Docket: IMM-5457-14
Citation:
2015 FC 886
Ottawa, Ontario, July 21, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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TSERING LHAZOM
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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.
Introduction and Background
[1]
The Applicant is an ethnic Tibetan who was born
in India on August 15, 1961, and she lived there for most of her life. Her
parents were both born in Tibet, but they fled to India sometime after Chinese
troops occupied Tibet in 1951. She claims to follow the Dalai Lama and supports
the liberation of Tibet. Her husband works for the Central Tibetan
Administration [CTA], which is the Tibetan government-in-exile. She alleges
that her religion and political opinions are such that she would be a target
for persecution in China, and she fears that India would deport her to that
country.
[2]
The Applicant travelled to the United States of
America on June 16, 2003, but her application for asylum in the USA was
rejected in 2014. She then came to Canada on March 13, 2014, where she again
applied for asylum. Since her daughter is a Canadian citizen, the Applicant
fell within an exception to the safe third country agreement and her claim for
refugee protection was referred to the Refugee Protection Division [RPD] of the
Immigration and Refugee Board (Immigration and Refugee Protection Act,
SC 2001, c 27 [Act], s 101(1)(e); Immigration and Refugee Protection
Regulations, SOR/2002-227, ss 159.3, 159.5(a)). However, the RPD rejected her
application for refugee protection because, despite being stateless, she would
be safe in India, a former country of habitual residence where she is entitled
to citizenship. The Applicant now seeks judicial review of the RPD's decision pursuant
to subsection 72(1) of the Act, asking the Court to set aside the
RPD’s decision and order that her claim be re-determined by a new panel of the
RPD.
[3]
The RPD determined that the Applicant was
neither a Convention refugee under section 96 of the Act, nor a
person in need of protection under subsection 97(1). The main issue before the
RPD related to which countries were relevant to the Applicant's claim. The
Applicant testified that she was not a citizen of either India or China,
although her counsel argued that she was actually a citizen of China by law.
The RPD ultimately decided that, while the Applicant was presently stateless,
she had a legal right to Indian citizenship. The RPD said that the “Supreme Court of India” had declared that Tibetan
refugees were entitled to citizenship by birth if they were born in India
between January 26, 1950, and July 1, 1987 [Dolkar decision]. Although
the process to obtain Indian citizenship was not automatic and there were some
barriers, the RPD determined that it would be easier for the Applicant to get
citizenship than most other Tibetans because she had evidence documenting her
birth and her husband had connections in the CTA which would help her obtain
other necessary documents.
[4]
The RPD further determined that the Applicant's
entitlement to Indian citizenship would preclude her from receiving citizenship
in China by virtue of article 5 of the Nationality Law of the People's
Republic of China - China Law No. 71 (10 September 1980) [Chinese
Nationality Law], which provides that:
Any person born abroad whose parents are
both Chinese nationals or one of whose parents is a Chinese national shall have
Chinese nationality. But a person whose parents are both Chinese nationals and
have both settled abroad, or one of whose parents is a Chinese national and has
settled abroad, and who has acquired foreign nationality at birth shall not
have Chinese nationality.
[5]
In the RPD’s view, the fact the Applicant was
entitled to Indian citizenship meant she had “acquired
foreign nationality at birth,” and so was excluded from the scope of
article 5. The RPD also dismissed a 1999 document which stated that “the Chinese government considers Tibetan refugees living in
India to be Chinese,” since that document referred only to Tibetans who
illegally left Tibet, not Tibetans like the Applicant who were born in India. The
RPD further found that the Applicant would not be able to apply for
naturalization under article 7 of the Chinese Nationality Law since she denied
the legitimacy of China’s claim over Tibet.
[6]
Since the Applicant was still technically
stateless until she applied for recognition of her citizenship in India, the
RPD concluded that the countries of reference were her countries of former
habitual residence: India and the USA. The RPD decided that the Applicant faced
no risk in India that would attract protection under either section 96 or
subsection 97(1) of the Act. Although the Applicant testified that she
had heard about some Tibetans in India being deported to China, she did not
know anyone who had been and her testimony in this regard was contradicted by
the documentary evidence. The RPD also dismissed the Applicant’s argument that
she could not return to India, noting that she could probably get a visa and
that, in any event, the Applicant need not have a right to return to India for
it to be a country of former habitual residence (citing Maarouf v Canada
(Minister of Employment and Immigration) (1993), [1994] 1 FCR 723, 23 Imm
LR (2d) 163 (TD)). The RPD therefore dismissed the Applicant’s claim.
II.
Issue and Standard of Review
[7]
I agree with the Applicant that there is only
one issue for the Court's consideration: was it an error for the RPD to find
that the Applicant was not a citizen of China? This question involves the
interpretation of foreign law, which is a question of fact to be reviewed on
the reasonableness standard (Canada (Minister of Citizenship and
Immigration) v Williams, 2005 FCA 126 at paragraph 17, [2005] 3 FCR 429 [Williams];
Asad v Canada (Citizenship and Immigration), 2015 FCA 141 at paragraphs
16 and 24 [Asad]; Dunsmuir v New Brunswick, 2008 SCC 9 at
paragraph 53, [2008] 1 S.C.R. 190). There will often be a wide range of acceptable
outcomes where no evidence of foreign law has been adduced (Asad at
paragraph 30).
III.
The Parties’ Arguments
[8]
The Applicant submits that the RPD erred in
finding that she was not a citizen of China. First, she points out that the
Supreme Court of India did not render the Dolkar decision; the High
Court of Delhi did. Second, and more significantly, she argues that the RPD's
reasoning was inconsistent. Despite earlier accepting that Indian citizenship
was not automatic, the RPD overlooked the fact that the fundamental obstacle
was that the Indian government does not recognize Tibetans as Indian citizens
despite the Dolkar decision. If not even the Indian government
interprets its own laws to mean that the Applicant is a citizen, the Applicant
submits it was illogical for the RPD to assume that the Chinese government
would do so. She says that it was unreasonable for the RPD to conclude that she
is simultaneously stateless and a citizen of India by birth.
[9]
The Applicant relies upon the recent decisions
in Wanchuk v Canada (Citizenship and Immigration), 2014 FC 885 [Wanchuk]
and Dolma v Canada (Citizenship and Immigration), 2015 FC 703 [Dolma].
In Wanchuk, Mr. Justice James O'Reilly found that it was unreasonable
for the RPD to consider India to be a country of reference for an ethnic
Tibetan in circumstances similar to those of the Applicant, because obtaining
Indian citizenship was not within Mr. Wanchuk's control. The Applicant argues
that Wanchuk plainly shows that she is not a citizen of India by birth,
which in turn means that she is a citizen of China.
[10]
The Respondent concedes that the Dolkar
decision was actually decided by the High Court of Delhi, but says that is
immaterial. The effect of the Dolkar decision was properly understood by
the RPD, and it is simply incorrect for the Applicant to assert that the Indian
government ignores the Dolkar decision. The Respondent says the RPD appreciated
all of the difficulties of gaining Indian citizenship and its conclusion was
within the range of reasonable outcomes.
[11]
The Respondent submits that it was also
reasonable for the RPD to find that the Applicant could not become a citizen of
China. Indian law says that the Applicant is a citizen by birth, and Chinese
law would not grant citizenship to her because of that. According to the
Respondent, it was the RPD's job to discern how the law would apply to the
Applicant and it chose an interpretation which was reasonably open to it. In
the Respondent's view, the evidence shows that the Chinese government only
acknowledges that those who fled Tibet were Chinese citizens, and the Applicant
herself vehemently denied that she was a Chinese citizen or that she would ever
apply for Chinese citizenship.
[12]
As for the Applicant's statelessness, the
Respondent says that finding by the RPD was reasonable. The fact that the
Applicant has not taken any steps to have her citizenship recognized by the
Indian government makes her stateless, but it does not mean that the Chinese
government would consider her a citizen of China.
[13]
The Respondent argues that Wanchuk is not
determinative of this case. Whether someone can obtain citizenship in another
country is a finding of fact that deserves significant deference (citing e.g. Tindungan
v Canada (Citizenship and Immigration), 2013 FC 115 at paragraph 56, [2014]
3 FCR 275). The Respondent submits that the reasonableness of a decision must
be assessed on the basis of its own record. Other cases dealing with different
records and different reasons cannot short-circuit that. Furthermore, the
Respondent argues that the approach in Wanchuk was wrong. The question
is only whether citizenship in another country is available, and that question
can be answered affirmatively even if it depends upon the exercise of official
discretion (citing e.g. Williams at paragraphs 22 and 27). Indeed, the
Respondent notes that Wanchuk was questioned in Dolker v Canada
(Citizenship and Immigration), 2015 FC 124 at paragraphs 28-30, and
expressly disapproved in Tretsetsang v Canada (Citizenship and Immigration),
2015 FC 455 at paragraphs 30-31 [Tretsetsang]. The facts in those cases
were all very similar to the case here, and the Respondent submits that such
cases support the RPD's finding that the Applicant is a citizen of India by
birth.
[14]
The Respondent further states that it was
reasonable for the RPD to find that India was a country of former habitual
residence, and notes that the Applicant needed to prove that she would be
persecuted in either of her former countries of habitual residence, and that
she could not return to the other (citing Popov v Canada (Citizenship and
Immigration), 2009 FC 898 at paragraphs 43-45, 351 FTR 302). The Respondent
says that the Applicant has not challenged any of the RPD's findings on this
point.
IV.
Analysis
[15]
The decision in Tretsetsang has been
appealed to the Federal Court of Appeal (Court File No. A-260-15), because the
following question was certified:
Do the expressions “countries of
nationality” and “country of nationality” in section 96 of the Immigration
and Refugee Protection Act include a country where the claimant is a
citizen but where he may face impediments in exercising the rights and
privileges which attach to citizenship, such as the right to obtain a passport?
[16]
This particular question, however, is not at
issue in the present application. In each of Wanchuk, Dolma, and Tretsetsang,
the RPD (or, in Tretsetsang, the Refugee Appeal Division) applied Williams
to find that India was a “country of nationality”
for the applicants because obtaining citizenship was within their control.
While the RPD in this case opined that the Applicant was legally a citizen of
India even though such status has not been formally recognized, it did not
find that obtaining the benefits of Indian citizenship was within the
Applicant's control. On the contrary, the RPD implicitly found just the
opposite by concluding that the Applicant was stateless, since otherwise she
would have had a “country of nationality” for
the purposes of sections 96 and 97(1). The scope of Williams is
therefore not directly in question in this case.
[17]
Nevertheless, the RPD's decision in this case
cannot be justified and is unreasonable for two reasons.
[18]
First, it was not reasonable for the RPD to find
that the Applicant is a citizen of India by birth and, at the same time, not a
citizen of India because she has not obtained recognition of her citizenship in
India. One either holds citizenship in a country or does not; one cannot be
both a citizen and a non-citizen of the same country.
[19]
Second, the RPD's decision is contradictory in
that it finds, on the one hand, that the Applicant is not a citizen of India
and, on the other, that she would be denied citizenship in China because she
acquired Indian citizenship at birth.
[20]
Of course, there is nothing inherently
implausible about the idea that there could be a jurisdictional dispute between
two countries which involves contradictory interpretations of each other's
responsibilities and laws. One could argue that such a dispute presently exists
between Canada and India, in that the Respondent insists that Tibetans born in
India have a right to Indian citizenship, while the Indian government does not
appear to recognize that right (see e.g. RIR IND104530.E, “India: Citizenship recognition for Indian-born children of
Tibetan refugees in the context of the 22 December 2010 Delhi High Court
Ruling; whether it has become procedural or if it requires legal action
(2011-August 2013)” (15 August 2013)). If Canada is interpreting Indian
law in a way contrary to that of the Indian government, then it is possible that
China could do so as well.
[21]
However, such an inference would require some
proof and, as the Applicant appropriately states, there is no evidence
whatsoever that the Chinese authorities would interpret Indian law in the
manner suggested by the RPD. The RPD’s finding was based on nothing more than a
questionable, literal interpretation of a translated statute, which is not
sufficient to make firm conclusions about the content of foreign laws (Xiao
v Canada (Citizenship and Immigration), 2009 FC 195 at paragraphs 24-26,
[2009] 4 FCR 510). Given the finding that the Applicant was not presently a
citizen of India, I agree with the Applicant that it was unreasonable for the
RPD to find that Chinese authorities would probably conclude that she acquired
Indian citizenship at birth.
V.
Conclusion
[22]
In the result, therefore, the application for
judicial review is hereby allowed and the matter is returned for
re-determination by a different panel member of the RPD. Neither party
suggested a question for certification; so, no such question is certified.
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