Date: 20120628
Docket: IMM-2139-11
Citation: 2012 FC 827
Ottawa, Ontario,
June 28, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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ODESA
STAROVIC
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Applicant
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and
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MINISTER
OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGEMENT AND JUDGMENT
[1]
Section 108(2) of the Immigration and
Refugee Protection Act, SC 2001, c 27 provides that, on
application by the Minister, the Refugee Protection Division of the
Immigration and Refugee Board may determine that refugee protection
has ceased for any of the following reasons described in subsection 108(1) of
the Act:
(a)
the person has voluntarily reavailed themself of the protection of their
country of nationality;
(b)
the person has voluntarily reacquired their nationality;
(c)
the person has acquired a new nationality and enjoys the protection of
the country of that new nationality;
(d)
the person has voluntarily become re-established in the country that the
person left or remained outside of and in respect of which the person claimed refugee
protection in Canada; or
(e)
the reasons for which the person sought refugee protection have ceased
to exist.
[2]
In the decision under review, the Board found
that subsections 108(1)(a) and 108(1)(d), above applied to the applicant, and
accordingly allowed the Minister’s application to cease the respondent’s status
as a Convention refugee pursuant to s. 108(2) of the Act and rejected her
refugee claim pursuant to s. 108(3) of the Act.
[3]
For the following reasons this application must
be dismissed.
Background
[4]
The applicant is a citizen of the former
Yugoslavia of Croatian ethnicity. She lived in Sarajevo, now in Bosnia, until the war broke out in 1993; at that time she
fled to Belgrade, now in Serbia. She came to Canada in 1997 and claimed refugee protection
based on her mixed marriage to a Serb. On April 14, 1999, she was found to be
a Convention refugee.
[5]
She applied for permanent residency for herself
and her husband, who was in Serbia at the time. Her husband was determined to be inadmissible. The applicant
returned to Serbia in 2002, and
her application for permanent residency was deemed abandoned. She successfully
sought judicial review of that decision and the application for permanent
residence was reopened: see Starovic v Canada (Minister of Citizenship and Immigration), 2004 FC 1681 [Starovic No 1]. The applicant remains in Serbia; her application for permanent
residence was never processed.
[6]
Nearly five and one-half years after this Court
set her permanent residency application back to be processed, on May 10, 2010,
the Minister applied to cease the applicant’s refugee protection based on her
voluntary reavailment of protection and re-establishment in Serbia. The Minister noted that she
returned in June 2002 to visit her husband, who was ill at the time, and that
her application for a visa to come back to Canada was refused on August 12, 2002. She was issued a new Serbian
passport and national identity card in November 2008 and returned to Canada in
January 2009, but when that visa expired she again returned to Serbia in June 2009 and has remained there
since.
[7]
The Board allowed the application for
cessation. It found the applicant’s testimony by telephone to be generally
credible but found that some of her testimony and actions were not consistent
with an intention not to return to Belgrade after being afforded refugee protection.
[8]
The Board determined that the applicant’s
country of nationality had not changed, as Serbia is a successor state of the former Yugoslavia. It noted that Serbia continued to be a part of the Yugoslavian
federation after the federation became known as “Serbia and Montenegro” in 2003 and after Montenegro seceded in 2006, and that Serbia has existed as a republic since Yugoslavia was created in 1929. The Board
found that this continuity was further supported by the applicant’s successive
passports, as she reacquired a Yugoslavian passport in 1993 when she was in Belgrade and again reacquired a Yugoslavian
passport in January 2002 at the embassy in Ottawa before finally acquiring a Serbian passport in 2008. Further, the
Board noted that, in the past 20 years, the applicant had only ever lived in
Belgrade when she was outside of Canada, and therefore found that she has
always been a Serbian in that time, regardless of Serbia’s state of existence.
[9]
The Board found that she voluntarily re-availed
herself of protection in her country of nationality. It considered the United
Nations High Commission for Refugees Handbook and accepted that the applicant
reasonably returned in 2002 to be with her husband after he suffered a heart
attack. However, the Board found that her return to Serbia at that time was not unplanned, noting that she had acquired a new
passport in January 2002, which was several months before her husband became
ill, and that she testified that she would have had to return to visit her
husband even if he had not become ill. The Board further noted that the
applicant did more than merely obtain a passport – she returned to Serbia for
six years before her latest visit to Canada and has lived there since. It rejected the applicant’s argument
that the Yugoslavian and Serbian passports were passports of convenience,
noting that they were genuinely issued. The Board therefore found that she had
voluntarily reavailed herself of protection in her country of nationality.
[10]
The Board found that she had not voluntarily
re-acquired her nationality simply because she had never lost her nationality
in the first place. Given its determination that Serbia is a successor state to Yugoslavia, the Board also found that she had not acquired a new nationality.
[11]
However, the Board did find that the applicant had
voluntarily re-established herself in Serbia. It acknowledged that she left Canada because her husband was ill and was unable to return because she
was denied a visa, and that her recent departure resulted from the expiry of
her visa. Still, the Board found it unreasonable that the applicant and her
husband had not made any efforts to resettle in another country, as would be
expected if they genuinely feared persecution. The Board acknowledged the
peculiarity of the refusal of re-entry after the applicant left in 2002, given
that she had been found to be a Convention refugee, but found that this
unfairness did not overcome the findings described above.
Issues
[12]
The Court frames the issues raised by the
applicant to be the following:
1.
Did the Board have jurisdiction to decide the application for cessation
while the application for permanent residence was outstanding; and
2.
Is the Board’s decision reasonable?
Analysis
Jurisdiction
[13]
The applicant submits that the Board erred in
deciding the application before her application for permanent residence was
decided. She submits that the Board had discretion pursuant to Rule 68 and Rule
69(a) of the Refugee Protection Division Rules to refuse to hear the
cessation application until the application for permanent residence was
decided. She relies on Laneau v Rivard, [1978] 2 FC 319 (TD), wherein
this Court adjourned an inquiry into the possible breach of visa conditions
until the Minister had decided a prior application for a permit exempting the
applicant from those conditions. She suggests that the Board’s reference to
the “unfairness” of the situation means that the Board would have adjourned the
hearing, had it turned its mind to the issue.
[14]
This submission is premised on a
misunderstanding of the Court’s decision returning the application back to the
Board for reconsideration. The applicant is correct in noting that the Court
quashed the decision deeming her permanent residence application to have been
abandoned; however, the judgment of the Court, as described at para 12 of Starovic
No 1, was that the application be referred back “for further processing,
including the conducting of an interview abroad, if such an interview is deemed
to be required.” That decision resulted from an application for judicial
review to set aside a decision. It was not an application for mandamus,
nor was the Order that was issued an order in the nature of mandamus
that required the Minister to act. It is a mischaracterization to say, as the
applicant does, that the Court had ordered the application to be decided and
the respondent has failed to comply. There is nothing in the Court’s previous
Order that prevented the Minister from bringing the cessation application or
the Board from deciding that cessation application before the applicant’s permanent
residence application was decided.
[15]
As to the issue of an adjournment, the applicant
is correct that the Board had the discretion to adjourn the cessation
application until the application for permanent residence was decided; however,
the applicant never requested that the Board do so, despite having the
assistance of counsel at the cessation hearing. There was no requirement that
the Board do so on its own motion and the Board cannot be faulted when no
request for an adjournment was made by the applicant.
Reasonableness
[16]
I accept counsel’s submissions that for many
years the applicant had been trying to establish herself in Canada as a permanent resident; however,
despite his forceful submissions, I cannot find that the Board’s decision was
unreasonable.
[17]
The applicant’s return to Serbia in 2002 when her husband suffered a
heart attack should not be considered voluntary given the circumstances. As
counsel put it, “instinct took over reason.” However, her lengthy stay in Serbia after that return may be seen as
voluntary. It is true that Canadian officials prevented her from returning to
Canada for some reason, but it was reasonable for the Board to conclude that a
genuine refugee would have sought to resettle in another country rather than
remaining in Serbia while the
issue of her return to Canada
was sorted. Further, despite the husband’s illness precipitating the
applicant’s return in 2002, it was reasonable, given that she obtained a
passport several months before and given her testimony, for the Board to
conclude that she would have returned to Serbia even if her husband had not
become ill.
[18]
Although her instinct took over, it was not unreasonable
for the Board to rely on the applicant’s failure to make any inquiries about
obtaining permission prior to leaving Canada in 2002.
[19]
In any event, the Board’s decision is reasonable
in light of the applicant’s resettlement in 2009. Although she argues that she
was compelled to leave Canada
because her visa expired, she was still a Convention refugee at that time and
therefore could not have been required to leave. Rather than remain in Canada
and pursue her permanent residence application, however, she again returned to Serbia to be with her husband. In these
circumstances, the Board’s decision to vacate her refugee protection is
reasonable.
Conclusion
[20]
The applicant proposed as a certified question,
a question framed as follows: “Did the tribunal member err in concluding that
she lacked the authority to address the Minister’s bringing of a cessation
application without the Minister first having complied with the Court’s Order
to process Mrs. Starovic’s residence application?”
[21]
That is not a proper certified question. It is
not dispositive of an appeal of this decision in light of the fact that the
previous Court Order was not, as the question suggests, an Order that her
residency application be processed. As discussed above, it did not flow from
any mandamus application, and there was no impediment to the Minister or
the Board in acting as they did.
[22]
Like the Board Member, I too am troubled by the
unfairness of “the fact that after the Federal Court ordered [the applicant’s]
permanent residence application be referred back to the Minister for processing
because it has been improperly deemed abandoned, the Minister placed [her]
residency matter on hold pending the outcome of this cessation application.”
However, only the Minister, and not the Board or this Court, has jurisdiction
to waive strict compliance with the Act.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application for judicial review is denied and no question is certified.
"Russel W. Zinn"
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