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mercredi 15 juillet 2015

Determination of a “Country of Reference” for the assessment of an individual’s refugee claim

By Nilufar Sadeghi
Joseph W. Allen & Associates

In Dolma v. Canada (Citizenship and Immigration) 2015 FC 703, an application for judicial review is brought forward by Ms. Dolma of a decision by the Immigration and Refugee Board of Canada’s Refugee Protection Division (hereby referred to as the RPD), where the Board refused her refugee claim.

Pertinent Legislation
1951 Convention relating to the Status of Refugees

Article 1. Definition of the term “refugee”
A. For the purpose of the present Convention, the term “refugee” shall apply to any person who: 
[…] 
(2) […] In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

Immigration and Refugee Protection Act (S.C. 2001, c. 27)

96.  A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Context

Ms. Dolma is an ethnic Tibetan who was born in India in 1982. She lived in India until 2003. In 2013, she travelled to Canada where she eventually claimed refugee protection. She claimed that although born in India, the authorities in said country would not recognize her Indian citizenship due to her Tibetan background. She stated that she feared being deported to China by the Indian authorities, where she would be persecuted as an ethnic Tibetan and follower of the Dalai Lama.

The RPD Board refused her claim for refugee protection, referring to Indian legislation and jurisprudence. The Board stated that according to Indian citizenship legislation, all individuals born in India after January 26, 1950 but before July 1, 1987 were Indian citizens by birth and therefore were not required to apply for Indian citizenship. The Board also referred to a decision by the Indian High Court where an ethnic Tibetan born in India in 1986 was found to be an Indian citizen by birth. Based on this jurisprudence, the Board deemed it more likely than not that the previous practice of treating Indian-born Tibetans as foreigners in India would no longer continue. Finally, the Board stated that in any case, Ms. Dolma did not meet the requirements to be considered a Chinese citizen and that China was therefore not a country of reference for her claim.

Federal Court’s Decision

The Federal Court focused on determining if the Board erred in concluding that India was a country of reference for the assessment of Ms. Dolma’s refugee claim, regardless of whether she would face any difficulties in having her Indian citizenship recognized in said country.

The Federal Court referred to Canada (Citizenship and Immigration) v. Williams 2005 FCA 126, where the Federal Court of Appeal set out a “control” test to assess the country of reference in a person’s refugee claim: Is it within the person’s “control” to acquire the citizenship of the country in question.

After referring and comparing previous cases regarding the correct interpretation to be given to the “control” test, Madam Justice Tremblay-Lamer adopted the analysis made in Wanchuk v. Canada (Citizenship and Immigration) 2014 FC 885 and stated:
“[25]  In Canada (Attorney General) v Ward, [1993] 2 SCR 689, the Supreme Court of Canada explained that the rationale underlying the international refugee protection regime is that it is a “back-up” to the protection one expects from one’s country of nationality. The international refugee system provides “surrogate” protection, such that the responsibility of the international community is only engaged where a persecuted individual is unable to obtain protection from his home state or states.  
[26]  In Bouianova v Minister of Employment and Immigration (1993), 67 FTR 74 (TD), Justice Rothstein, writing for the Trial Division of the Federal Court of Canada, found that if an applicant is entitled to citizenship in a particular country and can acquire that citizenship by completing mere formalities, with no room for the state in question to refuse status, then that country will be considered a country of reference for the purposes of assessing his claim.  
[…] 
[32]  In my view, an obligation on refugee claimants to show that they applied for and were refused citizenship in a particular country would constitute a narrowing of the refugee definition in the 1951 Convention relating to the Status of Refugees [Refugee Convention] and section 96 of IRPA. The proper question is whether, on the evidence before the Board, there is sufficient doubt as to the law, practice, jurisprudence and politics of the potential country of nationality such that the acquisition of citizenship in that country cannot be considered automatic or fully within the control of the applicant, not whether they have tried and been refused. This would exclude from refugee protection all individuals that did not apply for citizenship prior to their time of need for any number of reasons, including the financial inability to pay for a citizenship application or litigation in respect thereof. 
[33]  As suggested by James Hathaway and Michelle Foster, a country will be considered a country of reference for the assessment of refugee status where the claimant’s citizenship in that country “actually exists in embryonic form and needs simply to be activated by means of a request that will clearly be acceded to” (The Law of Refugee Status, 2d ed (University Printing House: Cambridge, 2014) at 59).” [Emphasis added]
The Federal Court then referred to numerous documentary evidence, which clearly established that Ms. Dolma would indeed face difficulty in obtaining recognition of her Indian citizenship and the rights and privileges that come with said status due to her ethnic Tibetan background. Indeed, the documentation demonstrated that the decision of the Indian High Court which the Board referred to did not establish legal precedent in India and that therefore, ethnic Tibetans born in India were still being treated as foreigners and their rights were not being recognized.

Ms. Dolma’s application for judicial review was therefore granted and her claim was sent back to a different Refugee Protection Division panel for a redetermination of her refugee claim.

To read this decision in its entirety, click here.

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