Date: 20090729
Docket: IMM-4223-08
Citation: 2009 FC 779
Ottawa,
Ontario, July 29, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
SHIRLEY WU CAI HUA MA
AMY MA
BILLY MA
ANISA MA
ADA MA
GEOFFREY TINGFUN MA
Respondents
REASONS FOR JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Refugee Division of the Immigration and Refugee Board
(Board), dated September 5, 2008 (Decision) granting the Respondents’
application to be deemed Convention refugees or persons in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Respondents allege a fear of returning to the Solomon Islands where they
were harassed and persecuted because of their Chinese ethnicity.
[3]
Shirley
and Geoffrey (Female and Male Adult Respondents) were born in China. Geoffrey went
to the Solomon
Islands
in 1983 and became a naturalized citizen there in 1994. The Adult Respondents
call the Solomon
Islands
their home and their four children were born there.
[4]
Geoffrey
returned to China on three
occasions, for which he used his Solomon Islands passport. He applied
for and obtained a Chinese tourist visa.
[5]
The
Respondents’ family business and residence was burned to the ground during
rioting which occurred on April 18, 2006 in Honiara. The riots had
an ethnic basis and were directed against the residents of the Solomon
Islands
who were of Chinese decent. Geoffrey was not in the Solomon Islands at the time
of the riot. He had returned to China on April 3, 2006
because his father had died and he went back to take care of the funeral
arrangements.
[6]
Shirley
and two of her children, Billy and Amy, were recognized by the High
Commissioner of Papua New Guinea on the Solomon Islands as “Persons Displaced
by Violence,” and were issued emergency travel documents for their evacuation
to China dated April
24, 2006. Daughters Anisa and Ada were attending school in Australia at the
time of the riots and hold valid student visas for Australia.
[7]
The
Chinese government stepped in to assist nationals of Chinese descent by sending
planes to evacuate them from the Solomon Islands. The family was
reunited in China on April 25,
2006. At the time of the attacks, the family alleged that they “repeatedly”
sought the protection of the police but the police said they were unable to
respond and told the family to “fend for themselves.”
[8]
Geoffrey
returned to the Solomon Islands to find the family home and their business
and personal effects destroyed or looted and stolen. He remained in the Solomon
Islands
from May 5, 2006 until March 25, 2007 in an attempt to re-coup some of his losses
through a government compensation claim, locate his documents and seek replacement
passports for his wife and two of their children, Billy and Amy. During that
time, Geoffrey alleges that he was repeatedly stopped by thugs who attacked and
beat him on several occasions and extorted money from him. He also alleges that
his car was stolen and that, when he reported this to the police, the police
refused to take a report and told him there was nothing they could do. Geoffrey
alleges that he was “in hiding and lived in constant fear” and that the attacks
were “directed to him due to his ethnicity.”
[9]
After
fleeing the Solomon
Islands
in April of 2006, the family, with the exception of Geoffrey, never returned. Shirley
and two of her children subsequently came to Canada on May 21,
2006, arriving at Vancouver International Airport, and made a
claim for refugee protection upon arrival. Geoffrey arrived later on March 30,
2007.
DECISION UNDER REVIEW
[10]
The
Board found that the Respondents were Convention refugees and had a
well-founded fear of persecution in the Solomon Islands.
[11]
The
Board framed the issues for itself as follows:
a.
Are
claimants required to re-avail themselves of previous citizenship and
nationality which they voluntarily relinquished, and which no longer exist,
prior to seeking the protection of Canada?
b.
If
the answer to that question is yes, then the next issue is whether China would grant
the claimants citizenship and re-invoke their status as nationals of China.
c.
Finally,
if the answer to that question is also yes, then the panel must analyse whether
these claimants have a well-founded fear of returning to China.
Well-founded
Fear of Solomon Islands
[12]
The
Board examined the documentary evidence and the evidence presented by the
Respondents. The Minister argued that the Male Adult Respondent was not
credible and had failed to note certain incidents in his PIF narrative that he
was now alleging. The Board noted that the Male Adult Respondent had noted in
his PIF narrative that he had had to live in hiding and was worried about
whether the state would provide protection for him and his family. The Board
took into consideration his demeanour and noted that he presented himself as an
“unsophisticated claimant with basic education.” The Board concluded that it was
satisfied “by the claimant’s explanations for his failure to include the
specific incidents after his return to the Solomon Islands.”
[13]
The
Board found that the Respondents were at risk of persecution in the Solomon
Islands
based on their Chinese ethnicity. As well, the documentary evidence suggested
that there was no state protection available and no reasonable internal flight
alternative.
Chinese
Nationality
[14]
The
Board felt there was “little doubt that the [Respondents] are not currently
considered citizens or nationals of China. Although the adult
claimants Geoffrey and Shirley Ma were born in China, upon their choice of
becoming Solomon
Island citizens
they lost their Chinese citizenships.”
[15]
Under
the Nationality Laws of China, Article 3, the People’s Republic of China (PRC) does
not recognize dual nationality for any Chinese national. The Board quoted part
of Article 9 which states that “Any Chinese National who has settled abroad and
who has been naturalized as a foreign national or has acquired foreign
nationality of his own free will shall automatically lose Chinese nationality.”
[16]
The
Board noted that the family had to obtain Chinese visitor’s visas for their
previous trips to China which, in the Board’s view, indicated how they
were viewed by the Chinese authorities. The Board also found it “extremely
doubtful” that the children of the Adult Respondents would be automatically
eligible for citizenship on the basis that their parents were both born in China. The Board
cited Article 5 of the Nationality Laws:
Any person born abroad whose parents are
both Chinese nationals or one of whose parents is a Chinese national shall have
Chinese nationality. But a person whose parents are both Chinese nationals and
have settled abroad, or one of whose parents is a Chinese national and has
settled abroad, and who has acquired foreign nationality at birth shall not
have Chinese nationality.
[17]
The
Board concluded that both parents had acquired Solomon Island nationality so
that their children would not be considered Chinese nationals.
Restoration
of Chinese Nationality
[18]
The
Board agreed with the Minister that the correct question to address on this
issue was whether it was “more likely than not that the claimants will obtain
PRC nationality if they apply for it?”
[19]
The
Board relied on the test in Williams v. Canada (Minister of Citizenship and Immigration) 2005 FCA 126 (Williams)
at paragraph 22:
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.
[20]
The
Board found that the Respondents met the test set out in Williams so
that the re-instatement of Chinese nationality was not within their control.
Although the Respondent’s could have applied, the provisions of the Nationality
Laws of China made it “far from automatic” and, in accordance with Williams,
“it is not ‘within his power’ to acquire it.”
[21]
The
Board also cites Crast v. Canada (Minister of
Citizenship and Immigration) 2007 FC 146 (Crast) which confirms
that an analysis must be undertaken as to the degree of certainty required in
the application process. In that case, the evidence indicated that the result
cannot be predicted with certainty, and the Board had failed to assess that
degree of certainty.
[22]
The
Board noted that, since the Respondents have four children, there was no degree
of certainty that their application would be approved. The Board states that
there is a difference between “eligibility to apply, and what that outcome
might be.” The Board relies upon Mijatovic v. Canada (Minister of
Citizenship and Immigration) 2006 FC 685 at paragraph 32:
32 According
to the terms of the Citizenship Law, the Applicant
may have been eligible to apply for citizenship of the FRY. Indeed, she might
still be eligible to make an application. This, however, does not mean that she
was in fact a citizen of the FRY. In the context of a refugee claim, the mere
right to apply for the citizenship of a particular country does not make the
claimant a citizen of that country, unless the application is a mere formality.
This issue was addressed by the Federal Court of Appeal in Williams v. Canada
(Minister of Citizenship and Immigration), 2005 FCA
126, [2005]
F.C.J. No. 603.
[23]
The
Board also relied upon Lorne Waldman’s Immigration Law and Practice, 2nd
edition, volume 1 at paragraph 8.399:
Hence the concept of nationality must be
interpreted strictly so that surrogate protection in Canada is denied only in those cases where the
person has, in fact, acquired citizenship in a given country or can obtain it
as a result of matters entirely within his or her control. Thus, in order to
deny a claimant refugee status based on the fact that he or she has citizenship
in a country, the Board must find that he or she actually does have citizenship
in that country or has an irrefutable claim to such citizenship. If the statute
provides that the claimant might apply for citizenship, but not that the
claimant actually has citizenship or will certainly obtain it, then the person
should not be required to show that he or she is unable to find protection in
the country of potential nationality.
[24]
The
Board concluded on this issue by stating that the law does not require these
claimants to provide credible and trustworthy evidence that they have applied
for, and been refused, PRC nationality, as the Minister’s Representative
submits.
Failure to
Claim Elsewhere
[25]
The
Minister’s Representative submitted that the Respondents had a duty to go to
Australia to make a refugee claim, given that Australia is much closer to the
Solomon Islands, and because they had previously visited there and two of their
children attended school there. The Board commented that there was no legal
authority that would support such a proposition.
[26]
The
Board concluded that the Respondents had established a well-founded fear of
persecution in the Solomon Islands on account of their Chinese ethnicity. The
Board also found that China was not a country of reference for any of
the Respondents. Therefore, all of the Respondents were Convention refuges and
their claims were accepted.
ISSUES
[27]
The
Applicant submits the following issues on this application:
1)
Did
the Board err when it found that state protection was not available to the
Respondents in the Solomon Islands?
2)
Did
the Board err when it found that the Respondents were at risk of persecution in
the Solomon
Islands
based on their Chinese ethnicity?
3)
Did
the Board err when it found that the Respondents had no obligation to apply for
Chinese citizenship before being granted refugee protection in Canada?
STATUTORY PROVISIONS
[28]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
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.
Person in need of protection
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
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
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.
Personne à protéger
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.
Personne à protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
|
STANDARD OF REVIEW
[29]
In Dunsmuir v.
New Brunswick 2008 SCC 9 (Dunsmuir) the Supreme Court of Canada
recognized that, although the reasonableness simpliciter and patent unreasonableness
standards are theoretically different, “the analytical problems that arise in
trying to apply the different standards undercut any conceptual usefulness
created by the inherently greater flexibility of having multiple standards of
review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[30]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[31]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the first two issues raised on this application to be reasonableness.
When reviewing a decision on the standard of reasonableness, the analysis will
be concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[32]
The
third issue involves a consideration of the correct legal test to be applied
(which I have reviewed on a standard of correctness) as well the application of
that test to the facts before the Board (which I have reviewed on a standard of
reasonableness). In argument, the Applicant says that the Board applied the
wrong legal test for state protection. I have also reviewed this issue on a
standard of correctness.
ARGUMENTS
The Applicant
Board Erred When it
Found that State Protection Was Unavailable
[33]
The
Applicant alleges that the Board held that state protection was not available
to the Respondents in the Solomon Islands in one sentence in its reasons:
The
panel finds the claimants are at risk of persecution in the Solomon Islands based on their Chinese ethnicity. The
panel further finds the documentary evidence suggests that state protection is
not available, and accordingly, there is no reasonable internal flight
alternative.
Board
Applied the Wrong Test for State Protection
[34]
The
Applicant submits that the Board erred in law and applied the wrong legal test
when it considered whether there was state protection available for the
Respondents in the Solomon
Islands.
The availability of state protection is a crucial element in determining
whether a refugee claimant has a well-founded fear of persecution. If state
protection is available, then a claimant does not have a well-founded fear of
persecution: Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689 at 721-722 (Ward) and Munderere v. Canada (Minister of
Citizenship and Immigration) 2008 FCA 84 (Munderere) at paragraphs
34-39.
[35]
The
Applicant also cites Ward at 721-723 for the principle that persons who
are seeking refugee protection in another country have the onus of proving that
state protection is not available to them in their country of nationality.
Absent a complete breakdown of state protection, a country must be presumed to
be capable of protecting its citizens: Ward at 723-726.
[36]
The
Applicant argues that both the Supreme Court of Canada and the Federal Court of
Appeal have held that, in order to rebut the presumption that a country of nationality
is capable of providing protection, it must be proved that state protection is
not available. Refugee claimants must provide “clear and convincing evidence”
that establishes, on a balance of probabilities, that state protection is
inadequate or non-existent: Ward at 723-726 and Carrillo v. Canada
(Minister of Citizenship and Immigration) 2008 FCA 94.
[37]
The
Applicant points out that, in the current case, the Board did not determine
whether there was “clear and convincing evidence” establishing that state
protection was unavailable. Instead, the Board found that “the documentary
evidence suggests that state protection is not available.”
[38]
The
Applicant concludes on this issue that a finding that the documentary evidence
“suggests” that state protection is not available is not equivalent to a
finding or determination that there is “clear and convincing evidence”
establishing, on a balance of probabilities, that state protection is not
available. Therefore, the Board erred in law and applied the wrong test when it
found that state protection was not available on the basis that the documentary
evidence “suggested” that state protection was not available.
[39]
The
Applicant argues that a finding by the Board that the evidence “suggests” that
state protection is unavailable is not a finding that it is more likely than
not that state protection is not available. It may be, at most, a finding that
there is a possibility that state protection is not available; it is not a
finding that it is more likely than not that state protection is not available.
[40]
The
Applicant also notes that the Board did not set out in its reasons any
evidentiary basis for its finding that state protection is not available.
Instead, the Board states that the “documentary evidence” suggests that state
protection is not available. The Board did not even identify the “documentary
evidence” upon which it relied.
Board Failed to have
Regard for the Evidence
[41]
The
Applicant submits that, in addition to applying the wrong legal test, the Board
also failed to have proper regard for the evidence before it when it found that
the documentary evidence “suggested” that state protection was not available.
[42]
The
Applicant points out that the Board does not identify the documentary evidence upon
which it relies when it says that “the documentary evidence suggested” that
state protection is not available. The only documentary evidence referred to by
the Board in its reasons that might be relevant to the Board’s finding that the
evidence “suggested” that state protection is not available is: (1) a paper
prepared by Professor Clive Moore that was critical of the way the police in
the Solomon Islands handled the riots in April 2006; (2) a travel advisory from
the Canadian government indicating that the police were limited in their
ability to respond effectively to violent crime; and (3) two news reports
indicating that the Australian government had sent additional troops to the
Solomon Islands to restore calm.
[43]
The
Applicant submits that the Board’s consideration of the documentary evidence
relating to the availability of state protection in the Solomon Islands was cursory. There was
documentary evidence, to which the Board does not refer, that the Regional
Assistance Mission for the Solomon Islands (RAMSI), a multinational
police-centered force organized by Australia, arrived in the Solomon Islands at
the governments invitation in 2003 and restored law and order after a period of
civil unrest in the country.
[44]
The
Applicant notes that the Respondents have not addressed the Applicant’s
submissions that the Board erred when it found that the Respondents had a
well-founded fear of persecution if state protection was not available. There
was no evidence before the Board that established that the Respondents would be
at risk in the Solomon
Islands if
they returned.
[45]
The
Applicant alleges that the several documents cited by the Board do not
reasonably suggest that state protection is not available in the Solomon Islands. Even if the criticism
offered by Professor Moor was accepted and the RAMSI poorly handled the April
2006 riots, it is not enough for a refugee claimant to show merely that his/her
government has not always been effective in protecting persons in his/her
situation in order to establish that state protection is unavailable. The
Applicant further notes that Professor Moore is optimistic about RAMSI’s
ability to maintain law and order in the Solomon Islands. He ends his paper by stating that the
future government in the Solomon
Islands is
looking better than it has since 1998 and RAMSI’s presence should allow
necessary reforms to take place.” See: Clive Moore, “No More Walkabout Long
Chinatown: Asian Involvement in the Solomon Islands Economic and Political
Processes”, a paper presented on May 16, 2006 at the Australian
Centre for Peace and Conflict Studies Seminar, University of Queensland.
[46]
As
regards the travel advisory from the Canadian government, the Applicant says
that the fact that the police may not always be able to respond effectively to
crime does not show that state protection is unavailable. The Canadian police
cannot always respond effectively to crime.
[47]
The
Applicant says it is “noteworthy” that the Consular Information Sheet from the
U.S. Department of State, dated September 2007, states the following about the
capital city of Honiara:
The
Regional Assistance Mission in the Solomon Islands (RAMSI), a coalition of Pacific Island states that includes military and police forces from
Australia and several other Pacific Island nations, has helped the Solomon Islands
improve law and order. The Solomon Islands government and the vast majority of
its citizens welcomed the intervention and security in the capital Honiara improved since the arrival of RAMSI in 2003. It is
generally considered safe for visitors to walk the streets day and night, and
there have been no reported security incidents against visitors.
[48]
The
Applicant concludes on this issue that the news reports indicating that the
Australian government had sent additional troops to the Solomon Islands to restore calm do not
show that state protection is unavailable. They show a commitment to providing
state protection to persons in the Solomon Islands. The Applicant submits that one of the
news reports relied on by the Board is from 2004, approximately four years ago,
and is of little, if any, relevance to the situation in the Solomon Islands today.
Board
Erred When it Found that the Respondents Were at Risk in the Solomon Islands
[49]
The
Applicant submits that, in addition to applying too low a test for finding that
state protection was unavailable in the Solomon Islands, the Board also erred when it found that
the Respondents had a well-founded fear of persecution if state protection was
not available.
[50]
The
Applicant says that the Board failed to have regard for the material before it
when it found that the Respondents had a well-founded fear of persecution in
the Solomon
Islands.
The Board’s consideration of the evidence relating to the Respondents’ alleged
risk in the Solomon
Islands
was, in the Applicant’s view, as cursory as its consideration of the documents
relating to the availability of state protection in the Solomon Islands.
[51]
The
Applicant highlights the test for a well-founded fear of persecution as being a
“forwarding-looking test” that places the onus of proof on refugee claimants to
show that they would be at risk of persecution if they returned to their home
country.
[52]
The
Applicant says that the Board erred by, essentially, shifting the onus from the
Respondents to show that they would be at risk of persecution in the Solomon
Islands to the Minister to show that the Respondents would not be at risk.
[53]
The
Applicant submits that the only evidence regarding current conditions in the
Solomon Islands that the Board referred to in its reasons were travel
advisories from the Australian and Canadian governments, which indicated that
violent crime had escalated in the Solomon Islands, particularly in the
Chinatown part of the capital city, Honiara.
[54]
The
Applicant suggests that a fair reading of the travel advisories from the
Australian and Canadian government shows concern about criminal activity and
civil unrest, especially in Honiara, but it does not show that persons are at risk of
persecution because of their Chinese ethnicity. The Applicant contends that
evidence that crime has increased in a particular part of a city is not
evidence that persons have a well-founded fear of persecution on the basis of
their ethnicity. There are other reasons why crime might be higher in one part
of a city that have nothing to do with ethnicity. As well, although there may
be criminal activity and civil unrest in Honiara, this does not establish that
persons are at risk throughout the Solomon Islands and that state protection is not
available.
[55]
The
Applicant concludes that the Board failed to properly consider whether there
might be an internal flight alternative for the Respondents, independent of the
issue of the availability of state protection. If the Respondents were not at
risk everywhere in the Solomon
Islands,
then the Applicant contends that state protection is irrelevant, as any alleged
lack of state protection does not create a risk if that risk does not otherwise
exist.
Board
Erred When it Found that the Respondents Had No Obligation to Apply for Chinese
Citizenship
[56]
The
Applicant submits that the Board erred when it found that the Respondents had
no obligation to try to re-acquire their Chinese citizenship before being
granted refugee protection in Canada.
[57]
The
Applicant reminds the Court that one of the basic principles of international
refugee law is that refugee protection is intended to be a back-up or
“surrogate” protection to the protection that persons expect from their
countries of nationality. International refugee protection is given when a
claimant has no other alternative. Therefore, refugee claimants are required to
approach their own countries of nationality for protection, or demonstrate that
it is objectively unreasonable to have done so, before the responsibility of other
states to provide them with protection becomes engaged. See: Ward and Munderere
at paragraphs 34-39.
[58]
The
Applicant says that refugee protection is not intended to allow the practice of
“country shopping,” but is there to provide a safe haven to those who genuinely
need it. Its purpose is not to give a quick and convenient route to permanent
resident status for immigrants who cannot or will not obtain status in the
usual way. Persons are not entitled to choose between becoming a refugee in one
country over becoming a citizen in another country: Grygorian v. Canada (Minister of
Citizenship and Immigration) (1995), 111 F.T.R. 316 (F.C.T.D.) (Grygorian).
[59]
The
Applicant cites Williams at paragraphs 22 for the proposition that a
person’s refugee claim will be denied even if they have a well-founded fear of
persecution in one country “if it is within the control of the [person] to
acquire the citizenship of a country with respect to which he had no
well-founded fear of persecution.”
[60]
The
Applicant points out that this Court has consistently held that it is within a
person’s control to acquire citizenship, so that a person’s refugee claim
should be rejected, if that person has an “automatic” right to citizenship in a
safe country: Alvarez v. Canada (Minister of Citizenship and Immigration) 2007
FC 296; M.R.A. v. Canada (Minister of Citizenship and Immigration) 2006
FC 207; De Barros v. Canada (Minister of Citizenship and Immigration) 2005
FC 283; Grygorian and Bouianova v. Canada (Minister of Employment and
Immigration) (1993), 67 F.T.R. 74.
[61]
The
Applicant argues that the issue in the present case is whether it may be within
a person’s control to acquire citizenship, even if the person does not have an
“automatic” right to citizenship.
[62]
The
Applicant relies on Williams at paragraph 22 for the principle that it
may be within a person’s control to acquire citizenship of a country even where
more than “mere formalities or technicalities,” such as filing the appropriate
documents are required to acquire citizenship. At paragraph 27 of Williams,
the Federal Court of Appeal held that a person’s refugee claim will be
denied if it is within their control to acquire citizenship: “where citizenship
in another country is available, an applicant is expected to make attempts to acquire
it and will be denied refugee status if it is shown that it is within his power
to acquire that other citizenship.”
[63]
The
Applicant submits that Crast leaves unanswered the question of whether
it is within a person’s control to acquire citizenship in a safe third country
in some circumstances, even if it might not be certain or automatic. The
Applicant cites Khan v. Canada (Minister of Citizenship and Immigration) 2008
FC 583 which held that it was not within a person’s control to acquire
citizenship in a country if the country’s authorities had any discretion to
refuse that person’s application for citizenship. See: Mijatovic v. Canada (Minister of
Citizenship and Immigration) 2006 FC 685.
[64]
The
Applicant points out that the Board found it was not in the Respondents’
control to re-acquire Chinese citizenship. Although the Board accepted that the
Respondents were entitled to apply to re-acquire Chinese citizenship, it was
not certain that their application would be approved. The Board’s
interpretation, in the Applicant’s view, is “overly restrictive and
inconsistent with the concept of refugee protection as surrogate protection.”
The Board’s Decision also encourages the practice of country shopping.
[65]
The
Applicant says that the evidence before the Board establishes that there was
protection and a safe haven available to the Respondents in China if they were
at risk in the Solomon
Islands.
Following the riots in the Solomon Islands in April 2006, the Female Adult Respondent and
her two youngest children were evacuated by the Chinese government to China.
[66]
The
Applicant notes that the Board never referred to any evidence indicating that
it was more likely than not that the Respondents would not obtain Chinese
citizenship if they applied. Instead, the Board speculated that the Respondents
might not obtain Chinese citizenship because they have four children. However,
the Chinese authorities have already recognized the Respondents’ connection to China and have previously offered
them protection.
[67]
The
Applicant notes that the Respondents have already enjoyed protection and safe
haven in China and Australia, but rather than
applying to re-acquire or acquire citizenship in China, the Respondents elected
to seek refugee status in Canada. Therefore, the Board erred when it held that the
Respondents had no obligation to try to re-acquire their Chinese citizenship
before being granted refugee protection in Canada.
[68]
The
Applicant points out that the Respondents’ submissions do not respond squarely
to the issue of whether it may be within a person’s control to acquire
citizenship in a third country. A claim should be refused, following Williams,
even if a person does not have an “automatic” right to citizenship. The
Applicant says that this issue is central to the Board’s Decision because the
Board found that Williams did not apply because it was not certain that
the Respondents’ application for Chinese citizenship would be approved, and the
Board did not consider whether it might still be within the Respondents’
control to acquire Chinese citizenship in the circumstances.
The Respondents
[69]
The Respondents
submit that included in the documentary evidence was a paper on the Solomon Islands that indicated as
follows:
The
April riots were partly premeditated. The attacks were strategically targeted
and clues existed before the outbreak that should have alerted the police to
possible trouble. The police commissioner’s lack of prior intelligence and a
seemingly lack of an emergency plan to deal with what was always going to be a
potentially explosive day, added to the poor performance of the RAMSI police
and their lack of coordination with local police indicates that long-term
changes will be necessary if the RAMSI the operation is to retain credibility.
[70]
The
Respondents note that the paper also states that there is rampant corruption
and mismanagement in government in the Solomon Islands and that the 2006 riots were pre-mediated
and clearly targeted the Chinese community. The Respondents also note that a
response to information request confirmed that the Chinese community was
targeted and that much of Chinatown was destroyed and, as a result, the Chinese
government airlifted 325 citizens to China. Many Chinese nationals lost everything in the
riots. A year after the riots, there was no rebuilding of Chinatown and there
was a travel advisory against traveling to the Solomon Islands because of the
violence. There was a similar travel advisory from the U.S. Department of State
and Australian troops were sent to calm the violence in the Solomon Islands.
[71]
The
Respondents submit that also included in the evidence before the Board was the Nationality
Laws of the People’s Republic of China which indicate in Article 13:
Foreign
nationals who once held Chinese nationality may apply for restoration of
Chinese nationality if they have legitimate reasons. Those whose application
for restoration of Chinese nationality that have been approved shall not retain
foreign nationality.
[72]
The
Respondents also cite a response to information which indicated as follows:
It
is possible to recover Chinese nationality after it has been lost. To recover
Chinese nationality, a person must first renounce the other nationality they
are holding and provide a report, for example proof of renunciation of other
nationality and request reinstatement of Chinese nationality to Chinese
authorities. Acquisition, loss or recovery of Chinese nationality can be
requested or processed through Chinese Consulate or Embassies outside of China
or inside China through the Public Security Ministry.
The Respondents’ Testimony At Hearing
[73]
Geoffrey,
the Male Adult Respondent, testified at the hearing in detail about the
problems he and his family have faced in the Solomon Islands. The Respondents note
that they presented evidence at the hearing from an Immigration and Refugee
Board of Canada, Responses to Information Requests which stated as follows:
…the
prevailing atmosphere of lawlessness, with frequent outbreaks of violence,
widespread extortion, and compromised nature of the Royal Solomon Islands
Police, whose senior officers maintained links with criminal gangs, were
significant obstacles to recovery.
From
late 2002, the government’s ongoing commitment to reform and fiscal discipline
was increasingly undermined by extortion and other intimidation directed
against the SI Government by criminal groups. The assassination of the former
Police Commissioner (1982-1996) and National Peace Councillor Sir Fred Soaki in
Auki on 10 February 2003, and the two day closure of commercial banks in Honiara
in late May, as a result of threats, underscored the serious state of
lawlessness in Solomon Islands.
[74]
The
Respondents conclude on this issue by pointing out that Shirley, the Female
Adult Respondent, testified at the hearing that, even prior to the April 2006
riot, she and her husband experienced robberies at their store to which the
police did not respond. She also testified that her husband was attacked by a
person wielding a hammer, and sustained a head and eye injury, but the police
stated that “they ha[d] no car to come” and never responded to the call.
Board Findings
[75]
The
Respondents submit that the Board made two important findings: (1) that the
Respondents were credible; and (2) that the Board accepted the explanation for
the omissions in their PIF. They allege that the Minister did not challenge
these findings; therefore, the facts that were asserted by the Respondents must
be accepted for the purposes of this application for judicial review.
[76]
The
Respondents submit that, based upon the evidence before the Board, and given
the repeated, numerous attacks that were directed against the Respondents over
a long period of time, as well as the repeated failure of the authorities to
provide protection, and the documentary evidence which revealed that the police
have failed to provide protection, the conclusion of the Board with respect to
state protection was reasonably open to it.
[77]
The
Respondents stress that the Board found Geoffrey’s testimony credible. There
was no allegation of an error on the credibility issue by the Applicant.
Therefore, the Board was entitled to rely on the Respondents’ evidence that the
state had failed to provide protection on repeated occasions.
[78]
The
Respondents note that there is no allegation that there were alternate means of
protection, or that the Respondents did not make efforts to obtain protection.
There is evidence that efforts were made, that those efforts failed, and that
the Respondents had suffered greatly. There was ample evidence to conclude that
there was a failure of the state to provide protection.
[79]
The
Respondents cite and rely upon Carrillo at paragraph 30:
30 In my
respectful view, it is not sufficient that the evidence adduced be reliable. It
must have probative value. For example, irrelevant evidence may be reliable,
but it would be without probative value. The evidence must not only be reliable
and probative, it must also have sufficient probative value to meet the
applicable standard of proof. The evidence will have sufficient probative value
if it convinces the trier of fact that the state protection is inadequate. In
other words, a claimant seeking to rebut the presumption of state protection
must adduce relevant, reliable and convincing evidence which satisfies the
trier of fact on a balance of probabilities that the state protection is
inadequate.
[80]
The
Respondents submit that the issue before the Board was whether or not the
Respondents had met the burden of proof and had established the absence of
state protection with reliable evidence, with probative value, that met the
standard of proof. The evidence satisfied the Board that the Respondents had
met the standard of proof. The Board’s use of the word “suggests” was just a
way of saying that evidence disclosed that state protection was not available.
Therefore, this formulation is not incorrect and indicates that the Board was
satisfied that it was more likely than not that state protection would not be
forthcoming.
[81]
In
relation to the weighing of the evidence, the Respondents submit that there are
several basic principles that emerge from the jurisprudence. The Board is not required
to discuss each piece of documentary evidence and the Board is entitled to
accept the evidence of the Respondents with respect to what happened to them.
The Respondents note that the Board found that there was limited documentary
evidence, accepted the Respondents as credible, and accepted the Respondents’
version of repeated attacks directed at the Male Adult Respondent and the
failure of the authorities to provide protection.
[82]
The
Respondents conclude that, given the totality of the evidence, there was
nothing unreasonable about the conclusion of the Board.
Chinese Citizenship
[83]
On
this issue, the Respondents submit that whether some other alternate form of
protection short of citizenship existed in China was not raised by the Minister and was not
before the Board. Therefore, the mere fact that China evacuated some of the Respondents was not
relevant or probative to the issue before the Board.
[84]
The
Respondents submit that, on the question of citizenship, there is but one issue
that needs to be determined and that is the question set out in Williams:
whether or not the person is a citizen or whether or not the person has the
ability to obtain citizenship. The Respondents cite paragraph 22 of Williams:
…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 under the 1951 Convention an the 1967 Protocol relating
to the Status of Refugees [Geneva, 1992] emphasizes the point that
whenever "available, national protection takes precedence over
international protection," and the Supreme Court of Canada, in Ward, observed, at page 752, that "[w]hen available,
home state protection is a claimant's sole option."
[85]
The
Respondents submit that no error was made by the Board, particularly in light of
Chinese Citizenship laws. The Respondents stress that the Board appreciated the
circumstances and correctly noted that the Respondents did not have citizenship,
since on each occasion when they returned to China, they had had to obtain temporary visas. The
Board dealt with the evidence, applied the Williams test, and noted that,
based on the evidence, there was no automatic right to citizenship. Therefore,
the Board did exactly what it was required to do.
[86]
The
Respondents contend that the Applicant is attempting to suggest that “there was
a duty for the tribunal to know the nature of how the discretion would be
exercised in China.” However, there was no
evidence on this point and the only evidence was that there was a discretion
and no certainty in the outcome. In the absence of evidence as to how the
discretion would be exercised, it was not unreasonable for the Board to conclude
that the test in Williams had not been met.
[87]
The
Respondents also note that the Carrillo decision does not hold that
there is a higher burden of proof. The question at issue is not connected to
the question of state protection but is a question of fact to be determined
independently of the question of state protection by the Board based on the Williams
test.
[88]
The
Respondents submit that the issue is whether or not the obtaining of
citizenship would be a mere formality. The Board noted that, based on the
evidence before it, it would not be a mere formality in the Respondents’ case.
The Respondents cite paragraph 32 of Williams:
32 Fourth,
a person cannot be said to be deprived of the right of citizenship when he is
given the possibility of renouncing the citizenship of a country where he is at
risk of persecution in exchange of acquiring as a matter of course the
citizenship of a country where he is not at risk. One's loss is one's gain.
Further, it appears that a Rwandan citizen has an automatic and natural and
historic right to Rwandan citizenship even if he has renounced it in order to
acquire foreign citizenship (Rwanda Assessment, October 2002, paragraphs 5.3 to
5.5 and footnote 25(g), A.B., Vol. 1, Tab A, pages
119 and 165).
[89]
The
Respondents say there is no jurisprudence to support the Applicant’s contention
that an inference that can be drawn in favour of the acquisition of citizenship
in such cases. The Respondents also submit that the Applicant’s question of
alternate protection in Australia and China was not raised. There
is no evidentiary foundation to support a finding of exclusion under Article 1E
of the Convention relating to the Status of Refugees, Adopted on 28 July
1951 by the United Nations Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons convened under General Assembly resolution 429
(V) of 14 December 1950, entry into force 22 April 1954, in accordance
with article 43 (Convention). This would require evidence of a permanent status
equivalent to citizenship.
[90]
The
Respondents submit that there is no requirement of evidence to demonstrate how
discretion would be exercised in a citizenship decision. Evidence of discretion
is all that is required.
ANALYSIS
State Protection
[91]
The
Applicant says that the Board applied the wrong test for state protection. In
order to demonstrate this, the Applicant makes much of the Board’s words that
the “documentary evidence suggests that state protection is not
available.”
[92]
My
review of the Decision as a whole suggests to me that the Board does not
shift the onus of proving a lack of state protection; nor does it lower the
standard of proof. This is like arguing from paragraph 15 of the Decision that
because the Board said “the question is whether these claimants face persecution
in the Solomon
Islands on
account of their Chinese ethnicity” imposes too high a burden on the Respondents
because it requires them to show that they will face persecution and will be
personally targeted. In my view, all such statements must be viewed in the
context of the Decision as a whole to see what was really intended.
[93]
The
word “suggests” cannot be read in isolation as though it means that the Board
found a mere suggestion of inadequate state protection to be sufficient. The
word is obviously used by the Board in a colloquial sense to mean something
such as “demonstrates” or “shows.” The full Decision also reveals that, as
regards state protection, the Board placed a great deal of emphasis upon the
first-hand evidence of the Respondents. Hence, when the Board turns to the
documentary evidence it is, in effect, saying that the documentary evidence
supports the direct evidence of the Respondents.
[94]
This
is not, in my view, a shift in the onus of proof or a lowering of the
obligation on the Respondents to demonstrate with clear and convincing evidence,
on a balance of probabilities, that state protection is inadequate.
[95]
Applying
a standard of correctness, I can find no reviewable error on this point.
Review of Evidence
[96]
The Applicant
also complains that the Board conducted a cursory view of the evidence that was
available on state protection. The Applicant says that, in effect, the Board
shifted the onus to the Minister to disprove inadequate state protection in a
context where there was a paucity of country documentation.
[97]
It
is true that the Board itself acknowledged a “paucity of objective country
documentation to assist the panel in assessing what the current treatment of
people of Chinese descent [is] in the Solomon Islands.” The word paucity can mean “insufficient”
in some contexts; however, it can also mean smallness in number or quantity. In
the context of this Decision, the latter meaning is the one intended. I say
this because the Officer felt that, notwithstanding that the available
documentation was less than for other areas of the world, there was enough to
allow him to make a decision that the available documentary evidence supported
the Respondents’ claim and their own account of the situation in the Solomon Islands.
[98]
I
think that what the Applicant is really taking issue with here is whether there
was a sufficient evidentiary base to support the Board’s conclusions on the
inadequacy of state protection. However, as the Applicant has often pointed out
to the Court in other cases, I am not in a position to simply re-weigh the evidence
and come to a different conclusion that favours the Applicant.
Forward-Looking Risk
[99]
The Applicant
also says that the Board did not conduct a forward-looking evaluation of risk.
This does not seem to accord with the Board’s own description of what it is
doing. In paragraph 16, when the Board refers to the “objective country
documentation,” the Board makes it clear that it is assessing “the current
treatment of people of Chinese descent in the Solomon Islands,” (emphasis added). The
final conclusion on risk at paragraph 24 is that “the claimants are at
risk of persecution” and that “state protection is not available.”
[100] Once again, I think that
the Applicant’s real complaint is that the available evidence does not support
these conclusions on forward-looking risk.
[101] In the end, then, I
believe that, apart from the Citizenship issue, the Applicant is really asking
the Court to examine the available evidence to determine whether it will
support the Board’s conclusions on risk and inadequate state protection. In
doing so, I must be cognizant of the voluminous case law, and numerous
admonitions received from the Applicant in other cases, that the Court is not
here to re-weigh evidence. This is the job of the Board. The Applicant must
convince the Court that this Decision falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law,” to
use the well-known words of Dunsmuir.
The Evidence
[102] As the Decision as a
whole reveals, the Board’s conclusions are based upon the credible evidence of
the Respondents concerning what had happened to them in the past and their
fears for the future. The Minister’s Representative at the hearing specifically
called into question Geoffrey’s testimony because of his failure to note
certain incidents in his PIF. But the Board concludes that Geoffrey’s
explanation for the omissions was satisfactory. No credibility concerns are
expressed by the Board.
[103] The Board’s conclusions
in paragraph 24 of the Decision are that:
a)
The Respondents
are at risk in the Solomon
Islands
based on their Chinese ethnicity; and
b)
The
documentary evidence suggests that state protection is not available and,
accordingly, there is no reasonable internal flight alternative.
[104] Counsel for the
Applicant has referred me to specific areas of the record where she feels the
evidence reveals that the Board’s conclusions are untenable. Likewise, counsel
for the Respondents has referred me to other portions of the record to show
that the Board’s conclusions are reasonably sustainable. Inevitably, this
involves the Court in sifting and weighing evidence.
[105] I have looked at each
area of concern raised by the Applicant and I can see that there are other
possible interpretations and conclusions that the Board might have drawn from
the evidence before it. I can see, for example, that a decision in favour of
the Applicant on the basic issues of risk and state protection may well have
been reasonable. What I cannot say, however, is that the Decision in favour of
the Respondents falls outside the range of possible, acceptable outcomes which
are defensible in respect of the facts and law. See: Canada (Minister of
Citizenship and Immigration) v. Khosa 2009 SCC 12 and Dunsmuir.
Citizenship
[106] This is another area
where the Applicant argues that the Board improperly shifted the onus to the
Minister to show, in this instance, that there was no possibility that
citizenship would be refused, and that the Minister had to show that
citizenship would be granted.
[107] The Applicant also says
that, in Williams, the Federal Court of Appeal did not address the
problem that arises on the present facts. In the present case, the Chinese
authorities have a residual discretion to grant citizenship to the Respondents.
There is no way of telling how they would have exercised that discretion if the
Respondents had made citizenship applications.
[108] In such a situation, the
Applicant argues that the Respondents are under an onus to produce some
evidence to show that they will not be able to acquire citizenship, in the same
way as the Respondents are required to show that they will not receive adequate
state protection if returned to the Solomon Islands. Otherwise, the Applicant says that the
Minister is placed in the impossible position of having to prove that the
Respondents would not be denied citizenship if they applied to the Chinese
authorities.
[109] This very issue was
raised by the Minister’s counsel before the Board and is clearly addressed in
the Decision. In fact, in paragraph 32 of the Decision, the Board agrees with
Minister’s counsel concerning the onus and the standard of proof:
In
paragraph 10 of the Minister’s Representative’s submissions, he states “The
question then becomes is it more likely than not that the claimant will obtain
PRC nationality if they apply for it? The panel concurs that this is right
question to ask.
[110] Once again, it is over
the matter of the available evidence on point where the Board parts company
with the Applicant. See paragraph 33 of the Decision:
This
is where the panel takes issue. Indeed, the panel finds the evidence
demonstrates that it is not guaranteed, automatic, or a mere formality that
they could re-instate their Chinese nationality.
[111] So the dispute in the
present case is whether the Respondents were required to show anything more
than that, if they applied for citizenship, it was not a mere formality. Were they
required to demonstrate that, if they applied for citizenship, it was more
likely than not that they would be refused?
[112] The Board itself, in
paragraph 36 of the Decision, points to Williams as the authority for
the Board’s Decision and actually quotes the key passage from that case:
This
panel finds that the claimants have met the tests set out in Williams.
The re-instatement of Chinese nationality is not within their control. Although
they could have applied, the provisions of the Nationality Laws of China make
it clear it is far from automatic. In accordance with Williams, it is
not “within the power” to acquire it.
[113] By referring to this passage
from Williams the Board makes clear that it was fully aware that the
test is “power within the control of the applicant,” rather than other tests
such as “mere formalities.”
[114] The Board also
demonstrates its awareness of what is at issue by making a direct comparison
between the situation in Williams – “Ugandan citizenship was there for
him to acquire, if he had the will to acquire it” – and the situation of
the Respondents in this present case:
This
is not exactly the issue in the case at hand. The bars to re-obtaining Chinese
nationality are not only contingent upon perfunctory renunciation of their Solomon Island
status, as was the issue in Williams. The process with respect to China is not automatic, involved an application process, and
required approval by government officials.
[115] Consequently, the Board
found that the Respondents “met the tests set out in Williams:” The
Board says “In accordance with Williams, it is not within his power to
acquire it.”
[116] What is more, in
applying Williams, the Board provides full reasons as to why it is not
within the Respondents power to acquire Chinese citizenship:
40. Given
the fact these claimants have four children, it cannot be stated with any
degree of certainty, that the application would be approved. The evidence
regarding what might happen upon their return is equivocal, and thus not
certain. On the one hand, the Minister’s Representative in his submissions
quotes from one of the Board’s documents that generally people are welcomed
back, and children born outside are largely forgiven. Yet this same document
confirms the principles of one child policy remain in effect, and are said to
apply to returned overseas Chinese and their families. The same document
suggests that social fines of three to six times the average per capita net
income would apply to child policy violations, and references an attempt by the
authorities to force one woman who returned to have an abortion (it was later
rescinded).
41. The
adult claimants also testified about their worries about returning to China. They testified they had made inquiries, and were told they
would be required to at best pay a large fine, and at worse, undergo
sterilization. When placed in the context of the state’s one-child policy, it
is reasonable that the claimants were fearful of re-applying for Chinese
nationality.
[117] There was evidence
before the Board to demonstrate that it was not within the control of the Respondents
to acquire Chinese citizenship, which is the test dictated by Williams.
The children alone would cause them all kinds of problems and Shirley gave
evidence that she might also be subjected to forced sterilization.
[118] The Applicant wants to
push this issue further to say that the Respondents should have been required
to demonstrate that it was more likely than not that, if they applied, they
would not be granted Chinese citizenship. In fact, at the refugee hearing and
as part of this application, the Applicant also argued that the Respondents
were under an obligation to show that they had applied for, and had been
refused, Chinese citizenship.
[119] This argument was, in my
view, correctly rejected by the Board as being contrary to Williams. But
it does show where the Applicant wants to push this issue. In my view, to go
beyond Williams in order to do what the Applicant wants to do would
impose an intolerable burden upon people in the position of the Respondents.
[120] It is certainly within
the control of the Respondents to submit an application for Chinese citizenship
but, on the evidence, it was not within the control of the Respondents to
acquire Chinese citizenship, and the evidence suggested to the Board that they
faced serious problems in doing so.
[121] In my view, then, the
Board correctly applied Williams to the facts of this case. I can find
no error of law on this point and the conclusion, reached by applying the law
to the facts, falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[122] For the reasons given, I
am of the view that this application should be dismissed.
[123] Counsel are requested to serve
and file any submissions with respect to certification of a question of general
importance within seven days of receipt of these Reasons for Judgment. Each
party will have a further period of three days to serve and file any reply to
the submission of the opposite party. Following that, a Judgment will be
issued.
“James
Russell”
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