Date: 19990812
Docket: IMM-4090-98
Ottawa, Ontario, the 12th day of August 1999
Present: The Honourable Mr. Justice Pinard
Between:
ALEXANDER MISHAK
JEAN MISHAK
TATYANA MISHAK
ALEXANDER KOVALIOV
Applicants
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review of the Convention Refugee Determination Division decision dated July 8, 1998, determining that Alexander Mishak, the children Jean Mishak and Alexander Kovaliov and his wife Tatyana Mishak are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19990812
Docket: IMM-4090-98
Between:
ALEXANDER MISHAK
JEAN MISHAK
TATYANA MISHAK
ALEXANDER KOVALIOV
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a Convention Refugee Determination Division decision dated July 8, 1998, determining that the applicants are not Convention refugees.
[2] Alexander Mishak, his wife Tatyana Mishak and their child Jean Mishak are citizens of Israel. The child Alexander Kovaliov is the son of the applicant Tatyana Mishak and was born in the Ukraine, of her first marriage. All of the problems the applicants raised before the Refugee Division relate to the status of the child Alexander, who is stateless, according to them. It is worth reproducing the Refugee Division"s finding as stated in its decision:
[TRANSLATION]
| Having regard to all the evidence in the record, we are of the opinion that the claimants have not discharged the burden of providing clear and convincing proof of the state of Israel"s inability to protect them [Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689] and that there would be no reasonable chance [Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680] that they would be victims of persecution if they had to return to Israel. |
| The fact that Alexander Mishak cannot adopt the child Alexander for the time being is not a ground of persecution, in light of the "Convention refugee" definition. |
| Therefore, the Refugee Division declares that Alexander MISHAK, the children Jean MISHAK and Alexander KOVALIOV and his wife Tatyana MISHAK are not "Convention refugees" as defined in subsection 2(1) of the Immigration Act . |
[3] The only issue the applicants raised in their factum reads as follows:
| Whether the Refugee Division based its decision on erroneous findings of fact and law by considering: |
| THAT the applicant Alexander Kovaliov is not a stateless person. |
[4] Assuming, without deciding, that the child Alexander Kovaliov is stateless, that would not in itself be sufficient reason for this Court to find that each of the applicants has a well-founded fear of persecution in Israel or the Ukraine for one of the five Convention grounds as defined in subsection 2(1) of the Immigration Act.
[5] In Arafa v. M.E.I. (1993), 70 F.T.R. 178, Mr. Justice Gibson held that being stateless does not necessarily mean that a claimant is a refugee; fear of persecution for one of the five Convention grounds must still be established. The following passage is taken from pages 179-180 of the decision:
| The definition of "Convention refugee" is contained in s. 2 of the Immigration Act and is in the following terms: |
| "2. "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 hereof, which sections are set out in the schedule to this Act;" |
| Clearly from this definition, stateless persons, those not having a country of nationality, may be Convention refugees. But equally clearly, not every stateless person is a Convention refugee. (See Grahl-Madsen, Atle, The Status of Refugees in International Law, A.W. Sijthoff-Leyden, 1966, vol. 1, p. 77: |
| . . . |
| In order for a stateless person who is outside the country of his or her former habitual residence and who is unable to return to that country to be a Convention refugee, he or she must find himself or herself in that situation by reason of a well-founded fear of persecution for one or more of the reasons cited in the definition. Despite the fact that the applicant gave evidence before the CRDD to the effect that he most likely would be able to return to the UAE for short and well-defined periods to visit his family, I conclude that the applicant fits within the definition if he has a well-founded fear of persecution for one or more of the Convention reasons. |
| . . . |
| I find that the conclusion of the CRDD that the applicant did not have a well-founded fear of persecution for a Convention reason but was rather an "ordinary stateless person" and therefore not a Convention refugee was reasonably open to it on the basis of the facts before it. I find no reason, therefore, to interfere in the decision of the CRDD. |
| (Emphasis added.) |
[6] Counsel for the applicants" last-minute attempt before me to add to her factum and argue a well-founded fear of persecution in Israel for each of the applicants met with a strenuous objection by the respondent, who referred in particular to the judgment of the Federal Court of Appeal in Sola Abel Lanlehin v. M.E.I. (March 2, 1993), A-610-90. In that case, Mr. Justice Décary said the following:
| This case raises disturbing questions as to the validity of the decision of the Refugee Division, and specifically as to the participation of one of the two members in the reasons for the decision. These questions were not, however, raised by the appellant in his memorandum, and it may be that, had the respondent known in time, she would have been able to explain the contradictions that are apparent on the record. At this point, we cannot assume that the decision is invalid and we are of the opinion, in the circumstances, that the appeal should be dismissed. |
[7] A similar objection was also allowed by Mr. Justice Richard, who, also based on Lanlehin, supra, in Kioroglo v. Canada (M.C.I.) (1994), 86 F.T.R. 87, said the following at pages 89-90:
| Counsel for the applicants sought to introduce a further ground at the hearing, one which did not appear in the application. Counsel for the respondent objected, citing Sola Abel Lanlehin v. Canada (Minister of Employment and Immigration of Canada) (March 2, 1993), No. A-610-90 (F.C.A.). In the reasons for judgment of the Court delivered from the bench by Décary J.A. at Montréal, on Tuesday, March 2, 1993, there is the following: |
| . . . |
| The ground which counsel for the applicants wished to raise at the hearing does not constitute a new fact, for it is founded on elements in the transcript of the CRDD hearing, where the applicants were represented by counsel, and on a decision of this Court handed down in 1993. Counsel for the applicants filed neither a supplementary factum nor a reply to the respondent"s factum even though he had until September 21, 1994 to do so. In light of the circumstances, I would allow the objection made by counsel for the respondent. |
[8] Accordingly, I allow the respondent"s objection; the application for judicial review, for all the above reasons, must be dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 12, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4090-98
STYLE OF CAUSE: ALEXANDER MISHAK ET AL. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: June 29, 1999
REASONS FOR ORDER OF THE HONOURABLE PINARD J.
DATED August 12, 1999
APPEARANCES:
Nathalie Leblanc FOR THE APPLICANTS
Sylviane Roy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sabine Venturelli FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada