A claimant must establish that he or she is a Convention refugee from the country of their nationality. In this context, nationality means citizenship of a particular country.Note 1 If the claimant has a country of nationality, the claim should be assessed only against that country and not against some other country where the claimant may have residency status.Note 2
2.1.1. Multiple Nationalities
If a claimant is a national of more than one country, the claimant must show that he or she is a Convention refugee with respect to all such countries. Section 96(a) of the Immigration and Refugee Protection Act (IRPA) specifically provides:
96. A Convention refugee is a person who …
(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.Note 3
A refugee claimant must therefore prove that he or she has a well-founded fear of persecution in all countries of nationality before he or she can be conferred refugee status in Canada.Note 4 Consequently, the RPD is not required to consider the fear of persecution or availability of protection in the second country of citizenship, once it has been determined that the claimant does not have a well-founded fear of persecution in the first.Note 5
Where the claimant has more than one country of nationality, the Board should not consider the cumulative effects of incidents that occurred in other countries of nationality, except where the events which occur in a country other than in respect of which a claimant seeks refugee status are relevant to the determination of whether the country where a claimant seeks refugee status can protect him or her from persecution.Note 6
2.1.3. Right to Citizenship
The term "countries of nationality", in section 96(a) of IRPA, includes potential countries of nationality. Where citizenship in another country is available, a claimant is expected to make attempts to acquire it and will be denied refugee status if it is shown that it is within his or her power to acquire that other citizenship. Consequently, a person who is able to obtain citizenship in another country by complying with mere formalities is not entitled to avail themself of protection in Canada.Note 16
In view of its importance and complexity, normally notice should be given before the hearing if multiple nationality is an issue, so as to avoid taking claimants by surprise and allow them an opportunity to obtain evidence relating to that matter.Note 17
In the case of Bouianova, in the context of the break-up of the former Soviet Union, Justice Rothstein of the Trial Division stated:
In my view, the decision in Akl,Note 18 is wide enough to encompass the situation of [a claimant] who, by reason of her place of birth, is entitled to be a citizen of a particular country, upon compliance with requirements that are mere formalities.
In my view the status of statelessness is not one that is optional for [a claimant]. The condition of not having a country of nationality must be one that is beyond the power of the [claimant] to control. Otherwise, a person could claim statelessness merely by renouncing his or her former citizenship.
In a series of decisions, the Trial Division has held that a claimant can be considered to be a national of a successor stateNote 19 (to the country of his or her former nationality), even if he or she does not reside in that successor state, where the evidence establishes that application for citizenship is a mere formality and the authorities of the successor state do not have any discretion to refuse the application.Note 20
The Trial Division has also held, in non-successor state contexts, that a legal entitlement to citizenship by birth in a place (jus soli),Note 21 through one's parents or by descent (jus sanguinis),Note 22 through marriage,Note 23 or even through ancestryNote 24 may also confer effective nationality. One cannot "choose" to be stateless in these circumstances.
Where the country of putative citizenship does not have the discretion to refuse the application for citizenship, the fact that some administrative formalities are required does not preclude the application of the principle that a claimant can be considered to be a national of that country, even if he or she does not reside there.Note 25 However, the fact that a claimant does not reside in the country of putative citizenship may raise issues regarding residency requirements.Note 26
The issue of right to citizenship was explored by the Federal Court of Appeal in Willams,Note 27 where the Court considered the following certified question:
Does the expression "countries of nationality" of section 96 of the Immigration and Refuge 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 answering the certified question in the affirmative, the Federal Court of Appeal approved the principle set out in BouianovaNote 28 that refugee protection will be denied where it is shown that a claimant, at the time of the hearing, is entitled to acquire by mere formalities, the citizenship of a particular country with respect to which the claimant has no well-founded fear of persecution. Justice Décary then set out the appropriate test for determining whether there was a right to citizenship:
 I fully endorse the reasons for judgment of Rothstein J. [in Bouianova], and in particular the following passage at page 77:
The condition of not having a country of nationality must be one that is beyond the power of the applicant to control.
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 emphasizes the point that whenever "available, national protection takes precedence over international protection," and the Supreme Court of Canada, in Ward, observed, at p. 752, that "[w]hen available, home state protection is a claimant's sole option."
 The principle enunciated by Rothstein J. in Bouianova 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.
The Court also noted that the claimant was not someone who, should he renounce his citizenship, would become stateless.
Thus, the Board must address whether the claimant has the requisite degree of control over the outcome, and that it is not subject to administrative discretion. If obtaining citizenship is a matter of formalities, then the control should be certain.Note 29 The Federal Court stated in KimNote 30:
 The Board member erred in assuming that the question was whether North Koreans could "automatically" obtain South Korean citizenship and that she was required to give a yes or no answer to that question. The proper question is whether or not, on the evidence before the Board, there is sufficient doubt as to the law, practice, jurisprudence and politics of South Korea such that citizenship cannot be considered as automatic or fully within the control of these particular [claimants].
If the circumstances are not within a claimant's control, and the authorities are not compelled to grant citizenship, the Board should not consider how the authorities might exercise their discretion.Note 31 A claimant is not required to demonstrate that it was more likely than not, if they applied, they would not be granted citizenship.Note 32
18.104.22.168. Israel's Law of Return
In Grygorian,Note 33 the Trial Division found reasonable the CRDD's decision holding that Israel's Law of Return conferred a right to citizenship on a Russian-born claimant of Jewish origin who had never expressed an intention to immigrate to Israel and who had never resided there. The Court viewed this as an application of the principle in Bouianova.
The Grygorian decision was found not to be a binding precedent and was not followed in Katkova,Note 34 where the Court again considered Israel's Law of Return in the context of a Jewish citizen of Ukraine who did not wish to go to Israel. This factor was considered to be crucial given that the Law of Return stated that the desire to settle in Israel was a prerequisite to immigration. The Court also drew a distinction between potential rights and pre-existing status as a national of a particular country—that is, between potential as opposed to actual nationality, and stated that Ward (SCC) did not deal with potential nationality. Moreover, the Court was of the view that there had to be a genuine connection or link with the home state.Note 35 Finally, the Court held that the Law of Return conferred a discretionary power on the Israeli Minister of the Interior to deny citizenship. The CRDD's decision that Israel was a country of nationality for the claimant was overturned.
2.1.5. Failure to Access Possible Protection in a Third Country
There is some confusion in the case law of the Federal Court as to whether or not an adverse inference can be drawn from the failure to access possible protection or status in a third country, in cases where there is no automatic right to citizenship.
In Basmenji,Note 40 the Court rejected the proposition that the claimant, an Iranian married to a Japanese national, should have attempted to claim some form of status while in Japan before making a refugee claim in Canada. A similar position was taken in Priadkina,Note 41 where the Court stated that the claimants, Russian Jews from Kazakhstan, had no duty to seek refugee status in Russia or Israel before claiming in Canada.
However, in Moudrak,Note 42 the Court held that the CRDD did not err in taking into account the failure of the claimant, a national of Ukraine of Polish descent, to investigate the possibility of acquiring Polish citizenship (which was not guaranteed) when she travelled to Poland: "the Board was perfectly entitled to find that this was inconsistent with a well-founded fear of persecution." In Osman,Note 43 the Court found that the CRDD's emphasis on the claimant's failure to return to the Philippines, where he had married and had two children, was in the context of his subjective fear and credibility and was not unreasonable. A similar finding was made in Kombo,Note 44 where the CRDD challenged the claimant's credibility and subjective fear because he had taken no action to secure international protection by registering with the UNHCR in Kenya, where he had resided for eleven years as a refugee from Somalia, had married a Kenyan citizen and had two Kenyan children.
On the other hand, in Pavlov,Note 45 the Court held that the CRDD's conclusion about the lack of credibility of the Russian Jewish claimants (who, according to the CRDD, "could have gone to Israel as full citizens … In the panel's view, their failure to take advantage of this option is indicative of a lack of subjective fear") was related to a misapprehension of the law: the CRDD mistakenly assumed that the claimants were required to seek protection in Israel, which was not as of right and which the claimants did not wish to do, before applying for Convention refugee status in Canada. The Court cited Basmenji, but did not refer to Moudrak and Osman.