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JUDGMENT AND REASONS

I. Overview

[1] Under section 72(1) of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA], Kamal Abdullah Mohammed Hassan, (Applicant) seeks judicial review of a decision (Decision) by the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada (IRB) rejecting his refugee protection appeal and confirming the Refugee Protection Division’s (RPD) decision.

[2] I grant the judicial review for the following reasons.

[3] This matter turns on the Applicant’s citizenship. He was born to a Yemeni father and an Egyptian mother on August 29, 1982. He is a Yemeni citizen of Sunni Muslim faith and claimed refugee protection against Yemen. He based his claim on a well-founded fear of persecution by the Shia Houthis who control much of Yemen and are persecuting the Sunnis. Both the RPD and RAD accepted the Applicant’s allegations, but found that through his mother, he has a right to obtain Egyptian citizenship, a country where he does not face a well-founded fear of persecution or a personal risk of harm. As a deemed Egyptian citizen, his claim for refugee protection failed.

[4] The Applicant argues that by not considering the impact of his mother’s current lack of status in Egypt, which he tried to substantiate through expert evidence, the RAD’s decision was unreasonable. The Applicants’ parents are divorced, and in 2000, the Applicant’s mother renounced her Egyptian citizenship to obtain her new husband’s Saudi Arabian citizenship. She cannot reacquire Egyptian citizenship or apply for any updated Egyptian documents as her Saudi husband forbids her to have any contacts with the Egyptian authorities. She has not visited Egypt in more than 40 years and has limited contact with her Egyptian family.

[5] The Applicant argues that because her mother is no longer an Egyptian citizen, and he has no control over her actions, he cannot access Egyptian citizenship. The Applicant has never approached the Egyptian authorities to apply for citizenship because he believes that his mother’s current lack of status will effectively block the citizenship process.

[6] He also argues that the RAD reached its decision unfairly because it did not adequately engage with his arguments on the practical impediments to obtaining Egyptian citizenship. At the hearing, the Applicant added that in expecting him to have applied for Egyptian citizenship, the RAD ignored his mental health and the vulnerability it had caused him. Ignoring his vulnerabilities in assessing his evidence was breach of RAD’s obligation to consider Chairperson’s Guideline 8: Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations.

II. Decision

[7] I grant the Applicant’s judicial review. I find that the RAD’s decision was unreasonable. I therefore do not need to deal with the potential arguments on a breach of procedural fairness, which were also not advanced during the hearing.

III. Standard of Review

[8] The standard of review for the RAD’s decision is reasonableness. Reasonableness review is a deferential standard that requires evaluating the outcome of an administrative decision in light of its rationale to determine whether the decision is transparent, intelligible, and justified (Vavilov v Canada (Minister of Citizenship and Immigration), 2019 SCC 65 at paras 12–15, 95 [Vavilov]). The reasons are the primary mechanism by which administrative decisionmakers show that their reasons are reasonable (Vavilov at para 81). A reasonable decision is “based on an internally coherent and rational chain of analysis” and is “justified in relation to the facts and law” (Vavilov at para 85).

[9] The party challenging the decision must prove that it is unreasonable. For a reviewing court to overturn an administrative decision, the applicant must establish that there are “sufficiently serious shortcomings” such that it “cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency” (Vavilov at para 100).

IV. Analysis

A. Was the RAD decision reasonable?

[10] For both the RPD and the RAD, the determinative issue was whether Egyptian nationality was available to the Applicant, who did not face a serious possibility of persecution or a personal risk of harm in Egypt. The term “country of nationality” in paragraph 96(a) of IRPA includes potential countries of nationality, including those from which claimants can re-avail themselves of citizenship. The Applicant argues that the RAD unreasonably rejected expert evidence stating that the Applicant could not access citizenship because his mother was no longer a citizen. I ultimately agree with the Applicant that the evidence was unreasonably rejected and that the rejection led to an unreasonable decision.

[11] The Federal Court of Appeal (FCA) explored the issue of the right to citizenship in Willams v Canada (Minister of Citizenship and Immigration) 2005 FCA 126 [Williams]. The FCA held that refugee protection will be denied where the evidence shows, at the time of the hearing, that it is within the control of the claimant to acquire the citizenship of a particular country with respect to which the claimant has no well-founded fear of persecution (Williams at para 19). The FCA more recently reaffirmed the “control” test as the correct approach (Tretsetsang v Canada (Citizenship and Immigration), 2016 FCA 175 at para 6 [Tretsetsang]). This test is highly dependent on the unique legal and factual circumstances of each case (Tretsetsang at para 8). Justice McHaffie distilled this Court’s approach on the jurisprudence following Tretsetsang as follows (Naz v Canada (Citizenship and Immigration), 2022 FC 1074 at para 21, citing Tretsetsang at para 72):

[There are] two questions that flow from Williams and Tretsetsang: (1) Does the claimant currently have citizenship, or a legal right to citizenship that is within their control and not in the discretion of the authorities? (2) If so, has the claimant shown (a) there is a significant impediment to exercising that citizenship right of state protection, and (b) they have unsuccessfully made reasonable efforts to overcome the impediment?

[12] The RAD must address whether the claimant has the requisite control over the outcome, and that such control is not subject to administrative discretion. If obtaining citizenship is a matter of formalities, then the control exists. Thus, in circumstances where officials have a statutory discretion, the claimant is not required to demonstrate whether or not they would be granted citizenship.

B. The RAD’s treatment of new evidence was unreasonable

[13] Under subsection 110(4) of IRPA, to be admissible before the RAD on appeal, new evidence must satisfy one of three requirements. It must either have arisen after the rejection of the claimant’s refugee claim; it was not reasonably available at the time of the rejection; or it was reasonably available, but the person cannot reasonably have been expected in the circumstances to have presented it at the time of rejection (IRPA, s 110(4)). If the evidence meets one of the criteria under subsection 110(4), the RAD must then consider whether the evidence meets the Singh/Raza factors, including newness, relevance, and credibility (Singh v Canada (Citizenship and Immigration), 2016 FCA 96 at paras 34–38, 49 [Singh]; Raza v Canada (Citizenship and Immigration), 2007 FCA 385 at para 13 [Raza]).

[14] The RPD had found that citizenship was available through maternal descent and rejected the Applicant’s claim. As the RPD decision shows at paragraph 13, counsel had submitted that the Applicant could not establish his Egyptian citizenship through his mother because she was no longer an Egyptian national, nor could he comply with the residency requirements. The Applicant led two legal opinions authored by counsels in Egypt, which argued that the mother’s renunciation was fatal to the claimant’s application for citizenship (Legal Opinions). At the RPD, the Applicant had not substantiated the Legal Opinions with any evidence. The RPD preferred evidence in the NDP and rejected the Legal Opinions, suggesting that they referred to the 1975 Law No. 26 (1975 Law) for citizenship rather than the Law No. 154 of 2004 (2004 Law), which is in force and amended the 1975 Law. The RPD found that the Applicant could access Egyptian citizenship through his mother.

[15] Before the RAD, the Applicant submitted new evidence. This evidence was a letter authored by the Egyptian “General Administration of Passports, Immigration and Citizenship Director General” that specifically dealt with the Applicant’s circumstances (it named his mother). The letter stated that the Applicant’s mother’s renunciation was fatal to his ability to obtain Egyptian citizenship under the 2004 Law. The RAD named this letter Exhibit D and rejected it under section 110(4) of IRPA.

[16] Later in its analysis, the RAD addressed the content it considered to be duplicated in Exhibit D. The RAD agreed with the RPD, preferring “the direct translation” of the Egyptian citizenship law over the Legal Opinions. As Counsel for both parties also agreed at the judicial review hearing, the RAD rejected Exhibit D primarily because it deemed that Exhibit D duplicated information that was already before the RPD, and therefore that this information was not new.

[17] The conclusion that the information was not new was unreasonable. The document had named the Applicant’s mother and was issued by the official authorities in charge of granting citizenship. First, the RAD failed to recognize that a letter by the competent authorities in Egypt commenting on the Applicant’s particular circumstances offered authorities’ own view on the matter, and as such was different in kind than the Legal Opinions by counsel which only suggested what Egyptian authorities might do. Second, the RAD contradictorily used the RPD’s conclusion that the Legal Opinions referred on a balance of probabilities to the 1975 Law to prefer the text of the 2004 Law over the Legal Opinions, but rejected Exhibit D because it contained “no new information”, despite Exhibit D explicitly referring only to the 2004 Law. The RAD’s reasoning does not add up (Vavilov at para 104).

[18] As a result of these two errors, the RAD’s reasons for finding that Exhibit D contained no new information fundamentally misapprehended the facts before it (Vavilov at para 126). These inaccuracies were then central to how the RAD dealt with the determinative question of citizenship through maternal descent. The RAD’s subsequent reliance on partial information, and on silence caused by its belief that the information was not new, resulted in a failure of rationality that made its decision unreasonable (Vavilov at para 101).

[19] In the alternative, under Raza/Singh, the RAD then reasoned that, even if Exhibit D met one or more of the criteria under section 110(4), it was not credible; “nothing on its face indicated that it was authored by a government official”, and “the words Egypt or Egyptian did not feature anywhere on the letter”. These conclusions were unreasonable.

[20] Exhibit D was translated by a translator accredited with IRCC, who swore a declaration asserting that the English translation was translated from Arabic into English and that the translation was complete and correct. Assessing the documents’ weight is a discretion available to the RAD member. However, the original Arabic was included and the translation showed that it contained the letterhead of the competent authority with a seal. The RAD made no effort to ascertain the original Exhibit D’s authenticity and made an error in saying that nothing on the face of the document indicated that it was written by a government official; it bore a presumed-official seal (Zheng v Canada (Citizenship and Immigration), 2008 FC 877 at para 18; Dai v Canada (Citizenship and Immigration), 2015 FC 723 at para 9). It was open to the RAD not to accept this evidence, but the RAD needed to explain why the original document provided by the Egyptian authority lacked credibility, leading to a failure of justification (Vavilov at para 94).

[21] As such, each of the RAD’s grounds for rejecting Exhibit D were unreasonable.

C. The RAD’s treatment of Egyptian nationality law and whether it was within the Applicant’s control to acquire citizenship was unreasonable

[22] The RAD engaged with the Egyptian nationality law governing the Applicant’s circumstance. It considered the 1975 Law, which did not allow citizenship through a mother, but then considered the 2004 Law. The First and Third articles of the 2004 Law read:

“The following shall be Egyptian:

1. Anyone who is born of an Egyptian father, or an Egyptian mother [My note: This section applies to those born after the 2004 Law entered into force]

(Third Article)

[My note: Applicable to those born before the 2004 Law]:
A person born to an Egyptian mother and non Egyptian father before the effective date of the present law may announce to the minister of interior his wish to enjoy the Egyptian nationality. Such person shall be considered Egyptian by virtue of a decree to be issued by the minister, or with the lapse of one year from the date of such announcement without the issue of a substantiated refusal decree from the minister [My emphasis].

[23] The Applicant would then presumably be subject to the terms of the Third Article. It is undisputed that the Applicant is a person born to an Egyptian mother and a non-Egyptian father, as his mother was an Egyptian citizen when he was born. With that in mind, at the hearing, I asked both counsels to point to any evidence that would suggest that this plain reading of the 2004 Law could be incorrect. The Applicant argued that the law should be interpreted such that the Applicant be understood as not captured by the Third Article. Counsel pointed to no evidence or legal authority to advance this interpretation, and so I cannot accept the Applicant’s interpretation of the Third Article.

[24] Adopting this plain reading of the statute, the RAD agreed with the RPD that the Applicant could acquire citizenship as a mere formality. The RAD considered the Applicant’s argument on his mother’s loss of citizenship and concluded that “there is no evidence that the Appellant’s mother’s renunciation of her Egyptian citizenship would impact his own ability to acquire Egyptian nationality”. The RAD concluded this even though the Applicant had submitted Exhibit D, which clearly demonstrated that Egyptian authorities’ own view is that the mother’s renunciation was fatal to the Applicant’s citizenship. This evidence was rejected under 110(4) because the information was already before the RPD. An analysis based on the absence of evidence to the contrary, when the RAD had accepted that such evidence existed before the RPD, is therefore unintelligible.

[25] At the hearing, I asked the parties to comment on the part of the 2004 Law that reads “without the issue of a substantiated refusal”. A plain reading of this provision of the law suggests that the Minister can refuse an application. This provision might have amounted to a discretion in the grant of citizenship under the Third Article that the RAD ignored. The Applicant repeated his argument on the impact of his mother’s loss of citizenship taking the Applicant out of the Third Article’s application, and the Respondent pointed to the RAD’s reliance on the National Documentation Package (NDP) in coming to its ultimate conclusion.

[26] The RAD also assumed that the Applicant would be considered to be a child of an Egyptian mother by Egyptian authorities. At paragraph 32 of its reasons, the RAD cited an Egyptian law professor in an NDP source who noted that no request to grant Egyptian nationality to the children of Egyptian mothers and non-Egyptian fathers has been refused except for “security reasons related to preserving the interests of the country”. Since the Applicant had alleged no such concerns, the RAD concluded that his application would be unlikely to be refused. The RAD relied on the NDP’s silence on the fate of citizenship applications of the children of mothers who are former Egyptian citizens to support its conclusion. By concluding as much, the RAD treated the Applicant as an Egyptian mother’s child despite the Applicant’s evidence that the Egyptian authorities do not view him as such.

[27] To be reasonable, a decision must be justified, transparent, intelligible, and meaningfully grapple with evidence that is central to the outcome (Vavilov at paras 15, 126). The RAD’s treatment of the Applicant’s evidence in this case falls short of that standard. The RAD declined to admit Exhibit D on the basis that its contents duplicated content already before the RPD. Despite that, the RAD later asserted that the remaining evidence in the NDP was “silent” on the very point that the excluded document addressed, and that the applicant “did not submit any objective country documentation to support a different conclusion”.

[28] Thus, the RAD treated the document simultaneously as unnecessary—because its information was supposedly already on the record—and absent—because it claimed there was no evidence on the issue. The RAD then gave probative weight to this purported silence. In doing so, the RAD relied on an evidentiary gap that existed only because of its own refusal to consider the document. This circular logic undermines the finding, fails to engage with material evidence, and does not demonstrate a coherent and rational chain of analysis responsive to the substance of the record (Vavilov at paras 85, 104).

[29] Where the country of putative citizenship does not have discretion to refuse an application for citizenship, a claimant can be considered a national of that country even if some administrative formalities are required. However, in this case, the 2004 law provides the Minister a discretion to refuse a citizenship application for those born to Egyptian mothers before 2004. In light of this, control may not remain with the Applicant.

[30] The RAD’s analysis finding that control remained with the Applicant was based on a confused assessment of the evidence contradicting that idea, and as such it was unreasonable. Because the RAD’s decision was unreasonable, I do not need to engage with the Applicant’s procedural fairness argument.

V. Conclusion

[31] For the foregoing reasons, the application for judicial review is granted.

[32] There is no question to be certified.

JUDGMENT IN IMM-20775-24

THIS COURT’S JUDGMENT is that

1. The application for Judicial Review is granted.

2. This matter is returned to the RAD to be re-determined by a different panel of the RAD.

3. There is no question for certification.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: