Docket: IMM-5687-15
Citation:
2016 FC 1060
Ottawa, Ontario, September 19, 2016
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
CHIME NAMGYAL
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Chime Namgyal claims to fear persecution in
China because of her Tibetan ethnicity. The Refugee Protection Division
rejected her claim on the basis that Ms. Namgyal is not a citizen of China. The
Board further found that Ms. Namgyal is entitled to citizenship in India by
virtue of her birth in that country. The Refugee Protection Division’s decision
was subsequently upheld by the Refugee Appeal Division of the Immigration and
Refugee Board.
[2]
Ms. Namgyal now seeks judicial review of the
RAD’s decision. Ms. Namgyal submits that the test applied by the RAD in
determining that it was within her control to have her Indian citizenship
recognized by the Indian government did not accord with that prescribed by the
Federal Court of Appeal in Tretsetsang v. Canada (Minister of Citizenship
and Immigration), 2016 FCA 175, [2016] F.C.J. No. 615 (Tretsetsang
FCA). As a consequence Ms. Namgyal submits that the RAD’s decision was
unreasonable.
[3]
For the reasons that follow, I agree with Ms.
Namgyal that the RAD erred as alleged, and that its decision was not
reasonable. Consequently, her application for judicial review will be granted.
I.
Background
[4]
Ms. Namgyal was born in India on December 10,
1973. Her Tibetan parents had fled China fearing persecution because they were
followers of His Holiness the Dalai Lama. Ms. Namgyal’s claim for refugee
protection was based on her own religious beliefs as a follower of the Dalai
Lama, and her opposition to China’s occupation of Tibet. Ms. Namgyal fears that
she will be deported to China if she returns to India, as she says that she has
no right to citizenship or permanent residence in India.
[5]
Paragraph 3(1)(a) of the Indian Citizenship
(Amendment) Act, 2003 states that every person born in India between
January 26, 1950 and July 1, 1987 is a citizen of India by birth. In accordance
with this provision, Ms. Namgyal should therefore be entitled to Indian
citizenship as of right.
[6]
Notwithstanding this legislation, the Government
of India has resisted recognizing people in Ms. Namgyal’s position as citizens
of India, and ethnic Tibetans have encountered significant difficulties in
securing recognition of their Indian citizenship. Several individuals have,
however, succeeded in having their Indian citizenship recognized by the Indian
Courts.
[7]
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).
[8]
In a second decision by the Indian High Court,
this one from Karnataka, the Court once again held 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).
[9]
Finally, in Phuntsok Topden v. Union of India,
[2014] INDLHC, WP 1890/2013 (16 December 2014), the Government of India
ultimately conceded that the applicant in that case was entitled to citizenship
by virtue of the fact that he was born in India during the relevant period.
[10]
Moreover, in February of 2014, India’s Justice
Minister declared to a group of Indian‑born Tibetans that the Government
of India had given them both the right to vote and the right to citizenship,
advising them that they could now register themselves as citizens of India.
That said, the Office of Tibet in New York City (which represents the Dalai
Lama and the Central Tibetan Administration in North America) has stated that
it is not aware of any case where an individual has had their Indian
citizenship recognized by the Government of India solely by virtue of their birth
in that country during the relevant period.
II.
The Refugee Protection Division’s Decision
[11]
The Refugee Protection Division rejected Ms.
Namgyal’s claim to refugee protection on the basis that she was a citizen of
India, and not China, and that she would not have a well‑founded fear of
persecution if she were returned to her country of nationality.
[12]
Despite the difficulties discussed earlier in
these reasons, the RPD found that obtaining Indian citizenship was a matter
within Ms. Namgyal’s control, thus satisfying the test set out in Williams
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 126, [2005] 3
F.C.R. 429. In Williams, 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]
In finding that having her Indian citizenship
recognized was a matter within Ms. Namgyal’s control, the RPD adopted the
reasoning in Tretsetsang v. Canada (Minister of Citizenship and Immigration),
2015 FC 455, [2015] 4 F.C.R. 521. There Justice Mosley concluded that if the
Indian authorities refused to give someone in Ms. Namgyal’s position a
passport, he or she could bring a court challenge similar to the ones described
above. Justice Mosley noted that in Williams, the Federal Court of
Appeal held that an applicant must make attempts to acquire citizenship in any
safe country where it is available to him: Williams at para. 27.
According to Justice Mosley, the same principle should apply to the enforcement
of the right to citizenship to which the applicant is entitled by law,
notwithstanding efforts at obstruction by Indian officials: para. 30.
[14]
Mr. Tretsetsang had evidently made no effort to
enforce his right to Indian citizenship. He merely speculated that any such
attempt would be unsuccessful, despite the legislation and jurisprudence in his
favour. According to Justice Mosley, Mr. Tretsetsang could not claim
protection in Canada without making any effort to avail himself of the Indian
nationality to which he was entitled as a matter of law.
[15]
In contrast, in this case, Ms. Namgyal took
steps towards having her Indian citizenship recognized. She consulted a lawyer
in India who advised her that Tibetan refugees in India are not entitled to
Indian citizenship under Indian law. Ms. Namgyal provided the Board with copies
of two written opinions from the lawyer. The first stated that Tibetan refugees
in India are not entitled to Indian citizenship, and that there is, moreover,
no provision for dual citizenship under Indian law. The second opinion stated
that Ms. Namgyal lacked the documents necessary to qualify for Indian
citizenship.
[16]
The Refugee Protection Division chose to give no
weight to the legal opinions produced by Ms. Namgyal, in part, because there
was no evidence that the author was an expert in Indian citizenship law, and in
part because the Board had concerns with respect to the timing of the
production of the letters. Although the reasons of the RPD are not entirely
clear on this point, it appears that it may have had some concerns with respect
to the genuineness of the documents.
III.
The Refugee Appeal Division’s Decision
[17]
Applying the standard of review identified by
this Court in Huruglica v. Canada (Minister of Citizenship and Immigration),
2014 FC 799, 461 F.T.R. 241, aff’d 2016 FCA 93, 396 D.L.R. (4th) 527, the RAD
determined that the RPD’s decision should be upheld.
[18]
Re-examining the evidence as it was required to
do, the RAD came to a different conclusion with respect to the significance of
the legal opinions obtained by Ms. Namgyal than did the RPD. The RAD chose to
give little weight to the opinions, rather than no weight whatsoever. The RAD’s
reasons for this are also not as clear as they might be, but the fact that it
chose to give some, albeit little, weight to the documents suggests that it was
not concerned about their genuineness. The RAD stated that it was giving them
little weight because nothing precluded Ms. Namgyal “from
renouncing her foreign status in [India]”. The RAD did not address the statement
in the lawyer’s opinion that Ms. Namgyal lacked the documents necessary to
qualify her for Indian citizenship.
[19]
Because Ms. Namgyal had never applied for an
Indian passport or “made other efforts to exercise
other rights of her Indian citizenship”, the RAD stated that it was not
known whether the Indian authorities would have refused her application. As a
result, the RAD held that “she has not tested whether
or not it is within her control to obtain the rights of Indian citizenship”.
[20]
The RAD noted that this Court had provided
conflicting decisions as to whether having one’s Indian citizenship recognized
was something that was within the control of individuals in Ms. Namgyal’s
position. The RAD nevertheless adopted Justice Mosley’s reasoning in Tretsetsang,
and held that it was reasonable to have expected Ms. Namgyal to have taken
additional steps to have her Indian citizenship recognized, rather than simply
relying on the “untested” legal opinions she had
obtained.
[21]
In coming to this conclusion, the RAD reviewed
the evidence discussed earlier with respect to the Indian court decisions
involving the citizenship rights of Indian-born Tibetans, and the granting of
voting rights to them. The RAD concluded that Ms. Namgyal was a citizen of
India by birth, and that “her decision not to exercise
her right to Indian citizenship precludes her from the protection of Canada”.
Ms. Namgyal’s appeal to the RAD was thus dismissed.
IV.
The Federal Court of Appeal’s Decision in Tretsetsang
[22]
After the RAD rendered its decision in this
case, the Federal Court of Appeal released its decision in Tretsetsang FCA.
In a split decision, the Court upheld Justice Mosley’s judgment.
[23]
In his dissenting judgment, Justice Rennie held
that if it is necessary for a person to litigate before a foreign state will
recognise their citizenship rights, then citizenship is presumptively outside
of that individual’s control. Justice Rennie noted that there were several
factors that led him to this conclusion. The fact that a claimant must litigate
against the foreign state is evidence that that state does not recognise the
individual’s citizenship rights, and is, in fact, actively resisting them.
There is, moreover, no guarantee that a claimant will obtain a favourable
result. Finally, a claimant may not have the resources necessary to litigate: Tretsetsang
FCA, above at para. 34.
[24]
The majority agreed with Justice Rennie that
test for determining whether a claimant has a “country
of nationality” is the Williams control test. The majority went
on to hold that the onus is on the refugee claimant to establish the existence
of the asserted impediment that results in the claimant not having the power to
control whether India will recognize his or her Indian citizenship. The
majority further held that a minor impediment will not suffice to take the
matter outside of the individual’s control; rather, the impediment must be
significant: Tretsetsang FCA, above at para. 67.
[25]
The majority adopted the statement in Williams
that the unwillingness of a refugee claimant to take reasonable steps to gain
state protection will be fatal to his or her refugee claim. The majority further
agreed that as citizenship was granted to Mr. Tretsetsang by the Indian
Citizenship Act, 1955, it was open to the Board to draw reasonable
inferences from his failure to take reasonable steps to have his citizenship
recognized, and that his failure to do so is material and relevant evidence on
the question of control: Tretsetsang FCA, above at para. 69.
[26]
The majority decision further held that if a
refugee claimant fails to take any steps to confirm whether the country in
question will recognize him or her as a citizen of that country, such inaction
will, in the absence of a reasonable explanation, be fatal to that person’s
refugee claim: Tretsetsang FCA, above at para. 70.
[27]
The majority also held that where a refugee
claimant alleges the existence of an impediment to exercising his or her rights
of citizenship in a particular country, the claimant must establish, on a
balance of probabilities that:
a)
There is a significant impediment that may
reasonably be considered capable of preventing the claimant from exercising his
or her citizenship rights in that country of nationality; and
b)
That the refugee claimant has made reasonable
efforts to overcome such impediment and that such efforts were unsuccessful
such that the claimant was unable to obtain the protection of that state.
Tretsetsang FCA, above at para. 72.
[28]
The Court concluded by holding that what will
constitute “reasonable efforts” to overcome a
significant impediment in a particular situation can only be determined on a
case-by-case basis. A refugee claimant will not be obliged to make efforts to
overcome an impediment if they can establish that it would not be reasonable to
require them to do so: Tretsetsang FCA, above at para. 73.
[29]
Mr. Tretsetsang had not taken any steps to
determine whether India would recognize his right to citizenship under the Indian
Citizenship Act, 1955 without requiring him to litigate the issue, and he
had not provided any explanation for his failure to do so. As a consequence the
majority held that he had failed to establish that there was any impediment,
much less any significant impediment, to his ability to access the state
protection rights inherent in his Indian citizenship. Consequently, Mr.
Tretsetsang’s appeal was dismissed.
V.
Analysis
[30]
The issue raised by this case involves a
question of a mixed fact and law. As a result, the standard of review to be
applied to the RAD’s decision is that of reasonableness: Tretsetsang
FCA, above at para. 61. The question for determination is thus whether the
RAD’s decision in this case was reasonable in light of the Federal Court of
Appeal’s decision in Tretsetsang.
[31]
The RAD found that in accordance with Indian
citizenship legislation, Ms. Namgyal was a citizen of that country by virtue of
her birth in India during the relevant time period. The RAD did not, however,
make a specific finding as to whether Ms. Namgyal would face a significant
impediment in trying to have her Indian citizenship recognized by the Indian
government. This is problematic, especially in light of the evidence that was
before the Board from the Office of Tibet in New York City. It will be recalled
the Office was not aware of a single case where an individual in Ms. Namgyal’s
position has had his or her Indian citizenship recognized by the Government of
India solely on the basis of their birth in India during the relevant period.
[32]
If the RAD was of the view that, in light of the
decisions of the Indian Courts, the Indian government had abandoned its
historical opposition to recognizing the Indian citizenship of Tibetan refugees
born in India, and would recognize Ms. Namgyal’s Indian citizenship without the
need for her to litigate the issue, then it needed to say so. It would then
also have to explain how it came to that conclusion in light of the evidence
from the Office of Tibet in New York City.
[33]
If, on the other hand, the RAD was of the view
that Ms. Namgyal would be able have her Indian citizenship recognized through
litigation, then it had to explain why this did not constitute a “significant impediment” that could reasonably be
considered to be capable of preventing Ms. Namgyal from exercising her
citizenship rights in India.
[34]
The second part of the Tretsetsang FCA test
required the RAD to consider whether Ms. Namgyal had made reasonable
efforts to overcome the impediments to her citizenship being recognized.
[35]
Ms. Namgyal is a woman with a grade three
education. She wanted to have her Indian citizenship recognized by the Indian
Government, and she sought the assistance of a lawyer in this regard. Ms.
Namgyal then received written legal opinions advising her that she was not
entitled to Indian citizenship under Indian law.
[36]
The question is not whether the legal opinions
were correct, or whether they were provided by a lawyer with expertise in
Indian citizenship law. The question for determination by the RAD was whether
it was reasonable for Ms. Namgyal to have relied upon the legal opinions that
she received, or whether she should reasonably have been expected to do
anything further to try to have her Indian citizenship recognized.
[37]
Applying this Court’s decision in Tretsetsang,
the RAD held that because Ms. Namgyal had never applied for an Indian passport
or made any other attempt to exercise other rights associated with her Indian
citizenship, it was not known whether the Indian authorities would have refused
her application. As such, she had not tested whether or not it was in her
control to obtain the rights of citizenship. Consequently, her refugee claim
was dismissed.
[38]
However, the RAD did not do the sort of
case-by-case analysis mandated by the Federal Court of Appeal in Tretsetsang
FCA. That is, it never expressly asked itself whether it was reasonable to
expect someone in Ms. Namgyal’s position, with her specific attributes
(including her limited education), to take additional steps in attempting to
have her Indian citizenship recognized, once she obtained a legal opinion
advising her that she was not entitled to Indian citizenship under Indian
citizenship law.
[39]
The RAD cannot be faulted for failing to ask
itself this question as it did not have the benefit of the decision in Tretsetsang
FCA when it made its decision. However, the effect of its failure to do so is that
it did not consider whether the steps that were taken by this particular
individual, with her limited education, were reasonable and sufficient in all
of the circumstances.
VI.
Conclusion
[40]
For these reasons, the application for judicial
review is allowed. I agree with the parties that in light of the case-by-case
analysis mandated by Tretsetsang FCA, the case does not raise a question
of general importance that is suitable for certification.
Email this Content