Docket: IMM-1117-15
Citation:
2015 FC 1301
Ottawa, Ontario, November 23, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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LHAM TASHI
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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
[1]
Lham Tashi’s refugee claim was based upon his
fear of persecution in China because of his Tibetan ethnicity. The Refugee
Protection Division of the Immigration and Refugee Board dismissed the claim on
the basis that Mr. Tashi did not require the surrogate protection of
Canada because he was entitled to citizenship in India by virtue of his birth
in that country.
[2]
For the reasons that follow, I have concluded
that the Board’s decision was reasonable.
I.
Background
[3]
Mr. Tashi was born in India on November 14,
1985 to parents who had fled to India when the Chinese government took control
of Tibet in 1959. Mr. Tashi is a citizen of China and currently has no
legal status in India.
[4]
Indian citizenship legislation provides that
persons born in India between 1950 and 1987 are Indian citizens regardless of
the nationality of their parents. Mr. Tashi has never applied for Indian
citizenship, however, explaining that he knows of other Tibetans born in India
who have done so and been refused. Mr. Tashi also does not have a birth
certificate documenting his birth in India. He did, however, hold an Indian “Registration Certificate for Tibetans” that had to be
renewed each year, which has now expired.
[5]
Mr. Tashi entered Canada on August 1, 2012,
travelling on an Indian passport issued in his own name, which he says was
fraudulent. Mr. Tashi sought refugee protection claiming to fear
persecution in China because he is an ethnic Tibetan who has advocated for
Tibetan freedom, and because he is a follower of the Dalai Lama.
[6]
Mr. Tashi did not claim refugee protection
against India, although he says that he fears that India will send him to China
because his Registration Certificate for Tibetans has expired and he has heard
of several other Tibetans who have not had their Certificates renewed.
II.
The Board’s Decision
[7]
The Board noted that paragraph 3(1)(a) of the
Indian Citizenship (Amendment) Act, 2003 states that every person born
in India from January 26, 1950 and July 1, 1987 is a citizen of India by birth.
Because Mr. Tashi was born between the applicable dates, the Board found
that he was entitled to Indian citizenship.
[8]
The Board found that the question for
determination was whether the acquisition of Indian citizenship was a matter
within Mr. Tashi’s control. The Board recognized that in Wanchuk v.
Canada (Minister of Citizenship and Immigration), 2014 FC 885, [2014]
F.C.J. No. 900, this Court had determined that the resistance of the Indian
Government to allowing Indian‑born Tibetans to acquire Indian citizenship
meant that Indian citizenship was not a matter within the control of persons in
Mr. Tashi’s position.
[9]
The Board was nevertheless satisfied that the
situation for Indian‑born Tibetans was evolving, and that more recent
evidence indicated that the Government of India was moving towards recognizing
citizenship for individuals such as Mr. Tashi. As a result, the Board was
satisfied that obtaining Indian citizenship was indeed a matter that was within
Mr. Tashi’s control.
[10]
Given that Mr. Tashi was a citizen of India
and had not asserted a fear of persecution in that country, his claim for
refugee protection was dismissed.
[11]
Mr. Tashi submits that the evidence relied
upon by the Board to find that the acquisition of Indian citizenship was a
matter within his control does not support such a finding, and that, as a
result, the Board’s decision was unreasonable.
III.
Analysis
[12]
In Williams v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 126, [2006] 3 F.C.R. 429, the
Federal Court of Appeal held that an individual will not be entitled to refugee
protection in Canada where his acquisition of citizenship in a safe country is
a matter of mere formality or is within the control of the individual: at
paras. 19-23. The Court went on in Williams to hold that where
citizenship in a safe country is available, an applicant will be expected to
make efforts to acquire it: at para. 27.
[13]
The issue of the availability of Indian
citizenship for Indian‑born Tibetans has been considered by this Court on
several occasions, and the Court has divided on the question of whether Indian
citizenship is a matter within the control of individuals in the position of Mr. Tashi.
Three decisions require particular consideration.
[14]
As noted earlier, in Wanchuk, above,
Justice O’Reilly determined that the resistance of the Indian Government to
allowing Indian‑born Tibetans to acquire Indian citizenship meant that
Indian citizenship was not a matter within the control of persons such as Mr. Tashi.
[15]
Justice Mosley subsequently faced the same issue
in Tretsetsang v. Canada (Minister of Citizenship and Immigration), 2015
FC 455, [2015] F.C.J. No. 479. Although the facts in Tretsetsang were
indistinguishable from those in Wanchuk, Justice Mosley declined to
follow Wanchuk on the basis that the Court in Wanchuk had failed
to properly adhere to the teaching of the Federal Court of Appeal in Williams:
Tretsetsang at para. 21.
[16]
In coming to this conclusion, Justice Mosley
noted that applicants for refugee protection “are
expected to take reasonable steps to acquire or enforce any citizenship rights
which are available to them” and that “[a] right
which is enshrined in legislation and has been enforced by the courts amounts
to more than a ‘mere possibility’”. He concluded that “[t]here is nothing unreasonable about expecting the applicant
to take legal action if his state of nationality attempts to deny his rights”:
at para. 31.
[17]
In dismissing Mr. Tretsetsang’s application for
judicial review, Justice Mosley certified the following question:
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?
[18]
The conflict in the jurisprudence was then
addressed by Justice Tremblay‑Lamer in Dolma v. Canada (Minister of
Citizenship and Immigration), 2015 FC 703, [2015] F.C.J. No. 735. In
adopting the reasoning in Wanchuk, Justice Tremblay‑Lamer held
that requiring refugee claimants to show that they had applied for, and had
been refused citizenship “would constitute a narrowing
of the refugee definition in the … Refugee Convention and section 96 of Immigration
and Refugee Protection Act”: at para. 32.
[19]
According to Justice Tremblay‑Lamer, “[t]he proper question is whether, on the evidence before the
Board, there is sufficient doubt as to the law, practice, jurisprudence and
politics of the potential country of nationality such that the acquisition of
citizenship in that country cannot be considered automatic or fully within the
control of the applicant, not whether they have tried and been refused.”.
She went on to explain that were it otherwise, it would “exclude from refugee protection all individuals that did not
apply for citizenship prior to their time of need for any number of reasons,
including the financial inability to pay for a citizenship application or
litigation in respect thereof”: at para. 32.
[20]
Justice Tremblay‑Lamer found that the
evidence that was before the Board in Dolma did not establish that the
claimant’s request for Indian citizenship would be granted, leading her to
conclude that it was thus not something that was within the claimant’s control
to obtain.
[21]
The Board in this case reviewed the evidence
relating to the resistance of the Indian Government to allowing Indian‑born
Tibetans to acquire Indian citizenship. It found that the evidence on this
issue had evolved significantly since Wanchuk was decided with the result
that Wanchuk was no longer binding on it. In order to decide whether
the Board’s decision was reasonable, it is therefore necessary to have regard
to the evidence that was considered in the cases previously decided by this
Court, and to then review the additional evidence that was relied upon by the
Board in this case in order to determine whether or not it supports the Board’s
conclusion that the situation in India had changed.
[22]
Despite the apparently clear wording of the
Indian Citizenship Act, the Indian Government has historically refused
to grant citizenship to Indian‑born Tibetans. However, in 2009, the High
Court of Delhi found an ethnic Tibetan born in India in 1986 to be an Indian
citizen by virtue of birth and to be thus entitled to an Indian passport. The
Court further held that a person who is an Indian citizen by birth is not
required to apply for citizenship: Namgyal Dolkar v. Government of India,
Ministry of External Affairs, [2010] INDLHC 6118, CW 12179/2009 (22
December 2010).
[23]
Justice O’Reilly considered the effect of the Dolkar
decision in Wanchuk, concluding that it did not establish that obtaining
Indian citizenship was a matter within Mr. Wanchuk’s control because Dolkar
only applied in New Delhi, and was not binding in other regions of India.
Moreover, no Indian‑born Tibetans had been granted Indian citizenship in
the three years since Dolkar was decided. Finally, before he could apply
for Indian citizenship, Mr. Wanchuk may have had to obtain a letter of ‘no
objection’ from the Central Tibetan Authority, the self‑proclaimed
Tibetan government‑in‑exile. While the official position of the CTA
was that it would not withhold approval for Tibetans seeking Indian
citizenship, it was in fact reluctant to grant such approval because of its
belief that Tibetans in India should remain refugees so as to encourage them to
eventually return to an independent Tibet.
[24]
By the time that Justice Mosley decided Tretsetsang
approximately six months after Wanchuk, a second decision by the Indian
High Court had been located, this time from Karnataka, again finding that an
Indian‑born Tibetan was entitled to Indian citizenship as of right: Tenzin
Rinpoche v. Union of India, Ministry of External Affairs, [2013] INKAHC, WP
15437/2013 (7 August 2013). What is particularly noteworthy about this decision
is that the Court deciding Rinpoche had jurisdiction over the city of
Bangalore, which is where Mr. Tashi ordinarily resided.
[25]
Justice Tremblay‑Lamer decided Dolma
two months after Tretsetsang. Her decision refers to the Dolkar
decision, as well as to an Immigration and Refugee Board Response to
Information Request dated August 15, 2013, a 2012 newspaper report and a
letter from a representative of the Dalai Lama.
[26]
The Board’s RIR states that “despite the Delhi High Court’s decision, the executive
branch continues to treat Tibetans born in India from 26 Jan 1950 to 1 July
1987 as foreigners, not citizens”. The document further notes that there
was “a large gap” between the right that had
been recognized by the Court in Dolkar, and people actually being able
to have that right recognized. The Board’s own research revealed that the
practical reality was that “Tibetans in India who were
born within the correct time period in India are still unable to have their
status as citizens officially recognized”. The RIR also referred to the
unwritten policy of the CTA to deny No Objection Certificates to would‑be
applicants for citizenship as a further obstacle to the acquisition of Indian
citizenship by Indian‑born Tibetans.
[27]
The letter from the representative of the Dalai
Lama and the news report indicated that notwithstanding the successful Court
challenges by Indian‑born Tibetans, the Government of India was still
resisting granting citizenship to such individuals, and that each person
seeking formal recognition of his or her Indian citizenship had to launch his
or her own Court case, a process that is both long and costly.
[28]
This evidence led Justice Tremblay‑Lamer
to conclude that the Board in Dolma had focussed “solely on the legal entitlement to citizenship and not on
the practical reality and need to have that citizenship recognized by the
relevant authorities”: at para. 40. In contrast, in this case, the Board
found that more recent evidence indicated that the Government of India was
moving towards recognizing citizenship for individuals such as Mr. Tashi.
[29]
The core question for determination is thus
whether the new evidence relied on by the Board reasonably supported its
conclusion that the situation in India had changed sufficiently that the
acquisition of Indian citizenship was indeed now a matter that was within Mr. Tashi’s
control.
[30]
The Board’s decision in this case pre‑dated
this Court’s decision in Dolma, and thus no consideration was given to
Justice Tremblay‑Lamer’s analysis in that case. The Board did, however,
have regard to this Court’s decision in Wanchuk, explaining why, in the
Board’s view, the facts had changed so significantly since Wanchuk was
decided that the decision was no longer binding on it.
[31]
The Board started its analysis by observing that
since Wanchuk was decided, the Indian Justice Minister had declared to a
group of Indian‑born Tibetans in February of 2014 that the Government had
given them both the right to vote and the right to citizenship, and that they
could now register themselves as citizens of India. The Board found this to be
significant, as it was the first time that an Indian Government official had
acknowledged that Indian‑born Tibetans were entitled to citizenship as of
right under the Indian Citizenship Act.
[32]
The Board also noted that the Court had
discounted the significance of the Dolkar decision in Wanchuk on
the basis that it was only binding within New Delhi. It noted that since then, Rinpoche
had been decided, creating a binding authority in the jurisdiction governing
Bangalore, where Mr. Tashi had resided. While recognizing that there was
no evidence as to whether the applicant in Rinpoche had ultimately been
issued a passport, there was also no evidence that a passport had not issued,
and the Board found that it was speculative to assume that this was the case.
[33]
After the decision in Rinpoche came down,
the Election Commission of India directed that all Indian states and
territories register Indian‑born Tibetans to vote, voting being an attribute
of citizenship. The Board found that there was evidence to suggest that
Tibetans did indeed enroll on the voters list, and that there was evidence that
hundreds of Indian‑born Tibetans voted during the May 7, 2014, election
by presenting evidence that they were born in India during the relevant period.
[34]
Moreover, since Wanchuk was decided,
another case relating to the citizenship rights of Indian‑born Tibetans
had gone before the Indian Courts. In Phuntsok Topden v. Union of India,
[2014] INDLHC, WP 1890/2013 (16 December 2014), the Government of India
conceded that the applicant in that case was entitled to citizenship by virtue
of the fact of his birth in India during the relevant period. The Board found
the Government’s concession in Topden to be particularly significant.
[35]
Finally, the Board noted that a CTA representative
had stated in an interview with The Guardian that “it is entirely up to the individual Tibetan to avail
themselves of the rights as obtained under any Indian law”.
[36]
None of this evidence was before the Court in Wanchuk,
and other than the Rinpoche decision, none of the evidence relied upon
by the Board in this case to find that there had been a change in circumstances
appears to have been before the Court in Dolma.
[37]
The Board is not bound by the decisions of this
Court where it is presented with different evidence that allows it to
distinguish this Court’s previous findings. The Board is required to determine
the claim before it in light of its particular factual circumstances, including
the most recent country conditions. Thus, new or different evidence may lead to
a different decision from an earlier decision by this Court in a similar
factual situation.
[38]
That is precisely what occurred in this case.
None of the earlier decisions of this Court dealing with the question of
whether the acquisition of Indian citizenship was a matter within the control
of Indian‑born Tibetans had precisely the same documentary evidence that
was before the Board here, and the evidence that was before the Board in this
case reasonably supported its finding that the acquisition of Indian
citizenship was now a matter within Mr. Tashi’s control.
[39]
Mr. Tashi takes issue with the Board’s
finding, arguing that he would not be able to get Indian citizenship because he
does not have an Indian birth certificate. There is no evidence that Mr. Tashi
ever attempted to obtain a birth certificate, and he did, however, have a
Registration Certificate for Tibetans ‑ a Government‑issued
identification card that confirmed his birth in India during the relevant
period. There was no evidence before the Board, apart from Mr. Tashi’s own
vague and anecdotal evidence, that he would not be able to have his
Registration Certificate renewed if he were to return to India, nor have I been
directed to any evidence that the Registration Certificate for Tibetans would
not be accepted as proof for the purposes of acquiring recognition of his
Indian citizenship.
[40]
Mr. Tashi also argues that he may well have
to litigate in order to have his entitlement to Indian citizenship recognized,
and that Justice Tremblay‑Lamer found in Dolma that this meant
that Indian citizenship was not a matter within his control. However, not only
did Justice Mosley come to the opposite conclusion in Tretsetsang, the
Board’s finding that recent evidence indicated a softening of the Indian
Government’s attitude towards the recognition of citizenship for Indian‑born
Tibetans was one that was reasonably open to the Board on the record before it.
[41]
On this point, Mr. Tashi submits that the
fact that the Indian Electoral Commission recognized the right of Indian‑born
Tibetans to vote does not mean that the Government is now accepting that Indian‑born
Tibetans were citizens of India as of right. In support of this contention, he
points to the fact that the Indian Government challenged the Electoral
Commission’s decision. However, the Board expressly acknowledged that different
branches of the Indian Government may be taking different positions on this
issue, but it reasonably concluded that the Government’s May 2014 attempt to
challenge the Electoral Commission’s decision had to be viewed in light of the
Justice Minister’s more recent concession in Topden.
[42]
Mr. Tashi also contends that the Board
misapprehended the evidence regarding a purported change in the position of the
CTA, as it had always officially taken a neutral position with respect to the
right of Indian‑born Tibetans to seek Indian citizenship. However,
although not explicitly stated in the Indian Court decisions, the applicants in
Dolkar, Rinpoche and Topden had all presumably been able
to obtain letters of ‘no objection’ from the CTA, supporting the view that the
CTA was relaxing its historical opposition to Indian‑born Tibetans
seeking Indian citizenship.
[43]
Mr. Tashi discounts the significance of the
Government’s concession in Topden, observing that more than two years
after Dolkar was decided, the Government of India was still resisting
granting citizenship to Indian‑born Tibetans, and that the statements by
the Minister of Justice had not been followed by any concrete action.
[44]
At the end of the day, however, all of Mr. Tashi’s
submissions essentially take issue with the weight that the Board ascribed to
the evidence before it regarding the evolving situation in India for Indian‑born
Tibetans. The Board assessed the evidence that was before it, and contrasted it
with the evidence that had been before the Court in Wanchuk. It
concluded that Mr. Tashi is a citizen of India as of right, and that in
light of recent events it was now within his power to obtain formal recognition
of this fact. This was a conclusion that was reasonably open to the Board on
the record before it.
IV.
Conclusion
[45]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case is fact‑specific,
and does not raise a question for certification.
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