Docket:
IMM-5102-13
Citation: 2014 FC 209
Ottawa, Ontario, March 4, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ALEKS THERQAJ
SILVANA THERQAJ
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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 jurisprudence, as per Zeng v Canada
(Minister of Citizenship and Immigration), 2010 FCA 118, [2011] 4 FCR 3,
clearly states that, as per prima facie evidence of permanent resident status,
the onus is on an applicant to establish whether, or not, that status was lost.
[2]
This is an application for judicial review of
the decision of the Refugee Protection Division [RPD] of the Immigration and
Refugee Board [IRB], wherein it was determined that the Applicants’ were not
Convention refugees nor persons in need of protection as per sections 96 and 97
of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA].
[3]
In the view of the Court, the RPD did not err in
denying the Applicants’ application.
[4]
The principal Applicant fled Albania in 1997 due to a blood feud which was initiated in 1985. In 2010, he received a
permanent “Greek Permit Stay” subsequent to receiving a work permit. It is
significant to note that the Applicants did travel to Albania on occasion on travel documents that were not Greek after having claimed potential peril in Albania. It is also noted, as per the evidence, that the associate Applicant’s status in Greece is associated to that of her husband, the principal Applicant; and, the status of
the principal Applicant was not in doubt by the RPD as per the evidence.
[5]
The disagreement of the Applicants is with the
assessment of the evidence; that does not constitute a case for judicial
review. (Specific reference is made to para 12 and 13 of Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708.)
[6]
The Applicants are Albanian citizens with
residence in Greece. They have a right of return to Greece. The principal
Applicant had obtained a permanent residence permit, one he had learned was, in
fact, permanent in nature.
[7]
The jurisprudence, as per Zeng, above, clearly
states that, as per prima facie evidence of permanent resident status, the onus
is on an applicant to establish whether, or not, that status was lost.
[8]
The permanent residence document of the
principal Applicant constitutes proof of his status in Greece. The Applicant associated with the principal Applicant has renewable status on the
basis of family reunification grounds with that of the principal Applicant. She
testified before the RPD that her permit enabled her to be educated, obtain
medical services, as well as other services, available to the Greeks. She could
also move throughout the country.
[9]
Both Applicants, as determined by the RPD, are excluded
from the definition of “Convention Refugee” or “persons in need of protection”
due to Article 1E of the Convention. Article 1E of the United Nations
Convention Relating to the Status of Refugees states: “This Convention
shall not apply to a person who is recognized by the competent authorities of
the country in which he has taken residence as having the rights and
obligations which are attached to the possession of the nationality of that
country [claimed by the Applicants].”
[10]
The RPD did consider the evidence before it as
presented at the time of the hearing; and, concluded that the Applicants were
in a different position than most immigrants in that respect; they both have
legal status in Greece. They had neither been refused services, nor were they
mistreated by any entities of the State; and, they had become long-established
in Greece.
[11]
Therefore, due to all of the above, State
protection had not been rebutted by the Applicants. No failure could be
demonstrated by the Applicants as to their access to State protection.
[12]
The disagreement as to weight given to the
evidence by the RPD is not a cause for review. The decision of the RPD was
reasonable on the basis of fact and law.
[13]
Therefore, the Applicants’ application for
judicial review is dismissed.
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