Last Updated on June 16, 2015 by Steven Meurrens
Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that:
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
There has recently been disagreement within the Federal Court over what the term “countries of nationality” encompasses, and on May 11, 2015, Justice Mosely certified the following question:
Do the expressions “countries of nationality” and “country of nationality” in Section 96 of the Immigration and Refugee Protection Act include a country where the claimant is a citizen but where he may face impediments in exercising the rights and privileges which attach to citizenship, such as the right to obtain a passport?
The Federal Court of Appeal has previously addressed the issue of the definition of “countries of nationality” in the IRPA s. 96 context when in Williams v. Canada (“Williams”) it answered the following certified question in the affirmative:
Does the expression “countries of nationality” of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?
In Williams the Federal Court of Appeal ruled that 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, and 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.
The cases that have led to what can best be defined as uncertainty at the Federal Court over how to apply Williams involve Tibetans who are Indian citizens and who have claimed refugee status in Canada. The evidence appears to suggest that such individuals, despite being born in India, often face difficulties in obtaining Indian citizenship (or having it recognized) unless the Tibetans can produce letters of no objection from the Central Tibetan Authority, and that even when this is obtained Indian courts have not been consistent on the matter.
In Wanchuk v. Canada (“Wanchuk“) Justice O’Reilly of the Federal Court held that the above circumstances meant that Tibetans in India do not have the degree of control necessary to acquire citizenship in India. He stated:
In my view, this evidence shows a mere possibility that Mr. Wanchuk could obtain Indian citizenship. It would require, at a minimum, that the CTA exercise its discretion not to withhold its approval and that Indian authorities recognize Dolkar as binding precedent. In fact, Mr. Wanchuk might well have to litigate the issue. I note that Ms. Dolkar expended several years in administrative and legal battles in order to obtain Indian citizenship.
In these circumstances, I find the Board’s conclusion that obtaining Indian citizenship was within Mr. Wanchuk’s control was unreasonable.
In Dolker v. Canada, Justice Hughes addressed the issue in obiter, noting that:
Nonetheless, it is disturbing that, in a case such as the present, where the Applicant was born in India and peaceably living there, she took absolutely no steps to acquire full Indian citizenship. Certainly, if reasonable steps had been taken and pursued, a failure to secure such citizenship would have gone a long way toward bolstering a claim for refugee protection in Canada.
With all due respect to Justice Russell, there is nothing in Williams that says an Applicant need not even apply for citizenship. Williams, at paragraph 22, speaks to whether it is within the control of a person to acquire citizenship. Nothing in that case encourages an Applicant not to make reasonable efforts to secure such citizenship.
Wilful neglect or even neglect to apply for citizenship where a person has a right to apply should not serve as an invitation to try your luck in Canada. There would be good grounds for a certified question if the issue was not obiter. As this discussion is obiter, as I have found that the finding that the Applicant had Indian citizenship was reasonable, I will not certify a question.
Finally, in Tretsetsang v. Canada, Justice Mosley certified the question above, and added his opinion on the matter:
In Williams, at para 27, the Court of Appeal held that an applicant must make attempts to acquire citizenship in any safe country where it is available to him. The same would seem to apply to the enforcement of rights to which the applicant is entitled by law, as a citizen, notwithstanding efforts at obstruction by officials. By the applicant’s own admission at the RPD, he has never made any attempt to acquire or enforce rights of Indian citizenship. He merely speculates that he will not be able to succeed, despite the legislation and jurisprudence in his favour. In my view, he cannot claim protection in Canada without making any effort to avail himself of Indian nationality, to which he is entitled as a matter of law in that country.
This is where I must, with respect, decline to follow Wanchuk. At para 10 of that decision, Justice O’Reilly expressed the view that obtaining Indian citizenship was a “mere possibility” for a similarly situated applicant, since it might require litigation. That does not, in my view, amount to the level of the “intolerable burden” that Justice Russell found to apply in Hua Ma in light of the one child policy and other considerations in China. Nor is it consistent with the teachings of Williams. Applicants are expected to take reasonable steps to acquire or enforce any citizenship rights which are available to them. A right which is enshrined in legislation and has been enforced by the courts amounts to more than a “mere possibility”. There is nothing unreasonable about expecting the applicant to take legal action if his state of nationality attempts to deny his rights.
In Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, the Federal Court of Appeal reformulated the certified question referenced above as follows:
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?
The Federal Court of Appeal answered no. It found that a claimant who alleges the existence of an impediment to exercising his or her rights of citizenship in a particular country, must establish, on a balance of probabilities (a) the existence of a significant impediment that may reasonably be considered capable of preventing the claimant 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.
What will constitute reasonable efforts to overcome a significant impediment (that has been established by any particular claimant) in any particular situation can only be determined on a case-by-case basis. A claimant will not be obligated to make any effort to overcome such impediment if the claimant establishes that it would not be reasonable to require such claimant to make any such effort.