Docket: IMM-6321-13
Citation:
2014 FC 923
Montreal, Quebec, September 29, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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KALSANG WAHGMO
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review of
the September 12, 2013 decision (the Decision) of the Refugee Appeal Division
of the Immigration and Refugee Board (the RAD) dismissing the Applicant’s
appeal of the February 19, 2013 decision of the Refugee Protection Division
(the RPD) finding the Applicant to be neither a Convention refugee nor a person
in need of protection under sections 96 or 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the IRPA).
II.
Facts
[2]
The Applicant is a 17-year-old stateless
individual of Tibetan ancestry. She was born in India on February 20, 1997, but
never received Indian citizenship. The Applicant’s parents were born in Tibet, China. They are both followers of the Dalai Lama and fled Tibet following the 1959 invasion
by China. They have lived as exiled refugees in India ever since and are
involved in political activities related to the Tibetan Freedom Movement. The
Applicant’s father served in the Tibetan Government in Exile for 40 years.
[3]
Tibetan refugees in India do not have permanent
residency rights. Rather, they are required to obtain a Registration
Certificate (RC) from the Indian Government, which allows them to stay in the
country as long as it is renewed each year. When the Applicant lived in India, she fell under her parents’ RC because she was under the age of 16.
[4]
After obtaining a student visa, the Applicant
arrived in Canada in June 2012, and made a refugee claim in September of that
year. She travelled to Canada under an Identity Certificate (IC), a travel
document issued by the Indian Government.
[5]
The Applicant alleges that Tibetans in India face constant discrimination and live in fear of backlash against their community.
They face regulations, prohibitions and restrictions on their entry and
departure from India, are not allowed to own property, and are required to live
in refugee camps provided by the Tibetan community. Though the Applicant
attended a local school, she claims that as a refugee, she does not have access
to the same employment opportunities as Indian citizens.
[6]
As a result of changing politics in India, the Applicant fears that her family’s RC may not be renewed in the future. As a
result, they risk being deported back to China where they could face severe
consequences, including the death penalty, for their political activism and
religious beliefs.
[7]
The Applicant’s claim for refugee protection was
heard by the RPD on February 19, 2013. The RPD rejected the claim after finding
that it was unlikely the Indian Government would deport the Applicant and her
family back to China. The RPD also concluded that the discrimination faced by the
Applicant’s family in India did not rise to the level of persecution. Also of
note, the RPD found that the Indian Government had provided the Applicant with
a document authorizing her return to India.
[8]
The Applicant appealed to the RAD, seeking an
order pursuant to section 111(1)(c) of the IRPA that the RPD’s decision
be set aside and that the matter be referred back to the RPD for a
determination by a differently constituted panel. The RAD dismissed the appeal
on September 12, 2013.
III.
Decision Under Review
[9]
The Applicant appealed to the RAD on the issue
of whether the RPD erred in law by failing to consider whether she would be
allowed to return to India, and if not, whether a denial of re-entry
constitutes persecution.
[10]
The RAD dismissed the appeal after finding that
the Applicant failed to establish before the RPD that she could not return to India. The RAD also determined that in any event, the RPD found on the evidence that the
Applicant was authorized to return to India.
[11]
On the appeal, the Applicant submitted that the
RPD’s failure to consider her ability to return to India, or whether a denial
of such return constitutes persecution, is a question of law that is reviewable
on the correctness standard.
[12]
The RAD stated that before it could determine
the appropriate standard of review, two important threshold issues required
consideration: (1) whether the Applicant misread or misunderstood the RPD’s
decision and (2) whether she misconstrued the ratio of Thabet v Canada
(MCI), [1998] 4 FC 21 (FCA) [Thabet], which outlines the proper
approach for addressing a stateless individual’s refugee claim.
[13]
In the opinion of the RAD, the RPD not only
considered whether the Applicant could return to India, but actually found that
she likely could. As a result, her appeal could not succeed under either
standard of review. To support this finding, the RAD referred to the RPD’s
decision where it stated:
More determinative on this issue is that your
family was part of the initial wave of Tibetans to flee the region and that
you, yourself, were born in India, that your family has never encountered
difficulties in renewing their R.C. despite their political activism, and
that the Indian government provided you with a document authorizing a return to
that Country.
(Emphasis added by the RAD)
[14]
The RAD found that the RPD was most likely
referring to the IC issued by the Indian Government, which was stamped with “No
Objection to Return to India” (the NORI stamp). The RAD also determined that
the Applicant failed, before the RPD, to provide any evidence or
representations regarding her inability to return to India.
[15]
Finally, the RAD determined that Thabet is
authority for the proposition that if the RPD determines an individual having a
country of former habitual residence would be denied re-entry by that country,
only then must it consider whether that denial amounts to persecution. However,
in this case, the RPD was not required to consider the second part of the test
because it found that the Applicant was authorized to return to India. Therefore, the Applicant’s appeal was dismissed.
IV.
Issues
[16]
This matter raises the following issues:
1.
What standard of review applies to the decision
of the RAD?
2.
Did the RAD apply the correct analysis in reviewing
the decision of the RPD?
3.
Did the RAD err in accepting the RPD’s finding
that the Applicant would likely be allowed re-entry to India?
4.
Did the RAD err in not considering whether a
denial of re-entry would constitute persecution?
Because of my conclusions, it is necessary
to consider only points 1 and 3.
V.
Submissions of the Parties
A.
Applicant’s Submissions
(1)
Standard of Review of the RAD’s Decision
[17]
The Applicant submits that the RAD’s application
of the proper test to determine whether the Applicant could return to India is a question of law and therefore reviewable on a correctness standard.
(2)
Consideration of the Applicant’s Inability to
Return to India
[18]
The Applicant submits that the RPD did not
consider the relevant evidence that indicates she has “no
legal basis to return to India” and that her return is not certain. The
Applicant relies on Thabet for the proposition that the RPD must ask
itself if a stateless person can return to a country of former habitual
residence, and if it determines that she cannot, it must consider whether the
denial of the right to return constitutes persecution.
[19]
The RPD was required to address this question
before considering whether the Applicant faces persecution in India and the possibility of being deported to China. The failure to consider this issue constitutes
an error of law, which the RAD compounded by inferring that the Applicant’s
return was a certainty as a result of the NORI stamp. The RAD ignored other
relevant evidence, which indicated that in order to be allowed re-entry to India, the Applicant requires both the NORI stamp and a visa issued by an Indian consulate
abroad. The evidence also shows that Indian consulates abroad are under no
obligation to issue a return visa to NORI stamp holders.
[20]
The RAD’s failure to consider this important
evidence, which the RPD also ignored, constitutes a reviewable error that
justifies the matter being sent back to the RAD for a re-determination.
B.
Respondent’s Submissions
(1)
Standard of Review of the RAD’s Decision
[21]
On the issue of whether the RAD applied the
correct test to determine if the Applicant could return to India, the Respondent submits that this question involves an application of the law to the facts,
and is therefore reviewable on the reasonableness standard.
(2)
Consideration of the Applicant’s Ability to
Return to India
[22]
The RAD reached a reasonable conclusion in
affirming the RPD’s decision that the Applicant could likely return to her
country of former habitual residence. While this decision is justified on the
basis of the NORI stamp, there is also no indication from the record that the
Applicant raised this issue before the RPD. Rather, she raised the issue for
the first time on appeal to the RAD.
[23]
There is also no evidence regarding the
Applicant’s inability to obtain a visa for her return to India. This issue is being raised for the first time in the present judicial review.
VI.
Analysis
[24]
The parties are essentially agreed that the real
issue in dispute in this case is quite narrow. The Applicant asserts that the
RAD erred in its analysis of the Applicant’s allegation that she has a
well-founded fear of persecution in India based on her statelessness and her
inability to return to India, her last country of former habitual residence,
per Thabet.
[25]
The Applicant is concerned that the RAD did not
properly consider the evidence on this issue, and that it improperly relied
upon the analysis by the RPD which was inadequate. Specifically, the Applicant
asserts that both the RPD and the RAD failed to consider the fact that, in
order to return to India, the Applicant must first obtain a visa, which is not
guaranteed.
[26]
As in other recent cases involving judicial
review of a decision of the RAD on appeal from the RPD, the parties in this
case disagree about the standard of review that should have been applied by the
RAD in its consideration of the RPD’s decision. The Applicant argues that the
RAD was required to examine the evidence itself and reach its own conclusions,
whereas the Respondent submits that the RAD should show deference to the RPD
and reverse its decision only if it is found to be unreasonable.
[27]
I am satisfied that, although the RAD referred
repeatedly in its decision to the conclusions reached by the RPD, it considered
the evidence and reached its own conclusions on the issues: see for example
paragraphs 45 and 51 of the Decision. It is entirely appropriate for the RAD to
review in detail the analysis and conclusions of the RPD before reaching its
own conclusions. Therefore, this case does not turn on the standard of review
that was applied by the RAD.
A.
Standard of Review Applicable to the RAD’s
Decision
[28]
Normally, the RAD’s assessment of the evidence
is a matter of fact or mixed fact and law, and therefore reviewable by this
Court on a standard of reasonableness. To the extent that there is evidence
that is relevant but has not been considered by the RAD, this may indicate an
unreasonable conclusion by the RAD.
B.
Consideration of the Applicant’s Ability to Return
to India
[29]
The RPD’s decision stated that the Indian
Government had provided the Applicant with a document authorizing her return to
that country.
[30]
The RAD’s decision indicates that the Applicant
asserted before the RAD that the RPD had failed to consider evidence that, in
order to return to India, the Applicant would need a NORI stamp on her IC, as
well as a visa obtained from a local Indian consulate (for which there is no
guarantee).
[31]
The RAD noted that the evidence clearly
indicated the Applicant already has a NORI stamp on her IC. The RAD concluded
that there is no evidence the Applicant could not return to India. As stated by the RAD at the end of its decision: “Demonstrating that
she could not likely return to India […] is precisely what the [Applicant] was
obliged, and failed, to do before the RPD in this case.”
[32]
Now the Applicant argues that the RAD failed to
consider the evidence indicating the requirement for the Applicant to obtain a visa
before returning to India.
[33]
It is true that the RAD did not mention the visa
requirement, other than in quoting from the Applicant’s argument and the
wording of the NORI stamp itself. However, there is nothing in the evidence to
suggest that the visa requirement would alter the RAD’s conclusion.
[34]
It is possible that the RAD failed to consider
the visa requirement. It is also possible that the RAD did consider the
visa requirement, but simply did not mention it. I am not prepared to interfere
with the RAD’s decision in this regard unless I am satisfied that any failure
by the RAD to consider relevant evidence was unreasonable and could have made a
difference to the outcome: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 15-16.
[35]
The evidence that was before the RPD concerning
the visa requirement indicates that although there is no guarantee the
Applicant will be granted a visa, there are no reports of denials. This
evidence fully supports the RAD’s conclusion that the Applicant has not
demonstrated that she could not likely return to India.
[36]
Because of my conclusion that the Applicant is likely
to be allowed to return to India, it is not necessary to consider the issue of
whether the inability to return constitutes persecution: Thabet.
VII.
Conclusions
[37]
For all of these reasons, this judicial review
should be dismissed.
[38]
The parties have not proposed a question for
certification. Given my findings above, I do not find that the facts in this
case warrant the certification of a question for appeal.
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