Date: 20060713
Docket: IMM-7169-05
Citation: 2006 FC 870
Ottawa, Ontario, July 13, 2006
Present:
The Honourable Mr. Justice Shore
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
JEAN SAID KAAIB
LUCIA ABLAHAD TOURANY
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] It is well established that
section 18.1(4)(d) of the Federal Court Act does not
authorize the Court to substitute its view of the facts for that of the Board,
which has the benefit not only of seeing and hearing the witnesses, but also of
the expertise of its members in assessing evidence relating to facts that are
within their area of specialized expertise. In addition, and more generally,
considerations of the efficient allocation of decision-making resources between
administrative agencies and the courts strongly indicate that the role to be
played in fact-finding by the Court on an application for judicial review
should be merely residual. Thus, in order to attract judicial intervention
under section 18.1(4)(d), the applicant must satisfy the Court, not only
that the Board made a palpably erroneous finding of material fact, but also
that the finding was made “without regard to the evidence”: see, for example, Rajapakse
v. Canada (Minister of Employment and Immigration), [1993] F.C.J.
No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment
and Immigration), [1995] 1 F.C. 741 (F.C.T.D.).
The
Court may infer that the administrative agency under review made the erroneous
finding of fact “without regard to the evidence” from the agency's failure to
mention in its reasons some evidence before it that was relevant to the
finding, and pointed to a different conclusion from that reached by the agency.
Just as a court will only defer to an agency's interpretation of its
constituent statute if it provides reasons for its conclusion, so a court will
be reluctant to defer to an agency's factual determinations in the absence of
express findings, and an analysis of the evidence that shows how the agency
reached its result.
. . .
However, the
more important the evidence that is not mentioned specifically and analyzed in
the agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the
evidence”: Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden
of explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
As specified by
Mr. Justice John Evans in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL).
According to the case law cited, it is the
contradictory nature of the evidence which gives rise to a duty to analyze and
comment upon it.
In the case at bar, there is no doubt that the
documentary evidence filed by the Minister’s representative contained several
points which, if accepted, could undermine the respondent’s well-founded fear.
. . .
These two
aspects, the failure to analyze the contradictory evidence and the failure to
deal with the respondent's subjective fear, require the Court’s intervention
and oblige it to quash the RD’s decision.
As in Canada
(Minister of Citizenship and Immigration) v. Nseme, 2002 FCT 261,
[2002] F.C.J. No. 330 (QL), per Mr. Justice François Lemieux.
NATURE OF THE LEGAL PROCEEDINGS
[2] This is an application for judicial review,
brought under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (Board) dated
November 4, 2005, according to which the respondents are Convention
refugees within the meaning of section 96 of the Act.
FACTS
[3] The respondents, Jean Said Kaaib, aged 72, and
Lucia Ablahad Tourany, aged 76, were born in Syria. They are both Lebanese
citizens.
[4] In 1998, Ms. Tourany came to Canada for the first
time. She subsequently made other trips to Canada before settling here
permanently in June 2004.
[5] Mr. Kaaib came to Canada on August 17, 2004.
[6] On March 3, 2005, Mr. Kaaib and Ms. Tourany made a
claim for refugee protection, alleging their fear in respect of Lebanon only.
[7] On August 4, 2005, the Department of Citizenship
and Immigration submitted evidence showing that Mr. Kaaib and Ms. Tourany
had stated that they were born in Syria, and that Ms. Tourany had
travelled on a Syrian passport on her first trip to Canada.
[8] On September 8, 2005, the Board held a hearing in
connection with the claim for refugee protection made by Mr. Kaaib and
Ms. Tourany.
IMPUGNED DECISION
[9] The Board accepted the claim for refugee
protection made by Mr. Kaaib and Ms. Tourany. It concluded that they
were Convention refugees, as they had discharged the burden of establishing a
well-founded fear of persecution in Lebanon.
[10] The Board did not analyze the possibility that
Mr. Kaaib and Ms. Tourany could be Syrian citizens or the risks they
would face in Syria.
ISSUE
[11] Did the Board err in failing to determine whether
Mr. Kaaib and Ms. Tourany
were citizens of Syria or could obtain citizenship of this country through a
mere formality?
ANALYSIS
Legislation
[12] Paragraph 95(1)(b) of the Act specifies that
refugee protection is conferred on a person when the Board determines that a
person is a refugee or in need of protection.
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95. (1) Refugee protection
is conferred on a person when
(a) the person has been
determined to be a Convention refugee or a person in similar circumstances
under a visa application and becomes a permanent resident under the visa or a
temporary resident under a temporary resident permit for protection reasons;
(b) the Board determined the
person to be a Convention refugee or a person in need of protection; or
(c) except in the case of a
person described in subsection 112(3), the Minister allows an application for
protection.
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95. (1) L’asile est la
protection conférée à toute personne dès lors que, selon le cas :
a) sur constat qu’elle est, à la suite
d’une demande de visa, un réfugié ou une personne en situation semblable,
elle devient soit un résident permanent au titre du visa, soit un résident
temporaire au titre d’un permis de séjour délivré en vue de sa protection;
b) la Commission lui reconnaît la
qualité de réfugié ou celle de personne à protéger;
c) le ministre accorde la demande de
protection, sauf si la personne est visée au paragraphe 112(3).
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[13] Under section 96 of the Act, a person is a refugee
if he or she has a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion:
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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 themself 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.
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96. A qualité de réfugié au
sens de la Convention – le réfugié – la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
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[14] Subsection 97(1) of the Act reads as follows:
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97. (1) A person in need
of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i)
the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii)
the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii)
the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(i)
the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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97. 1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la
menace ou le risque ne résulte pas de sanctions légitimes – sauf celles
infligées au mépris des normes internationales – et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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Standard of review
[15] This case involves a question of fact, which means
that the applicable standard of review is patent unreasonableness (M.R.A. v.
Canada (Minister of Citizenship and Immigration), 2006 FC 207,
[2006] F.C.J. No. 252 (QL), at paragraphs 6‑7; Williams v.
Canada (Minister of Citizenship and Immigration), 2005 FCA 126,
[2005] F.C.J. No. 603 (QL), at paragraphs 17‑18; L.L. v.
Canada (Minister of Citizenship and Immigration), 2005 FC 467,
[2005] F.C.J. No. 566 (QL), at paragraph 7).
Did the Board err in failing to determine
whether Mr. Kaaib and Ms. Tourany were citizens of Syria or could acquire
Syrian citizenship by mere formalities?
[16] Considering the evidence submitted, the Board erred
in failing to determine whether Mr. Kaaib and Ms. Tourany were Syrian
citizens or could obtain Syrian citizenship by mere formalities.
[17] Under sections 96 and 97 of the Act, when deciding
a claim for refugee protection, the Board must determine if the person in
question has demonstrated a well‑founded fear of persecution or a danger
of torture, a risk to their lives, or a risk of cruel and unusual treatment or
punishment for each one of his countries of citizenship.
[18] The same principle was applicable under the former
act, the Immigration Act, R.S.C., 1985, c. I‑2. Although under
this Act the definition of a “Convention refugee” was not as clear as in the
present Act, the case law was to the effect that claimants for refugee
protection had to show a well‑founded fear of persecution in connection
with every one of their countries of citizenship, considering the suppletive
role of international protection. (Canada (Minister of Employment and
Immigration) v. Akl, [1990] F.C.J. No. 254 (F.C.A.) (QL), at
paragraph 3; Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 689, [1993] 2 S.C.R. No. 74 (QL), at
paragraph 89; Williams, supra, at paragraphs 19‑20).
[19] In the case at bar, Mr. Kaaib and Ms. Tourany
claimed refugee protection only with respect to Lebanon. The Board determined
that they had proven a well-founded fear of persecution with respect to this
country and accordingly concluded they were Convention refugees.
[20] However, the evidence submitted by the Minister
shows that Mr. Kaaib and Ms. Tourany stated having been born in Syria
(requests for exemption from immigrant visa requirement, tribunal record, at
pages 110 and 112) and that, during one of her prior trips to Canada,
Ms. Tourany had travelled on her Syrian passport. (FOSS notes, tribunal
record, at pages 136‑137). This evidence suggested that
Mr. Kaaib and Ms. Tourany could be citizens of Syria.
[21] First of all, many states grant citizenship or the
right to citizenship by reason of birth within their territory (see for example
section 3 of the Citizenship Act, R.S.C., 1985, c. C‑29; Williams,
supra). Therefore, the fact that Mr. Kaaib and Ms. Tourany
were born in Syria was a clue that they could be citizens of that country.
[22] Second, the fact that Ms. Tourany held a
Syrian passport allowed the conclusion that she was a citizen of this country.
Mr. Justice James O’Reilly stressed this principle in Mathews v.
Canada (Minister of Citizenship and Immigration), 2003 FC 1387,
[2003] F.C.J. No. 1777 (QL), at paragraph 11:
I am not
convinced that counsel’s interpretation of the Indian statute is correct.
Nevertheless, it is unnecessary for me to arrive at a definitive conclusion on
that issue. The Board rested its finding (which was urged upon it by the
applicants’ counsel at the time) on the fact that the boys had travelled on
Indian passports. A holder of a particular country's passport is presumed to be
a citizen of that country: United Nations Handbook on Criteria for the
Determination of Refugee Status, at para. 93. Unless contested, a
passport is evidence of nationality: Adar v. Canada (Minister of Citizenship
and Immigration), [1997] F.C.J. No. 695 (QL) (T.D.)
. . . .
[23] Considering the evidence submitted by the Minister,
the Board had to determine if Mr. Kaaib and Ms. Tourany held Syrian
citizenship, because if that was the case, it was obliged to analyze whether
they had a well-founded fear of persecution with respect to Syria or if they
were subject to a risk specified in section 97 of the Act if they returned
to this country.
[24] In addition, in case Mr. Kaaib and Ms. Tourany did
not have Syrian citizenship, considering the evidence it had, the Board also
had to determine if they could obtain Syrian citizenship through simple
formalities.
[25] The Federal Court of Appeal stated the following in
Williams, supra, at paragraphs 19‑23:
It is common
ground between counsel that refugee protection will be denied where it is shown
that an applicant, at the time of the hearing, is entitled to acquire by mere
formalities the citizenship (or nationality, both words being used
interchangeably in this context) of a particular country with respect to which
he has no well-founded fear of persecution.
This principle
flows from a long line of jurisprudence starting with the decisions of our
Court in Canada (Attorney General) v. Ward, [1990] 2 F.C. 667
(F.C.A.), and in Minister of Employment and Immigration v. Akl (1990),
140 N.R. 323 (F.C.A.), where it was held that, if an applicant has
citizenship in more than one country, he must demonstrate a well-founded fear
of persecution in relation to each country of citizenship before he can seek
asylum in a country of which he is not a national. Our ruling in Ward was
confirmed by the Supreme Court of Canada (supra, para. 12) and the
principle eventually made its way into the IRPA, section 96 referring to “each
of their countries of nationality.”
In another
decision rendered before the Supreme Court of Canada rendered its own in Ward, Bouianova
v. Minister of Employment and Immigration (1993), 67 F.T.R. 74,
Rothstein J. (sitting then in the Trial Division of the Federal Court of Canada)
broadened the holding of our Court in Akl. He held that if, at the time
of the hearing, an applicant is entitled to acquire the citizenship of a
particular country by reason of his place of birth, and if that acquisition
could be completed by mere formalities, thereby leaving no room for the State
in question to refuse status, then the applicant is expected to seek the
protection of that State and will be denied refugee status in Canada unless he
has demonstrated that he also has a well-founded fear of persecution in
relation to that additional country of nationality.
I fully endorse
the reasons for judgment of Rothstein J., and in particular the following
passage at page 77:
The condition of
not having a country of nationality must be one that is beyond the power of the
applicant to control.
The true test,
in my view, is the following: if it is within the control of the applicant to
acquire the citizenship of a country with respect to which he has no
well-founded fear of persecution, the claim for refugee status will be denied.
While words such as “acquisition of citizenship in a non-discretionary manner”
or “by mere formalities” have been used, the test is better phrased in terms of
“power within the control of the applicant” for it encompasses all sorts of
situations, it prevents the introduction of a practice of “country shopping”
which is incompatible with the “surrogate” dimension of international refugee
protection recognized in Ward and it is not restricted, contrary to what
counsel for the respondent has suggested, to mere technicalities such as filing
appropriate documents. This “control” test also reflects the notion which is
transparent in the definition of a refugee that the “unwillingness” of an
applicant to take steps required from him to gain state protection is fatal to
his refugee claim unless that unwillingness results from the very fear of
persecution itself. Paragraph 106 of the Handbook on Procedures and
Criteria for Determining Refugee Status emphasizes the point that whenever
“available, national protection takes precedence over international
protection,” and the Supreme Court of Canada, in Ward, observed, at
p. 752, that “[w]hen available, home state protection is a claimant’ sole
option.”
The principle
enunciated by Rothstein J. in Bouianova was followed and applied
ever since in Canada. Whether the citizenship of another country was obtained
at birth, by naturalization or by State succession is of no consequence
provided it is within the control of an applicant to obtain it. (The latest
pronouncements are those of Kelen J. in Barros v. Minister of
Citizenship and Immigration, [2005] F.C.J. No. 361,
2005 FC 283 and Snider J. in Choi v. Canada (Solicitor
General), [2004] F.C.J. No. 347, 2004 FC 291.)
[26] In Bouianova v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 576 (QL), at paragraphs 10‑12,
Mr. Justice Marshall Rothstein affirmed the following in
connection with the decision in Akl, supra:
In M.E.I. v.
Adnan Omar Akl (1990), 140 N.R. 323, the court stated:
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“The court in
the Ward case, on this issue, was unanimous in finding that a ‘refugee
claimant must establish that he is unable or unwilling to avail himself of
all of his countries of nationality’ if his claim is to be upheld.”
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The applicant
says that Akl, (supra), does not apply in the present case
because in Akl the applicant had been a citizen of two countries and
simply did not wish to return to one of the countries although he had no fear
of persecution in that country, while in the case at bar the applicant does not
hold Russian citizenship. However, in my opinion, counsel for the
applicant construes the Akl decision too narrowly. In my view, the
decision in Akl is wide enough to encompass the situation of an
applicant who, by reason of her place of birth, is entitled to be a citizen of
a particular country, upon compliance with requirements that are mere
formalities.
In my view the
status of statelessness is not one that is optional for an applicant. The
condition of not having a country of nationality must be one that is beyond the
power of the applicant to control. Otherwise, a person could claim
statelessness merely by renouncing his or her former citizenship. This
would then render unnecessary those provisions of the definition of convention
refugee that require that a person demonstrate an inability or unwillingness by
reason of a well‑founded fear of persecution to return to the person's
country of former citizenship. The definition should not be interpreted in
such a manner as to render some of its words unnecessary or redundant. The
applicant in this case has advanced an excessively technical interpretation of
the definition of convention refugee. In my opinion, the definition should
not be applied based upon such a technical approach.
[27] After all, as stated by
Mr. Justice Michael Kelen in De Barros v. Canada (Minister of
Citizenship and Immigration), 2005 FC 283, [2005] F.C.J.
No. 361 (QL), at paragraph 9, international protection is awarded to
persons who cannot obtain protection from their country of citizenship or
residence. It is not awarded to persons who can obtain citizenship from another
country by mere formalities:
The basic
principle of refugee law is to grant status to those requiring surrogate
protection and not to those who have a ready and automatic right to another
country’s nationality and protection. Grygorian v. Canada (Minister of
Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 52
(F.C.T.D.). Accordingly, a person who is able to obtain citizenship in another
country by complying with mere formalities is not entitled to avail themselves
of protection in Canada. Bouianova v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 576.
CONCLUSION
[28] In conclusion, considering the preceding, the Board
erred in failing to analyze the matter of whether Mr. Kaaib and
Ms. Tourany are Syrian citizens or could have obtained this citizenship by
mere formalities. Therefore, this application for judicial review is allowed,
and the decision is referred to a differently constituted panel for rehearing
and redetermination.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be allowed and the matter be referred to a differently constituted panel
for rehearing and redetermination.
Obiter
Further to a commencement of proof that took place at the
initial hearing, it is up to the decision‑maker at that level to consider
the unresolved issue of citizenship. It is even possible that the
administrative tribunal’s conclusion or the result would be the same because of
the history of the region as regards countries’ sovereignty (or lack thereof)
and the granting of citizenship at the time in question (the 1930s).
However, this question cannot remain unanswered because of the legal
consequences that citizenship itself will entail, once the issue is resolved.
“Michel
M.J. Shore”
Certified
true translation
Michael
Palles
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