IMM-1732-96
BETWEEN:
HANUKASHVILI,
VALERI,
HANUKASHVILI,
RAFAEL,
HANUKASHVILI,
MAYA,
HANUKASHVILI,
NINO,
HANUKASHVILI,
ILANA,
Applicants,
-
and -
MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS
FOR ORDER
This is an application for
judicial review of the decision of the Refugee Division dated May 1, 1996,
determining that the applicant and his family are not Convention refugees.
The applicants are natives
of Georgia, which was part of the former Soviet Union. Valeri Hanukashvili is
the principal claimant, and the other members of his family referred to the
account filed by him in response to question 37 of the Personal Information
Form (PIF). According to the birth certificates filed at the hearing, Valeri's
father is Jewish and his mother is Russian, while Ilana's mother is Jewish and
her father Georgian.
In 1992, as an
ultra-nationalist movement was arising in Georgia and a civil war was being set
off, the applicants decided to leave the country. The family went to Moscow
where they attended at the Israeli consulate to obtain the papers they needed
in order to move to Israel. According to Mr. Hanukashvili's PIF, [translation] "[I]n Moscow, we were
told that all our papers were in order and that we could leave for
Israel." The family left Georgia for Israel on August 4, 1992.
When they arrived in Israel,
the State of Israel's Department of the Interior did not recognize the
applicants as Jewish because the documents they submitted were not originals.
Accordingly, their "teoudat zeut" (identity card issued by the
Department of the Interior) gives their nationality as
"unidentified".
The applicants left Israel
for Canada on August 27, 1994. They claimed refugee status on August 30, 1994.
Essentially, the applicants
contend that the Refugee Division erred in examining their claims solely as
they related to Israel, when the Board acknowledged that the Israeli government
had not accorded them Jewish nationality. They submit that when they left
Georgia in August 1992 they did not have Georgian citizenship, but rather had
the citizenship of the former Soviet Union. They therefore assert that, as a
result of the dissolution of the Soviet Union, they were stateless when they
arrived in Israel.
The nationality of a
claimant is a question of fact. It is important to recall the definition of
"Convention refugee" set out in subsection 2(1) of the Immigration
Act:
2(1) "Convention
refugee" means any person who
(a) by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(i) is outside the country of his nationality and is
unable or, by reason of that fear, is unwilling to avail himself of the
protection of that country, or
(ii) not having a country of nationality, is outside the
country of his former habitual residence and is unable or, by reason of that
fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by
virtue of subsection (2),
but does not include any person to whom the Convention
does not apply pursuant to section E or F of Article I thereof, which sections
are set out in the schedule to this Act.
The
concept of "nationality" as that expression is used to describe one
of the five grounds on which a person may base a refugee claim must not be
confused with the concept of nationality as it is used in subparagraph 2(1)(a)(i)
of the Act. While "nationality" does not mean the same thing as
citizenship, when the word "nationality" is used as one of the five
grounds, on the other hand, it means the same thing as citizenship for the
purposes of subparagraph 2(1)(a)(i) of the Act. On this point, Lorne
Waldman writes, at paragraph 8.126 of his book Immigration Law and Practice:
§ 8.126 The notion of nationality as one of the
five grounds for claiming refugee status was discussed at §8.104. While it was
suggested there that the context required a broad definition of nationality,
such is not the case here. It seems clear that, in the present context,
nationality means citizenship. This is so particularly because the
definition distinguishes between persons who have a country of nationality, and
individuals who do not. The latter must prove their claims with reference to
their country of former habitual residence. It is submitted that the country of
former habitual residence is intended to provide a country of reference for stateless
persons, i.e., persons who are not citizens of any state. This construction was
adopted by the Supreme Court of Canada in the leading decision of Canada
(Attorney General) v. Ward,
where the Court equated "country of nationality" with "country
of citizenship".
(Emphasis mine)
In
the instant case, the passports and identity cards indicate that the
applicants' nationality/citizenship is Israeli. They did not assert, either at
the hearing or in this application, that those documents are not valid or
genuine. In fact, in their Personal Information Forms, the applicants clearly
indicate that they have Israeli citizenship to the exclusion of any other, and
further state that they are not in the situation of having no country of
citizenship. Lastly, on the same forms, when they were asked about the country
or countries in which they fear persecution, they stated simply
"Israel".
Thus,
since the Refugee Division had no claim in respect of Georgia before it, and
had in fact determined that the applicants were all citizens of Israel, it had
to consider the applicants' claims only in respect of Israel. In this respect,
its conclusion that the applicants had no well-founded fear of persecution in
that country has not been challenged.
Accordingly,
the application for judicial review must be dismissed.
Like
counsel for the parties, I find that there is no question to be certified here.
O T T A
W A
March
27, 1997
Judge
Certified
true translation
C. Delon,
LL.L.
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT
FILE NO: IMM-1732-96
STYLE OF CAUSE:HANUKASHVILI, VALERI et al. v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: MONTRÉAL, QUEBEC
DATE OF
HEARING: MARCH 19, 1997
REASONS
FOR ORDER OF PINARD J.
DATED: MARCH
27, 1997
APPEARANCES:
Michel
Lebrun FOR
THE APPLICANTS
Ian
Hicks FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Michel
Lebrun FOR
THE APPLICANTS
Montréal,
Quebec
George
Thomson FOR
THE RESPONDENT
Deputy
Attorney General of Canada
Email this Content