Docket: IMM-3062-16
Citation:
2017 FC 353
Ottawa, Ontario, April 7, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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TENZIN DAKAR
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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.
Overview
[1]
The applicant, Tenzin Dakar, was born in Mundgod,
Karnataka, India on November 13, 1985. His parents were both born in Tibet.
They left Tibet for India in 1959 in response to China’s occupation of Tibet.
[2]
Mr. Dakar arrived in Canada via the United States
on February 2, 2016 and claimed protection at the border. He alleges that he
fears deportation to China from India and in turn fears persecution in China on
the basis of: (1) his political beliefs and activism against China’s annexation
of Tibet; and (2) his religious beliefs as a Tibetan Buddhist. He alleges he lacks
permanent status in India and thus has no right to return to that country.
[3]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada determined that Mr. Dakar is not a
Convention refugee or person in need of protection. The RPD found that India
was an appropriate country of reference and that it was in Mr. Dakar’s control
to address his status as a citizen of India thereby eliminating his fear of
deportation to China. The RPD further noted arguments were not made respecting
a serious possibility of persecution in India and the evidence did not
establish such a possibility.
[4]
Mr Dakar asks that this Court set aside the RPD’s
decision and return the matter for re-determination by a differently
constituted Panel. He submits that the RPD’s country of reference determination
was unreasonable.
[5]
Having considered the parties’ written and oral
submissions, I am not persuaded that the RPD’s decision was unreasonable.
II.
Decision under Review
[6]
The RPD was satisfied that Mr. Dakar had
established his personal identity and that he had been born in India in 1985.
The RPD then noted that the determinative issue was national identity/country
of reference.
[7]
In considering the issue, the RPD outlined the
Indian legislative framework. The RPD found that on the face of the legislation,
Mr. Dakar, a Tibetan born in India between 1950 and 1987, had a right to Indian
citizenship by birth. However, the RPD recognized and considered the practical
realities that impact the recognition of citizenship. In addressing the
evidence on the country conditions as they related to recognition of the
citizenship rights of Tibetans born in India between 1950 and 1987, the RPD
reviewed the National Documentation Package [NDP] and noted Mr. Dakar’s country
condition documents. Regarding the latter, the RPD noted some documents were
dated and therefore of limited value and the more recent documents echoed the
information from the NDP.
[8]
The RPD addressed a number of documents and
particularly relied on a Response to Information Request, No.
IND105133.E, 30 April 2015 [RIR]. It noted that Indian authorities have, at
least historically, been reluctant in recognizing Indian citizenship of
Tibetans. The RPD noted the RIR identified a number of instances where Indian
passports were refused to Tibetans and that India’s High Courts had intervened
in three reported instances in 2010, 2013 and 2014. The RPD further noted that despite
judicial intervention the evidence indicated the authorities continued to deny
passports and relief through the courts was at a cost that was not
realistically available to most Tibetan’s. The RPD concluded that various
actors within the Indian government appear to hold different views on the
Tibetan citizenship question. The Judicial Branch and electoral authorities
recognized the right of citizenship, but within the Executive Branch approaches
differed with the Ministry of External Affairs taking a more accommodating
approach than the Ministry of Home Affairs.
[9]
The RPD concluded its assessment at paragraph 18
of the decision noting: “… what is clear on the country
conditions is that there is a rapid evolution in the area. The trend is in the
direction of recognition of citizenship for those ethnic Tibetans born between
1950 and 1987, given the series of favourable Indian High Court decisions in
2010, 2013 and 2014, as well as the Election Commission’s Instruction to state
governments to permit voting in February 2014.”
[10]
The RPD then considered Mr. Dakar’s actions in
trying to obtain Indian citizenship. The RPD noted that he had not applied for
citizenship and that Mr. Dakar explained he did not possess an Indian birth
certificate and could not obtain one as he was born at home, instead of at a
hospital and that no alternative identity document would suffice in applying
for citizenship.
[11]
The RPD considered an opinion letter from an
Indian lawyer stating that without a birth certificate, a citizenship
application would be denied. The RPD gave this document little weight and
provided reasons for doing so. First, the opinion letter did not address
relevant legislation, jurisprudence or other circumstances that would support its
conclusion. Second, the opinion letter failed to address the possibility of an
applicant relying on alternative documentation to support the citizenship
application where a birth certificate could not be obtained, a live issue in
this case. Finally the RPD noted the author of the opinion letter was not
placed before the RPD as a witness by way of telephone or other means.
[12]
The RPD then reviewed and noted a division in
the Canadian jurisprudence on the issue of citizenship recognition in respect
of Tibetans born in India between 1950 and 1987. The RPD noted a number of decisions
found that acquisition of citizenship by Tibetans in India was not fully within
the control of the applicant, such as Dolma v Canada (Citizenship and
Immigration), 2015 FC 703. However other decisions recognized developments
respecting the citizenship issue and found it was reasonable to conclude that
Tibetans born in India between 1950 and 1987 have a right to citizenship (Tashi
v Canada (Citizenship and Immigration), 2015 FC 1301 [Tashi], Dolker
v Canada (Citizenship and Immigration), 2015 FC 24). The RPD quoted extensively
from the judgment of Justice Richard Mosely in Tretsetsang v Canada
(Citizenship and Immigration), 2015 FC 455 at para 30 [Tretsetsang
FC], where he held that it was not unreasonable to expect an applicant to
take legal action where a country of nationality attempts to deny a right to
citizenship.
[13]
Having reviewed the jurisprudence, the RPD was of
the view that Tretsetsang FC gave the fullest effect to the Federal
Court of Appeal decision in Canada (Citizenship and Immigration) v Williams,
2005 FCA 126 [Williams]. At paragraph 29 of the decision,
the RPD noted that while there is no prima facie obligation upon a
refugee claimant to first apply for citizenship that is available, it remains incumbent
upon an individual to make an “attempt to avail oneself
of citizenship that is available to him or her.”
[14]
In the same paragraph, the RPD concluded that
the “… Claimant here has taken no active steps toward
availing himself of the citizenship conferred upon him by statute.
Consultations with acquaintances, and even legal counsel, are not attempts at
availing oneself of citizenship.” The RPD further noted that, as per Tretsetsang
FC, the possibility of litigation is an insufficient obstacle to take the
access to citizenship outside of the applicant’s control, reiterating that the
applicant did not engage in active steps to pursue the matter directly with the
Indian government.
III.
Standard of Review
[15]
The issue raised engages questions of a mixed
fact and law. The RPD’s conclusions will be reviewed against a standard of
reasonableness (Tretsetsang FC at para 10, Tretsetsang
v Canada (Citizenship and Immigration), 2016 FCA 175 at para 61 [Tretsetsang
FCA]).
IV.
Analysis
[16]
Mr. Dakar submits that while the RPD found the
situation in India to be rapidly evolving, it failed to recognize that the
evidence had changed. The changing evidence he submits caused the RPD to
inappropriately rely on the decision of Justice Anne Mactavish in Tashi to
conclude it more likely than not that the applicant would be granted Indian
citizenship if an application were made. In this respect Mr. Dakar points to a
document updated in June 2015 by the Tibet Justice Center entitled: “Tibet’s
Stateless Nationals II: Tibetan Refugees in India 2014” [Tibet Justice
Center’s document]. He submits that this document demonstrates Tibetans
continue to be denied citizenship, despite two Indian High Court decisions,
thus contradicting the RPD’s conclusion that there was a real possibility of
citizenship being granted if an application were made.
[17]
Mr. Dakar also relies on Tretsetsang FCA
to argue that an applicant does not have a duty to litigate should Indian
citizenship be refused.
A.
The Federal Court of Appeal’s Decision in Tretsetsang
FCA
[18]
Shortly after the RPD’s decision, the majority
of the Federal Court of Appeal in Tretsetsang FCA considered the following
question:
Is any impediment that a refugee claimant
may face in accessing state protection in a country in which that claimant is a
citizen sufficient to exclude that country from the scope of the expressions
“countries of nationality” and “country of nationality” in section 96 of the Immigration
and Refugee Protection Act?
[19]
In answering the question in the negative the Court held that the test for “country of nationality”
is the control test set out in Williams and that the onus is on the
applicant to establish an impediment that would result in the applicant not
having control (Tretsetsang FCA at para 67). The majority then set
out the following test at paragraph 72:
[72] Therefore a claimant, who alleges the
existence of an impediment to exercising his or her right of citizenship in a
particular country, must establish on a balance of probabilities:
(a) The existence of a significant
impediment that may reasoanably be considered capable of preventing the claimiant
from exercising his or her citizenship rights of state protection in that
country of nationality; and
(b) that the 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.
[20]
Reasonable efforts are to be determined on a case by
case basis. Where a claimant establishes it would not be reasonable to make
such efforts, no efforts need be made (Tretsetsang FCA at para 73).
B.
Did the RPD misapprehend the evidence?
[21]
Applying the principles set out Tretsetsang FCA,
I am unable to conclude that the RPD failed to recognize or consider changing
evidence or that the decision was unreasonable.
[22]
In considering whether the recognition of Mr. Dakar’s Indian
citizenship was within his power and control the RPD acknowledged the
historical challenges faced by Tibetan’s in Mr. Dakar’s circumstances. The RPD expressly
noted at paragraph 14 of the decision that “…Indian
authorities remained resistant and continued to routinely deny passports.”
In acknowledging this to be the case the RPD referenced the Tibet Justice
Center’s document.
[23]
However the RPD weighed this evidence against evidence
of progress relating to the recognition of citizenship rights. The RPD noted that
the right to vote had been recognized by the Election Commission of India, that
the Ministry of External Affairs was more accommodating in recognizing
citizenship and that in turn, the Judicial Branch had consistently recognized a
right to citizenship for ethnic Tibetans born in India between 1950 and 1987.
It was on the basis of weighing this evidence that the RPD concluded there was
a trend in the direction of recognition of citizenship. This conclusion was reached
after consideration of all of the evidence. I am unable to find that the RPD
conclusion inappropriately relied on the factual findings in Tashi or
that the evolving nature of the situation in India including the most recent
evidence was not considered.
C.
Did the RPD come to an unreasonable
conclusion?
[24]
Having reasonably concluded that the evolving situation
in India was trending in the direction of recognition of citizenship, the RPD
then considered Mr. Dakar’s specific circumstances. It recognized that Mr.
Dakar faced obstacles and inconvenience in having his citizenship rights
recognized, the first element of the Tretsetsang FCA test. It then noted
that Mr. Dakar had an obligation to take steps to avail himself of the
citizenship conferred on him under Indian law.
[25]
While the RPD did not have the benefit of Tretsetsang
FCA it did turn its mind to the second element of the test – had Mr. Dakar made
reasonable efforts to overcome the impediments or obstacles to citizenship?
[26]
In assessing this element the RPD considered Mr. Dakar’s
consultations with acquaintances and a lawyer but noted he made no effort to
approach the Indian government in pursuit of citizenship recognition. The RPD
noted that while Mr. Dakar did not possess a birth certificate, he made no
effort to pursue the possibility with government officials that his Identity
Certificate, a document issued by the Indian government setting out his date
and place of birth, might be sufficient.
[27]
Unlike the situation in Namgyal v Canada (Citizenship and Immigration), 2016 FC 1060 [Namgyal],
where Justice Mactavish found that the RAD did not undertake the case by case
analysis required by the Federal Court of Appeal in Tretsetsang FCA, the
RPD did undertake that analysis here. The RPD addressed Mr. Dakar’s explanation
for not applying for a birth certificate, it outlined its concerns with the
legal opinion provided and, based on those concerns, gave the opinion little
weight. Moreover, whereas in Namgyal the applicant had a grade three
education, Mr. Dakar’s evidence of his studies and experience in dentistry in
India grounded the RPD’s finding that he was a sophisticated individual and
that there were no circumstances that prevented Mr. Dakar from approaching the
Indian government to secure recognition of his citizenship despite peacefully
residing in India for thirty years. The RPD noted that instead he relied on
reported obstacles to conclude any such attempt would be unsuccessful.
[28]
Finally, the RPD did not hold that Mr. Dakar was
required to litigate rather it held that reasonable efforts in this case
required some indication of having taken active steps to secure citizenship
recognition. That conclusion was reasonably open to the RPD
on the record before it.
V.
Conclusion
[29]
The RPD’s analysis was consistent with the test set out
in Tretsetsang FCA and the outcome is within the
range of possible, acceptable outcomes defensible in respect of the facts and
law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[30]
The parties have not proposed a question for
certification and none arises.
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