Date: 20010530
Docket: IMM-1076-00
Neutral Citation: 2001 FCT 552
Ottawa, Ontario, this 30th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
EKATERINA KOLESNIKOVA
NIKITA KOLESNIKOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated February 7, 2000, of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board (the "Board"). In its decision the Board determined the applicants not to be Convention refugees.
[2] The applicants seek an order setting aside the above decision and returning the matter to the Board.
Background Facts
[3] The applicants are Ekaterina Kolesnikova (the "principal applicant") and her minor son, Nikita Kolesnikov. The principal applicant was born in Russia, but moved to Kazakhstan a year later and was a citizen thereof. The applicants entered Canada in 1995 and made claims for Convention refugee status. The applicants were denied Convention refugee status in 1997. After this decision, the applicants voluntarily relinquished their Kazakh citizenships and left Canada for the United States at the end of 1998. The applicants returned to Canada in March of 1999 and made new claims for Convention refugee status. The applicants based their claims on a well-founded fear of persecution in Kazakhstan on the ground of their Russian nationality.
[4] The principal applicant alleged the following in the narrative attached to her Personal Information Form: she lost her job in 1992 due to Kazakh nationalism; her son was harassed in school so she ultimately removed him from school; she was attacked at home by nationalists in 1994 and told to leave the country; she reported the incident to the police but they would not deal with ethnic matters; she received a threatening telephone call from someone with a Kazakh accent; she was threatened in a store by the same people who attacked her at home, these people grabbed her son who was injured and required stitches; her son was not given any anaesthetic when he was stitched at the hospital; in 1995 she was beaten and her apartment had been broken into, the police advised her to keep quiet and she felt forced to sell her apartment to the police for 25% of its market value.
[5] The hearing of the applicants' claim began October 27, 1999, but was adjourned until January 13, 2000. In finding the applicants not to be Convention refugees, the Board states the following at page 4 of its decision:
There is no evidence before the panel that the claimants could not attain Russian citizenship as a mere formality. The panel was guided by the case law in coming to this finding:
In the case of Bouianova, in the context of the break-up of the former Soviet Union, Mr. Justice Rothstein of the Trial Division stated:
In my view, the decision in Akl, is wide enough to encompass the situation of [a claimant] who, by reason of her place of birth, is entitled to be a citizen of a particular country, upon compliance with requirements that are mere formalities.
In my view the status of statelessness is not one that is optional for [a claimant]. The condition of not having a country of nationality must be one that is beyond the power of the [claimant] to control. Otherwise, a person could claim statelessness merely by renouncing his or her former citizenship.
In a series of decisions, the Trial Division has held that a claimant may be considered to be a national of a successor state (to the country of his former nationality), even if he or she does not reside in that successor state, where the evidence establishes that application for citizenship is a mere formality and the authorities of the successor state do not have any discretion to refuse the application.
The claimant voluntarily renounced her citizenship in order to stay in Canada. However, she is entitled to Russian citizenship and her application cannot be refused.
The claimant's family remains in Russia and could provide an address for them and some family support during the process of application for citizenship. The claimant said she has no fear of persecution either for herself or her son if she were to go to Russia.
[6] The Board gave alternative reasons if it were incorrect on the citizenship issue and stated at page 5 of the decision:
Even if the panel is incorrect in assessing the claimants' right to citizenship in the Russian Federation, and the claimants are stateless with Kazakhstan as their country of former habitual residence, the panel finds that the harm feared by the claimants, because of their Russian nationality, is a fear of discrimination only, and not a fear of persecution.
Issues
[7] 1. Did the Board err in ignoring evidence from the Russian
Consulate when it determined that the applicant, Ekaterina Kolesnikova was entitled to Russian citizenship as of right?
2. Did the Board err in finding that the applicants would not face
persecution in Kazakhstan?
Applicants' Submissions
[8] The applicants summarize the issues as follows:
Did the Board err in ignoring evidence from the Russian
Consulate when it determined that the principal applicant was entitled to Russian citizenship as of right?
The principal applicant submits she provided correspondence from the Russian Consulate which was entered into evidence at the hearing of her claim. The principal applicant contends the information provided by the Consulate clearly indicates that she would need to provide evidence of permanent status in Canada in order to be eligible for Russian citizenship. The Consulate letter indicates: "The most important piece of documentation that can allow us to start dealing with your case is a paper that proves that you permanently reside in Canada." The applicants submit this document was not mentioned in the Board's reasons and furthermore, that the Board completely ignored this evidence. The applicants submit the Board instead relied strictly on the wording of the Russian Citizenship Act in determining that the principal applicant was a Russian citizen.
[9] The applicants submit the case law clearly indicates the Board must take into account the totality of the evidence prior to rendering its decision. The following passage from page 41 of Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.) is offered:
A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
The applicants submit the evidence in their case was client-specific, as the letter from the Consulate was issued to the principal applicant after it received specific information about her. Had the Board considered this evidence, the applicants submit it might have reached a different conclusion.
[10] Did the Board err in finding that the applicants would not face persecution in Kazakhstan?
The Board gave alternative reasons. The Board found that if the principal applicant's claim was determined based on Kazakhstan as the country of former habitual residence (as she would be stateless), she did not face a well-founded fear of persecution in Kazakhstan. The Board decided that the documentation did not support a well-founded fear of persecution, as the applicants might only face discrimination upon return to Kazakhstan. The documentation the Board relied upon concerning country conditions reveals the government has been promoting Kazakh rights and that there have been human rights violations. The Board, in the applicants' submission, failed to refer to a highly relevant document from Nations in Transit, which indicates that although the constitution guarantees "equal treatment of Kazakhs regardless of their race, ethnicity, or religion. In practice, however, discrimination exists." The same document also indicates that the government does not defend the rights of non-Kasakh citizens. The applicants submit this is relevant to indicate that persistent and systematic discrimination may amount to persecution. Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (F.C.A.) is offered in support of this submission. The applicants again emphasize the above quoted passage from Cepeda-Gutierrez, supra.
Respondent's Submissions
[11] The respondent submits it is within the jurisdiction of the Board to assess the relevance of evidence when determining the presence of a well-founded fear of persecution. It is also the duty of the Board to assess the weight of the evidence. The respondent submits it was open to the Board to find that the applicants did not have a well-founded fear of persecution on the basis of the evidence before it. This evidence, among other things, included the following: the fact that the applicants relinquished their Kazakh citizenship in order to help them stay in Canada if their refugee claims were refused; the Russian Federation Citizenship Act; the fact that the principal applicant's
mother and brother still reside in Russia; and the decision of Justice Rothstein in Bouianova v. Canada (Minister of Employment and Immigration) (1993), 67 F.T.R. 74 (F.C.T.D.).
[12] The applicants have, in the respondent's submission, failed to provide any persuasive evidence or submissions demonstrating that the Board ignored evidence. The applicants have also failed to show how the Board erred in its factual finding that they were entitled to Russian citizenship. According to the respondent, to say the Board ignored the fact that the applicants would have to provide proof of Canadian permanent residence in order to obtain citizenship, is an inaccurate analysis of the applicants' own evidence.
[13] The respondent submits the Board did not err by not summarizing all of the evidence regarding country conditions. The respondent cites Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 at 318, where the Federal Court of Appeal noted "The fact that some of the documentary evidence is not mentioned in the Board's reasons is not fatal to its decision."
Relevant Statutory Provisions
[14] The definition of "Convention refugee" under the provision of the Immigration Act is:
| 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 the person's 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 the person's 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 1 thereof, which sections are set out in the schedule to this Act; |
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« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
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Analysis and Decision
[15] When this Court is reviewing a decision of the CRDD, it must be careful not to rehear the whole matter. If the decisions reached by the CRDD are reasonable decisions on questions of mixed fact and law, then it is not the role of this Court to substitute its own view for that of the CRDD. With this in mind, I will now review the decisions made by the CRDD.
[16] Issue 1
Did the Board err in ignoring evidence from the Russian Consulate when it determined that the applicant, Ekaterina Kolesnikova was entitled to Russian citizenship as of right?
A review of the decision shows that the Board reviewed the requirements of the Russian legislation for citizenship, applied the facts of the applicants' situation to the law, and decided that the applicants were entitled to Russian citizenship as of right. As the applicants had no fear of persecution in Russia, they did not meet the definition of Convention refugee with respect to thereto. The applicants argued that a letter from the Russian authorities stated that the applicants must prove they permanently reside in Canada. The Russian legislation makes no mention of permanent residence in another country if the other conditions are met. The applicants appear to meet the other conditions. Furthermore, I note that the letter states "permanently reside in Canada". The letter does not state that the applicants need be permanent residents of Canada as contemplated by the Immigration Act, supra. The applicants also argue that the Board did not refer to the letter in its reasons, however, it is not necessary that the Board refer to every piece of documentary evidence (see Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102). I am of the opinion that the decision of the CRDD was a reasonable decision and consequently, I should not interfere with this aspect of the decision.
[17] Issue 2
Did the Board err in finding that the applicants would not face
persecution in Kazakhstan?
The panel gave alternate reasons in the event that its decision on Russian citizenship was in error. The panel found that the harm feared by the applicants in Kazakhstan was discrimination and not persecution. The panel stated that it preferred certain documentary evidence to that documentary evidence of the applicants. This indicates to me that the panel considered all evidence before making its decision. It is my opinion that the panel's decision with respect to persecution in Kazakhstan is reasonable and thus, the panel did not make a reviewable error in its alternative reasons.
[18] The application for judicial review is dismissed.
[19] Neither party wished to certify a serious question of general importance.
ORDER
[20] IT IS ORDERED that the application for judicial review be dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 30, 2001
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1076-00
STYLE OF CAUSE: KOLESNIKOVA AND OTHERS v. MCI
PLACE OF HEARING: Toronto, Ont
DATE OF HEARING: January 24, 2001
REASONS FOR ORDER OF the Honourable Mr. Justice O'Keefe DATED: May 30, 2001
APPEARANCES:
Ms. Maureen Silcoff FOR THE APPLICANT
Mr. Toby J. Hoffmann FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Lewis and Associates FOR THE APPLICANT Toronto, Ont
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada