Date: 20090910
Docket: IMM-841-09
Citation:
2009 FC 898
Vancouver,
British Columbia, September 10,
2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ALEXANDER POPOV,
IRINA DOUBROVSKAIA,
MARIA DOUBROVSKAIA (DOUBROVSKAYA),
POLINA DOUBROVSKAIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (the Act), of a decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board of
Canada dated January 23, 2009 where the RPD found that the Applicants were not
Convention refugees or persons in need of protection under the Act.
Issues
[2]
The
following issues are raised:
a.
Did
the RPD err in finding that the Applicants – stateless individuals - must
exhaust all avenues of state protection in the United States before seeking
refugee protection in Canada?
b.
Did
the RPD err in finding that the Applicants had failed to exhaust all avenues of
state protection in the United States before coming to Canada?
c.
Did
the RPD err in finding that the Applicants do not have a well founded fear of
persecution and in finding that the immigration laws of the United States applied to
the Applicants were laws of general application and were not persecutory or
applied to them differently due to a Convention reason?
Factual
Background
[3]
The
following facts are taken from the findings of the RPD.
[4]
The Applicants,
Alexander Popov and Irina Doubrovskaia, are married and were respectively the
principal and associated claimants before the RPD. Both were born and lived in
the former Union of Soviet Socialist Republics (U.S.S.R.), now recognized as
the Russian Federation. Their children, Maria and Polina
Doubrovskaia, also Applicants in this Court, are minor claimants who were born
in the United States and are citizens of that country.
[5]
Both Mr. Popov and
Ms. Doubrovskaia are stateless individuals. They were living in the United States at the time of the breakup of the former
U.S.S.R. and failed to take the steps required to obtain Russian citizenship.
Consequently, Russia claims they are not Russian citizens.
They are also not citizens of the United
States.
[6]
Mr. Popov and Ms.
Doubrovskaia left the former U.S.S.R. in 1992, traveling to the United States on a business visa. A year later, Mr.
Popov applied to change his visa and they both applied for permanent residency.
In 1994, they were issued visas that allowed them to stay in the United States and operate their business. In 1995,
they applied for an adjustment of status and were lead to believe, by
Immigration and Naturalization Service (INS), that they would be granted green
cards.
[7]
In 1996, the
Applicants’ attorney learned that their adjustment of status had been delayed
as the INS had misplaced their files. After a search, only Mr. Popov’s file was
located. Mr. Popov then renewed his application. He was again assured that he
would be granted a green card.
[8]
On
April 5, 2003, Mr. Popov was stopped by police in the United States. He was
informed that no record of his status existed and was arrested for overstaying
his visa. He was denied bond and was remanded to a maximum security prison.
[9]
On
September 24, 2003, the INS, while admitting that Mr. Popov had alien worker
status, informed him that it intended to revoke this status. Counsel for Mr.
Popov neglected to take the necessary steps to rebut the Intent to Revoke
and Mr. Popov’s status was revoked. He did not appeal the revocation.
[10]
At
the end of 2003, Mr. Popov’s removal was ordered. The appeal of that decision
was dismissed by the Bureau of Immigration Appeals. The removal order was then
made final. Mr. Popov filed a further appeal in the Ninth Circuit Court of
Appeals but did not move for a stay of removal. Rather, he asked to be removed
to Russia.
[11]
It
was at this point that the Bureau of Immigration and Customs Enforcement was
informed that Mr. Popov was not a citizen of the Russian Federation and that
travel documents would not be issued for him.
[12]
Mr.
Popov was held in prison for 180 days after his removal order was finalised.
This despite the fact that in the United States, aliens must be
released from prison 90 days after their removal order is finalised. Mr. Popov
has spent over two years in prison in total in relation to this matter.
[13]
Upon
his release in 2005, Mr. Popov was placed under supervision and permitted to be
at large under certain conditions.
[14]
In
April 2006, Mr. Popov won part of his appeal at the Ninth Circuit Court of
Appeals. In December, 2006, his file was remanded to the Board of
Immigration Appeals and then to an immigration judge to consider the
application for change of status and the cancellation application.
[15]
Mr.
Popov’s status is undefined in law. Furthermore, he cannot work or receive
unemployment benefits as his employment authorization has expired.
[16]
As
for Ms. Doubrovskaia, her status in the United States is unknown.
Her 1996 petition for adjustment of status was never located and she lives in
fear of being arrested.
[17]
On
August 14, 2006, the Applicants came to Canada and filed
for refugee protection at the border.
[18]
There
have been some changes in the Mr. Popov’s case since his coming to Canada. On January
2, 2008, the Ninth Circuit Court of Appeals, in light of a decision in another
case, remanded Mr. Popov’s case to the District Court for reconsideration of a
previous habeas corpus petition and to reassess the revocation of his
visa. Also in 2008, the Department of Homeland Security and the principal
claimant proposed to the United States District Court that the
revocation of the visa petition be vacated without prejudice to the Department
of Homeland Security to institute a new visa revocation proceeding and to
reassess Mr. Popov’s status adjustment petition. No evidence was presented as
to whether or not this option has been accepted.
Impugned Decision
[19]
On
January 23, 2009, the RPD determined that the Applicants are not Convention refugees
as they do not have a well-founded fear of persecution in the United States.
[20]
The
RPD also found that the Applicants were not people in need of protection in
that their removal to the United States would not subject them personally to a
risk of their lives or to a risk of cruel and unusual treatment or punishment
and in that there are no substantial grounds to believe that their removal to
the United States will subject them personally to a danger of torture.
[21]
The
RPD found that Mr. Popov and Ms. Doubrovskaia are stateless persons as they are
not citizens of the United States or of the Russian Federation. It was also
found that they had a former residence in both countries.
[22]
The
RPD stated that stateless persons must show that they possess a well-founded
fear of persecution in any country of formal residence and that they cannot
return to any country of former residence. Also, as the Applicants are claiming
protection against the United States, they must establish a
fear of persecution in that country.
[23]
The
Applicants assert that they will be persecuted in the United States because they
have no legal status there. They fear recurrent imprisonment even though
they have not violated any criminal laws. Mr. Popov also asserts that he might
be specifically targeted on the basis of his political opinion or his imputed
political opinion.
[24]
The
RPD analysed the existence of state protection in the United States – the
Applicants’ country of habitual residence. It based its analysis on Hinzman
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413, 63
Imm. L.R. (3d) 13 (Hinzman), and found that the Applicants had not
rebutted the presumption of state protection with clear and concise evidence.
[25]
The
RPD found that the Applicants had not exhausted all domestic avenues open to
them. In the case of Mr. Popov, he had not appealed the denial for
adjustment of status or for cancellation of removal. As for Ms. Doubrovskaia,
after her initial application was lost, she never applied to have it reinstated
nor did she file a new application after the old one was lost.
[26]
The
RPD suggested that if the Applicants are returned to the United
States
and are arrested for not having status, they risk six months imprisonment at
the most. Also, they could agree to the removal order and then demonstrate to
American officials that they should be released as they can not be removed to Russia.
[27]
Once
this is done, they might receive a work authorization or supervision order. The
fact that social and health services would not be available to them and their
job opportunities limited is not persecutory but simply the exercise of a
country’s right to limit access to certain services.
[28]
The
RPD also found that the immigration laws in the United States are laws of
general application which are not persecutory in nature. It noted that countries
have the right to detain noncitizens and that in the United States, there is a
limit to the detention period. It also noted that the United States has
constitutional protection against indefinite detentions through habeas
corpus and provides for due process of law.
[29]
The
RPD noted that specifically in the case of alien removals, there is a limit on detention
if removal is not reasonably foreseeable or effectuated even if that limit was
not respected in Mr. Popov’s case.
[30]
In the cases of Maria
and Polina Doubrovskaia, the RPD found that they are citizens of the United States and had not asserted a claim for
protection against the United
States. As they relied on
the evidence of their parents, their claim must fail.
[31]
The RPD concluded by
remarking on the unfortunate circumstances that have befallen on the Applicants
who have had to rely on the charity of others to meet their daily needs and
lived with a fear of deportation for almost 15 years. The RPD also noted that
the Minister may want to consider allowing the Applicants to remain in Canada pursuant to section 25 of the Act.
Relevant Legislation
[32]
Immigration and
Refugee Protection Act, S.C. 2001, c.27
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the meaning
of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de
sa religion, de sa nationalité, de son appartenance à
un groupe social ou de ses opinions politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au
Canada et serait personnellement, par son renvoi vers tout pays dont elle a
la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à
une menace à sa vie ou au risque de traitements ou
peines cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à
celles-ci ou occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
|
Analysis
Preliminary question
[33]
The
Respondent objects to two documents filed as exhibits to Mr. Popov’s affidavit
in the Applicants’ Record and asks that they not be considered.
[34]
In
support of this judicial review, Mr. Popov filed two documents pertaining to
the current immigration detention system in the United States – a report
by Amnesty International and a newspaper article. These were not part of the
tribunal record as they were published later.
[35]
It
is trite law that a reviewing Court is bound by the record filed before the
federal board, commission or other tribunal the decision of which is under
appeal, unless there is jurisdictional issue before the court. If evidence not
before the initial tribunal is introduced on judicial review, the review
application would effectively be transformed into an appeal or a trial de
novo (Rahi v. Minister of Employment and Immigration
(28 May 1990), 90-A-1343 (F.C.A.), per MacGuigan J.A., Canada (Minister of
Citizenship and Immigration) v. Toledo, (1998) 143 F.T.R. 135 (F.C.T.D.) at
paragraph 7 (QL)).
[36]
In
this case, there is not a question of jurisdictional error before the Court and
I will therefore decide the matter without regard to the new
evidence.
Did the RPD err in finding that the
Applicants –the stateless individuals - must exhaust all avenues of state
protection in the United States before seeking refugee protection in Canada?
[37]
The
question as to whether a stateless individual must exhaust all avenues of state
protection in a country of former habitual residence is a question of law that
attracts a standard of review of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir)).
[38]
The
Applicants argue that as they are stateless individuals, they are not
subject to the presumption of state protection as set out in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Ward)
and further explained by the Federal Court of Appeal in Hinzman.
[39]
In
support of their argument they rely on Thabet v. Canada (Minister of
Citizenship and Immigration), [1998] 4 F.C. 21 (C.A.) (Thabet) and
other jurisprudence where this Court has found that an error was committed when
stateless individuals were made to refute the presumption of state protection
in all countries of former habitual residence.
[40]
The
Respondent submits that the stateless Applicants must establish both
that they would suffer persecution in the country of former habitual residence
and that they cannot return to that country. Whereas the minor Applicants,
being citizens of the United States, must make out their
claim against the United States.
[41]
The
Respondent argues that this view is in keeping with the view set out by the
Supreme Court of Canada that claimants who have national support should not be
accorded the protection of the international refugee protection (Thabet,
Ward).
[42]
Although it is true
that in Thabet, the Federal Court of Appeal creates a distinction
between stateless individuals and those who do have a state, one must read
further. The Court answered the certified question before it as follows:
In order to be found to be a Convention
refugee, a stateless person must show that, on a balance of probabilities he or
she would suffer persecution in any country of former habitual
residence, and that he or she cannot return to any of his or her
countries of former habitual residence. (Thabet at paragraph 30) [emphasis
added]
[43]
Thabet clearly set outs that it is not sufficient to simply be
unable to return to all countries of former habitual residence - the individual
must prove that they will suffer persecution in one of those countries.
[44]
In
this case, Mr. Popov and Ms. Doubrovskaia, being stateless individuals, must
establish that they would suffer persecution in either Russia or the United
States
– their countries of former habitual residence and that they cannot return to
the other. Although it is clear they cannot return to Russia, they have
made their claim against the United States and as such must prove
that they would suffer persecution in that country.
[45]
In order to do so,
they must prove not only a subjective fear but also an objective fear. This requires
that they rebut the presumption of state protection and are “required to prove
that they exhausted all the domestic avenues available to them before without
success before claiming refugee status in Canada” (Hinzman
at paragraph 46).
[46]
Consequently,
the RPD was correct in finding that the stateless Applicants must have
exhausted all domestic avenues in order to establish that they have a well
founded fear of persecution in one of their countries of former habitual
residence.
Did the RPD err in finding that the
Applicants had failed to exhaust all avenues of state protection in the United
States before coming to Canada?
[47]
In light of Dunsmuir,
Cervantes v. Canada (Minister of Citizenship and Immigration), 2008 FC 680,
[2008] F.C.J. No. 848 (QL) at paragraph 7 and Ruiz v. Canada (Minister of
Citizenship and Immigration), 2009 FC 337, [2009] F.C.J. No. 392 (QL) at
paragraphs 22 to 26, the standard of review for the Board's assessments of the
adequacy and availability of state protection is reasonableness. In applying this standard of review, the
Court examines “the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir at paragraph
47).
[48]
The Applicants argue
that they have indeed exhausted all relevant avenues of domestic protection
available to them.
[49]
In the case of Ms.
Dubrovskaia, she argues that she cannot seek a new visa as her first
application was misplaced and her U.S.S.R. passport has expired making it
impossible for her to make a new visa application. Accordingly, she contends
that there are no other avenues open to her.
[50]
Mr. Popov advances
that pursuing any further domestic avenues will not assuage the fear that
there is a risk that he will be returned to prison and, based on the ineptitude
that he has already witnessed, he could be detained for an excessive period of
time.
[51]
Furthermore, Mr.
Popov argues that the steps that he has already taken are sufficient and that
he has exhausted all reasonable avenues open to him. He also underlines that
the RPD recognized that due to the nature of his case, it is difficult to
determine whether he would actually succeed in his appeals if returned to the United States.
[52]
The Respondent alleges
that while the United States do not have an obligation to provide
protection to stateless individuals, this protection is in fact provided. In
this case, the Applicants have not exhausted all relevant domestic avenues
available to them as demonstrated by their ongoing legal proceedings.
[53]
The RPD concluded that
the Applicants had not exhausted all avenues of domestic protection. In
reaching that conclusion, the RPD not only identified the mechanisms of state
protection open to the Applicants and that they had called upon but also
identified the remaining avenues open to the Applicants.
[54]
The
reasons provided by the RPD are complete and provide a justification for the
conclusion reached. The RPD decision is reasonable and justified based on the
law and the facts of the case.
Did
the RPD err in finding that the Applicants do not have a well founded fear of
persecution and in finding that the immigration laws applied to the Applicants
were laws of general application and were not persecutory or applied to them
differently due to a Convention reason?
[55]
Turning now to the
question as to whether the Applicant’s fear of persecution is well founded and whether
the immigration laws are persecutory in nature. This is a determination that is
highly factual in nature, where the questions of law and fact are intertwined and
to which deference should be given. As such, it attracts a standard of review
of reasonableness (Dunsmuir at paragraph 51).
[56]
The
Applicants argue that they have been persecuted by the United States, through the
application of immigration laws to them. They allege that the way in which the
laws have been applied to them has violated their basic human rights.
[57]
The Respondent argues
that the RPD findings that the Applicants had not suffered persecution in the United States and that the immigration laws are not
persecutory or applied in a persecutory manner are reasonable.
[58]
As
pointed out by the RPD, the United States is a democratic country
with a system of checks and balances. The immigration laws, along with various
other laws, protect against arbitrary detention and detention for excessive
periods of time.
[59]
It
is certainly regrettable that those laws were applied in an inept fashion and
Mr. Popov's file has fallen through the cracks of the system and this has
caused much pain and suffering for both him and his family.
[60]
However,
on the face of the evidence in front of it, the RPD’s conclusion that the laws
are not persecutory and that they were not applied to the Applicants in a
persecutory manner is reasonable. The RPD identified the elements of the laws
in question and demonstrated that they are not persecutory per se and
then provided reasonable explanations why it concluded that the application of
these laws to the Applicants were not persecutory.
[61]
There
are no reviewable errors in the case at bar that warrant the Court’s
intervention.
[62]
The
Applicant proposes the following questions for certification:
1.
Is it always necessary for stateless claimant of refugee protection in Canada to carry a burden of proof that state protection in the
state(s) of their former habitual residency is not available for them?
2.
If the answer to question one is “yes”, then what is the meaning of the
distinction between subparagraphs (a) and (b) of paragraph 96 of [the] Immigration
and Refugee Protection Act?
[63]
The Respondent
submits that the Court should not certify the questions proposed by the Applicants.
[64]
The
Court agrees with the Respondent. The determinative issue in this case is the
finding by the RPD that the Applicants’ fear is not well-founded.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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