Date:
20130614
Docket:
IMM-7952-12
Citation:
2013 FC 653
Toronto, Ontario,
June 14, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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MAKSIMS VETCELS AND VLADIMIRS VETECLS
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants are brothers of Russian ethnicity who resided in Latvia and possess Latvian “non-citizen” passports. They came to Canada, Maksims Vetcels
[Maksims] first and a few months later, Vladimirs Vetecls [Vladimirs], upon
whose arrival they both claimed for refugee protection in Canada. In a decision dated July 17, 2012 a Member of the Refugee Protection Division
rejected their claims. This is a judicial review of that decision.
[2]
For
the reasons below I am dismissing this application.
[3]
Counsel
for the Applicants raised the following issues:
1. Were
the Applicants denied a fair hearing having regard to a discussion at the
outset of the hearing between the Member and Counsel for the Applicants?
2. Did
the Member err in law in denying the Applicants’ claims on the basis of state
protection—was state protection relevant?
3. Was
the Member’s assessment that Maksims was not credible reasonable?
4. Was
the Member’s analysis of persecution unreasonable?
I will address Issues #1 and #3
first and then Issues #2 and #4 collectively.
Issue #1
[4]
I
have reviewed the relevant portion of the transcript in question which it found
at pages 261 and 262 of the Certified Tribunal Record. I find that the Member heard
preliminary submissions as to whether the Applicants were citizens or nationals
of Latvia but, the Member left the matter open for later argument. There was no
denial of a fair hearing.
Issue #3
[5]
I
have reviewed the transcript, the Certified Tribunal Record and the Member’s
decision. I find that the determination that Maksims’ evidence was not
credible was reasonable.
Issues #2 and #4
[6]
These
two Issues require an examination as to the status of persons such as the
Applicants who hold “non-citizens” Latvian passports.
[7]
Historically,
in the 20th century Latvia was annexed into the Union of Soviet Socialist Republics [USSR] during which period a large number of ethnic Russians
relocated in Latvia. Subsequently the USSR dissolved and Latvia became an independent country with two major ethnic groups, Latvian and Russians. Latvia created a class of persons who were described as “non-citizens”. Largely this class
comprised those of Russian ethnicity. Non-citizens had some, but not all, of
the rights of citizens. Non-citizens could become full citizens upon passing
certain examinations. Non-citizens were restricted in travel abroad and in
voting, among other matters. The Member described the status of non-citizens at
paragraphs 5 and 6 of the Reasons under review:
[5] Political and organizational structuring
at independence left many Russians in Latvia without citizenship after Latvian
independence. Latvia corrected this, but due to what some see as a political
reminder, the “non-citizen” class was created. Latvia recognizes the social and
economic rights of the non-citizens, albeit with some discriminatory
provisions. These rights include diplomatic protection and a special passport
that permits visa-free entry to the Schengen region and to return to Latvia. Latvian non-citizens cannot be deported, despite the speculative fears of the
claimants. Additionally, all residents of Latvia have equal access to social
benefits, allowances and services. However, non-citizens are not granted
political rights and are barred from practicing certain professions; there are
restrictions on owning land. Mainly, the criticism is that since non-citizens
cannot vote, they cannot he considered nationals. This is not the same level of
discern that need be held for the purposes of determining nationality in a
refugee hearing. Latvia recognizes these ‘non-citizens’, issues them passports
and allows them the right to leave and return freely. It is furthermore within
the power of the claimants to apply for and obtain citizenship in Latvia. In fact, Vladimirs had already done so and was awaiting an invitation for the
written exam. Although the claimants believe the process is very hard and
complicated, there is no objective persuasive evidence to indicate Latvia is using testing to prevent Russians from obtaining citizenship in Latvia. In fact, tens of
thousands of Russians have already become citizens of Latvia since l995.5
[6] The claimants are nationals of Latvia for the purposes of assessment as noted above. However, even if this assessment is
incorrect, and I do not believe it is, then Latvia would most certainly be
their country of former habitual residence. The claimant continue to enjoy the
ability to return to Latvia, resided entirely in Latvia, were educated there,
worked there, had homes there, have family there and have the right to obtain
citizenship there by merely applying and passing certain tests, according to
the claimant which include history and language.
[8]
The
issues raised by Applicants’ Counsel require a consideration of section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27:
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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.
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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.
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[9]
Applicants’
Counsel argues that the “non-citizens” of Latvia do not have a “country of
nationality” as contemplated by section 96 thus only “persecution” is relevant
and “state protection” is irrelevant in considering their claim for refugee
protection.
[10]
The
position of a stateless person was considered by Justice Beaudry of this Court
in Popov v Canada (Citizenship and Immigration), 2009 FC 898. He wrote
at paragraphs 42 to 45:
[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).
[11]
A
similar situation was considered by Richard J. (as he then was) in Falberg v
Canada (Minister of Citizenship and Immigration), [1995] FCJ No 594 (QL)
where he wrote at paragraph 8:
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The applicant also argued that while the Refugee Division was correct in
finding that he could obtain permanent resident status in Estonia, such a finding is useless to him because he could not work unless he applied for
citizenship. The applicant also argued that the Refugee Division erred when it
determined he might be able to obtain citizenship upon his return to Estonia. In my view, the panel’s conclusions on this issue were not unreasonable on the
basis of the evidence before it. The central question before the Refugee
Division was not whether the applicant would be granted citizenship upon his
return to Estonia, but rather whether Estonia’s somewhat harsh policies
regarding the granting of citizenship and the limitations imposed upon
non-citizen permanent residents might amount to persecution within the meaning
of the definition. On this question, the applicant failed to demonstrate that
he might be persecuted because of his status as a permanent resident and that
the state would be unable to protect him.
[12]
In
the present circumstances the distinction between nationality or
non-nationality is irrelevant as the Member considered the Applicants’
situation both from the standpoint of state protection and persecution. State
protection was found to be adequate. Maksims’ evidence was not considered to be
credible but Vladimirs’ evidence as to persecution was considered both as to
individual circumstances and cumulatively. I consider that the Member’s
conclusions as the state protection and persecution to be reasonable. It is for
the Board to draw a line between persecution and discrimination or harassment.
The Member’s conclusions in that respect are reasonable.
[13]
I
find this case to be fact specific and no question will be certified. There
are no special reasons to order costs.
JUDGMENT
FOR
THE REASONS PROVIDED
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed;
2.
No
question is certified; and
3.
No
order as to costs.
"Roger T. Hughes"
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