Ottawa, Ontario, November 7, 2005
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 29, 2004, wherein the Applicant was determined not to be a Convention refugee nor a person in need of protection.
[2] The Applicant, Georgi Lolua, seeks an order that the determination of the Board be set aside and the matter referred back to a differently constituted panel for a new hearing.
2. Factual Background
[3] The Applicant was born on October 5, 1974, in Tbilisi in the former Union of Soviet Socialist Republics (USSR). Tbilisi is located in what is now the independent state of Georgia. The Applicant has never resided in what is now Russia, even though, at birth he was a citizen of the USSR. The Applicant submits that he never formally took out Georgian citizenship rather, he suggests that he became a Georgian citizen by operation of law.
[4] The Applicant=s mother is Russian and his father is Abhasian. Abhasia is a small region of Georgia comprising a distinct ethnic group. In 1991, the USSR dissolved and Georgia declared its independence. In 1992, the people of Abhasia wanted to separate from Georgia; a military conflict ensued during which, according to the Applicant, the Georgian government was attempting to get rid of non-Georgian people.
[5] The Applicant claims to have a well-founded fear of persecution in Georgiabecause of his part-Abhasian, part-Georgian ethnicity. He claims that different military and paramilitary groups approached him and threatened to kill him and his family if he did not join their ranks. He also alleged that one of his neighbours attacked him and that, due to his ethnicity, he would be unable to obtain state protection in Georgia.
[6] The Applicant lived and worked in Greece from 1993 to 2001, where he did not obtain legal status. He arrived in Canada in August 2001 and filed his refugee claim on February 14, 2002.
[7] The hearing took place before the Board on March 12, 2004, and the negative decision was rendered on October 29, 2004. Leave to commence the within application was granted on June 7, 2005.
3. Impugned Decision
[8] The Board was satisfied that the Applicant had established his personal identity as required by section 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). The Board found he was a Russian citizen.
[9] The Board accepted the authenticity of the Applicant=s USSR passport. It is not disputed that this passport was issued by the Ministry of the Interior of Georgia. The Board rejected the Applicant=s claim that he was a citizen of Georgia. It found that he had never Aformally@ obtained Georgian citizenship. It accepted, however, that the Applicant had a Georgian internal passport with residence registration in Georgia and that his nationality is listed as Georgian in his internal passport. It is also not disputed that his internal passport is not a passport of convenience. The Board held that a passport is prima facie evidence of citizenship and concluded that the Applicant did not rebut the presumption that he is a citizen of Russia. The Board was satisfied that the Applicant=s USSR passport issued on January 2, 1993, two years after Georgia became an independent country is prima facie proof that he is a Russian citizen and not a Georgian citizen as he claimed.
[10] The Board found that since the Applicant advanced no claim against Russia, other than a general statement that he fears persecution in Georgia and Russia, his claim must fail. The Board determined he did not establish that his is a Convention refugee from the country of his nationality, namely Russia.
[11] The Board also determined that the Applicant had not lost his Russian citizenship as a result of his spending eight and a half years in Greece.
[12] The Board concluded that the Applicant is neither a Convention refugee nor a person in need of protection.
4. Issue
[13] The following issue raised by the Applicant is determinative of this application: Whether the Board=s finding that the Applicant is a citizen of Russia is an erroneous finding of fact made capriciously and without regard to the evidence?
5. Analysis
[14] The Board=s decision turns on factual findings it made in respect to the Applicant=s identity documents, namely the Applicant=s passport. This Court has established that the applicable standard of review is that of the patently unreasonable decision. [See Adar v. Canada(Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35.]
[15] The Board essentially based its decision on the well established presumption referenced in section 93 of the United Nations High Commissioner for Refugees Handbook on procedures and criteria for determining refugee status, that APossession of [a national] passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise.@: (Radic v. M.E.I (1994), 85 F.T.R. 65 at p. 65). The difficulty with the Board=s decision is that the Applicant=s passport, on its face, states that he is a citizen of the USSR, not Russia. By applying the presumption to the Applicant=s circumstances would at best lead to the conclusion, absent evidence to the contrary, that the Applicant is a citizen of the USSR. There is no evidence on the record to establish that since the dissolution of the USSR, citizens of the USSR are de facto citizens of Russia. In my view, the presumption finds no application in the circumstances. It would be more likely to infer that the Applicant is a citizen of Georgia since he was born there, applied for his passport at the Georgian Ministry of the Interior and testified that he never resided in Russia. Further, Georgia was just as much a part of the former USSR as is Russia. In my view the Board=s determination that the Applicant is a citizen of Russia is an erroneous finding of fact made capriciously and without regard to the evidence. Based on this erroneous finding, the Board concluded that the Applicant advanced no claim against Russia, his country of nationality, and therefore his claim for refugee protection cannot succeed. As a result the Board failed to consider the merits of the Applicant=s claim. In making it finding in respect of the Applicant=s nationality and by concluding as it did, I am of the view that the Board committed a reviewable error.
[16] My above finding is determinative of the within application. It is not therefore necessary, nor desirable, to deal with the other issues raised in the matter.
6. Conclusion
[17] For the above reasons the application for judicial review will be allowed. The matter will be referred back to a differently constituted panel for reconsideration.
[18] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the IRPA, and have not done so. I am satisfied that no serious question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed.
2. The matter will be referred back to a differently constituted panel for reconsideration.
3. No question is certified.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9674-04
STYLE OF CAUSE: Georgi Lolua v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 31, 2005
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Howard P. Eisenberg FOR THE APPLICANT
Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Howard P. Eisenberg FOR THE APPLICANT
Hamilton, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada