on which to base a Convention refugee claim? In considering this issue we have given careful attention to paragraphs 167 to 174 of the UNHCR Handbook.1[1] The guidance provided in that document indicates that a claimant may be considered a refugee if the penalties he might suffer from avoiding the draft would be more severe than normal because of (in this case) his political opinion. We have no evidence that this would be the case.

The Handbook goes on to say in paragraph 171:

Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

The documentary evidence provided by both counsel for the claimant and the RHO indicate that the Yugoslav army has been, as the claimant testified, partial to Serbia in the conflict in that country2[2] We can find no evidence, however, that indicates that the army's actions are "condemned by the international community as contrary to basic rules of human conduct". On this basis we find that, however deeply felt one claimant's views may be, he will not suffer persecution if he is punished for refusing to serve in the army.

It was suggested in the hearing that the claimant may suffer punishment for not informing the military authorities before he .Left for Canada. Documentary evidence6[3] indicates that the circumstances of the person leaving the country are taken into account in deciding if there will be a prosecution and that penalties are seldom given. We find that this is a law of general application, that the claimant would not suffer inordinate penalties for violating it because of any of the grounds in the definition, and that he will not face persecution if he is penalized under its provisions.

In our view, based on all the evidence before us, the claimant has failed to establish a well-founded fear of persecution in his homeland on any of the grounds in the definition.

Accordingly, the Refugee Division determines that xxxxxxxxxxxxxxx is not a Convention refugee.

DATED at Toronto this 15th day of October 1991.

"H.R. Hanson" Concurred in by: "Anna Jackson"

End of document.



[1] Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee status, Geneva, January 1988, pp. 39-41 [2] see, for example, "Yugoslav tragedy predicted as peace bid fails", Toronto Star, 5 August 1991, Exhibit C-2 at tab 5 [3] Exhibit C-2 at tab 4, Response to Information Request No. YUG8492, Immigration and Refugee Board Documentation Centre, 14 May 1991

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