Docket: IMM-716-15
Citation:
2016 FC 17
Ottawa, Ontario, January 7, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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TENZIN SANGMO,
KARMA TSEWANG, SONAM CHOKEY
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Applicants
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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
[1]
Tenzin Sangmo and her minor children, Karma
Tsewang and Sonam Chokey, claimed refugee protection in Canada based upon an
alleged fear of persecution in China due to their Tibetan ethnicity and their
worship of the Dalai Lama. They have brought an application for judicial review
pursuant to s 72 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of the Refugee Appeal Division [RAD] of the
Immigration and Refugee Board. The RAD upheld the determination of the Refugee
Protection Division [RPD] that Ms. Sangmo and her children are neither
Convention refugees under s 96 of the IRPA, nor persons in need of protection
as defined by s 97 of the IRPA.
[2]
For the reasons that follow, I have concluded
that the RAD’s decision is internally inconsistent, and therefore unreasonable.
The application for judicial review is allowed.
II.
Background
[3]
Ms. Sangmo was born in India on September 6,
1972. Her parents were Tibetan nationals who fled Tibet in the 1950s following
China’s occupation of the territory. Ms. Sangmo’s son, Karma Tsewang, was born
in India on September 14, 2006, and her daughter, Sonam Chokey, was born in
India on June 16, 2011.
[4]
Ms. Sangmo possesses a Tibetan “Green Book” as
well as a Registration Certificate, which is a document that enables
non-citizens of India to work, travel and remain in the country. Ms. Sangmo’s
two children have Indian birth certificates.
[5]
Ms. Sangmo never applied for a passport or any
other proof of citizenship in India. She says that a lawyer advised her that
the process would take eight to nine months, and would require her to obtain
numerous documents in support of her application.
[6]
Ms. Sangmo left India with her two children on
November 2, 2013, and entered Canada using a false passport. She made a claim
for refugee protection on December 15, 2013.
[7]
The Minister of Citizenship and Immigration [the
Minister] intervened in Ms. Sangmo’s hearing before the RPD. The Minister
argued that Ms. Sangmo is an Indian citizen by birth, and that her children are
entitled to Indian citizenship pursuant to the Indian Citizenship
(Amendment) Act, 2003.
III.
The RPD’s Decision
[8]
In a decision dated April 23, 2014, the RPD
rejected Ms. Sangmo’s claim on the ground that she and her children are citizens
of India, not China, and they have no well-founded fear of persecution in
India.
[9]
The RPD applied the test outlined in Canada
(Minister of Citizenship and Immigration) v Williams, 2005 FCA 126 [Williams],
and considered whether it was within Ms. Sangmo’s control to acquire the
citizenship of a country in which she had no well-founded fear of persecution.
The RPD concluded that Ms. Sangmo had an automatic right to Indian citizenship
under s 3.1(a) of the Indian Citizenship (Amendment) Act, 2003 because
she was born in India between January 26, 1950, and July 1, 1987, and that her
children had access to citizenship by virtue of their mother’s citizenship.
[10]
The RPD relied on a decision of the High Court
of Delhi which affirmed that Tibetans born in India have an automatic right to
obtain Indian citizenship (Namgyal Dolkar v Government of India (Ministry of
External Affairs) [2010] INDLHC 6118, CW 12179/2009 (22 December 2010) [Dolkar
(Indian High Court)]). The RPD acknowledged that Tibetans continue to face
challenges in securing citizenship, but was satisfied that obtaining Indian
citizenship was within Ms. Sangmo’s control.
[11]
The RPD rejected Ms. Sangmo’s claim that the
country of reference for her claim should be China. The RPD noted that Ms.
Sangmo had not submitted any documents attesting to her Chinese citizenship. It
found that China would not recognize Ms. Sangmo or her children as Chinese
citizens, because dual nationality is not recognized under Chinese law.
IV.
The RAD’s Decision
[12]
The RAD dismissed Ms. Sangmo’s appeal on January
27, 2015. The RAD disagreed with the RPD that Ms. Sangmo and her children have
an automatic right to Indian citizenship. It relied on documentary evidence
which confirmed that Tibetans face numerous legal and financial obstacles to obtaining
citizenship. However, the RAD observed that acquiring citizenship always
requires some effort on the part of an applicant.
[13]
The RAD agreed with the RPD that Ms. Sangmo and
her children are not nationals of China, because China does not recognize dual
nationality.
V.
Issue
[14]
The sole issue raised by this application for
judicial review is whether the RAD reasonably concluded that Ms. Sangmo and her
children were not entitled to refugee protection because they “should reasonably have been granted the automatic
citizenship in the Indian High Court decision, or have made an effort to obtain
citizenship.”
VI.
Analysis
[15]
The RAD’s determinations of law are reviewable
by this Court against the standard of correctness. So long as the law is stated
correctly, the RAD’s findings of fact and the application of the law to those
facts are reviewable against the standard of reasonableness (Dolker v Canada
(Minister of Citizenship and Immigration), 2015 FC 124 at para 7).
[16]
I am satisfied that the RAD cited the correct
legal test for determining a claimant’s country of nationality for the purpose
of assessing a refugee claim, i.e., whether “it
is within the control of the applicant to acquire the citizenship of a country
with respect to which he has no well-founded fear of persecution” (Williams
at para 22).
[17]
In Tashi v Canada (Minister of Citizenship
and Immigration), 2015 FC 1301 at para 13 [Tashi], Justice Mactavish
observed that 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 Ms. Sangmo and her
children. Justice Mactavish then discussed three cases that she regarded as
particularly worthy of consideration: Wanchuk v Canada (Minister of
Citizenship and Immigration), 2014 FC 885; Tretsetsang v Canada
(Minister of Citizenship and Immigration), 2015 FC 455; and Dolma v
Canada (Minister of Citizenship and Immigration), 2015 FC 703 [Dolma].
[18]
In Dolma, Justice Tremblay-Lamer dealt
with this Court’s conflicting jurisprudence as follows:
[32] In my view, an obligation on refugee
claimants to show that they applied for and were refused citizenship in a
particular country would constitute a narrowing of the refugee definition in
the 1951 Convention Relating to the Status of Refugees and section 96 of
the IRPA. The 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.
[19]
Justice Mactavish did not reject Justice
Tremblay-Lamer’s analysis in Dolma. However, in order to decide whether
the Board’s decision in Tashi was reasonable, she held that it was
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 to determine whether or not it supported the
Board’s conclusion that the situation in India had changed. Justice Mactavish
concluded as follows (at para 38):
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.
[20]
This may be contrasted with the RAD’s decision
in the case of Ms. Sangmo and her children. At para 21 of its decision, the RAD
found that the “automatic right to citizenship” in India for Tibetans is not
automatic, in that it requires legal support and funds. The RAD also accepted
that the “automatic right to citizenship” is not demonstrated by the behaviour
of the Indian authorities. The RAD acknowledged, based on the evidence
presented, that Tibetans face many obstacles to acquiring Indian citizenship.
[21]
I am unable to reconcile the RAD’s factual
findings in para 21 of its decision with the conclusion it reached in para 27
that Ms. Sangmo “should reasonably have been granted”
automatic citizenship pursuant to Dolker (Indian High Court), or should
have made an effort to obtain citizenship. The RAD’s decision is internally
inconsistent, and this alone renders it unreasonable.
VII.
Conclusion
[22]
The application for judicial review is allowed,
and the matter is remitted to a differently-constituted panel of the RAD for
re-determination. Because the determinative issue in this application is the
internal inconsistency of the RAD’s decision, no question is certified for
appeal.
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