Date: 20110309
Docket: IMM-3169-10
Citation: 2011 FC 277
Ottawa, Ontario, March 9, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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TOMEIKA ASHBY
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated May 9, 2010,
wherein the Applicant was determined to be neither a convention refugee nor a
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, RS 2001, c 27 [IRPA].
[2]
The
Board reasonably concluded that the Applicant was a citizen of Guyana or could obtain
remigrant status in that country. Furthermore, the Board did not err when it
concluded that the Applicant was required to seek protection in Guyana and that
she did not face a risk of persecution in that country. For the reasons that
follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant is a citizen of St. Vincent and the Grenadines. In her Personal
Information Form (PIF), she also states that she is a citizen of Guyana.
[4]
The
Applicant is a 21 year-old woman from Diamond Village in St. Vincent and the Grenadines. She was born in Guyana to a Guyanese father
and a Vincentian mother. She moved to St. Vincent and the Grenadines as a small child, after
the separation of her parents, where she stayed until moving to Canada in December 2007.
[5]
The
Applicant alleges that she suffered physical, verbal and sexual assault at the
hands of her step-father, since the time he became involved with her mother in
the 1990’s. She states that when she turned 16 her step-father tried to make
passes at her and sexually touched her. She also alleges that he insulted her
at school and in the village.
[6]
She
relates an incident where her foot was cut after her step-father hit her with a
cutlass. She received 12 stitches. She reported the incident to the
authorities, who told her to come back with an adult. However, she did not relate
the incident to her mother because she did not know how she would react. During
the hearing, she said that she had mentioned certain incidents to her mother,
but that her mother did not believe her.
[7]
After
an argument between her mother and step-father, the police were called. The
stepfather had left a cutlass with a message on the wall saying that he would
kill the Applicant and her mother. The police gave the step-father a warning.
During the hearing, the Applicant mentioned that her step-father beat her in
June 2007. After the incident, she went to live with her aunt before coming to Canada. She arrived in Canada
on December 19, 2007 and made a claim for refugee protection in Canada on January 8, 2008.
B. Impugned
Decision (Daniel G. McSweeney)
[8]
The
Board answered the following question: Can the claimant return to Guyana, the other country of
citizenship, and not face a serious possibility of persecution, or be subject
to a risk to her life or risk of cruel or unusual treatment or punishment?
[9]
The
Board concluded that the Applicant was not a Convention refugee as she did not
have a well-founded fear of persecution in her second country of citizenship, Guyana.
[10]
The
Board stated that Guyana does not recognize dual
citizenship. However, the Applicant did not provide sufficient credible and
trustworthy evidence to show that the Guyanese government had been made aware
by the claimant or her mother that she had obtained Vincentian citizenship.
[11]
The
Board also mentioned that it was possible for a Guyanese citizen who is out of
the country for four years to obtain “remigrant” status. Hence, the Board
concluded that if the Applicant was no longer a citizen of Guyana, she would be eligible
for remigrant status.
[12]
The
Board pointed out that according to IRPA, a claimant must face a risk of
persecution in all countries of citizenship, regardless of the ties to those
countries. In the instant case, the Applicant stated that she could not go to Guyana because she did not
have a place to live, no relatives and could not get a job. The Board did not
attribute any weight to these factors because they related to an internal
flight alternative analysis and not to citizenship. The Applicant also claimed
that there was a risk of rape and torture in Guyana, but the Board concluded that she did not
face a personalized risk in this regard under section 97 of IRPA.
[13]
The
Board concluded based on the evidence that Guyana could protect the Applicant and that she
was not a Convention refugee, nor a person in need of protection.
II. Issues
[14]
There
are two issues to address in this application:
(a) Did
the Board err in concluding that the Applicant had retained her Guyanese
citizenship or could obtain remigrant status?
(b) Did
the Board err in denying the Applicant’s refugee claim on the basis that she
could seek protection in Guyana?
III. Standard of Review
[15]
The
standard of review to be applied to the determination of citizenship by the
Board was established in Williams v Canada (Minister of
Citizenship and Immigration), 2005 FCA 126, 253 DLR (4th) 449 where Justice
Robert Décary stated at paras 17 and 18:
[17] The finding by the Board that
the respondent could obtain Ugandan citizenship as a matter of course upon
renouncing his Rwandan citizenship is a finding of fact which cannot be
interfered with by the applications judge unless it amounts to a palpable and
overriding error. The finding is not challenged by the respondent and, in any
event, Pinard J. did not disturb it.
[18] Whether
the existence of an option to seek protection in Uganda
is a valid cause for the denial of the refugee status is a question which
requires the interpretation of section 96 of the IRPA. This is a question of
law. It is well settled that on questions of law of such nature, the standard
of review is correctness. The Board could not afford to be wrong. Nor could the
applications Judge.
[16]
Consequently,
the question as to whether the Applicant retains her Guyanese citizenship or
could obtain remigrant status is a question of fact and should be reviewed on
the standard of reasonableness. The denial of the refugee application on the
basis of the existence of a possibility to seek protection in Guyana is a question of law
and should be reviewed on the standard of correctness.
IV. Argument
and Analysis
A. The Board Did
Not Err in Concluding that the Applicant Retained her Guyanese Citizenship or
Could Obtain Remigrant Status
(1) The
Applicant’s Guyanese Citizenship
[17]
The
Applicant argues that the fact that she had not formally renounced her Guyanese
citizenship is irrelevant. In order to maintain this citizenship, she would
have to “deceive” the Guyanese government by withholding the fact that she had
obtained citizenship in St.
Vincent.
The Applicant cites the case Donboli v Canada (Minister of
Citizenship and Immigration), 2003 FC 883, 30 Imm LR (3d) 49, in which the
Court found it to be a reviewable error of the Board to encourage applicants to
misrepresent their current citizenship to authorities.
[18]
The
Respondent submits that the Applicant did not submit enough evidence to
demonstrate that her Guyanese citizenship had been lost and that she would not
be able to reacquire it or that she or her mother had renounced the Guyanese
citizenship. As such, the Respondent argues that the Board correctly found that
the Applicant had never lost her Guyanese citizenship or that her citizenship
would be revoked should the Guyanese authorities find out that she had
Vincentian citizenship.
[19]
The Guyanese
Constitution states that:
46. (1) If the President is satisfied
that any citizen of Guyana has at any time after 25th May, 1966 acquired by
registration, naturalisation or other voluntary and formal act (other than
marriage) the citizenship of any country other that Guyana, the President
may by order deprive that person of his citizenship.
(2)
If the President is satisfied that any citizen of Guyana has at any time after
the 25th May, 1966, voluntarily claimed and exercised in a country other that
Guyana any rights available to him under the law of that country, being rights
accorded exclusively to its citizens, the President may by order deprive
that person of his citizenship.
[Emphasis
added]
[20]
Furthermore,
section 10 of the Guyanese Citizenship Act states that:
10.
(1) Subject to subsection (2) if any citizen of Guyana
of full age and capacity who is or is about to become –
(a) a citizen of any country to which
article 47 of the Constitution applies, or of the Republic of Ireland; or
(b)
a national of a foreign country,
makes
in the prescribed manner a declaration of renunciation of citizenship of Guyana, the Minister shall cause the declaration to be registered,
upon the registration, that person shall cease to be a citizen of Guyana.
[…]
[21]
A
document from the Board’s Research Directorate, entitled “Grenada: The
possibility of dual citizenship in Grenada and Guyana; particular case with Guyana”, dated
November 9, 2001, indicates that “according to an official at the
Guyana Consulate General, Guyanese nationals who obtain citizenship from
another country do not lose their Guyanese citizenship, unless the other
country requires this. Guyana recognizes dual
citizenship with all other countries without exception.” If that is the case, the
Applicant never lost her Guyanese citizenship.
[22]
In
this case, since neither the Applicant nor her mother contacted the Guyanese
authorities to renounce the Applicant’s citizenship, it was reasonable for the
Board to find that there was insufficient evidence showing that the Applicant
was no longer a citizen of Guyana.
(2) The
Applicant’s “Remigrant” Status
[23]
The
Applicant states that the “remigrant” status is obtained on the understanding
that the remigrant will remain in Guyana for at least three years. As such, the
Applicant cites Katkova v Canada (Minister of Citizenship and Immigration), 68 ACWS (3d) 715,
[1997] FCJ No 29 (QL), and argues that the Board cannot oblige a claimant to
undertake a significant period of residence in another country to qualify for
citizenship.
[24]
The
Respondent replies that there is no reason why the Applicant would not want to
stay in Guyana for three years, if
such period is mandatory. Katkova, above, is distinguishable because the
evidence in that case showed that Israel had a wide discretion to refuse citizenship. In
the case at bar, the Applicant has the power to regain citizenship, if she has
even lost it.
[25]
The
“Remigrant’s Information Manual”, published by the Guyanese Ministry of Foreign
Affairs in March of 1999, describes the remigrant process in Guyana. The Ministry defines a
remigrant as “a Guyanese citizen born at home or abroad, or a Guyanese citizen
by naturalization, who is in possession of a valid Guyana passport and who has
been granted remigrant’s status by the Ministry of Foreign Affairs on the
understanding that the remigrant will remain in Guyana for not less than three years.”
[26]
The
publication also mentions that “in cases where the prospective remigrant has
renounced his/her Guyanese nationality in order to obtain citizenship in the
country where he/she currently resides, he/she should not despair since he/she
remains eligible for remigrant status.”
[27]
According
to the Guyanese statutes and practices, a former citizen of Guyana can obtain remigrant
status. Consequently, it was reasonable for the Board to conclude that if the
Applicant had lost her Guyanese citizenship, she could obtain remigrant status.
B. The Board Did
Not Err In Denying the Applicant’s Refugee Claim on the Basis That She Could
Seek Protection in Guyana
[28]
The
Board states that there is an obligation for the claimant to prove a claim
against a second country of citizenship. However, the Applicant cites the
decision Khan v Canada (Minister of Citizenship and Immigration), 2008
FC 583, 167 ACWS (3d) 970 in which the claimant was not obligated to seek
protection from his other country of citizenship before seeking protection in Canada. Since it is a
discretionary power of the Minister in Guyana to award citizenship, the Applicant argues that
the Board committed an error of law in not following the decision in Khan.
The Applicant submits that as in Khan, in the present matter the Board
was not in a position to establish whether the Applicant could obtain Guyanese
citizenship and therefore the Board could not oblige the Applicant to seek
protection there.
[29]
The
Respondent submits that Williams, above, is instructive in the present
matter. In Williams the Court held that a person seeking refugee status
is expected to make attempts to acquire citizenship in his other country of
citizenship and that the applicant will be denied refugee status if it is shown
that it is within his or her power to acquire that other citizenship.
[30]
In Williams,
above, the Federal Court of Appeal discussed the issue of a claimant with
multiple citizenships seeking refugee status. At para. 22, Justice Décary cited
with approval the reasons of Justice Marshall Rothstein in Bouianova v Canada (Minister of Employment
and Immigration),
67 FTR 74, 41 ACWS (3d) 392:
[22] […]
The true test, in my view, is the
following: if 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, the claim for refugee status will be denied. While words such
as "acquisition of citizenship in a non-discretionary manner" or
"by mere formalities" have been used, the test is better phrased in
terms of "power within the control of the applicant" for it
encompasses all sorts of situations, it prevents the introduction of a practice
of "country shopping" which is incompatible with the
"surrogate" dimension of international refugee protection recognized
in Ward and it is not restricted, contrary to what counsel for the
respondent has suggested, to mere technicalities such as filing appropriate
documents. This "control" test also reflects the notion which is
transparent in the definition of a refugee that the "unwillingness"
of an applicant to take steps required from him to gain state protection is
fatal to his refugee claim unless that unwillingness results from the very fear
of persecution itself. Paragraph 106 of the Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention an the
1967 Protocol relating to the Status of Refugees [Geneva, 1992] emphasizes the point that whenever "available,
national protection takes precedence over international protection," and
the Supreme Court of Canada, in Ward, observed, at page 752, that
"[w]hen available, home state protection is a claimant's sole option."
[Emphasis
added]
[31]
Regarding
the fact that the claimant in Williams, above, had to renounce his
actual citizenship in order to get another citizenship, Justice Décary stated
at para 27:
[27] This argument has no merit. What
the case law has established is that, where citizenship in another country is
available, an applicant is expected to make attempts to acquire it and will be
denied refugee status if it is shown that it is within his power to acquire
that other citizenship. It is, here, within the respondent's power to
renounce his Rwandan citizenship and to obtain a Ugandan citizenship. That
other citizenship is there for him to acquire if he has the will to acquire it.
In Chavarria v. Canada (Minister of Citizenship and Immigration), [1995]
F.C.J. No. 17 (T.D.) (QL), the only case relied upon by the parties that
touches the issue of renunciation of citizenship without, however, expanding on
it, Teitelbaum J. denied refugee status even though the reacquisition of
another citizenship "would probably mean that Eduardo would have to
renounce his Salvadoran citizenship…" (at paragraph 60).
[Emphasis
added]
[32]
In Kim
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 720 Justice Roger Hughes
referred to Williams, above, at paras 8-9:
[8] Thus,
the extent to which a refugee claimant can "control" the award of
citizenship in another country becomes a critical issue. Such an issue
eventually requires an examination of the laws, jurisprudence, practice and
politics of that country. In a perfect world such an examination would be
conducted on the basis of one or more opinions of legal professionals entitled
to practice in the relevant country and skilled in that area. These opinions
are received as factual matters but involve questions of law.
[9] In
a less than perfect world, where a refugee claimant usually has limited funds
and resources and limited time to prepare a case, reference is made to other
sources in deciding what may be the situation in the other country. In the
present case, the Applicants were only advised a few days before the hearing
that an issue would be made as to whether they could acquire South Korean
citizenship.
[33]
For
her part, the Applicant relies on the decision Khan, above, in which the
Board concluded that a citizen of Tibet had a right to status in Guyana and should seek
protection there. Justice François Lemieux quashed the Board’s decision
reasoning at para 21 that:
[21] The determining error the
tribunal made was to trespass upon forbidden territory when, after recognizing
the authorities in Guyana were not compelled on her application to grant Mrs.
Khan citizenship, it (the tribunal) could opine how the Minister in Guyana
might exercise the discretion conferred upon him. Such circumstances are not
within her control. Mrs. Khan is not obligated to seek Guyana's protection
before she seeks Canada's.
[34]
In
my opinion, this case is distinguishable on the facts. In Khan, above,
the Board discussed whether the Applicant could obtain Guyanese citizenship
after marrying a Guyanese citizen. She had never independently obtained
Guyanese citizenship in the past. In the present case, the Applicant is a
Guyanese citizen by birth and has never officially renounced her citizenship.
Even if she is not a Guyanese citizen anymore because of her dual citizenship,
she could obtain remigrant status. As such, unlike in Khan, above, the
Board did not provide its opinion on whether the Guyanese authorities would
exercise their discretion to refuse citizenship to the Applicant.
[35]
The
decision in Williams, above, should be followed. Since it is “within the
control of the [A]pplicant to acquire the citizenship of a country with respect
to which [she] has no well-founded fear of persecution,” the Applicant should
seek protection in her other country of nationality, Guyana, before seeking
protection in Canada. Consequently, the
Board did not err in its conclusion.
V. Conclusion
[36]
There
was a reasonable basis for the Board to conclude that the Applicant was a
citizen of Guyana or could obtain
remigrant status in the country. The Board correctly concluded that the
Applicant was required to seek protection in Guyana.
[37]
Accordingly
this application is dismissed.
[38]
Submissions
were made with respect to the following possible certified question:
In
applying the control test, is it within the control of an applicant to acquire
citizenship of a state when the granting of citizenship is conditional on a
significant period of mandatory residence in the state granting citizenship.
Given my conclusion that the Applicant never lost
Guyanese citizenship and that such a finding is dispositive of the appeal,
there is no need to certify any question in this matter.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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