Docket: IMM-4064-15
Citation:
2016 FC 233
Toronto, Ontario, February 22, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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LODOE SANGPO
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The present Application concerns the August 19,
2015 decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board determining that the Applicant is neither a Convention refugee
nor a person in need of protection.
[2]
Mr. Sangpo was born in India to Tibetan parents; he has never lived in Tibet. Mr. Sangpo only made his claim for protection
against China. He claimed that he could not return to India because India would not recognize him as a citizen and that he would be at risk of being
deported to China where he would face persecution on the basis of his Tibetan
ethnicity.
[3]
The RPD found that India was the appropriate
country of reference, and given that he did not claim against India there was
not a reasonable chance he would face persecution or harm by any authority in
India. In reaching this conclusion, a key question of law was whether the Applicant
possessed power, within his control, to acquire Indian citizenship.
[4]
The RPD rejected the Applicant’s claim on the
basis of a finding that “on a balance of probabilities
the claimant is entitled to Indian citizenship” (Decision, para 11) [Emphasis
added]. In reaching the finding, the RPD relied on its understanding of Justice
Tremblay-Lamer’s decision in the similar case of Dolma v Canada (Minister of
Citizenship and Immigration), 2015 FC 703 (Dolma):
The determinative issue before the panel is the claimant's
country of reference. For the following reasons, the panel finds that the
claimant is entitled to Indian citizenship by birth, Indian law and Indian
jurisprudence. As an Indian citizen, the panel finds that the claimant could
return to India without fear of persecution or harm. In making this
determination, the panel has considered the findings of The Honorable Madam
Justice Tremblay-Lamer (citation) and
the question of whether the issue of Indian citizenship was within the control
of the claimant.
[…]
In the words of the Honorable Madam Justice
Tremblay-Lamer, the acquisition of Indian Citizenship was within the
control of the claimant (Ibid). Further, he took no action to secure
that citizenship. […]
(Decision, paras 9 and 12) [Emphasis
added]
[5]
I find that the RPD misunderstood Justice Tremblay-Lamer’s findings in Dolma
at paragraphs 32 to 34, as emphasized:
The claimant did not provide any evidence or argument as to
why he would be refused Indian citizenship and testified that he made no
efforts to obtain Indian citizenship.
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 [Refugee Convention] and
section 96 of 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.
This 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.
As suggested by James Hathaway and Michelle
Foster, a country will be considered a country of reference for the assessment
of refugee status where the claimant's citizenship in that country
"actually exists in embryonic form and needs simply to be activated by
means of a request that will clearly be acceded to" (The Law of Refugee
Status, 2d ed (University Printing House: Cambridge, 2014) at 59).
In the present case, the evidence in the
record unequivocally established that if the applicant, as an ethnic Tibetan,
applied for an Indian passport, it was by no means clear that her request would
be acceded to. Recognition of her citizenship was thus not automatic or
within her control.
[Emphasis added]
[6]
As a result, I find that the RPD’s decision is
made in fundamental error of law.
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