Date: 20070207
Docket: IMM-1353-06
Citation: 2007 FC 146
Toronto,
Ontario, February 7,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ADRIANA
SANTAMARIA CRAST
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Adriana Santamaria Crast, is an adult who is currently a citizen of Mexico. She claims
refugee protection in Canada under section 96 and 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (IRPA). The Immigration and
Refugee Board in a decision dated February 20, 2006, rejected that claim on the
basis that the Applicant could re-acquire Argentine citizenship as there was no
evidence of a well founded fear of persecution in Argentina, and she
could return to Argentina and not seek refuge in Canada.
[2]
The
Applicant seeks to have that decision quashed and returned to another Member of
the Board for re-determination. For the Reasons that follow, I find that the
decision must be quashed and returned for re-determination by a different
Member of the Board.
[3]
The
Applicant was born in Argentina and lived there for the
first three years of her life. Her parents were apparently Mexican citizens.
The Applicant and her family moved to Mexico where the Applicant became
a citizen and has lived until coming to Canada to make her
claim. She bears a Mexican passport. She has never returned to Argentina, she has no
family there and knows nobody there. She has not sought to regain her
Argentine citizenship nor to acquire an Argentine passport.
[4]
Until
a few years ago, the Applicant’s father was a well known activist and writer in
Mexico. He left
Mexico and came to Canada where he made a successful claim for refugee
status. Her father now lives in Canada carrying on an academic
career.
[5]
The
Applicant, as her father’s daughter, has experienced threats of violence in Mexico to the
extent that she also seeks refuge in Canada to be with her father.
[6]
The
evidence in this case as to Argentine law indicates that any person born in the
Argentine is considered to be both a national of Argentine and a citizen of
that country. Nationality and citizenship are different in Argentina in that
citizenship includes in addition certain political rights such as voting and
running for public office. Nationality can never be relinquished. However,
citizenship can be lost for a number of reasons including the acquisition of
citizenship in another country (save for certain countries were special
arrangements exist – Mexico is not one), commission of a serious
offence and acceptance of foreign honours without approval from the Argentine
government. If an Argentine national has lost citizenship that person can
apply to a federal court judge for restitution of citizenship, but only if they
reside in Argentina at the time.
Generally speaking, restitution will not be denied unless the Applicant has
been found guilty of a major crime in a final judgment. However, the evidence is
that case for restitution is dealt with on an individual basis, no general
statement as to the outcome of any particular application can be made.
[7]
Applying
this law to the Applicant here, it can be seen that, by birth, the Applicant
became an Argentine national and citizen. By acquiring Mexican citizenship she
lost Argentine citizenship but not nationality, she will always have that. To
regain Argentine citizenship the Applicant would first have to reside in
Argentine and then make an application to a federal court judge. As to the
first requirement, there is no evidence as to what constitutes “residence”.
Assuming “residence”, since the Applicant has no record of being convicted of
any serious crime, it is expected that her application would be successful, but
it is by no means certain.
[8]
Turning
to Canadian law, section 96 of IRPA deals with persons making a claim to be a
Convention Refugee, it says:
“96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution…a) is outside each
of their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themselves of the protection of each of those countries…”
The parties are in agreement that
“nationality” in this section means “citizenship” in the Argentine legal sense.
[9]
It
is not disputed that the Applicant has demonstrated a well-founded fear with
respect to Mexico but not as to Argentina.
[10]
The
Board found that since the Applicant was in possession of a Mexican passport, a
rebuttable presumption arose that she was a Mexican national. However, since
that passport indicated that the Applicant’s place of birth was Argentina, the Board
considered the Applicant’s status with respect to Argentina.
[11]
As
to who is to be considered a national, the Board said at pages 2 and 3 of its
Reasons:
To be considered a national by
operation of law means that, under the terms outlined in the states enacted
legal instruments pertaining to nationality, the individual concerned is ex
lege, or automatically, considered a national. Those who are granted
citizenship automatically by the operation of these legal provisions are
definitively national of that state. Those who have to apply for citizenship
and those that the law outlines as being eligible to apply, but who application
could be rejected, are not citizens of that state by operation of that state’s
law. Where an administrative procedure allows for discretionary granting of
citizenship, such applicants cannot be considered citizens until the
application has been approved and completed and citizenship of that state is
bestowed in accordance with the law.
[12]
The
Board then recited the evidence as to Argentine law which has been previously
summarized in these Reasons and submissions of Applicant’s Counsel. The
reasoning for the Board’s rejection of the Applicant’s claim was set out at
pages 4 and 5 of its Reasons:
The panel finds that the
claimant has involuntarily lost her Argentinean citizenship, as she has
acquired foreign citizenship, but does not fall under dual citizenship.
However, the panel finds insufficient credible or trustworthy evidence that the
claimant would be denied restitution of her citizenship rights should she apply
for them. The panel finds that although recovery of Argentinean citizenship is
not automatic, there is insufficient credible or trustworthy evidence that the
claimant would be denied this right should she return to Argentina, as the only
reasons for which an Argentine who resides in Argentina would be denied
restitution of her citizenship rights are penal. No evidence has been
presented that the claimant is a serious offender or has a criminal record.
At the port of entry, the
claimant was asked whether she had considered relocating to Argentina, to which
she replied in the negative, explaining that the situation of the Argentinean
government is very bad, and that she did not know anybody there.
No evidence was presented that
the claimant would face a well-founded fear persecution, risk to her life, a
danger of torture, or that she would be subjected to cruel or unusual
punishment or treatment should she return to Argentina.
[13]
Two
issues arise in this review:
1.
Did the
Board apply the correct legal principles; and
2.
Did the Board
correctly assess and apply the facts to those legal principles.
[14]
While
legal principles are to be assessed on the basis of correctness and factual
findings on the basis of patent unreasonableness, the questions here are
essentially a mixture of law and fact and will be assessed on the basis of
reasonableness.
[15]
The
leading Canadian case dealing with refugees who apparently have connections
with several states is Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689. There, the Supreme Court found support for its position
in a 1951 Convention which was never incorporated into the laws of Canada. It said at
paragraph 89:
89. In considering the claim
of a refugee who enjoys nationality in more than one country, the Board must
investigate whether the claimant is unable or unwilling to avail him- or
herself of the protection of each and every country of nationality. Although
never incorporated into the Immigration Act and thus not strictly binding,
paragraph 2 of Art. 1(A)(2) of the 1951 Convention infuses suitable content
into the meaning of "Convention refugee" on the point. This paragraph
of the Convention provides:
Article 1
...
A... .
(2) ...
In the case of a person
who has more than one nationality, the term "the country of his
nationality" shall mean each of the countries of which he is a national,
and a person shall not be deemed to be lacking the protection of the country of
his nationality if, without any valid reason based on a well-founded fear, he
has not [page752] availed himself of the protection of one of the countries of
which he is a national.
As described above, the
rationale underlying international refugee protection is to serve as
"surrogate" shelter coming into play only upon failure of national
support. When available, home state protection is a claimant's sole option. The
fact that this Convention provision was not specifically copied into the Act
does not render it irrelevant. The assessment of Convention refugee status most
consistent with this theme requires consideration of the availability of
protection in all countries of citizenship.
[16]
In
Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA
126, the Federal Court of Appeal was required to deal with a person who, as a
youth, had dual citizenship but lost one of them when he retained the other
upon the age of majority. The evidence was that the citizenship of the first
country could be regained as a matter of course. At paragraphs 21 and 27 that
Court said:
21 In another decision
rendered before the Supreme Court of Canada rendered its own in Ward, Bouianova
v. Minister of Employment and Immigration (1993), 67 F.T.R. 74, Rothstein J.
(sitting then in the Trial Division of the Federal Court of Canada) broadened
the holding of our Court in Akl. He held that if, at the time of the hearing,
an applicant is entitled to acquire the citizenship of a particular country by
reason of his place of birth, and if that acquisition could be completed by
mere formalities, thereby leaving no room for the State in question to refuse
status, then the applicant is expected to seek the protection of that State and
will be denied refugee status in Canada unless he has demonstrated that he also
has a well-founded fear of persecution in relation to that additional country
of nationality.
…
27 This argument has no
merit. What the case law has established is that, 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. It is, here, within the respondent's power to
renounce his Rwandan citizenship and to obtain a Ugandan citizenship. That
other citizenship is there for him to acquire if he has the will to acquire it.
In Chavarria v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J.
No. 17 (F.C.T.D.), the only case relied upon by the parties that touches the
issue of renunciation of citizenship without, however, expanding on it,
Teitelbaum J. denied refugee status even though the reacquisition of another
citizenship "would probably mean that Eduardo would have to renounce his
Salvadoran citizenship..." (at paragraph 60).
[17]
This
Court followed these remarks in paragraphs 29 to 32 with four rationales for
its decision:
29 First, we are not
dealing here with forcing an individual to renounce his citizenship. The
respondent is free and remains free, in Canada, not to renounce his Rwandan citizenship
and not to seek Ugandan citizenship. If he chooses not to renounce and not to
seek Ugandan citizenship, he will have to live with the consequences of his
choice.
30 Second, we are not dealing
here with someone who, should he renounce his citizenship, will become
stateless.
31 Third, precisely
because citizenship is a fundamental right, when faced with a choice between
becoming a refugee in one country and a citizen in another, a person would gain
by opting for citizenship status rather than for refugee status.
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).
[18]
From
Williams it can be seen that where citizenship is available in another
country, an applicant is expected to make attempts to acquire it so long as it
is “within his power” to acquire it. Citizenship is described in paragraph 31
as a “fundamental right” for which a person would opt rather than seek refugee
status.
[19]
A
slightly different issue arose before the Federal Court in Katkova v. Canada
(MCI), [1997] F.C.J. No. 549, where the Applicant was an Eastern European
Jew who, while never having been to Israel, has a right of return under Israeli
law. The Federal Court held that to consider nationality there had to be a
genuine connection and physical link to the country (Israel). There was
no mandatory requirement to seek “return” to Israel, and there
was a wide discretion in the Israeli state to refuse citizenship. Thus the
potential of Israeli citizenship rather than the pre-existing right to such
citizenship meant that a potential refugee in Canada did not have
to first seek out such citizenship.
[20]
From
these authorities, the principles of law that emerge are:
1.
The Board
must investigate whether the claimant is unwilling to avail him or her self of
the protection of each and every country of nationality (Ward).
2.
When
available, the home state protection is the claimant’s sole option (Ward).
3.
Where
citizenship in another country is available, a claimant is expected to make
attempts to acquire it (Williams).
4.
A claimant
is not expected to make attempts to acquire citizenship in a state with whom
there is no genuine connection and physical link (Katkova).
5.
A claimant
is not expected to make attempts where he or she is unwilling to do so where
the unwillingness arises from fear of persecution (Williams).
6.
Refugee
status will be refused when it is shown that it is within the claimant’s power
to acquire that other citizenship (Williams).
[21]
What
about a situation such as the present where the claimant has made no
application to reacquire citizenship, there is no evidence of fear of
persecution, there is a tenuous connection to Argentina by reason of birth
alone, and the evidence suggests that, given residence in Argentina, it is
probable but by no means certain that citizenship could be reacquired.
[22]
First,
a review of the Board’s Reasons and the Tribunal Record indicates that no
consideration was given as to what constitutes evidence as to the requirement
of residency under Argentinean law before one can apply for reinstatement as a
citizen. Was it an obligation of the Applicant to put in evidence on this
point? Would it be proper for the Board to presume that, lacking evidence, it
could resolve the issue against the interests of the Applicant?
[23]
It
is clear that it is incumbent upon a person claiming refugee status that such
person bears the burden to demonstrate entitlement to that claim, there is a
presumption of state protection (e.g. Nunez v. Canada (MCI), 2005 FC
1661). Residency is a requirement under Argentine law before a claim can be
made for reinstatement. The Board in its Reasons did not address that issue at
all. To ignore that issue was an error of law. No factual finding as to that
point was made, thus there was a patently unreasonable error of fact.
[24]
Second,
the Board does not address the issue as to the degree of control that an
Applicant for reacquisition of citizenship must have over the success of the
ultimate result. The Federal Court of Appeal in Williams indicates that
if reacquisition is merely a matter of formalities then the control is
certain. Here more than mere formalities are required, residency plus an
application to a federal court is required. The evidence indicates that the
result cannot be predicated with certainty. The Reasons of the Board as to the
degree of certainty are lacking. No indication is made that due consideration
was given to the evidence. The findings of the Board are not reasonable.
[25]
Under
these circumstances, the appropriate result would be to set aside the decision
and return the matter to the Board so that a different Member make appropriate
determinations as to residency and the degree of certainty expected as to any
application for reacquisition of citizenship that could be made by the
Applicant.
[26]
The
parties have asked for a period of 10 days to make submissions to any
appropriate question for certification and I will do so. There is no Order as
to costs.
JUDGMENT
FOR THE REASONS
DELIVERED HEREIN:
THIS COURT ADJUDGES
THAT:
1.
The
Application is allowed;
2.
This
matter is to be returned to the Immigration and Refugee Board for
re-determination by a different member in a manner consistent with these
Reasons;
3.
The
parties shall have a period of 10 days from the date of this Order to make
submissions as to certification of any question; and
4.
No
Order as to costs.
“Roger T. Hughes”
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