Docket: IMM-7531-10
Citation: 2011 FC 1066
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, September 9, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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RAMI BAHJAT YAH ABEDALAZIZ
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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
I. Preliminary
[1]
It is
settled law that a refugee claimant must demonstrate a well-founded fear of
persecution in relation to each of his or her countries of nationality before seeking
protection in another country (section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA); Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1).
[2]
The
scope of this principle has been extended to cases where, at the time of the
hearing before the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB), an applicant is entitled to acquire, by mere formalities,
the citizenship of a country with respect to which he or she has no
well-founded fear of persecution.
[3]
In Canada
(Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126, [2005]
3 F.C.R. 429, the Federal Court of Appeal found the following:
[19] 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.
[20] 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 (C.A.), and in Canada (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
(at paragraph 12 of these reasons) and the principle eventually made its way
into the IRPA, section 96 referring to "each of their countries of
nationality."
[21] In another decision rendered
before the Supreme Court of Canada rendered its own in Ward,
Bouianova v. Canada (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.
[4]
Moreover,
a refugee claimant’s “unwillingness” to carry out the steps necessary for
acquiring citizenship in the country in which he or she has no fear of
persecution may lead to the rejection of his or her claim. In this case, seeking
remedies in the courts is similar to such steps.
II. Introduction
[5]
This
is an application for judicial review of the RPD’s decision dated November 15,
2010, that the applicant is not a “Convention refugee” or a “person in need of
protection” in accordance with sections 96 and 97 of the IRPA.
III. Facts
[6]
The
applicant, Rami Bahjat Yah Abedalaziz, was born in Jordan. He says that he is a
native of Palestine and lived in the West Bank.
[7]
On
April 29, 2008, in Amman, Jordan, the applicant applied for a Canadian visa
(study permit), which was issued to him on June 8, 2008. In his application
for a study permit, the applicant claimed to be a Jordanian citizen. He
referred to a passport number and stated that this passport was valid until
July 14, 2009. According to the applicant’s evidence, the passport was issued
on July 15, 2004, and was valid until July 14, 2009, and therefore had
a validity period of 5 years. It bears a national identity number
(Application for a study permit: Applicant’s Record (AR) at page 44 and, also, page
46, Section A; Passport issued on July 15, 2004, AR at page 60).
[8]
The
applicant states that he was a Jordanian citizen when he filed his
application for a study permit with the Canadian Embassy in Amman on April 29,
2008, since he was in possession of a Jordanian passport that bore a national
number and was valid until July 14, 2009.
[9]
According
to the applicant’s testimony at the hearing, a few days later, on May 15, 2008,
he was issued what he considers a temporary passport by Jordan, one that was valid
until May 14, 2013.
[10]
According
to the applicant, he is no longer a Jordanian citizen because this second
passport bears no national identity number. The applicant claims that his
Jordanian passport is temporary and that he is stateless.
[11]
The
applicant arrived in Canada on June 30, 2008, and sought refugee protection on
July 2, 2008.
[12]
On
July 22, 2008, the applicant indicated at the point of entry that his
parents are Jordanian citizens and that they obtained Jordanian citizenship before
he was born (Interview notes at pages 9‑10: Exhibit A of the
affidavit of Natacha Jean-Louis).
[13]
However,
in his Personal Information Form (PIF), which was signed on August 18, 2008, the
applicant stated that his parents have Palestinian citizenship (PIF at page 4,
question 4: Exhibit B of the affidavit of Natacha Jean-Louis).
IV. Decision
under review
[14]
The
applicant is seeking protection in Canada in respect of Palestine. He is not
raising any fear of persecution or danger in respect of Jordan.
[15]
First,
the RPD found that the applicant is a Jordanian citizen.
[16]
Alternatively,
assuming that the applicant lost his citizenship as he claims, the RPD found
that he can challenge this decision by seeking remedies as mentioned in the
documentary evidence, which was found to be credible and trustworthy.
[17]
Because
the applicant did not allege any fear of persecution or danger according to
sections 96 and 97 of the IRPA in respect of Jordan, his refugee claim was
rejected.
[18]
The
applicant claims that when he obtained his study permit for Canada, he was no
longer a Jordanian citizen. He believes that he arbitrarily lost this
citizenship because he was not residing in Jordan.
V. Issues
[19]
(1)
Did the RPD infringe upon the applicant’s right to a fair hearing?
(2) Did the
RPD err in finding that the applicant is a Jordanian citizen or could acquire
citizenship in that country by mere formalities?
VI. Analysis
[20]
The
Court agrees with the respondent’s position that the decision is well founded
in fact and in law and does not warrant the intervention of this Court.
A. Standard of review
[21]
The
RPD’s finding that the applicant could acquire Jordanian citizenship by mere
formalities and that he was therefore not stateless pertains to a determination
based on the documentary evidence and the applicant’s testimony. This is an
issue that largely involves the interpretation of facts. The applicable
standard of review is reasonableness (Reza v. Canada (Minister of
Citizenship and Immigration), 2009 FC 606, 362 F.T.R. 67 at paragraph 26).
[22]
The
standard of review applicable to credibility issues is also reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[23]
Furthermore,
“[t]he decision
maker’s credibility analysis is central to its role as trier of fact, and
consequently its Credibility findings are entitled to the highest degree of
curial deference” [emphasis added] (Lin v. Canada (Minister of Citizenship
and Immigration), 2008 FC 698, at paragraph 11; cited with approval in Ndam
v. Canada (Minister of Citizenship and Immigration), 2010 FC 513, at paragraph
4).
[24]
Furthermore,
when issues of credibility and the assessment of evidence are involved, “it is
well established that the Court will intervene only if the decision was based
on an erroneous finding of fact that it made in a perverse or capricious manner
or without regard for the material before it” (Camara v. Canada (Minister of Citizenship
and Immigration), 2008 FC 362, 167 A.C.W.S. (3d) 158 at paragraph
12).
B. No breach of the rules of natural justice
or procedural fairness
[25]
The
applicant’s argument regarding the failure to comply with the principles of
natural justice and procedural fairness cannot succeed under the circumstances.
[26]
First,
it is not sufficient to claim that the RPD breached his right to make his case;
he must still give a factual basis for his allegation. However, the applicant’s
affidavit is totally silent on this issue. The submission that the applicant
was not able to present complete evidence is not supported by affidavit and
should be disregarded.
[27]
Consequently,
the submission that the applicant was not able to present complete evidence is
not supported by affidavit and should be disregarded.
[28]
Moreover,
the question of the applicant’s citizenship is not a temporary issue, as he
claims, but an important one because, if the RPD found that the applicant is a
Jordanian citizen and did not seek protection in that country, his refugee
claim collapses.
[29]
This
is a fundamental element that the applicant must demonstrate. In fact, the
refugee claimant must demonstrate that he or she is a “Convention refugee” or a
“person in need of protection” in his or her country of nationality. In this
context, nationality means citizenship in a particular country (sections 96 and
97 of the IRPA; Hanukashvili v. Canada (Minister of Citizenship and Immigration)
(1997), 129 F.T.R. 216, 72 A.C.W.S. (3d) 914; Ward, above).
[30]
The
applicant refers to the short length of his hearing.
[31]
The
length of a hearing is not a gauge of the quality of the work by an
administrative tribunal. The applicant did not establish that his counsel did
not have sufficient time to submit his evidence or to submit all of the evidence
he considered relevant.
[32]
In Vorobieva
v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R.
(2d) 97, 52
A.C.W.S.
(3d) 167 (FC), this Court decided that the RPD may reasonably limit the length
of a hearing and that, in the absence of objection by the parties, this
does not constitute a breach of the principles of natural justice:
[11] I am not persuaded that in controlling
its own process and limiting time available for testimony and where the time
allocated does not appear to have been unreasonable, and the limits proposed
were not strenuously objected to, that the panel denied a fair hearing, or
violated s-s. 46(3) of the Act. [Emphasis added.]
[33]
Moreover,
subsection 162(2) of the IRPA stipulates the following:
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Sole and exclusive jurisdiction
162.
(1) Each Division of the Board has, in respect of proceedings brought before
it under this Act, sole and exclusive jurisdiction to hear and determine all
questions of law and fact, including questions of jurisdiction.
Procedure
(2) Each
Division shall deal with all proceedings before it as informally and quickly
as the circumstances and the considerations of fairness and natural
justice permit.
[Emphasis added.]
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Compétence exclusive
162. (1)
Chacune des sections a compétence exclusive pour connaître des questions de
droit et de fait — y compris en matière de compétence — dans le cadre des
affaires dont elle est saisie.
Fonctionnement
(2) Chacune des
sections fonctionne, dans la mesure où les circonstances et les
considérations d’équité et de justice naturelle le permettent, sans
formalisme et avec célérité.
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[34]
Furthermore,
there is no evidence that the applicant objected to the length of the hearing,
the panel’s approach or an alleged apprehension of bias. The applicant is now
precluded from doing so and his late argument cannot draw the attention of this
Court.
[35]
In Kouama
v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 122,
87 A.C.W.S. (3d) 991, this Court indicated that the fact that the hearing was
not very long is insufficient to demonstrate a breach of natural justice:
[13] In my view, the applicant
raises two related issues in his submissions: the length of the hearing and the
opportunity to be heard. In the case at bar, the hearing lasted only 20
minutes. Is that sufficient reason to conclude that justice was denied? I am
convinced it is not. As an administrative tribunal, the Refugee Board
determines the subject matter and the scope of its hearings, provided it acts
in good faith (Nova Scotia v. Marshall, [1989] 2 S.C.R. 788). Furthermore,
MacKay J. pointed out in Vorobieva, supra, that the Refugee Board
controls its own process and the time allocated for each hearing. It goes
without saying that the Board has the necessary discretion and expertise to
estimate the time required for dealing with cases. On reading the record in
this case, I found the facts to be relatively straightforward. Furthermore,
the record also shows that the applicant and his counsel did not raise any
objection to the length of the hearing. I therefore cannot conclude that the
length of the hearing was unreasonable or amounted to a denial of justice. [Emphasis added.]
[36]
Regarding
the applicant’s allegation that he was unable to make his case, the applicant
did not submit any element demonstrating that there was a denial of justice. He
also did not establish that he was prevented from submitting any evidence.
[37]
The
applicant did not prove that the panel did not give him the opportunity to
answer the questions asked of him or to make submissions on the facts or
factors likely to affect the decision. The burden of proof is on the applicant (Kouama,
above).
[38]
The
criticisms made late by the applicant follow the RPD’s decision to
reject the refugee claim.
[39]
Under
these circumstances, in failing to raise an alleged breach of the principles of
procedural fairness at the first opportunity, that is, during the hearing
before the RPD, he is now precluded from basing his application for judicial
review on these inadmissible allegations.
[40]
The
applicant did not demonstrate with his affidavit and the documents submitted in
support of his application for judicial review that the RPD failed to observe
the principles of natural justice and, in particular, the audi alteram
partem rule.
C. The applicant did not rebut the presumption
of citizenship
[41]
The
refugee claimant must demonstrate that he is a “Convention refugee” or a “person
in need of protection” in his or her country of nationality. In this context,
nationality means citizenship in a particular country (sections 96 and 97 of
the IRPA; Hanukashvili, above; Ward, above).
[42]
Paragraph
93 of the Handbook on Procedures and Criteria for Determining Refugee Status,
Geneva, September 1979, recognizes the existence of a prima facie
presumption that a passport holder is a national of the country of issue. The
mere assertion by the passport holder that it was issued as a matter of
convenience for travel purposes only is not sufficient to rebut the presumption
of nationality (Mathews v. Canada (Minister of Citizenship and Immigration),
2003 FC 1387, 127
A.C.W.S.
(3d) 528 at paragraph 11; Adar v. Canada (Minister of Citizenship and Immigration)
(1997), 132 F.T.R. 35, 71 A.C.W.S. (3d) 1151).
[43]
The
RPD noted that the applicant had already held a Jordanian passport with a
national identity number and had clearly claimed to be a Jordanian citizen. Therefore,
the RPD drew a negative inference with respect to the credibility of the
applicant, who claimed to be a Jordanian citizen and then went back on this
statement:
[17] There are contradictions between the fact that, in his
April 29, 2008, application for a study permit, he states that he is
a Jordanian citizen, and the fact that today he states that he is no longer a
Jordanian citizen.
[18] The documentary evidence indicates that Jordan issues passports to three categories of Palestinians:
“Jordanian citizens of Palestinian origin who can obtain five-year passports
with national identity numbers.” It is clear that the claimant has already
obtained a passport with a national identity number and it is clear that he
claimed to be a Jordanian citizen.
[19] However, he told me that he has lost his
citizenship. He referred
to a document for which a translation was submitted this morning: the bridge
crossing card. He presented me the passport that he obtained after applying to
study, which does not have a national identity number. [Emphasis added.]
[44]
The
RPD assessed the relevant documentary evidence that indicates that the
applicant was not in one of the situations for which, according to the law, his
Jordanian citizenship could be legally revoked (Decision at paragraph 23).
[45]
Based
on the evidence submitted to the RPD, it was reasonable for the RPD to find
that the applicant, a Palestinian who was born in Jordan, whose parents are
Jordanian citizens, and who is a Jordanian passport holder, had not rebutted
the presumption that the holder of a passport is a citizen of the issuing
country.
D. Alternatively, the applicant may pursue remedies
to challenge the revocation of his Jordanian citizenship
[46]
The
RPD found, in the alternative, that, assuming that the applicant did lose his
Jordanian citizenship in the circumstances raised, the documentary evidence
indicated, on the one hand, that his case did not give rise to a revocation of
citizenship and, on the other hand, that there was an opportunity to go before the
Jordanian courts to challenge the loss of his citizenship. The documentary
evidence indicates that Jordanian courts have been receptive to these challenges
(Decision at pages 5-7).
[47]
In Williams,
above, the Federal Court of Appeal agreed with the reasons in Bouianova v. Canada (Minister of
Employment and Immigration)
(1993), 67 F.T.R. 74, 41 A.C.W.S. (3d) 392:
[22] 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 under the 1951 Convention an the 1967 Protocol
relating to the Status of Refugees 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's sole option."
[23] 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 FC 283, and Snider J. in Choi v. Canada (Solicitor General), 2004 FC 291.) [Emphasis added.]
[48]
The
RPD found that the applicant had not demonstrated that he could not, by mere
formalities, acquire Jordanian citizenship. The RPD found the following on the
basis of the documentary and testimonial evidence as a whole:
[31] I am taking the claimant’s personal situation into account:
his parents are merchants and, according to what he told the immigration
officer, they are Jordanian citizens; and there is no refugee protection claim
against Jordan. I am of the opinion that, in Jordan,
the claimant can appear before the courts and obtain his Jordanian citizenship
once again.
[49]
This
finding by the RPD is well founded. This Court has repeatedly established that,
when a person can avail himself or herself of the citizenship of a country by
mere formalities or steps, international protection cannot apply (De Rojas v.
Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 117
(QL/Lexis), 69 A.C.W.S. (3d) 148 (FC); Alvarez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 296, 156 A.C.W.S. (3d) 437).
[50]
The
RPD was indeed entitled to prefer the objective documentary evidence to the
applicant’s allegations. It was also entitled to compare the pieces of
documentary evidence to determine which situation it considered the most
consistent with reality (Zhou v. Canada (Minister of Citizenship and Immigration),
[1994] F.C.J. No. 1087 (QL/Lexis), 49 A.C.W.S. (3d) 558 (CA) at paragraph 20; Tekin
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 357, 122 A.C.W.S. (3d) 357 at paragraph 17; Lozandier
v. Canada (Minister of Citizenship and Immigration), 2009 FC 770, at paragraph
20).
[51]
Subsequently,
in the context of this case, it drew all of the inferences with respect to the
documentary evidence that was not consistent with the probabilities of the case
as a whole (Mutinda v. Canada (Minister of Citizenship and Immigration),
2004 FC 365, 129 A.C.W.S. (3d) 1183 at paragraph 12).
[52]
Given
the RPD’s finding that there were recourses available to the applicant to
challenge the decision that he lost his Jordanian citizenship, the applicant also
had to demonstrate a fear in that country (Ward, above; Canada
(Minister of Employment and Immigration) v. Akl (1990), 140 N.R. 323,
20 A.C.W.S. (3d) 255 (FCA); Chahoud
v. Canada (Minister of Employment and Immigration) (1992), 140 N.R. 324, 32
A.C.W.S. (3d) 123 (FCA); sections 96 and 97 of the IRPA).
[53]
However,
in this case, the applicant did not allege any fear of persecution or danger under
sections 96 and 97 of the IRPA with respect to Jordan.
[54]
Because
the RPD found that the applicant did not have a well-founded fear with respect
to Jordan, it was not required to address the applicant’s fear with respect to Palestine
(Espinoza v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 73 (FC) at paragraph 43; Dawlatly
v. Canada (Minister of Citizenship and Immigration) (1998), 149 F.T.R. 310,
80
A.C.W.S.
(3d) 852 (FC) at paragraph 14).
VII. Conclusion
[55]
For
all of these reasons, the applicant’s submissions have no merit and do not
warrant the intervention of this Court in judicial review.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that
the applicant’s application for judicial review be
dismissed. No question of general importance for certification arises.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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