Date: 19980616
Docket: IMM-3607-97
OTTAWA, ONTARIO, JUNE 16, 1998
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
BETWEEN:
GEORGE ELIAS GEORGE DAWLATLY,
ANNA NICOLAOS GLYPTIS,
MARIA GEORGIOS DAOULATLY,
and ILIAS GEORGIOS DAOULATLY,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is allowed. The decision of the Board is set aside and the matter is referred back for reconsideration to the same panel with the direction that it misapplied Article 1E of the Convention.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19980616
Docket: IMM-3607-97
BETWEEN:
GEORGE ELIAS GEORGE DAWLATLY,
ANNA NICOLAOS GLYPTIS,
MARIA GEORGIOS DAOULATLY,
and ILIAS GEORGIOS DAOULATLY,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board") denying the Applicants refugee status.
The principal Applicant is a citizen of Sudan. He claims refugee status against his home country because he fears persecution on account of his perceived political opinions and his Christian faith.
His wife and children also make a claim against Sudan based on the principal Applicant's claim. In addition, as citizens of Greece, they also allege to fear persecution in that country on the grounds of their religion and race.
The principal Applicant was found by the Board to have a well-founded fear of persecution in Sudan, but he was also held to be excluded under Article 1E of the United Nations Convention Relating to the Status of Refugees ("Convention"). The panel members felt that he should have sought asylum from Greece as he was eligible for temporary resident status there due to his marriage to a Greek citizen.
His wife and children were also unsuccessful in establishing their claims. The Board was not satisfied that as Christians, they faced religious persecution in Greece.
In argument before this Court, the parties raised three issues. The first issue dealt with the principal Applicant's claim against Sudan. Counsel for the Applicants argued that the Board erred in law in excluding him under Article 1E. The Respondent conceded this point.
It is clear from the text of the provision that a person is excluded if he has already been recognized as having the rights and obligations which are attached to the possession of nationality of the country in which he or she has taken up residence. In the case at bar, the evidence shows that the principal Applicant never resided in Greece. Therefore, the Board obviously misapplied Article 1E to the facts of the present case.
The second and third issues pertained to the Applicant's wife and children's claims. With respect to their claim against Sudan, counsel for the Applicants argued that the Board had made an error in finding that they could seek the protection of the Greek state, because the wife, as a non-ethnic Greek, could be denied entry into Greece. In support of his argument, counsel referred to the Department of State Report on Greece for 1996[1] which states that non-ethnic Greeks who have left the country with no apparent intent to return may be deprived of their citizenship.
The Respondent disagreed, explaining that the documentary evidence which the Applicants refer to actually states that loss of citizenship mainly affects Muslims from Western Thrace who have no intention of returning to Greece. I agree with the Respondent. The documentary evidence does not apply to the wife since she is not a Muslim. Further, I would add that since she has not experienced any difficulty in previous visits to Greece, she cannot be considered a Convention refugee.
As for their claim against Greece, counsel for the Applicants submitted that the Board had erred in failing to assess the claim per se. Counsel relied on Canada (Attorney General) v. Ward[2] for the proposition that the Board has a duty to hear and assess all claims advanced by a claimant. Therefore, in the case at bar, it was incumbent on the Board to consider the family's claim against Sudan, especially considering that the principal Applicant was himself found to have a well-founded fear of persecution in that country.
At the hearing, I expressed a similar concern, thinking that the consequences of the Board's decision were harsh. It could lead to the separation of the family: the female Applicant and her children would be required to return to Greece while her husband remained in Canada.
Counsel for the Respondent maintained that no error was made and that the Board was not obligated to assess the family's claim against Sudan since it had already concluded that the wife and children had no fear of persecution in their country of citizenship. Upon reflexion, I have come to agree with the Respondent.
The principle established in Ward is that an asylum-seeker must prove that he has a well-founded fear of persecution in all countries of which he is a national before he can be conferred refugee status in Canada. The underlying rational is that if the asylum-seeker can avail himself of the protection of his country of nationality, he is not entitled to the protection of a third state. As stated by La Forest J. in Ward:
In considering the claim of a refugee who enjoys nationality in more than one country, the Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality. ... ”T›he rationale underlying international refugee protection is to serve as "surrogate" shelter coming into play only upon failure of national support. When available, home state protection is a claimant's sole option.[3]
It follows that once the Board determines that a claimant would not be the object of persecution in one of his countries of nationality, it has no obligation to examine his other claims. Thus, given the Ward decision, I conclude that the Board did not err in the case at bar.
However, I would like to point out that the decision in Ward does not envisage the awkward situation where the claimant is also a member of the family class. As I previously indicated, the consequences of denying refugee status to the principal Applicant's dependants seems harsh at first glance. But according to the case law, there is no concept of family unity incorporated into the definition of Convention refugee,[4] this Court having chosen to adopt a very narrow view of the definition.
Yet, fortunately, the Immigration Act has other means of ensuring that the dependants of a Convention refugee are granted permanent resident status. For example, subsection 46.04 provides that
46.04(1) Any person who is determined by the Refugee Division to be a Convention refugee may, within the prescribed period, apply to an immigration officer for landing of that person and any dependant of that person ... ”My emphasis›
46.04(1) La personne à qui le statut de réfugié au sens de la Convention est reconnu par la section du statut peut, dans le délai réglementaire, demander le droit d'établissement à un agent d'immigration pour elle-même et les personnes à sa charge ... ”Je souligne›
Based on my conclusion regarding the principal Applicant's claim against Sudan, this application for judicial review is allowed. The decision of the Board is set aside and the matter is referred back for reconsideration to the same panel with the direction that it misapplied Article 1E of the Convention.
Neither counsel recommended certification of a question in this matter. Therefore, no question will be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
June 16, 1998.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3607-97
STYLE OF CAUSE: GEORGE ELIAS GEORGE DAWLATLY AND OTHERS v MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 11, 1998
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE TREMBLAYLAMER
DATED: June 16, 1998
APPEARANCES:
Mr. Harvey Savage FOR THE APPLICANT
Ms. Marissa Bielski FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Harvey Savage FOR THE APPLICANT Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada
[4] Nadon J. in Casetellanos v. Canada (Solicitor General) (T.D.), ”1995› 2 F.C. 190 (T.D.) stated at 199-201: "The principle of family unity requires that persons granted refugee status should not be separated from their closest family members, particularly when a situation of dependency exists; it is a principle of togetherness. ... The definition of Convention refugee to which Canada subscribes by virtue of its being a signatory to the United Nations Convention Relating to the Status of Refugees (Geneva, July 28, 1951), ”1969› Can T.S. No. 6, does not incorporate the concept of family unity. ... It is quite plain that there is no mention of family unity in the current definition. Therefore, in order to apply the principle of family unity in the case at bar, I would have to extend the definition of Convention refugee. There is no justification for doing so".