Date: 20040824
Docket: IMM-6837-03
Citation: 2004 FC 1170
Toronto, Ontario, August 24th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
SAIMIR KULLA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The Applicant is a 28 year-old citizen of Albania. The Board rejected his refugee claim finding, inter alia, that the Applicant had failed to outline "compelling reasons" which would bring him within the section 108(4) exception of IRPA.
[2] In the Applicant's submissions the Board erred in law and gave insufficient explanations when it made the following statement:
However taking all of the circumstances into consideration, and in particular the time when these incidents occurred, as well as the attitudes of the post 1992 governments, the panel concluded, that the incidents were abhorrent, the experiences of the claimant's family members cannot trigger the compelling reasons exception in the claimant's case. Applicant's Record, p. 29. (Underlining added).
[3] This sentence follows a three page detailed analysis of the situation of the Applicant and his family. It is a factual finding regarding the Applicant. The Board speaks of "the Applicant's case" not of "an applicant's case". Thus this sentence, in my view, does not demonstrate that the Board misunderstood or misapplied the law, but rather is a factual finding based on substantial facts.
[4] The Applicant contends that Velasquez v. Canada (M.E.I.), [1994] F.C.J. No. 477 stands for the proposition that the Applicant only needs to establish compelling reasons in respect of his family. However both Arguello-Garcia, [1993] F.C.J. No. 635 (cited in Velasquez supra); Canada (M.E.I.) v. Obstoj, [1992] F.C.J. No. 422 and Isacko v. Canada (M.C.I.), [2004] F.C.J. No. 1128 make it clear that there has to be persecution suffered by the Applicant as well as by his family. The Board in this case, on the basis of the tendered evidence, reasonably concluded that there was no evidence of persecution in respect of the Applicant.
[5] The Applicant contended that the Board failed to justify its findings that the incidents were "abhorrent" but not "atrocious or appalling". However, the Board after a review the evidence, found the incidents merely abhorrent but not sufficiently atrocious or appalling to bring the Applicant within s. 108(4) of IRPA. It is the Board's job to make factual findings and draw conclusion therefrom. In light of the facts as established by the Board, such a conclusion is not patently unreasonable.
[6] Accordingly this application cannot succeed.
ORDER
THIS COURT ORDERS that this application is dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-6837-03
STYLE OF CAUSE: SAIMIR KULLA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: AUGUST 24, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: AUGUST 24, 2004
APPEARANCES BY:
Mr. Micheal Crane
FOR THE APPLICANT
Ms. Mielka Visnic
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040824
Docket: IMM-6837-03
BETWEEN:
SAIMIR KULLA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER