Docket: IMM-5063-13
Citation:
2014 FC 658
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 7, 2014
PRESENT: The Honourable Mr. Justice Simon Noël
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BETWEEN:
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ALEX PETROV
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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ORDER AND REASONS
I.
Introduction
[1]
This is an application for judicial review pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA), of a decision dated July 11, 2013, by Haig Basmajian, a
member of the Refugee Protection Division of the Immigration and Refugee Board
of Canada (RPD), that the applicant is not a Convention refugee under section 96
of the IRPA or a person in need of protection under section 97 of the IRPA.
II.
Facts
[2]
The applicant, who declares himself stateless,
arrived in Canada on July 6, 2009, and claimed refugee protection that same day.
[3]
Before the RPD, the applicant alleged the
following facts. He was born in Russia and moved to Latvia with his family when
he was one and a half years old. He never obtained Latvian citizenship, and his
parents and grandparents were Russian citizens. After the collapse of the USSR,
residents of Latvia who did not have citizenship in that country became second-class
citizens. The applicant argued that he had a fear of persecution at the hands
of someone named Ulys Dundurs, a mafia leader in Latvia, who apparently
tried to extort his residence. The applicant claimed that the authorities were
of no assistance. The applicant purportedly contacted the Russian embassy in
Latvia to acquire Russian citizenship, but was told that that would take at
least two years. The applicant allegedly then left Latvia for Canada.
III.
Impugned decision
[4]
The RPD was satisfied as to the identity of the
applicant.
[5]
Ultimately, the RPD found that the applicant
could acquire Russian citizenship by means of a simple formality. One of the
explanations for that finding is the existence of programs and temporary
statuses that the applicant could prevail himself of in Russia. In fact, the
RPD noted that the applicant was born in Russia to Russian parents, that he
speaks the country’s language and lived there for a certain amount of time, and
that, in that country, in addition to various financial and social assistance
programs and a fast-track naturalization process, there is a program called the
State Program for Assisting Compatriots Residing Abroad in Their Voluntary
Resettlement in the Russian Federation (State assistance program), which helps
people in situations similar to that of the applicant. In addition, the
applicant could have obtained a temporary resident permit in Russia to work
there while his citizenship application was being processed. Acquiring Russian
citizenship would certainly involve a few administrative constraints, but the
applicant, who only contacted the Russian embassy once without necessarily
inquiring into the steps involved in a possible citizenship application, did
not prove that his application would be refused.
[6]
Furthermore, the applicant did not actually provide
other reasons as for why he could be persecuted in Russia, even though he seemed
to recognize the low likelihood of being chased by the Latvian mafia in Russia.
For these reasons, the RPD rejected the applicant’s refugee claim.
IV.
Issues
[7]
This case raised the following issue, which can
be divided into two sub-issues:
- Did the RPD err
by rejecting the applicant’s refugee claim on the ground that he could acquire
Russian citizenship by means of a simple formality?
- Did the RPD err by finding that the applicant could acquire
Russian citizenship by means of a simple formality?
- Is the fact that the applicant did not apply for Russian
citizenship, and thus did not seek protection from Russia, sufficient for
the RPD to reject his refugee claim?
V.
Standard of review
[8]
The first sub-issue is one of fact that is
therefore reviewable on the standard of reasonableness (see Williams v
Canada (Minister of Citizenship and Immigration), 2005 FCA 126 at
paragraph 17, [2005] FCJ No 603 (Williams)). This Court must therefore
show considerable deference with respect to that finding by the RPD.
[9]
The second sub-issue is one of law because it
concerns the interpretation of the provisions of the IRPA and must be reviewed
on the standard of correctness (Williams, above, at paragraph 18). The
RPD’s finding in that respect is not entitled to deference by the Court.
VI.
Arguments of the applicant
[10]
The applicant states that the RPD’s decision is
unreasonable because it does not rely on all of the evidence, but on elements
that are not relevant or determinative in the record.
[11]
First, it was wrong to conclude that the
applicant could, by means of a simple formality, acquire Russian citizenship. The
applicant could not have availed himself of the State assistance program in
Russia because it does not apply to people like him, that is, Russian speakers
without legal status in their country of residence, and because he is not
necessarily comfortable with the Russian society. The applicant would have been
forced to stay in Latvia, which was not an option.
[12]
Second, the RPD failed to analyze the issue of
the ability of the Latvian authorities to protect the country’s residents,
especially in the case of people of Russian origin who are having problems with
the Latvian mafia. Furthermore, the applicant fears for his life notably
because of Latvia’s inability to protect its residents.
VII.
Argument of the respondent
[13]
According to the respondent, because the RPD
found that the applicant could acquire Russian citizenship by means of a simple
formality, it examined the applicant’s fear with respect to that country in
particular. The applicant himself stated that it is unlikely that be would be
sought in Russia by the people he fears in Latvia, and he also did not submit
any evidence in that regard. Furthermore, the fact that the applicant did not
take steps to acquire Russian citizenship shows a lack of subjective fear in
respect of Russia.
[14]
According to the case law, it is completely
reasonable to reject an applicant’s refugee claim if it is established that the
applicant could acquire the citizenship of a country with respect to which the
applicant has no fear of persecution. The RPD’s decision is also reflective of
the meaning given to the concept of “mere formality” by the case law. In
addition, the applicant does not raise any valid argument to support a finding that
the State assistance program would not be available to him.
VIII.
Analysis
[15]
The application for judicial review in this case
will be dismissed.
1.
Did the RPD err by finding that the applicant
could acquire Russian citizenship by means of a simple formality?
[16]
Relying on the evidence before it, the RPD found
that the applicant “did not demonstrate that his application for Russian
citizenship would be refused” and that he “could obtain Russian citizenship by
means of a simple formality.” (RPD’s Reasons for Decision, at paragraphs 30 and
33). For the following reasons, that finding is reasonable given the evidence
in the record and the applicant’s testimony before the RPD.
[17]
In Williams, supra, the Federal
Court of Appeal summarized the applicable law in a case such as this:
[21] In another decision rendered before the Supreme Court of
Canada rendered its own in Ward, Bouianova v. Minister of Employment
and Immigration (1993), 67 F.T.R. 74, Rothstein J. (sitting then in the
Trial Division of the Federal Court of Canada) broadened the holding of our
Court in Akl. He held that if, at the time of the hearing, an
applicant is entitled to acquire the citizenship of a particular country by
reason of his place of birth, and if that acquisition could be completed by
mere formalities, thereby leaving no room for the State in question to
refuse status, then the applicant is expected to seek the protection of that
State and will be denied refugee status in Canada unless he has demonstrated
that he also has a well-founded fear of persecution in relation to that
additional country of nationality.
[22] I
fully endorse the reasons for judgment of Rothstein J., and in particular the
following passage at page 77:
The condition of not having a country of
nationality must be one that is beyond the power of the applicant to control.
The true test, in my view, is the following: if
it is within the control of the applicant to acquire the citizenship of a
country with respect to which he has no well-founded fear of persecution, the
claim for refugee status will be denied. While words such as “acquisition
of citizenship in a non-discretionary manner” or “by mere formalities” have
been used, the test is better phrased in terms of “power within the control of
the applicant” for it encompasses all sorts of situations, it prevents the
introduction of a practice of “country shopping” which is incompatible with the
“surrogate” dimension of international refugee protection recognized in Ward
and it is not restricted, contrary to what counsel for the respondent has
suggested, to mere technicalities such as filing appropriate documents. This
“control” test also reflects the notion which is transparent in the definition
of a refugee that the “unwillingness” of an applicant to take steps required
from him to gain state protection is fatal to his refugee claim unless that
unwillingness results from the very fear of persecution itself. Paragraph
106 of the Handbook on Procedures and Criteria for Determining Refugee
Status emphasizes the point that whenever “available, national protection
takes precedence over international protection,” and the Supreme Court of
Canada, in Ward, observed, at p. 752, that “[w]hen available, home state
protection is a claimant's sole option.”
[23] The
principle enunciated by Rothstein J. in Bouianova was followed and
applied ever since in Canada. Whether the citizenship of another country was
obtained at birth, by naturalization or by State succession is of no
consequence provided it is within the control of an applicant to obtain it.
(The latest pronouncements are those of Kelen J. in Barros v. Minister of
Citizenship and Immigration, 2005 FC 283 and Snider J. in Choi v. Canada
(Solicitor General), 2004 FC 291.)
[Emphasis added.]
(Williams, above, at paragraphs 21-23.)
[18]
Thus, according to that decision, in order for
an applicant to be denied his or her refugee claim on the basis that he or she
could acquire the citizenship of another country, (1) it must be within the
control of the applicant to acquire the citizenship and (2) the applicant must
not have a well-founded fear of persecution in that country.
[19]
POWER TO ACQUIRE CITIZENSHIP IN RUSSIA – To that
end, decisions that cite Williams have established that the extent to
which an applicant has control over a possible citizenship application is a
critical issue (see, for example, Kim v Canada (Minister of Citizenship and Immigration),
2010 FC 720 at paragraphs 8-9, [2010] FCJ No 870). The RPD therefore had to consider
whether, given the measures in place in Russia, it was within the control of
the applicant to obtain citizenship in Russia.
[20]
In its reasons, the RPD listed a series of
measures potentially available to the applicant, and the applicant seems to
disagree with only one of them, that is, the State assistance program. In this
case, the applicant claims that the RPD erred by stating that he could acquire
Russian citizenship by means of a simple formality, namely by availing himself
of that program, and he raises two arguments in that respect that these reasons
will address in the following paragraphs.
[21]
First, the applicant argues that he could not
participate in the State assistance program because he left Russia when he was
very young and, consequently, that he is not necessarily comfortable with the
Russian society. I find that that is an argument that the applicant did not
submit to the RPD when he had the opportunity to do so and that that statement
does not appear in the applicant’s affidavit.
[22]
Second, the applicant claims that the State
assistance program cannot apply to him because the program does not apply to
Russian speakers who do not have legal status in their country of residence. The
respondent correctly points out that, according to one of the Responses to
Information Requests prepared by the Research Directorate of the Immigration
and Refugee Board, a document that was before the RPD at the time of its
decision, a “compatriot”, for the purposes of the State assistance program, is
described namely as “former USSR citizens who are living in states that were
part of the USSR, regardless of whether they became citizens of another state
or are stateless” [Emphasis added.] (Responses to
Information Requests (RIR) – RUS103900.E, certified tribunal record, at page
161). That definition applies directly to the situation of the applicant, who
declares himself stateless, but who lived in the USSR after leaving Russia.
[23]
As a result, I am of the opinion that it was
reasonable for the RPD to find that the applicant could avail himself, as one
of the measures available, of the State assistance program to acquire Russian
citizenship, especially since, according to the evidence in the record, the
applicant could have applied for a temporary residence permit in Russia and
worked there while his citizenship application was being processed, thus avoiding
spending the application processing period in Latvia (RIR – RUS103900.E, certified
tribunal record, at page 161).
[24]
The Court notes that, in any event, the
applicant simply did not have the intention to acquire Russian citizenship or
remain in Russia (see the certified tribunal record, at page 283). He could
have filed an application in that regard, but decided not to because his
intention was to go elsewhere.
[25]
Consequently, this Court is of the opinion that
it was reasonable for the RPD to find that the applicant could have acquired
Russian citizenship, that is, that it was within his control to acquire it
given the measures in place in that country.
[26]
NO WELL-FOUNDED FEAR OF PERSECUTION IN RUSSIA –
Having reached the conclusion that the applicant could acquire Russian
citizenship, the RPD had to then determine whether the applicant established
that he would face a well-founded fear of persecution in Russia. The RPD found
that he had not and this Court agrees.
[27]
The applicant was questioned on a possible fear
of persecution or threat to his life in Russia—and not Latvia—and was unable to
submit evidence concerning the profiles of people who could search for him in
Russia. Furthermore, the applicant did not provide reasons, apart from the
Latvian mafia, as to why he could be persecuted in Russia. The threat from the
applicant’s persecutor existed as long as he stayed in Latvia. For the
applicant, it was important to leave that country. As long as he stays outside
Latvia, be it in Russia or elsewhere, he is safe (see the certified tribunal
record, at page 336).
[28]
As raised by the respondent, it was therefore
reasonable to conclude from such statements that the applicant does not have a
fear of persecution in Russia.
[29]
Because the applicant did not have a fear of
persecution in Russia and because it was within his control to obtain
citizenship in that country, it was completely reasonable for the RPD to find
that the applicant could have acquired Russian citizenship by means of a simple
formality. That finding cannot warrant the Court’s intervention.
[30]
Alternatively, it should be noted that, having
already found that it was reasonable to expect the applicant to take steps to acquire
citizenship in Russia, where he would not be at risk of persecution, the RPD was
under no obligation to consider the issue of persecution in Latvia or that
country’s ability to protect its residents.
2.
Is the fact that the applicant did not apply for
Russian citizenship, and thus did not seek protection from Russia, sufficient
for the RPD to reject his refugee claim?
[31]
As noted above, that issue has already been
determined by previous jurisprudence: in fact, the rejection of an applicant’s
refugee claim is justified if the applicant could have acquired citizenship in
another country and if the applicant did not face a well-founded fear of
persecution in that country. In this case, the analysis of the first sub-issue
already supports the finding that the applicant’s situation meets those
criteria. I am therefore of the opinion that the RPD was correct when it rejected
the applicant’s refugee claim.
[32]
As a result, this Court finds that the
applicant’s submissions are unfounded.
[33]
The parties were invited to submit a question
for certification but none were proposed.
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