Date: 20010330
Neutral Citation: 2001 FCT 262
BETWEEN:
RAFAELS JUZBASEVS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
McKEOWN J.
[1] The applicant seeks judicial review of a June 14, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") wherein the applicant's application for refugee status was denied.
Facts
[2] The applicant is an ethnic Armenian citizen of Azerbaijan and a permanent resident of Latvia.
[3] The applicant's refugee claim was grounded on a claim to a well-founded fear of persecution by reason of ethnicity. The applicant claimed that he was targeted in Latvia by nationalist extremist organizations and by Latvian state authorities due to his ethnic origins. He claims that he is perceived in Latvia as a Russian and a visible minority. The applicant described two alleged attacks by an extremist group called Peronkrust ("Thundercross") which he states he was unable to report to police because they would offer no protection and would not investigate the crimes. He also testified that he experienced violence in 1992, 1994 and 1996, and that he did report the latter two incidents to the police. He claims that the police did not investigate these attacks. (It appears that in one instance, he actually withdrew his complaint after being threatened.)
[4] The applicant made his refugee claim three months after arriving in Canada on a six-month visitor visa. He explains that he delayed making his claim because he was advised that if he made a claim immediately, his wife's application for a visitor visa might be denied.
Issues
1. Did the Board err by failing to apply the correct legal criteria for a determination of exclusion under Article 1(E) of the Convention?
2. Did the Board err in accepting the documentary evidence over that provided by the applicant in his testimony without a clear and reasonable explanation as to why it did so?
3. Did the Board err in making an unreasonable assessment regarding the issue of the applicant's delay in making his refugee claim?
Analysis
[5] The Board determined exclusion under Article 1(E) at the start of its reasons. The Board stated at page 1 of its reasons:
In the course of the proceedings, the claimant acknowledged, as did his counsel, that he possesses all the rights of return and freedom from deportation that would be attached to the status of a permanent resident in Latvia.
[6] The Board then rephrased this statement at page 2 in a manner which goes further than the admission by counsel:
As stated earlier, the claimant admitted that in fact he possessed all of the rights that are described as being provisional to an Article 1(E) country, and therefore, on a balance of probabilities, the panel is satisfied that the claimant should be excluded, pursuant to Article 1(E) of the 1951 Convention, by reason of his having rights and obligations in Latvia which are attached to the possession of nationality in the country, in conformation with the guidelines established in the Handbook at paragraph 144 to 146.
[7] The applicant submits that the Board should have considered more than merely whether or not he had the right to enter and leave Latvia, i.e. the Board should have examined whether or not the applicant could avail himself of social services and had the same rights to work in Latvia as do citizens of that country. The case law is not clear in this respect. In Hamdan v. Canada (M.C.I.), [1997] F.C.J. No. 364 (T.D.) (Q.L.), Jerome A.C.J. held that the applicant's rights to work and receive social services in the Philippines were critical. However, he also stated at paragraph 7 of his decision:
...It is not necessary to comment on whether the criteria laid out in Shamlou must all be satisfied for exclusion under Article 1(E), or whether other criteria may be relevant in some cases. The relevant criteria will change depending on the rights which normally accrue to citizens in the country of residence subject to scrutiny. In this case , it would appear to be critical that the applicant has neither the right to work, nor the right to receive social services in the Philippines.
[8] It would appear that determinations concerning Article 1(E) do not necessarily involve the strict consideration of all factors regarding residency, as the analysis depends largely on the particular nature of the case at hand. In this case, a member of the Board stated at page 10 of the transcript:
What we would like to hear about is basically why you consider yourself "stateless" and whether or not you have the right to return to Latvia. You have an alien's passport, so what rights does that confer upon you in terms of the rights of residence in Latvia. And this is in the context of what rights you have as a national or similar to nationality, in the context of Article 1(e) of the Convention, relating to the definition of a Convention refugee.
[9] Further, if the applicant was experiencing difficulty with his rights due to his lack of citizenship, it seems likely that he would have applied for citizenship after he had met the four year residency requirement. Since he married his wife (a Latvian citizen) in 1991, he would have become eligible to apply for citizenship in 1995. The applicant states that he was not aware of the four year residency requirement. The applicant's PIF stated that non-citizens in Latvia are restricted from getting jobs in some professions.
[10] At page 30, one of the Board members commented:
Sir, I'd just like to – I would think that it would be something, though, to obtain citizenship would be beneficial to your job prospects in Latvia, in the context that, you know – I mean, certain types of professions are cut off, the documentary evidence tells us, and you describe in your Personal Information Form – from non-Latvian citizens, a limited range of professions, such as in pharmaceuticals.
[11] At pages 42-3 of the transcript, the Refugee Claim Officer (RCO) made submissions, bringing to the Board's attention the following information contained in the 1999 Department of State country report for Latvia:
In 1998, the Cabinet of Ministers amended the regulations that distinguish between citizens and non-citizens in calculating social benefits and that these practises have been found to be consistent with international standards and practises that allow a state to limit government employment, political participation and some property rights to those persons who are citizens.
[12] In my view, in the circumstances of this case, the respondent met the onus establishing the operation of the exclusion clause on a balance of probabilities and the claimant has the rights and obligations of a national of the state in question. Once the respondent has made out the prima facie case, Article 1(E) applies and the burden of proof switches to the applicant, who must then establish that he does not have the ability to retain this status in the Article 1(E) country.
[13] With respect to the second issue, the applicant submits that the Board erred in accepting the documentary evidence over that provided by the applicant in his testimony without providing a clear and reasonable explanation. At page 5 of its reasons, the Board stated:
The preponderance of the documentary evidence does not accord with the depiction of events which the claimant mentioned in his testimony as leading to his departure from Latvia and his decision to leave and seek sanctuary elsewhere.
[14] However, this is simply a question of the Board weighing the evidence. The Board had evidence that indicated that the police had captured the leader of the organization that the applicant claims to fear ("Thundercross") and that that organization no longer existed. On the basis of the documentary evidence, the cause of the applicant's major fear no longer existed. The applicant set out other evidence to the effect that he was harassed, however it was open to the Board to prefer the documentary evidence over that of the applicant.
[15] The applicant also submits that the Board erred in its finding regarding the issue of delay. The Board heard the applicant's stated reasons for the three month delay in making his claim to refugee status. At page 8 of its reasons, the Board then decided not to accept the applicant's explanation as a reasonable basis for that delay, "given the serious consequences of potential return to the alleged persecutory nation." It is open to the Board to draw an adverse inference from the applicant's failure to make a refugee claim earlier. While the delay factor alone probably does not constitute enough of a basis to dismiss the applicant's refugee claim, it is a factor that can be considered by the Board in coming to its conclusion.
[16] The application for judicial review is dismissed.
"W.P. McKeown"
Ottawa, Ontario