TB5-08788

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-08788 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 29, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel M Fine Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) presented documentation in the form of a passport to indicate that he is a Ukrainian citizen. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the RPD's decision that Armenia is a country of reference and return the claim to a different RPD panel to hold a hearing de novo of the claim against the Ukraine. The Appellant asks that if this occurs, to consider the evidence of the Appellant's mother with respect to the acquisition of Ukrainian citizenship and renunciation of Armenian citizenship as well as RPD decision TB4-07909. If it is determined that Armenia is a country of reference, the Appellant requests that the RAD hear evidence of the claims against both Armenia and Ukraine. The Appellant also states that, in any event, the Appellant had a well-founded claim against Armenia. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant was born in the Republic of Armenia and states in his Basis of Claim (BOC) question 2(a) that he is Armenian. When he was a child, his family moved to Ukraine and he became a citizen of Ukraine when he was 12 or 13. He fears nationalists and skinheads who attacked him due to his Armenian ethnicity. The Appellant filed an additional narrative which included details such as the fact that his parents moved the family from the Republic of Armenia to Ukraine due to the conflict there and that the situation of Armenians in Ukraine has deteriorated during the recent unrest there. [4] The Appellant's application for refugee protection was heard on July 7, 2015, and in a decision of August 6, 2015, the RPD found that the Appellant was not a Convention refugee or a person in need of protection. Memorandum of Appeal [5] The Appellant's issues1 are as follows: Did the RPD err in law by finding the Appellant to be a citizen of Armenia and therefore considering Armenia a country of reference? (i) Acquisition of Ukrainian citizenship required formal renunciation of any other citizenship. (ii) Failure to address finding in another RPD decision of a similar facts. (iii) Failure to assess the totality of the evidence. Did the RPD err in law by failing to hear the claim against Ukraine before making its decision with respect to the claim against Armenia? Did the RPD err in law by excluding, from the hearing, evidence that the Appellant's mother provided at the hearing when joined including her BOC and testimony? If Armenia was a country of reference, did the RPD err in finding that the Appellant did not have a valid claim against Armenia? Note [6] The Appellant requested a hearing for the limited purpose of producing his mother as a witness to provide details of how she renounced his Armenian citizenship, a requisite required for Ukrainian citizenship. She did the same for herself and the Appellant who was a minor at the time. [7] In that no new evidence is submitted, the RAD rejects the request for a hearing under section 110(3), (4) and (6) of the IRPA. Minister's Intervention [8] The Minister of Citizenship and Immigration intervened, at the RPD, by documents2 alleging that Mr. XXXX is a citizen of the Republic of Armenia and that he can return to this country rather than Ukraine, where he alleges he will be persecuted. He states that the Appellant's Convention refugee claim in Canada must be rejected. ROLE OF THE RAD [9] The Appellant submits that the proper function of the RAD is to conduct an independent analysis and assessment of the evidence as in Huruglica.3 The RAD concurs and finds that the Federal Court decision, in Huruglica,4 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. MERITS OF THE APPEAL Analysis Ukrainian citizenship required formal renunciation of any other citizenship [11] Quoting case law,5 the RPD stated that if an Appellant is a national of more than one country, he must show that he is a Convention refugee with respect to all such countries. The RPD quoted evidence on the citizenship laws of Ukraine6 and the Republic of Armenia,7 which states that Ukraine does not allow dual citizenship and requires persons who are citizens of another country to renounce that citizenship to become citizens of Ukraine, but the Republic of Armenia does allow dual citizenship. Referring to the documentation, the RPD noted that Article 13 of the Law of the Republic of Armenia on citizenship explicitly provides that a citizen who has unilaterally renounced their Republic of Armenia citizenship shall be recognized as a citizen of the Republic of Armenia. Simply renouncing citizenship does not terminate the citizenship. Termination requires a decree of the President of the Republic of Armenia. The RPD found it was likely that the Appellant's parents filed some form of renunciation with the Ukrainian government; however, there was no evidence before the RPD that Mr. XXXX parents or Mr. XXXX himself has had his Republic of Armenia citizenship terminated by Presidential decree. As a result of the above, the RPD found that the Appellant had not lost his original citizenship, and that he is a citizen of the Republic of Armenia. [12] On the same issue the Minister submitted the following:8 6. The Minister submits that as the claimant was born in Armenia he is an Armenian Citizen. 7. The Minister submits that on his BOC, the claimant identifies himself as "Armenian" and declares that he speaks "Armenian and Russian" [BOC question 1(e)(g)]. 8. The Minister submits that Chapter 2- Article 9 (2) of the Armenian Citizenship Law indicates that RA citizenship is acquired through birth. As the claimant declared he was born in Armenia he is therefore considered a citizen of Armenia [M-1: Law of the Republic of Armenia on Citizenship of the Republic of Armenia Chapter 2-article 9]; 9. The Minister submits that article 11 of the Armenian Citizenship law states that a child whose parents are Armenian is an Armenian citizen [M-l: Law of the Republic of Armenia on Citizenship of the Republic of Armenia Chapter 2-article 11]; 10. The Minister submit that even if the claimant's parents were stateless at the time of his birth, under Article 12 of the Armenian citizenship law, he is a citizen of Armenia (M-1: Law of the Republic of Armenia on Citizenship of the Republic of Armenia Chapter 2- article 12]; 11. The Minister submits that Armenia amended the law with relation to dual citizenship under Article 13-Dual Citizenship and any person that holds citizenship of another country shall be deemed a dual citizen of the Republic of Armenia (amended February 26, 2007) (M-1: Law of the Republic of Armenia on Citizenship of the Republic of Armenia Chapter 2-article 13]; 12. The Armenian citizenship law also indicates that the "Renunciation of RA citizenship or acquisition of the citizenship of another state do not automatically lead to the loss of RA citizenship [M-1: Law of the Republic of Armenia on Citizenship of the Republic of Armenia Chapter l-article 1]; 13. The Minister submits that even if the claimant renounced his Armenian citizenship he is eligible to apply for a restoration of his Armenian citizenship under Chapter 2-article 14. [M-1: Law of the Republic of Armenia on Citizenship of Armenia Chapter 2-article 14]; [13] The Appellant submits:9 ...that the Armenian citizenship was effectively renounced because the citizenship law of Ukraine does not recognize dual citizenship and pursuant to Article 9(2) Ukrainian citizenship could only be acquired after a five-year residency period and submitting 'a document certifying fulfillment of the obligation' to renounce another citizenship 'issued by a competent authority of the relevant state' according to 'the laws of the relevant state'. [14] It is submitted that "...the Appellant's Ukrainian passport is evidence both of his Ukrainian citizenship and renunciation of his former Armenian citizenship accomplished by the submission of certified document according to the laws of Armenia which would be whatever was required of Armenia including Presidential decree."10 The Appellant submits that the RPD erred in its decision in that there was likely some evidence of termination of his Armenian citizenship. [15] The RPD, the Minister, and the Appellant made valid points in the submissions, decision, and appeal. However, the RAD finds, given the documentation presented by both the RPD and the Minister, that the Appellant retains his citizenship as an Armenian national. The documentation quoted by the RPD and the Minister are persuasive, and in that the RAD was not given any documentation that was presented to the Ukrainian authorities, it is not possible to make a definitive judgment on whether a Presidential decree was issued. The RAD also notes that no documentation was submitted to indicate that the Appellant made any effort to contact the Ukrainian government authorities to acquire copies of the documentation used by his parents. Failed to address decision in TB4-07909 with similar issue [16] The RPD did not address the findings in RPD case TB4-07909. [17] The Appellant submits that the RPD was directed to address the finding of similar facts in the RPD decision TB4-07909, but failed to do so. Quoting case law11 and its application in Alexander,12 the Appellant submits that the case referenced contains similar facts and should have been addressed. [18] The RAD, with respect, does not concur with the Appellant's submissions. Every case before a refugee tribunal relies on the member's judgment of the circumstances and documentation presented to him/her. Each decision is made by the member and the RPD is not bound by another member's decision. Each decision is made according to the circumstances of the case being heard. Failure to assess the totality of the evidence including that of the Appellant's mother [19] The RPD made no decision regarding documentation referred to by the Appellant. [20] Note: The Appellant in this case, and his mother, were originally joined in a refugee claim. At the request of counsel, and for reasons not available to the RAD, the claims were disjoined. [21] The Appellant submits that information that was on the record before the claims were disjoined was intended to be part of the evidence at the Appellant's refugee hearing. [22] The RAD, in reviewing the file, finds no documentation regarding the Appellant's mother, or any information regarding the circumstances to which the Appellant refers. As a result, the RAD is unable to make any decision regarding information that is not present in the appeal. Failure to hear claim against Ukraine before making a decision regarding claim against Armenia. [23] There was no information in the RPD's decision regarding the claim against Ukraine. [24] The Appellant submits that it was a procedural error "...to assess the claim against Armenia alone... without the totality of the evidence including testimony with respect to the claim against Ukraine."13 An analogy was drawn from the Federal Court of Appeal decision, in Moreno,14 that "...It is extremely difficult to distinguish how to separate the grounds for inclusion from what might give rise to exclusion...."15 The Appellant submits that the failure to hear the claim against Ukraine ignored the totality of the evidence and that some of the evidence would be relevant to the other issues involved. [25] If an Appellant is a national of more than one country, the claimant must show that he or she is a Convention refugee with respect to all such countries. [Emphasis added] Section 96(a) of the IRPA16 specifically provides: 96. A Convention refugee is a person who ... (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries [26] A refugee claimant must therefore establish that he or she has a well-founded fear of persecution in all countries of nationality before he or she can be conferred refugee status in Canada.17 [27] Consequently, the RAD is not required to consider whether an Appellant is a Convention refugee or person in need of protection with respect to the second country of citizenship (Ukraine), once it has been determined that the Appellant does not have a well-founded fear of persecution or has not established that, on a balance of probabilities, they face a danger of torture or risk to their life or of cruel and unusual treatment or punishment in the first (Armenia).18 [28] As stated earlier in this decision and with the documentation quoted by the RPD, the refugee claim must be made against all countries of citizenship or nationality. The RPD chose to hear the claim first against Armenia, and stated in his decision, "...with consideration of a claim against Ukraine to be presented later if the decision of the claim against the Republic of Armenia was not dispositive of the claim as a whole."19 The RPD found that Appellant did not have a well-founded fear of persecution under section 96 of the IRPA. The RPD also found that "Military service, with the option of alternative civil service, in the Republic of Armenia is a law of general application and therefore falls into the exceptions under section 97(1)(b)(ii) and (iii). Therefore the claim to be a person in need of protection under section 97 of the IRPA also fails."20 [29] The RAD finds that the RPD made a decision on Armenia, finding that the Appellant was not a Convention refugee or a person at risk of torture or persecution. The RAD finds that the RPD was under no obligation to continue with the hearing considering the claim against Ukraine, once the Appellant was found to have a safe country where he could return. Claim against Armenia [30] The Appellant testified that he did not want to return to Armenia because he does not want to serve in the military there. He also testified that he objects to military service and that objection is based on his religious belief. He testified that he heard that the treatment of recruits from the Armenian diaspora is worse than for local Armenians, and that he had forgotten some of the Armenian language you learn as a child, which he believes would make the situation worse. [31] Quoting case law, the RPD found that the refusal to serve in the military does not, on its own, justify refugee protection.21 The RPD noted that an aversion to military service or a fear of combat is not sufficient to support a well-founded fear of persecution.22 The RPD accepted that the Appellant's military service could be worse because his family relocated to Ukraine. The RPD found that there is not sufficient credible evidence that the treatment that the Appellant alleges, due to his profile as a diaspora Armenian, would rise to the level of persecution. [32] Quoting documentation, the RPD found that the Republic of Armenia has amended its military service laws to provide a civil-service alternative to military service for conscientious objectors.23 The service is in conformance with European standards, according to a Freedom House Report.24 As a result, the RPD found that the Appellant did not have a well-founded fear of persecution under section 96 of the IRPA. Military service, with the option of alternative civil service, in the Republic of Armenia is a law of general application and therefore falls into the exceptions under section 97 (1)(b)(ii) and (iii). Therefore, the RPD found that the Appellant's claim under section 97 of the IRPA failed. [33] The Appellant submitted that he would be seen as a conscientious objector because of his parents' flight to Ukraine for the same reasons. He submits that he would be seen as an ex-patriot, and because of his language ability, experience and customs, he would be a likely candidate for mistreatment. [34] Quoting the US Department of State report for Armenia, item 2.1 in the February 2015 NDP, the Appellant outlines unfavorable conditions in the Armenian military. The report outlines human rights abuses, corrupt officials, conscription of soldiers with serious health conditions, hazing and other mistreatment by officers and fellow soldiers, and the lack of accountability for such actions. [35] Using the same documentation, the Appellant also submitted a list of issues within the Armenian government and court system. Given the above documentation, the Appellant submits that he has a valid argument against military service even apart from his conscientious objector status. Quoting a November 2013 article from JW.org, the Appellant submits that alternative service is based on "Bible-trained conscience". He submits that this would exclude those whose conscience is not restricted to being Bible-trained. [36] The RAD concurs with the RPD's decision. The RAD finds that the cases cited are probative in this case. The RPD's finding that the Appellant's fear of the military is a law of general application is a sound finding. The RAD finds that the conditions in the military, outlined by the Appellant, are not sufficient to find that the Appellant would be persecuted if conscripted by the Armenian military. The RAD finds that the conditions submitted by the Appellant regarding the government, courts, and elected officials are not on point regarding his national identity and circumstance. The RAD also finds that the issues of Armenian intervention in the military conflict cannot give rise to the threat of persecution for the Appellant. No probative documentation was submitted to support the Appellant's claim that the alternative service in the military is flawed. The article submitted is from an organization that, although a religious organization, is self-serving. Disposition [37] The RAD has found that the RPD's decision can stand. CONCLUSION [38] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) "Robert S. Garner" Robert S. Garner October 29, 2015 Date 1 Exhibit P-2, Appellant's Record, p. 115. 2 Exhibit RPD-1, RPD's Record, pp. 75-79. 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 5 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 6 Exhibit RPD-1, RPD's Record, ZZZ 105075.E, pp. 368-378. 7 Ibid., Article 13, 8 Exhibit, RPD-1, RPD's Record, pp. 76-77. 9 Exhibit P-2, Appellant's Record, Memorandum, p. 116. 10 Exhibit P-2, Appellant's Record, Memorandum, pp. 116-117. 11 Siddiqui, Mohammad Ashraf v. M.C.I. (F.C., no. IMM-2736-06), Phelan, January 3, 2007, 2007 FC 6. 12 Alexander, Jamilah v. M.C.I. (F.C., no. IMM-2815-09), Harrington, December 22, 2009, 2009 FC 1305. 13 Exhibit P-2, Appellant's Record, Memorandum, p. 118. 14 Moreno, 1993 CanlII 2993 15 Exhibit P-2, Appellant's Record, Memorandum, pp.118-119. 16 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96. 17 Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998. 18 Harris, Dorca v. M.C.I. (F.C.T.D., no. IMM-1652-97), Teitelbaum, October 31, 1997. 19 Exhibit RPD-1, RPD's Record, pp. 4-5. 20 Exhibit RPD-1, RPD's Record, p. 6. 21 Popov, Leonid Anatolievich v M.E.I., (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994. 22 Garcia, Marvin Balmory Salvador v S.S.C. (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994. 23 Exhibit RPD-1, RPD's Record, NDP (National Documentation Package) for Armenia (14 March, 2014), item 2.4. 24 Ibid., item 2.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08788