Date: 20080508
Docket: IMM-4202-07
Citation: 2008 FC 583
Ottawa, Ontario, May 8, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
DEACHON TSERING KHAN
HOWARD KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
Background
[1]
Deachon
Tsering Khan, a citizen of Tibet, married Howard Khan, a citizen of Guyana in
the United
States
in 1999. They challenge, in this judicial review proceeding, the August 28,
2007 decision of the Refugee Protection Division (the tribunal) finding the
applicants not to be Convention Refugees nor to be in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act (the Act).
[2]
Counsel
for the applicants raises the following issues:
1. With respect
to Deachon Tsering Khan (Mrs. Khan) that (a) the tribunal
erred in law in finding she had citizenship or the right to citizenship
in Guyana and therefore had to make a case against both Tibet and Guyana and
(b) in the alternative, the tribunal made an evidentiary error when finding
there was no evidence and no argument advanced that would support a conclusion
that she might be rejected as a citizen of Guyana on the basis of national
security or public policy.
2. With respect
to Howard Khan (a) whether the tribunal erred in providing no analysis of
his need for protection under section 97 of the Act and (b) whether the
tribunal erred in concluding state protection was available to him in Guyana.
[3]
Howard
Khan, as noted, was born in Guyana and is a citizen of that country. Deachon
Tsering Khan was born in Tibet and is a citizen of China. She was
raised in Nepal after her family sought refuge there after China’s occupation
of Tibet.
[4]
In
his early childhood Mr. Khan, his parents and his siblings experienced
incidents of violence at the hands of Afro-Guyanese bandits. In 1995, he went
to the United
States
where he lived and worked illegally from 1995 to 2005.
[5]
In
1997, Deachon Tsering came to the United States by buying a
false Nepali passport. Two years later, she met Mr. Khan and they married there.
Mrs. Khan applied for a marriage certificate using the name in her false
passport containing false personal details.
[6]
They
have two children. In February 2005, they came to Canada making a
refugee claim which, as noted, was dismissed on August 28, 2007.
The Tribunal’s decision
(a) With respect to Mrs. Khan
[7]
The
tribunal ruled she had the right to status in Guyana and could
seek protection there. This ruling by the tribunal was made despite the assertion
by her she had no absolute right to Guyanese citizenship as a result of her
marriage to Howard Khan, a view supported by a legal brief Messrs. Radhamohan
and Singh, lawyers familiar with the laws of Guyana.
[8]
The
question of her right to Guyanese citizenship turns on article 45 of the
Constitution of Guyana which reads:
Any person who, after the commencement of
this Constitution, marries a person who is or becomes a citizen of Guyana shall
be entitled, upon making an application in such manner and taking such oath of
allegiance as may be prescribed, to be registered as a citizen of Guyana:
Provided that the right to be registered as a citizen of Guyana under this
article shall be subject to such exceptions or qualifications as may be
prescribed in the interests of national security and public policy.
[9]
The
tribunal’s analysis and conclusions on this point are expressed as follows:
They argue that the female
claimant’s right to citizenship is not absolute because the Minister’s
discretionary power allows refusal of citizenship in the interests of national
security or public policy. The panel rejects this conclusion as well. There is
no evidence and no argument was advanced in the hearing that would support a
conclusion that the female claimant might be rejected as a citizen of Guyana on the basis of national
security or public policy. Counsel attempted to elicit an opinion in regard to
this matter from the Guyana High Commission. None was forthcoming.
In her written submissions,
counsel argued that the female claimant’s misrepresentation of her identity
information would result in a denial of citizenship by the Government of Guyana
on the basis of some threat to national security. I reject this argument. The
issue of false identity information with regard to the marriage has been dealt
with above. With regard to citizenship application, there is no constraint
in the female claimant’s disclosing true identify information to the Government
of Guyana, including the fact of her marriage to the male claimant, a Guyanese
citizen. Case law indicates that a claimant is obligated to seek protection in
a country where he or she has rights before seeking protection in Canada.
I find, on a balance of
probabilities, that the female claimant has a right to Guyanese citizenship on
the basis of her marriage to the male claimant and that the discretionary
powers available to the Minister noted above will not constrain the offer of
citizenship to her. In that context, as in the case of her husband’s claim, the
female claimant has no need for protection in Canada. No concern regarding possible
persecution in Guyana was noted in the female
claimant’s claim.
[Emphasis mine.]
[10]
I
touch upon another aspect of the tribunal’s consideration of Mrs. Khan’s
situation. The tribunal considered her well-founded fear in respect of China:
The female claimant’s claim for
protection is founded on her fear of persecution if she were sent to China. If this were a straight-forward
claim of an ethnic Tibetan who fears possible persecution in either Nepal or China, the evidence supports the
well-foundedness of that claim. It is clear that she should be offered refugee
protection as an alternative to enforced return to Nepal or the possibility of being
sent to Tibet and therefore China.
[Emphasis mine.]
[11]
The
tribunal went on to state: “This, however, is not the issue of primary concern
in this claim” and then went on to consider her right to Guyanese citizenship.
(b) With respect to Mr. Khan
[12]
The
main findings of the tribunal with respect to this applicant are:
1)
The
fact he did not make a refugee claim while residing and working illegally in
the United
States
during the period 1995 to 2005 is indicative of a lack of subjective fear.
2)
The
troubles he cites as his fear of persecution in Guyana were criminal
acts, school harassment or prejudice that “do not rise to the level of
persecution”. The tribunal also noted Mr. Khan was asked what he feared if he
returned to Guyana to which he
answered: “that he had no fear for himself but was concerned about the welfare
of his wife and children”.
3)
That
state protection, “while not perfect, is available to Mr. Khan and to all
citizens of Guyana”. In order
to reach this conclusion, the tribunal found the incidents he described in his Personal
Information Form (PIF) were criminal acts all reported to and investigated by
the police but only one was solved because the bandit was killed by the police
during another incident.
[13]
The
tribunal went on to say that States are presumed capable of protecting their
citizens and a claimant has to provide clear and convincing evidence of the
state’s inability to do so. Citing the Federal Court of Appeal’s decision in Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. 2(d)
130 it stated: “No state can guarantee perfect protection” [and] “Where a state
is in control of its territory and makes serious efforts to protect its
nationals the mere fact that the state’s efforts are not always successful will
not rebut the presumption of available state protection as noted above”.
[14]
Prior
to outlining these principles on state protection, the tribunal made the
following analysis:
“Country documents make clear that there
are serious constraints on the implementation of the constitutional guarantees
of fundamental rights and non-discrimination. However, they also make clear the
range of efforts being made to remove these constraints.
Indo-Guyanese and Afro-Guyanese political
leaders signed a joint resolution in 2003, committing themselves and the two
major parties to shared democracy, peace and development. A number of
constitutional amendments and other legislation have been put in place to
combat racial discrimination. An Ethnic Relations Commission was established in
2000 and its efforts have been directed toward racial mixture in housing. A
United Nations country team has developed programs to enhance national cohesion
in regard to security and governance. In addition, a range of NGOs, including
unions, lawyers, and youth groups are dealing with societal divisions. The
Guyana Human Rights Association is both active and influential. It is also
clear that crime is a problem for all ethnicities in Guyana. Amnesty International has noted its
recognition that the Guyanese government is grappling with the problem of violent
crime. It has also noted allegations that Indo-Guyanese are disproportionately
affected but noted it was unable to either confirm or deny that allegation.
Clearly, documents concerning Guyana give mixed messages regarding
the degree of racial and ethnic tension and the impact of confrontation on the
lives of Guyanese generally. While the dominance of Afro-Guyanese in the police
force raises concerns among Indo-Guyanese, the dominance of Indo-Guyanese in
the government raises concerns among Afro-Guyanese. Politicized ethnic
identities have led to confrontation, often violent, in the past. It is
apparent, however, that while significant differences remain, the situation has
improved and government and civic leaders are making a concerted effort to resolve
ethnic and racial tensions and the crime problem.”
Analysis
(a) The
standard of review
[15]
The
Federal Court of Appeal’s decision in Williams v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 126 has settled the standard of
review of correctness on the question whether the existence of an option to
seek protection in one country is a valid cause for the denial of refugee
status which requires an interpretation of section 96 of the Act a
question of law of such a nature to be decided on the basis of correctness (see
also the Supreme Court of Canada’s recent decision on the standard of review in
Dunsmuir v. New Brunswick, 2008 SCC 9, at
paragraph 55).
[16]
The
issue whether the tribunal misread the evidence there existed no evidence and
no argument advanced Mrs. Khan would be rejected in Guyana on national security
ground raises a question of fact which is a breach of section 18.1(4)(d) of the
Federal Courts Act “whether the tribunal based its decision or order on
an erroneous finding of fact that it made in a perverse or capricious manner or
without regard to the material before it” previously labelled as being a
“manifestly unreasonable decision”, which in the light of Dunsmuir, above,
is reviewable on the standard of reasonableness as the manifestly unreasonable
standard has now been abolished. It goes without saying a breach of section
18.1(4)(d) above necessarily makes the tribunal’s decision unreasonable.
[17]
The
question whether the tribunal breached the Act by not conducting a section 97
analysis is a question of law reviewable on the correctness standard; and the
question whether there is an evidentiary foundation to a section 97 claim is a question
of mixed fact and law reviewable on the reasonableness standard (see Sanchez
v. the Minister of Citizenship and Immigration, 2007 FCA 99).
[18]
The
question of the adequacy of state protection is a mixed question of fact and
law reviewable on the standard of reasonableness (see Arellano v. the
Minister of Citizenship and Immigration, 2006 FC 1265 at paragraph 21).
(b) The dual nationality question
[19]
This
is an issue which concerns only Mrs. Khan. Counsel for the applicants set out
the following legal proposition determinative of this question.
1.
Section
96 of the Act provides if an applicant for refugee status in Canada has
citizenship in more than one country, he or she must demonstrate a well-founded
fear of persecution in relation to each country of citizenship before he or she
can seek asylum in a country of which that person is not a national. In this
respect, section 96 confirms the jurisprudence of the Courts on this point (Williams,
above, at paragraph 20).
2.
This
principle has been extended to mean that, if at the time of the hearing an
applicant is entitled to acquire citizenship as of right by completing
mere formalities then an applicant must demonstrate a well-founded fear of
persecution in that country before seeking asylum in Canada. Justice Décary in Williams,
above, expressed the test to be “if it is within the control of an applicant to
acquire the citizenship of a country”. He stated at paragraph 22 of his
reasons: “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 …”
3.
Relying
on Justice McKeown’s decision in Katkova v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 549, it cannot be said
to be within one’s control if the State concerned grants by law to its
officials a discretion to grant or refuse citizenship. He argued this is the
case under section 45 of the Guyana Constitution where citizenship is not
automatic.
[20]
Counsel
for the Minister did not disagree with the propositions enunciated by counsel
for the applicant but argued, as found by the tribunal, there was no
evidentiary basis before it that would support a conclusion the applicant might
be rejected by officials in Guyana on the basis of national security or public
policy which is a tacit admission officials in Guyana had scope to refuse Mrs.
Khan’s citizenship application, a fact which the tribunal itself recognized
when it found on the balance of probabilities “the discretionary powers
available to the Minister [in Guyana] will not constrain the offer of
citizenship to her”.
[21]
The
determining error the tribunal made was to trespass upon forbidden territory
when, after recognizing the authorities in Guyana were not compelled on her
application to grant Mrs. Khan citizenship, it (the tribunal) could
opine how the Minister in Guyana might exercise the discretion conferred upon
him. Such circumstances are not within her control. Mrs. Khan is not
obligated to seek Guyana’s protection before she seeks Canada’s.
(c) The section 97 question
[22]
This
question affects Mr. Khan only. As noted, he has not challenged the tribunal’s
finding he does not have under section 96 of the Act a well founded fear
of persecution should he return to Guyana.
[23]
At
the hearing before the Court, counsel for the Respondent confirmed the tribunal
made no separate section 97 analysis but argued the tribunal was not required
to do so because Mr. Kwan was found not to be credible.
[24]
I
agree with counsel for the applicants, in this case, the nature of the
tribunal’s credibility finding did not shelter it from making a section 97
analysis. A reading of the tribunal’s decision shows it did not disbelieve the
events which Mr. Khan related happened to him in Guyana. Indeed, it
found those events to have occurred but they were either criminal in nature or
in the nature of harassment or discrimination. What the tribunal found is that
his fear was not credible principally because he lacked subjective fear not
making a claim in the United States.
[25]
It
is well recognized one of the purpose of adding section 97 to the Act in
2001 was to cover cases where an applicant may be at risk of harm in situations
not caught by persecution on one of the five Convention grounds. Such is the
case here where the acts Mr. Khan feared were criminal acts which do not fall
within section 96 because they were not on account of one of the enumerated
grounds. Another example are acts of harassment or discrimination which do not
amount to persecution according to the jurisprudence.
[26]
Finally,
I also agree with counsel for the applicants the tribunal’s generalized finding
of the availability of state protection in Guyana does not
shield the tribunal’s decision in respect of Mr. Khan. An analysis of the
availability of state protection includes a consideration of the specific
instances when and how an applicant sought protection and in what manner an
applicant’s request for protection was handled by the authorities. Such a level
of analysis is lacking in this case in terms of the efforts being made in Guyana to improve State
protection which is the basis for the tribunal’s finding.
JUDGMENT
THIS COURT
ORDERS that
this judicial review application is allowed, the
tribunal’s decision is quashed and the applicants’ claim for refugee status is
remitted to a differently constituted tribunal for reconsideration. No
certified question was proposed.
“François Lemieux”
___________________________
Judge
Email this Content