Docket: IMM-4907-14
Citation:
2015 FC 787
Montréal, Quebec, June 25, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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TENZIN PALDEN
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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.
Background
[1]
This is a judicial review of a decision of the
Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB)
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], rendered on May 29, 2014, dismissing the applicant’s
appeal against the decision of theRefugee Protection Division (RPD) of the IRB
that the applicant is not a Convention refugee or a person in need of
protection.
[2]
The applicant was born in India to Tibetan
parents in 1984, but he alleges that he does not have citizenship in India. The
applicant alleges that he fears deportation from India to China where he could
be persecuted for being a follower of the Dalai Lama and an activist for the
Tibetan cause. He alleges that the passport he used when he travelled to Canada
was fraudulent.
A.
The RPD’s decision
[3]
The RPD considered that the applicant was
entitled to Indian citizenship as the Citizenship Act of India and
Indian jurisprudence provide that those who were born in India between
January 26, 1950, and July 1, 1987, are citizens of India by birth. The RPD
judged that the applicant came to Canada with what appeared to be a genuine
Indian passport that was carefully vetted at both the Canadian and Indian
airports. The applicant alleged that he could not provide this passport (to
support his allegation that it was fraudulent) because he destroyed it on the
instruction of his agent. The RPD found that this was unlikely because the
applicant’s agent was registered with the Canadian government, and it was therefore
unlikely that he would have provided such advice. For those reasons, the RPD
found, on the balance of probabilities, that the applicant was born as an
Indian citizen and had a genuine passport, and therefore the appropriate
country of reference for his refugee claim was India. Given that the applicant
made no claim against India, the RPD denied his claim for refugee protection.
B.
The RAD’s decision
[4]
Based on Dunsmuir v New Brunswick, 2008
SCC 9 [Dunsmuir] and the factors outlined in Newton v Criminal Lawyers’
Association, 2010 ABCA 399, the RAD applied the standard of reasonableness
in reviewing the RPD’s decision. In determining which standard of review should
apply, the RAD considered that the following three factors were the most
significant: (i) the respective roles of the RPD and the RAD in the context of
the IRPA, (ii) the expertise and advantageous position of the RPD member
compared to that of the RAD, and (iii) the nature of the question in issue.
Given the limitations imposed on the RAD by the IRPA with respect to
assessment of the evidence (subsections 110(3) and (4) of the IRPA;
section 57 of the Refugee Appeal Division Rules, SOR/2012-257), the RAD
considered that it must show deference with respect to factual and credibility
findings.
[5]
The RAD found that the RPD reasonably considered
that the applicant’s passport was genuine. The RAD found that the applicant
provided no evidence, aside from an affidavit of counsel who represented him
before the RPD (which was rejected pursuant to subsection 110(4) of the IRPA),
to support his argument that the RPD had confused his registered Canadian
consultant with the agent who allegedly obtained his false Indian passport. The
RAD found that (i) the vetting of the passport by both the Canadian and Indian
authorities, (ii) the fact that the applicant destroyed the passport after
entering Canada, and (iii) the absence of evidence of the fraudulent nature of
the passport, were sufficient to establish the reasonableness of the RPD’s
conclusions with respect to the genuineness of the applicant’s passport.
[6]
With respect to the applicant’s right to Indian
citizenship, the RAD found that the Indian jurisprudence of the High Courts of
Delhi and Karnataka supported the RPD’s finding that individuals of Tibetan
origin born in India between January 26, 1950, and July 1, 1987, (which
includes the applicant) are Indian citizens by birth regardless of the
nationality of their parents. The RAD also found that the applicant exercised
his right of citizenship to obtain a genuine passport.
II.
Questions
[7]
This matter raises the following issues:
- Did the RAD err
in its standard of review analysis?
- Did the RAD err
in concluding that the applicant is a citizen of India?
III.
Analysis
A.
The standard of review
[8]
There are two standards of review at issue: (i) the
standard of review that the RAD applied in reviewing the RPD's decision (the
RAD’s standard of review), and (ii) the standard of review applicable by the
Court to the RAD's decision (the Court's standard of review).
(1)
The RAD’s standard of review
[9]
The applicant argues that the RAD erred in
applying the reasonableness standard to the RPD decision. The respondent
disagrees.
[10]
There is some disagreement within this Court as
regards the degree of deference that should be shown by the RAD on an appeal from
the RPD: see Huruglica v Canada (Citizenship and Immigration), 2014 FC
799 at paras 35 to 56 [Huruglica]; Spasoja v Canada (Citizenship and
Immigration), 2014 FC 913 at para 40; Alyafi v Canada (Citizenship and
Immigration), 2014 FC 952; Akuffo v Canada (Citizenship and Immigration),
2014 FC 1063 at paras 28 to 39 [Akuffo]; Djossou v Canada
(Citizenship and Immigration), 2014 FC 1080 at paras 38 to 55; Green v
Canada (Citizenship and Immigration), 2015 FC 536 at paras 26 to 32; Denbel
v Canada (Citizenship and Immigration), 2015 FC 629 at paras 31 to 39 [Denbel].
However, there does appear to be a consensus that the RAD owes deference to the
RPD in cases in which the credibility of a witness is critical or
determinative, or where the RPD enjoys a particular advantage over the RAD in
reaching a specific conclusion: Huruglica at paras 37, 55; Yetna v
Canada (Citizenship and Immigration), 2014 FC 858 at para 17; Akuffo at
para 34; Ali v Canada (Citizenship and Immigration), 2015 FC 500 at para
6.
[11]
There is also consensus that, because the
proceeding before the RAD is an appeal (as opposed to judicial review), it is
an error for it to apply a standard of review of reasonableness, which concerns
judicial review proceedings, not appeal: Huruglica at para 54; Ozdemir
v Canada (Citizenship and Immigration), 2015 FC 621 at paras 2 to 3; Ching
v Canada (Citizenship and Immigration), 2015 FC 725 at para 48.
[12]
In my view, the RAD was correct to use deference
in its review of the RPD’s findings that were based on the credibility of the
applicant’s testimony. Though the RAD erred in referring to the standard of
review of the RPD decision as reasonableness, I am satisfied that this error
did not negatively affect its assessment of the applicant’s credibility. Even
if the RAD had applied a “palpable and overriding
error” test, the result would not have changed in my view: Denbel
at paras 34 to 36; Brodrick v Canada (Citizenship and Immigration), 2015
FC 491 at para 31.
[13]
Because of my conclusions below, it is not
necessary to consider other aspects of the RAD’s review of the RPD decision.
(2)
The Court’s standard of review
[14]
There are also differences of opinion within the
Court with regard to the appropriate standard of review to be applied by the
Court to the RAD’s selection of its standard of review. However, because I have
concluded that the RAD’s selection in this regard did not negatively affect its
decision, it is not necessary for me to decide on the Court’s standard of
review.
B.
Did the RAD err in concluding that the applicant
is a citizen of India?
[15]
The applicant argues that the RAD erred in
concluding that the applicant’s passport was genuine. The applicant underlines
that his sworn testimony is presumed to be true unless there is a reason to
doubt its truthfulness: Maldonado v Canada (Minister of Employment and
Immigration), [1980] 2 FC 302 at 305 (FCA). The applicant also notes that
the proliferation of false Indian passports – which was recognized by the RAD –
illustrates that the vetting of passports by Canadian and Indian authorities is
defective.
[16]
In my view, there were several reasons to doubt
the truthfulness of the applicant’s testimony that the Indian passport used was
fraudulent. Firstly, he did not need a fraudulent passport to leave India and
travel internationally. He admits that he already had a genuine Identity
Certificate (IC) which can be used for travel outside India. The applicant’s
counsel argued at the hearing that it might have been easier for him to obtain
his student visa based on a fraudulent Indian passport than a genuine IC. The
applicant did not direct me to any evidence or authority in support of this
argument, and I find this argument questionable.
[17]
The applicant also argues that the IC is a
document specifically intended for use by non-citizens, such that a person
would have an IC only if they do not have, and are not entitled to, a passport.
In my view, the likelihood that a person would have both an IC and a genuine
Indian passport is a matter requiring expertise. I defer to the RAD’s conclusion
on this point.
[18]
A second reason to doubt that the applicant’s
passport was fraudulent is that it was vetted by authorities in both India and
Canada on several occasions: when obtaining the applicant’s student visa, when
leaving India, and when entering Canada. Though it is no doubt possible
to travel internationally using a fraudulent Indian passport, the foregoing
steps are nevertheless reasons to doubt that the passport was fraudulent.
[19]
A third reason to doubt the applicant’s
testimony is that he himself destroyed the passport in question, thus
eliminating a key piece of evidence that could have either corroborated or
contradicted his version of the events. In these circumstances, it is quite
reasonable to draw an inference that the passport itself, if it had been put in
evidence, would not have assisted the applicant’s case.
[20]
Because the applicant’s testimony is a matter of
credibility, on which the RAD was correct to defer to the RPD, and because
there was no other evidence that the applicant’s passport was not genuine, I
conclude that the RPD’s conclusion that the applicant had a genuine Indian
passport should stand. Accordingly, the applicant’s claim that his citizenship
in India is not recognized by Indian authorities cannot succeed.
[21]
This conclusion alone is sufficient to dismiss
the present application for judicial review.
[22]
The parties also devoted an important part of
their argument to the question of whether, assuming that the applicant did not
have a genuine Indian passport, he had it within his control to obtain one.
[23]
In Canada (Minister of Citizenship and
Immigration) v Williams, 2005 FCA 126, the Federal Court of Appeal stated
at paras 19, 23 and 27:
[19] It is common ground between counsel
that refugee protection will be denied where it is shown that an applicant, at
the time of the hearing, is entitled to acquire by mere formalities the
citizenship (or nationality, both words being used interchangeably in
this context) of a particular country with respect to which he has no
well-founded fear of persecution.
[…]
[23] The principle enunciated by Rothstein
J. in Bouianova [v Minister of Employment and Immigration, [1993] FCJ No.
576] was followed and applied ever since in Canada. Whether the citizenship of
another country was obtained at birth, by naturalization or by State succession
is of no consequence provided it is within the control of an applicant to
obtain it.
[…]
[27] […] 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.
[Bold emphasis added]
[24]
The parties are agreed that the applicable
Indian statute and caselaw clearly indicate that the applicant is entitled by
birth to Indian citizenship. However, the parties are also agreed that
government policy in India makes it very difficult for those born in India of
Tibetan parents to have their citizenship recognized. The applicant cites
evidence that the only people in that position known to have obtained an Indian
passport are the two who pursued legal action to that end against the Indian
government.
[25]
The parties disagree as to whether, in these
circumstances, it is within the applicant’s control to obtain citizenship in
India.
[26]
There is also disagreement within the Federal
Court on this point. Justice O’Reilly, in Wanchuk v Canada (Citizenship and
Immigration), 2014 FC 885, held that the obstacles to people in the
applicant’s position are such that there is only a “mere
possibility” of obtaining Indian citizenship, and that obtaining Indian
citizenship is not within their control. More recently, Justice Tremblay-Lamer followed
the position of Justice O’Reilly in Dolma v Canada (Citizenship and
Immigration), 2015 FC 703 at para 23. On the other hand, Justice Mosley, in
Tretsetsang v Canada (Citizenship and Immigration), 2015 FC 455,
referring to the decision of Justice Hughes in Dolker v Canada
(Citizenship and Immigration), 2015 FC 124, expressly disagreed. He held
that the obstacles to having Indian citizenship recognized in that case were
insufficient to conclude that citizenship was not within the applicant’s
control, especially since citizenship had not even been sought in that case (as
is the case here).
[27]
Because of my earlier conclusions, it is not
necessary for me to decide between the competing views on this point.
IV.
Conclusion
[28]
In my opinion, the application for judicial
review should be dismissed.
[29]
Because the disputed legal questions in the
present application concerning (i) standard of review and (ii) whether Indian
citizenship was within the applicant’s control were not determinative of the
result, I decline to certify a question for appeal.
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