Date: 20110228
Docket: IMM-1839-10
Citation: 2011 FC 235
Toronto, Ontario,
February 28, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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NYIMA LHAKYI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ms.
Lhakyi entered Canada through Pearson International Airport on
December 11, 2006, using an Indian passport and was granted visitor status for
six months as she said that she wanted to visit her brother in Toronto.
[2]
The
applicant subsequently
claimed refugee protection. She filed a Personal Information Form (PIF) and had
an intake examination on January 12, 2007. In both she stated that the Indian
Passport that she used to enter Canada was fraudulent, that her place of birth
was Dalhousie, India, and that her country of citizenship was China, as she was
a Tibetan. In her PIF she stated that she feared persecution in China and that she could not
return to India as she had no status
there.
[3]
The
passport the applicant used to enter Canada was forensically examined and was determined to
be genuine. The Refugee Protection Division of the Immigration and Refugee
Board of Canada conducted a hearing of her refugee claim on March 17, 2010.
The Board found “on a balance of probabilities, that the claimant is a citizen
of India and that she can return to India using her Indian passport.” No issue is taken
by the applicant with that finding of fact. The applicant’s concern lies with what
the Board did, or failed to do, after making that finding.
[4]
The
Board concluded, based on its finding that the applicant was a citizen of
India, that she was excluded from the application of the Convention relating
to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (Refugee
Convention) by virtue of Article 1(E), which provides as follows:
This Convention shall not
apply to a person who is recognized by the competent authorities of the country
in which he has taken residence as having the rights and obligations which are
attached to the possession of the nationality of that country.
[5]
Article
1(E) is incorporated into Canada’s Immigration and Refugee Protection Act, SC 2001, c
27, which provides, at s. 98, that “A person referred to in section E or F of
Article 1 of the Refugee Convention is not a Convention refugee or a person in
need of protection.”
[6]
The
Board concluded that as the applicant was a citizen of India she had the right to
return to India and live there. In
other words, she was not in need of surrogate protection.
[7]
The
applicant submits that the Board erred. Counsel for the applicant, relying on Canada (Attorney General) v
Ward,
[1993] 2 S.C.R. 689, expressed the error to be the following:
The Board confused the notion of exclusion
under Article 1(E) with the notion of dual or multiple citizenships and that
led it to follow a procedure that was wrong and unfair because it follows a
finding of exclusion under Article 1(E) that an inclusion hearing is
precluded. In cases of dual citizenship an inclusion hearing must be held and
the refugee claim must be assessed under each country of citizenship.
In short, the applicant submits that the Board
was obligated to conduct an evaluation of whether the applicant had a fear of
persecution in India, but that having found that she was excluded from
protection in China and having rejected her
claim, such an assessment was not conducted.
[8]
I am
not convinced that Ward assists this applicant. Mr. Ward was born in Northern Ireland where he joined the
Irish National Liberation Army (INLA). He ran afoul of the INLA and was
confined and tortured by them as a suspected collaborator with the police. He
was tried by the INLA and sentenced to death. He subsequently fled Ireland and claimed refugee status
in Canada based on his fear of
persecution as a member of a particular social group, the INLA. It was
admitted before the Supreme Court that Mr. Ward had dual citizenship: he was a
citizen of the Republic of Ireland and of Britain. It is true, as the applicant submits, that the Supreme
Court stated that the Refugee Convention “requires consideration of the
availability of protection in all countries of citizenship.” However,
the Court also noted that it is the claimant who has the burden of establishing
that he or she has a well-founded fear of persecution in all countries of which
he or she is a national and that “[t]he fact that Ward’s life will be in danger
should he be returned either to Ireland or to Great Britain is not disputed by
anyone …” In short, in Ward, the Board was obliged to consider the
claimant’s refugee claim as against both Ireland and Britain because allegations
of fear of persecution and inability to seek protection had been raised
vis-à-vis both jurisdictions.
[9]
Ms. Lhakyi
only raised a fear of persecution relating to return to China; she raised none
concerning a return to India. Furthermore, there is
nothing apparent on the facts of this case to suggest there was any fear of
persecution in India, given that she lived
and worked in India and had participated in
pro-Tibet demonstrations there without incident. The onus of raising a claim
of a well-founded fear of persecution rests with the applicant, not the
Minister or the Board. Absent any such allegation, the Board was not required
to conduct an examination of her need for protection in India.
[10]
The
application will be dismissed. Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed and no question is
certified.
"Russel
W. Zinn"
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