Date: 20040907
Docket: IMM-5905-03
Citation: 2004 FC 1219
Ottawa, Ontario, September 7, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
KONSTANTIN ALEK GADELIYA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision rendered by the Refugee Protection Division of the Immigration and Refugee Board (Board), dated July 9, 2003. In that decision, the Board found the Applicant not to be a Convention refugee under the Immigration Act, R.S.C. 1985, c. I-2.
ISSUES
[2] The issues are as follows:
1. Did the Board err in finding the Applicant to have his habitual residence in Georgia rather than recognizing his Georgian citizenship?
2. Should the Board have recused himself because of a reasonable apprehension of biais?
3. Did the Board err in finding the Applicant to be lacking subjective fear of persecution?
4. Was the Board's analysis of the Applicant's credibility and of the documentary evidence patently unreasonable?
[3] For the reasons below, I answer the first question in the affirmative, I answer the second and the third questions in the negative and therefore, I do not need to address the fourth question. Consequently, I will dismiss this application for judicial review.
BACKGROUND
[4] The Applicant alleges a well-founded fear of persecution based on his political opinion and his Abkhazian nationality.
[5] Extracts of the Applicant's Personal Information Form (PIF) will be used to described the alleged facts in this case. The Applicant was born in Tkvarcheli, Abhkazia, USSR in 1954. He worked in Siberia for the Varioganeftegaz company from 1979 to 1990. In 1990, he was appointed by the Soviet Union as Vice-Minister to the Abhkazian Oil and Drilling Department. He had an office in Abkhazia and one in Moscow. After the collapse of the Soviet Union in 1991, he continued his position with the Abkhazian government.
[6] On August 14, 1992, a war broke out between Abkhazia and the central government of Georgia. The war lasted 16 months. The Vice-Minister of the Abkhazian government asked the Applicant to financially support the Abkhazian military in its efforts against the Georgian government. The Applicant refused. The Vice-Minister continued to ask for money for the next six months. The Applicant was labelled pro-Georgian by the Abkhazian government. He quit his position with the Abkhazian government in March 1993 and was hired as President of the Rostneftlitsenzinvest company in April 1993 in Russia. In April 1994, the Applicant found out through the mayor of Sukhumi, the capital of Abkhazia, that during the last meeting of the Abkhazian government, the Vice-Minister of Abkhazia had pressed the Minister responsible for border guards to issue an arrest warrant against the Applicant, which was subsequently done. The Applicant continued to receive calls from the Vice-Minister of Abhazia trying to convince him to come back to Abkhazi but the Applicant never went back.
[7] In 1994, while living in Russia, the Applicant started to have problems with the Russian mafia which threatened him and of kidnapping his children. He made numerous complaints to the police but without any result, so he made arrangements for his wife and children to come to Canada for their protection.
[8] In August 1996, six armed men, one of which was in a police uniform, forced themselves into the Applicant's house and demanded money. When the Applicant made another complaint to the police, they asked him for money in exchange for his protection. The Applicant stayed in Moscow to keep his business going, but he was afraid that he might get killed. He received many anonymous threatening phone calls.
[9] In July 1997, the Applicant left Moscow for Canada, where he joined his wife and children. He made a refugee claim, which he then abandoned as he returned to Moscow to pay the Russian mafia a ransom for his mother who had been kidnapped by them. In February 1998, the Applicant came back to Canada again and made a second refugee claim. This time, the claim was considered abandoned because he was not present at the hearing. He states that he never received the notice to appear. On February 22, 1999, the Applicant was removed from Canada to the United States, where he lived for one year and eleven months and where he made a refugee claim. The Applicant left the United States to come back to Canada without waiting for his American refugee claim to be processed. The Applicant is now re-applying a third time under the Immigration Act.
CONTESTED DECISION
[10] The Board came to the conclusion that the Applicant was neither a citizen of Russia nor of Georgia, which makes him a stateless person. It decided it would analyse the claim based on the Applicant having his habitual residence in Georgia.
[11] The Board concluded the Applicant lacked the subjective fear of persecution because he did not claim refugee status in Russia where he lived from 1993 to 1997 after fleeing Abkhazia, because he did not claim refugee status when he went back to Russia to help his mother and because he claimed refugee status in the United States where he lived for a year and eleven months and left for Canada without waiting for his claim to be processed.
[12] The Board also listed two points in which the Applicant's story lacked credibility. Finally, the Board found that the documentary evidence does not show that the Georgian authorities persecute Abkhazian people.
ANALYSIS
Residence vs citizenship
[13] The article Freedom in the World 2002; Georgia (exhibit A-9) indicates that there is no final agreement to the proacted conflict which began with the war in 1992 and therefore Abkhazia remains legally a part of Georgia. An Abkhazian national is a citizen of Georgia, as stated in the Law of the Republic of Georgia - On Citizenship of Georgia and the Constitution of Georgia.
[14] Counsel for the Applicant states that everyone agreed the Applicant's claim should be heard based on his fear of returning to Georgia. The Applicant himself recognizes that his fear to return to Georgia was examined by the Board despite the error made by the Board between citizenship and residence. Therefore, this error has no practical effect here (Miranda v. Canada (Minister of Employment and Immigration), [1993] 63 F.T.R. 81 (F.C.A.)).
Recusation of the Board member
[15] The Applicant alleges that the Board member should have recused himself as there was a reasonable apprehension of biais. In 1998, the same Board member had denied the Applicant's children and former wife's claim.
[16] The test for reasonable apprehension of biais is whether or not an informed person would think it more likely than not that the decision maker would unconsciously or consciously decide an issue unfairly (Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623).
[17] The Applicant argues that there are facts common to both the stories of the former wife and children and that of the Applicant. He also argues that the Board member mentioned the Applicant in a negative manner in the decision pertaining to the former wife and children. It should be noted that they were not claiming refugee status for the same reasons. In the case at bar, the decision was rendered in July 2003; there were no mention of the former wife's decision and no elements of her claim were considered here.
[18] As stated by the Federal Court of Appeal in Arthur v. Canada (Attorney General), 2001 FCA 223, [2001] F.C.J. No. 1091 (C.A.) (QL), at paragraph 8:
An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. [...] It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. It is often useful, and even necessary, in doing so, to resort to evidence extrinsic to the case. That is why such evidence is admissible in derogation of the principle that an application for judicial review must bear on the matter as it came before the court or tribunal.
[19] I conclude that there is not enough material evidence proving a reasonable apprehension of bias. In other words, I believe a well-informed person would not think that the Board member was unfair (Gonzales v. Canada (Secretary of State), [1993] F.C.J. No. 1305 (T.D.) (QL)).
Lack of subjective fear of persecution
[20] The Respondent argues, and I agree with him, that the Applicant did not demonstrate a subjective fear of persecution. The Applicant fled Abkhazia and went to live in Russia from 1993 to 1997 but he never claimed refugee status there. In addition, the Applicant went back to Russia after a stay in Canada but did not take this opportunity to claim refugee status in Russia at that time either. The Applicant explains that the Russian authority did not help him and would not protect him. I do not find that this justify his failure to claim refugee status, especially in light of the fact that the Applicant himself writes in his PIF that he "stayed in Moscow to keep my business going", which shows his situation was not that desperate since he stayed for quite a few years for economic reasons. He finally left Russia in July 1997 without stating what bad event or situation made him decide to leave.
[21] Moreover, the Applicant lived in the United States for a year and eleven months, claimed refugee status there but did not wait for the process of his claim to be completed before coming to Canada. Apparently, the Applicant was not aware he could return to Canada after 90 days in the United States. His desire to be with his children does not justify his not waiting for the results of his claim there.
[22] The Applicant's failure to claim refugee status in Russia and his failure to wait for the hearing of his claim in the United States reflects a lack of subjective fear. Since all refugee claimants must demonstrate an objective and subjective fear of persecution, the lack of subjective persecution is fatal to any claim (Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593; Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)). I do not need to examine whether or not the Board made other credibility findings that were patently unreasonable and whether or not the Board did a proper analysis of the documentary evidence.
[23] This application for judicial review is dismissed.
[24] The parties declined the opportunity to submit serious questions of general importance. I am satisfied that none arises out of this matter. Therefore, no question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5905-03
STYLE OF CAUSE: KONSTANTIN ALEK GADELIYA
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 1, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Beaudry
DATED: September 7, 2004
APPEARANCES:
Eleanor K. Comeau FOR APPLICANT
Sherry Rafai Far FOR RESPONDENT
SOLICITORS OF RECORD:
Eleanor K. Comeau FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec