Date: 20030708
Docket: IMM-3674-02
Citation: 2003 FC 846
Ottawa, Ontario, this 8th day of July 2003
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
ALEXANDER ZILENKO,
MARINA ZILENKO,
VLADIMIR ZILENKO,
ANNA ZILENKO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER AND ORDER
[1] I find myself in substantial agreement with counsel for the respondent that this judicial review application must be dismissed.
[2] The applicants, a family unit composed of the parents and their two children who had emigrated to Israel from Russia in 1993, are at their second refugee claim seeking Canada=s protection; their first claim was dismissed by the Refugee Division on November 19, 1999.
[3] In that first claim the applicants, who are of Russian nationality and non-Jewish, feared persecution from an ultranationalist Jewish group. A further fear was expressed by Vladimir who had requested an exemption from military service on the ground he objected carrying arms, but was denied.
[4] After their first claim was refused the family did not challenge the decision and voluntarily left Canada going to Germany and staying there for a few weeks without making a refugee claim. The father, Alexander, and his daughter, Anna, tried to re-enter Canada but were immediately sent to Israel. The mother, Marina, and her son went to Mexico where they also did not make a refugee claim.
[5] I endorse the following arguments advanced by counsel for the respondent:
1 ° The tribunal properly applied the principle of res judicata (issue estoppel) to bar the claims of Marina and Vladimir Zilenko who did not return to Israel (see Vasquez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1769, and Telemichev v. Canada (Minister of Citizenship and Immigration, 2001 FCT 1103);
Counsel for the applicants argued res judicata did not apply because there was no final decision in either the first or second claims. His submission cannot be accepted.
The principle of res judicata applies to the first claim and not the second claim and, in this case, the first refugee determination was a final decision because it was not challenged and the applicants voluntarily departed. I add that in both Vasquez and Telemichev, supra, the situation was identical: the claimants voluntarily departed without challenging the first decision.
2 ° The tribunal did not limit the nature and scope of the applicants= fear of persecution to that related to compulsory service in Israel but rather considered their fear of becoming victims at the hands of Palestinian terrorists. The tribunal was not satisfied they were targeted personally or collectively as members of the non-Jewish, Russian community (see Rizkallah v. Minister of Employment and Immigration (1992),156 N.R. 1 (F.C.A.) and Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.));
Counsel for the applicants argues the tribunal failed to consider the ground of Russian nationality and being non-Jewish at least for the father and his daughter who had returned to Israel. The problem counsel faces is that this ground was not advanced before the second tribunal.
3 ° The issue of lack of state protection, by reason of the applicants= nationality and religion was not raised before the tribunal hearing their second claim B their fear and the evidence they gave was not that they would be denied state protection. There was no evidence before the tribunal on the point and I reject the suggestion of counsel for the applicants that lack of state protection can be inferred. Applicants must provide clear and convincing evidence (see Ward v. Re Attorney General for Canada, [1993] 2 S.C.R. 689 at 726).
4 ° The failure to claim refugee status when the opportunity arose while not a determining factor here is an important one to consider in evaluating true subjective fear (see Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758 (T.D.) and Thiruchelvam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1120). This case was not one of delaying to make a claim as argued by counsel for the applicants.
5 ° Lastly, counsel for the applicants quoted the following extract from Hathaway=s The Law of Refugee Status, at page 188:
Thus, while the general proposition is that the victims of war and violence are not by virtue of that fact alone refugees, it is nonetheless possible for persons coming from a strife-torn state to establish a claim to refugee status. This is so where the violence is not simply generalized, but is rather directed toward a group defined by civil or political status; or, if the war or conflict is non-specific in impact, where the claimant=s fear can be traced to specific forms of disfranchisement within the society or origin. [emphasis mine]
Counsel for the applicants argued the applicants, because of their ethnicity and religion, would be less likely to receive effective state protection in Israel than Jewish citizens would. The applicants provided no personal or documentary evidence through country reports to back up that argument. As a result, I rejected it.
ORDER
This judicial review application is dismissed. No certified question was proposed.
* François Lemieux +
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3674-02
STYLE OF CAUSE:
ALEXANDER ZILENKO,
MARINA ZILENKO,
VLADIMIR ZILENKO,
ANNA ZILENKO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: July 3, 2003
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Lemieux
DATED: July 8, 2003
APPEARANCES:
|
Mr. Jeffrey Platt
|
FOR APPLICANT
|
|
Ms. Gretchen Timmins
|
FOR RESPONDENT
|
SOLICITORS OF RECORD:
|
Mr. Jeffrey Platt
Montreal, Quebec
|
FOR APPLICANT
|
|
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec
|
FOR RESPONDENT
|
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