CHAPTER 2 - COUNTRY OF PERSECUTION

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TABLE OF CONTENTS

  1. 2.1. COUNTRY OF NATIONALITY
    1. 2.1.1. Multiple Nationalities
    2. 2.1.2. Establishing Nationality
    3. 2.1.3. Right to Citizenship
      1. 2.1.3.1. Israel's Law of Return
    4. 2.1.4. Effectiveness of Nationality
    5. 2.1.5. Failure to Access Possible Protection in a Third Country
  2. 2.2. FORMER HABITUAL RESIDENCE - STATELESS PERSONS
    1. 2.2.1. Principles and Criteria for Establishing Country of Former Habitual Residence
    2. 2.2.2. Multiple Countries of Former Habitual Residence
    3. 2.2.3. Nature of Ties to the Country
    4. 2.2.4. Subsisting Well-Founded Fear of Persecution
    5. 2.2.5. Evidence of Persecution for a Convention Reason
    6. 2.2.6. State Protection
  3. TABLE OF CASES

2. COUNTRY OF PERSECUTION

2.1. COUNTRY OF NATIONALITY

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

2.1.2. Establishing Nationality

Each state determines under its own laws who are its nationals.Note 7 Determining nationality is a question of factNote 8. Nationality can be established by examining the relevant laws (constitution, citizenship legislation) and their interpretation (most authoritatively, by officials of the relevant government), and the state practice of the country in question.Note 9 Possession of a national passportNote 10 as well as birth in a countryNote 11 can create a rebuttable presumption that the claimant is a national of that country. However, the claimant can adduce evidence that the passport is one of convenienceNote 12 or that he or she is not otherwise entitled to that country's nationality.Note 13 Recourse to paragraph 89 of the UNHCR HandbookNote 14 is necessary only when a person's nationality cannot be clearly established.Note 15

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:

[22] 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."

[23] 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:

[18] 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

2.1.3.1. 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.

2.1.4. Effectiveness of Nationality

In Ward, the Supreme Court of Canada held that a valid claim against one country of nationality will not fail if the claimant is denied protection (e.g., by being denied admission) by another country of which he or she is a national.Note 36 After citing Ward and James C. Hathaway's The Law of Refugee StatusNote 37 in MartinezNote 38, the Federal Court - Trial Division appeared to accept that there is a need to ensure that a state of citizenship accords effective, rather than merely formal nationality, as well as to assess any evidence impeaching that state's protection against return to the country of persecution.

In Fabiano,Note 39 the RPD did not consider the merits of the claim of an Argentinean national in relation to Argentina, because they determined he was entitled to Italian citizenship since his parents had emigrated to Argentina from Italy. There was no evidence to support a finding that the claimant could go to Italy and stay there long enough to make a citizenship claim. The claimant feared that, if he went back to Argentina, he would be killed long before he could obtain Italian citizenship, a process that was complex and would take a long time. The Federal Court remitted the matter back to the Board to consider what will happen to the claimant if he applies for Italian citizenship.

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.

2.2. FORMER HABITUAL RESIDENCE - STATELESS PERSONS

A consideration of former habitual residence is only relevant where the claimant is stateless. A stateless person is someone who is not recognized by any country as a citizen.Note 46 Section 96(b) of IRPA states:

96. A Convention refugee is a person who …

(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.

If the claimant is a citizen of the country in which he or she resided, the claim is properly assessed on the basis that the claimant has a country of nationality.Note 47

2.2.1. Principles and Criteria for Establishing Country of Former Habitual Residence

In the MaaroufNote 48 decision, Justice Cullen of the Trial Division, after an extensive review of the legal principles and authorities, endorsed the following propositions:

In my view, the concept of "former habitual residence" seeks to establish a relationship to a state which is broadly comparable to that between a citizen and his or her country of nationality. Thus the term implies a situation where a stateless person was admitted to a given country with a view to continuing residence of some duration, without necessitating a minimum period of residence.

… a "country of former habitual residence" should not be limited to a country where the claimant initially feared persecution. Finally, the claimant does not have to be legally able to return to a country of former habitual residence as a denial of a right of return may in itself constitute an act of persecution by the state. The claimant must, however, have established a significant period of de facto residence in the country in question.Note 49

The Trial Division has held, in a number of decisions, that a country may be a country of former habitual residence even if the claimant is not legally able to return to that country.Note 50

A country can be a country of former habitual residence even though it is a successor state to a larger country which the claimant left.Note 51

2.2.2. Multiple Countries of Former Habitual Residence

The Federal Court of Appeal in ThabetNote 52 clarified the conflicting case law emanating from the Trial DivisionNote 53 regarding the country of reference in claims made by stateless persons who have habitually resided in more than one country. The Court of Appeal answered the certified question put to it as follows:

In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her other countries of former habitual residence. (At 40.)

The Court of Appeal considered four options—the first country, the last one, all the countries, or any of the countries—but rejected all of them. Instead it adopted as a test what it termed "any country plus the Ward factor" as being consistent with the language of the Convention refugee definition and the teachings of the Supreme Court of Canada in Ward. Justice Linden expressed the Court's ruling in another way in the reasons for judgment:

If it is likely that a person would be able to return to a country of former habitual residence where he or she would be safe from persecution, that person is not a refugee. This means that the claimant would bear the burden … of showing on a balance of probabilities that he or she is unable or unwilling to return to any country of former habitual residence. (At 39.)

In effect, this means that if a stateless person has multiple countries of former habitual residence, the claim may be established by reference to any such country. However, if the claimant is able to return to any other country of former habitual residence, the claimant must, in order to establish the claim, also demonstrate a well-founded fear of persecution there.

The Trial Division applied the principles of the Thabet decision in Elbarbari.Note 54 Since the claimant could not return to any of the three countries in which he had formerly resided, the CRDD erred by not considering his fear of persecution in Iraq, after finding that the claimant did not have a well-founded fear of persecution in Egypt and the United States.

2.2.3. Nature of Ties to the Country

The Federal Court has not yet treated comprehensively the nature of the ties required for a country to constitute a country of former habitual residence in cases where there are two or more countries in which the claimant has resided. However, it is suggested that, at a minimum, the assessment include the factors mentioned in Maarouf, namely, whether the person was admitted into the country for the purpose of continuing residence of some duration (without necessitating a minimum period of residence), and whether there was a significant period of de facto residence. On the other hand, there is no requirement that the claimant be legally able to return.

A country cannot qualify as a country of former habitual residence if the claimant never resided there.Note 55

In Kruchkov,Note 56 the Trial Division held that the determination of one's country of former habitual residence is a question of fact, not of law.

2.2.4. Subsisting Well-Founded Fear of Persecution

Statelessness per se does not give rise to a claim to refugee status: the claimant must demonstrate a well-founded fear of persecution based on a Convention ground.Note 57 Alternatively, the claimant must be outside his or her country of former habitual residence for a Convention reason.Note 58

The requirement of having to demonstrate a subsisting well-founded fear of persecution, where the stateless claimant is unable to return to his or her country of former habitual residence, was not resolved by the Federal Court of Appeal. In Shahin,Note 59 Justice Linden stated:

As for the legal issue of whether a stateless person needs to prove only an inability to return home, or whether a showing of a reasonable fear of persecution is also required, we do not feel we should try to resolve that matter at this stage of the proceeding, preferring instead to leave that matter to be dealt with by the new panel.

2.2.5. Evidence of Persecution for a Convention Reason

A denial of a right to return may, in appropriate circumstances, in itself constitute an act of persecution by the state.Note 60 However, for it to be the basis of a claim, the refusal must be based on a Refugee Convention ground, and not be related simply to immigration laws of general application.Note 61

In Thabet,Note 62 the Court of Appeal held that the CRDD had addressed that question adequately when it found that the claimant could not return to Kuwait because he lacked a valid residency permit.

A recent application to return to one's country of former habitual residence is not a requirement: a claimant can rely on earlier unsuccessful attempts by family members as well as on documentary evidence.Note 63

Having regard to paragraph 143 of the UNHCR Handbook, an UNWRA document issued to a Palestinian refugee was found to be cogent, though not determinative evidence of refugeehood.Note 64 It is a reviewable error not to specifically consider a claimant's UNWRA registration document when assessing a claim for refugee protection.Note 65 It is a highly relevant document, provided the conditions that originally enabled qualification are shown to persist.Note 66

2.2.6. State Protection

As a general proposition, claimants are only required to seek the protection of countries in which they can claim citizenship, prior to making a refugee claim in Canada.Note 67 However, as a practical matter, some decisions of the Board and Federal Court have considered what protection is available to the stateless person in the country where they allege persecution, in order to properly assess the well-foundedness of the alleged fear of persecution and that person's need for surrogate protection.

The decisions of the Trial Division are not consistent on whether or not stateless claimants need to avail themselves of state protection. The UNHCR Handbook, in paragraph 101, states that "… [i]n the case of a stateless refugee, the question of 'availment of protection' of the country of his former habitual residence does not, of course, arise."

In El Khatib,Note 68 Justice McKeown agreed with this approach and stated:

… the discussion and conclusions reached in WardNote 69 apply only to a citizen of a state, and not to stateless people. In my view the distinction between paragraphs 2(1)(a)(i) and 2(1)(a)(ii) of the [Immigration] ActNote 70 is that the stateless person is not expected to avail himself of state protection when there is no duty on the state to provide such protection.

However, other Trial Division decisions have taken into account state protection that might be available to the claimant in their country of former habitual residence.Note 71 For example, in Nizar,Note 72 the Court was of the view that, even though states owe no duty of protection to non-nationals, "it is relevant for a stateless person, who has a country of former habitual residence, to demonstrate that de facto (sic) protection within that state, as a result of being resident there, is not likely to exist." The Court reasoned that this matter was relevant to the well-foundedness of the claimant's fear.

The Court of Appeal in Thabet,Note 73 in the context of discussing whether a stateless claimant who has more than one country of former habitual residence must establish the claim with respect to one, some or all of the countries, had this to say about the issue of state protection:

… The definition takes into account the inherent difference between those persons who are nationals of a state, and therefore are owed protection, and those persons who are stateless and without recourse to state protection. Because of this distinction one cannot treat the two groups identically, even though one should seek to be as consistent as possible. (At 33.)

… If it is likely that a person would be able to return to a country of former habitual residence where he or she would be safe from persecution, that person is not a refugee. This means that the claimant would bear the burden … of showing on the balance of probabilities that he or she is unable or unwilling to return to any country of former habitual residence. (At 39.)

TABLE OF CASES

  1. Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported:  Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (T.D.)
  2. Absee, Mrwan Mohamed v. M.E.I. (F.C.T.D., no. A-1423-92), Rouleau, March 17, 1994
  3. Abu-Farha, Mohammad v. M.C.I. (F.C., no. IMM-4515-02), Gibson, July 10, 2003; 2003 FC 860
  4. Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no. IMM-3623-96), Cullen, May 26, 1997
  5. Adereti, Adebayo Adeyinka v. M.C.I. (F.C., no. IMM-9162-04), Dawson, September 14, 2005; 2005 FC 1263
  6. Aguero, Mirtha Marina Galdo v. M.C.I. (F.C.T.D., no. IMM-4216-93), Richard, October 28, 1994
  7. Akl: M.E.I. v. Akl, Adnan Omar (F.C.A., no. A-527-89), Urie, Mahoney, Desjardins, March 6, 1990
  8. Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996
  9. Alusta,Khahil v. M.E.I. (F.C.T.D., no. A-779-92), Denault, May 16, 1995
  10. Alvarez, Xiomara v. M.C.I. (F.C., no. IMM-2388-06), Phelan, March 20, 2007; 2007 FC 296
  11. Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993
  12. Avakova, Fatjama (Tatiana) v. M.C.I. (F.C.T.D., no. A-30-93), Reed, November 9, 1995
  13. Bady-Badila, Bruno v. M.C.I. (F.C.T.D., no. IMM-5510-01), Noël, April 3, 2003; 2003 FCT 399
  14. Basmenji, Aiyoub Choubdari v. M.C.I. (F.C.T.D., no. IMM-4811-96), Wetston, January 16, 1998
  15. Beliakov, Alexandr v. M.C.I. (F.C.T.D., no. IMM-2191-94), MacKay, February 8, 1996
  16. Bohaisy, Ahmad v. M.E.I. (F.C.T.D., no. IMM-3397-93), McKeown, June 9, 1994
  17. Bouianova, Tatiana v. M.E.I. (F.C.T.D., no. 92-T-1437), Rothstein, June 11, 1993
  18. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 20 Imm. L.R. (2d) 85
  19. Canales, Katia Guillen v. M.C.I. (F.C.T.D., no. IMM-1520-98), Cullen, June 11, 1999
  20. Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.)
  21. Castillo, Wilson Medina v. M.C.I. (F.C., no. IMM-4982-03), Kelen, March 17, 2004; 2004 FC 410
  22. Chavarria, Eduardo Hernandez v. M.C.I. (F.C.T.D., no. IMM-2192-94), Teitelbaum, January 3, 1995
  23. Chipounov, Mikhail v. M.C.I. (F.C.T.D., no. IMM-1704-94), Simpson, June 16, 1995
  24. Chouljenko, Vladimir v. M.C.I. (F.C.T.D., no. IMM-3879-98), Denault, August 9, 1999
  25. Chowdhury, Farzana v. M.C.I. (F.C., no. IMM-1730-05), Teitelbaum, September 14, 2005; 2005 FC 1242
  26. Crast, Adriana Santamaria v. M.C.I. (F.C., no. IMM-1353-06), Hughes, February 7, 2007; 2007 FC 146
  27. CRDD T94-07106, Zimmer, Hope, November 13, 1996
  28. Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998
  29. Daoud, Senan v. M.C.I. (F.C., no. IMM-6450-04), Mosley, June 9, 2005; 2005 FC 828
  30. Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998
  31. De Barros, Carlos Roberto v. M.C.I. (F.C., no. IMM-1095-04), Kelen, February 2, 2005; 2005 FC 283
  32. De Rojas, Teresa Rodriguez v. M.C.I. (F.C.T.D., no. IMM-1460-96), Gibson, January 31, 1997
  33. Desai, Abdul Samad v. M.C.I. (F.C.T.D., no. IMM-5020-93), Muldoon, December 13, 1994
  34. El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994
  35. El Khatib:  M.C.I. v. El Khatib, Naif (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996
  36. El Rafih, Sleiman v. M.C.I. (F.C., no. IMM-9634-04), Harrington, June 10, 2005; 2005 FC 831
  37. Elastal, Mousa Hamed v. M.C.I. (F.C.T.D., no. IMM-3425-97), Muldoon, March 10, 1999
  38. El-Bahisi, Abdelhady v. M.E.I. (F.C.T.D., no. A-1209-92), Denault, January 4, 1994
  39. Elbarbari, Sohayl Farouk S. v. M.C.I. (F.C.T.D., no. IMM-4444-97), Rothstein, September 9, 1998
  40. Fabiano, Miguel v. M.C.I. (F.C., no. IMM-7659-04), Russell, September 14, 2005; 2005 FC 1260
  41. Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995
  42. Freij, Samir Hanna v. M.E.I. (F.C.T.D., no. A-1690-92), Jerome, November 3, 1994
  43. Gadeliya, Konstantin Alek v. M.C.I. (F.C., no. IMM-5905-03), Beaudry, September 7, 2004; 2004 FC 1219
  44. Giatch, Stanislav v. M.E.I. (F.C.T.D., no. IMM-3438-93), Gibson, March 22, 1994
  45. Grygorian, Antonina v. M.C.I. (F.C.T.D., no. IMM-5158-94), Joyal, November 23, 1995. Reported:  Grygorian v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 52 (T.D.)
  46. Hanukashvili, Valeri v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997
  47. Harris, Dorca v. M.C.I. (F.C.T.D., no. IMM-1652-97), Teitelbaum, October 31, 1997
  48. Hassan, Ali Abdi v. M.C.I. (F.C.T.D., no. IMM-5440-98), Evans, September 7, 1999
  49. Hua Ma: M.C.I. v. Hua Ma, Shirley Wu Cai (F.C., no. IMM-4223-08), Russell, July 29, 2009; 2009 FC 779
  50. Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.)
  51. Ibrahim, Ali Ibrahim Khalil v. S.S.C. (F.C.T.D., no. IMM-4190-93), Pinard, July 8, 1994. Reported: Ibrahim v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 157 (F.C.T.D)
  52. Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994
  53. Kadoura, Mahmoud v. M.C.I. (F.C., no. IMM-4835-02), Martineau, September 10, 2003; 2003 FC 1057
  54. Karsoua, Bahaedien Abdalla v. M.C.I. (F.C., no. IMM-2931-06), Blanchard, January 22, 2007; 2007 FC 58
  55. Katkova, Lioudmila v. M.C.I. (F.C.T.D., no. IMM-3886-96), McKeown, May 2, 1997. Reported:  Katkova v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 216 (T.D.)
  56. Khan, Deachon Tsering v. M.C.I. (F.C., no. IMM-4202-07), Lemieux, May 8, 2008; 2008 FC 583
  57. Kim, Min Jung v. M.C.I. (F.C., no. IMM-5625-09), Hughes, June 30, 2010; 2010 FC 720
  58. Kochergo, Sergio Calcines v. M.E.I. (F.C.T.D., no. IMM-2475-93, Noël, March 18, 1994
  59. Kombo, Muhammad Ali v. M.C.I. (F.C.T.D., no. IMM-4181-00), McKeown, May 7, 2001; 2001 FCT 439
  60. Kruchkov, Valeri v. S.G.C. (F.C.T.D., no. IMM-5490-93), Tremblay-Lamer, August 29, 1994
  61. Kukhon, Yousef v. M.C.I. (F.C.T.D., no. IMM-1044-02), Beaudry, January 23, 2003; 2003 FCT 69
  62. Kuznecova, Svetlana v. M.C.I. (F.C.T.D., no. IMM-2750-99), Pinard, May 17, 2000
  63. Lagunda, Lillian v. M.C.I. (F.C., no. IMM-3651-04), von Finckenstein, April 7, 2005; 2005 FC 467
  64. Lenyk, Ostap v. M.C.I. (F.C.T.D., no. IMM-7098-93), Tremblay-Lamer, October 14, 1994. Reported:  Lenyk v. Canada (Minister of Citizenship and Immigration) (1994), 30 Imm. L.R. (2d) 151 (T.D.)
  65. Lin, Yu Hong v. M.C.I. (F.C.T.D., no. IMM-1855-94), Reed, December 12, 1994
  66. Liu, Qi v. M.C.I. (F.C., no. IMM-6390-09), Zinn, August 13, 2010; 2010 FC 819
  67. Lolua, Georgi v. M.C.I. (F.C., no. IMM-9674-04, Blanchard, November 7, 2005; 2005 FC 1506
  68. Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.), (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D.)
  69. Manzi, Williams v. M.C.I. (F.C., no. IMM-4181-03), Pinard, April 6, 2004; 2004 FC 511
  70. Marchoud, Bilal v. M.C.I. (F.C., no. IMM-10120-03), Tremblay-Lamer, October 22, 2004; 2004 FC 1471
  71. Martchenko, Tatiana v. M.C.I. (F.C.T.D., no. IMM-3454-94), Jerome, November 27, 1995
  72. Martinez, Oscar v. M.C.I. (F.C.T.D., no. IMM-462-96), Gibson, June 6, 1996
  73. Mathews, Marie Beatrice v. M.C.I. (F.C., no. IMM-5338-02), O'Reilly, November 26, 2003; 2003 FC 1387
  74. Mensah-Bonsu, Mike Kwaku v. M.E.I. (F.C.T.D., no. IMM-919-93), Denault, May 5, 1994
  75. Mijatovic, Mira v. M.C.I. (F.C., no. IMM-4607-05), Russell, June 2, 2006; 2006 FC 685,
  76. Mohammadi, Seyed Ata v. M.C.I. (F.C.T.D., no. IMM-1432-00), Lutfy, February 13, 2001; 2001 FCT 61
  77. Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998
  78. Munderere: M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84
  79. Nizar v. M.C.I. (F.C.T.D., no. A-1-92), Reed, January 10, 1996
  80. Nur, Khadra Okiye v. M.C.I. (F.C., no. IMM-6207-04), De Montigny, May 6, 2005; 2005 FC 636
  81. Osman, Abdalla Abdelkarim v. M.C.I. (F.C.T.D., no. IMM-527-00), Blanchard, March 22, 2001; 2001 FCT 229
  82. Pachkov, Stanislav v. M.C.I. (F.C.T.D., no. IMM-2340-98), Teitelbaum, January 8, 1999. Reported: Pachkov v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 55 (T.D.)
  83. Pavlov, Igor v. M.C.I. (F.C.T.D., no. IMM-4401-00), Heneghan, June 7, 2001; 2001 FCT 602
  84. Popov, Alexander v. M.C.I. (F.C., no. IMM-841-09), Beaudry, September 10, 2009; 2009 FC 898
  85. Priadkina, Yioubov v. M.C.I. (F.C.T.D., no. IMM-2034-96), Nadon, December 16, 1997
  86. R. v. Cook, [1998] 2 S.C.R. 597
  87. Radic, Marija v. M.C.I. (F.C.T.D., no. IMM-6805-93), McKeown, September 20, 1994
  88. Roncagliolo, Carlos Gonzalo Gil v. M.C.I. (F.C., no. IMM-8667-04), Blanchard, July 25, 2005; 2005 FC 1024
  89. Sahal, Shukri Mohamed v. M.C.I. (F.C.T.D., no. IMM-2722-98), Evans, April 21, 1999
  90. Salah, Mohammad v. M.C.I. (F.C., no. IMM-6910-04), Snider, July 6, 2005; 2005 FC 944
  91. Sayar, Ahmad Shah v. M.C.I. (F.C.T.D., no. IMM-2178-98), Sharlow, April 6, 1999
  92. Schekotikhin, Valeri v. M.E.I. (F.C.T.D., no. A-1178-92), McGillis, November 8, 1993
  93. Shaat, Rana v. M.E.I. (F.C.T.D., no. A-539-92), McGillis, August 4, 1994. Reported:  Shaat v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 41 (T.D.)
  94. Shahin, Jamil Mohammad v. S.S.C. (F.C.A., no. A-263-92), Stone, Linden, Robertson, February 7, 1994
  95. Solodjankin, Alexander v. M.C.I. (F.C.T.D., no. IMM-523-94), McGillis, January 12, 1995
  96. Sumair, Ghani Abdul v. M.C.I. (F.C., no. IMM-341-05), Kelen, November 29, 2005; 2005 FC 1607
  97. Tarakhan, Ali v. M.C.I. (F.C.T.D., no. IMM-1506-95), Denault, November 10, 1995. Reported:  Tarakhan v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 83 (T.D.)
  98. Thabet v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 685 (T.D.)
  99. Thabet v. Canada (Minister of Employment and Immigration), [1998] 4 F.C. 21 (C.A); 48 Imm. L.R. (2d) 195 (F.C.A.)
  100. Tit, Victor v. M.E.I. (F.C.T.D., no. 93-A-17), Noël, June 3, 1993
  101. Vickneswaramoorthy: M.C.I. v. Vickneswaramoorthy, Pologam (F.C.T.D., no. IMM-2634-96), Jerome, October 2, 1997
  102. Ward:  Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 20 Imm. L.R. (2d) 85
  103. Williams v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 429 (F.C.A.); 2005 FCA 126
  104. Zaidan, Bilal v. S.S.C. (F.C.T.D., no. A-1147-92), Noël, June 16, 1994
  105. Zayatte, Genet Yousef v. M.C.I. (F.C.T.D., no. IMM-2769-97), McGillis, May 14, 1998. Reported:  Zayatte v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 152 (T.D.)
  106. Zdanov, Igor v. M.E.I. (F.C.T.D., no. IMM-643-93), Rouleau, July 18, 1994
  107. Zheng, Yan-Ying v. M.C.I. (F.C.T.D., no. IMM-332-96), Gibson, October 17, 1996
  108. Zidarevic, Branko v. M.C.I. (F.C.T.D., no. IMM-1572-94), Dubé, January 16, 1995. Reported:  Zidarevic v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 190 (T.D.)
  109. Zvonov, Sergei v. M.E.I. (F.C.T.D., no. IMM-3030-93), Rouleau, July 18, 1994. Reported: Zvonov v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 23 (T.D.)

Notes

Note 1

Hanukashvili, Valeri v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997. The Supreme Court of Canada pointed out in R. v. Cook, [1998] 2 S.C.R. 597, at paragraph 42, that, although the terms "nationality" and "citizenship" are often used as if they were synonymous, the principle of nationality is much broader in scope than the legal status of citizenship.

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Note 2

Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.); Mensah-Bonsu, Mike Kwaku v. M.E.I. (F.C.T.D., no. IMM-919-93), Denault, May 5, 1994; Adereti, Adebayo Adeyinka v. M.C.I. (F.C., no. IMM-9162-04), Dawson, September 14, 2005; 2005 FC 1263.  This is subject to a possible exclusion issue arising under Article 1E of the Refugee Convention (see Chapter 10, section 10.1.). In Sayar, Ahmad Shah v. M.C.I. (F.C.T.D., no. IMM-2178-98), Sharlow, April 6, 1999, the Court held that since the CRDD found that the claimant was excluded under Article 1E, it did not need to determine whether he had a well-founded fear of persecution in his country of citizenship. In Liu, Qi v. M.C.I. (F.C., no. IMM-6390-09), Zinn, August 13, 2010; 2010 FC 819, the Court held that the living arrangements of refugee claimants are not relevant considerations, absent evidence of persecution. The RPD found that there was no evidence that, if the principal claimant returned to China without his daughter, who was a citizen of Argentina, he would experience any difficulty there.

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Note 3

Immigration and Refugee Protection Act, S.C. 2001, c. 27. This provision is consistent with the interpretation of the Refugee Convention endorsed by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 20 Imm. L.R. (2d) 85. The former Immigration Act, S.C. 1992, c. 49, s.1, was  amended in 1993 to add s. 2(1.1), a provision dealing specifically with "multiple nationalities".

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Note 4

Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998.

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Note 5

Harris, Dorca v. M.C.I. (F.C.T.D., no. IMM-1652-97), Teitelbaum, October 31, 1997.

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Note 6

M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84.

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Note 7

Article 1 of the Hague Convention of 1930 states:

It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.

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Note 8

Hanukashvili, supra, footnote 1. See, however, Nur, Khadra Okiye v. M.C.I. (F.C., no. IMM-6207-04), De Montigny, May 6, 2005; 2005 FC 636, where the Court stated that it is a matter of law. The Court also stated that since nationality is determined in accordance with the law of the country, it cannot be the subject of specialized knowledge.

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Note 9

Tit, Victor v. M.E.I. (F.C.T.D., no. 93-A-17), Noël, June 3, 1993; Bouianova, Tatiana v. M.E.I. (F.C.T.D., no. 92-T-1437), Rothstein, June 11, 1993; Schekotikhin, Valeri v. M.E.I. (F.C.T.D., no. A-1178-92), McGillis, November 8, 1993; Kochergo, Sergio Calcines v. M.E.I. (F.C.T.D., no. IMM-2475-93, Noël, March 18, 1994; Chavarria, Eduardo Hernandez v. M.C.I. (F.C.T.D., no. IMM-2192-94), Teitelbaum, January 3, 1995; Bady-Badila, Bruno v. M.C.I. (F.C.T.D., no. IMM-5510-01), Noël, April 3, 2003; 2003 FCT 399 (re Guinea); and Gadeliya, Konstantin Alek v. M.C.I. (F.C., no. IMM-5905-03), Beaudry, September 7, 2004; 2004 FC 1219 (re Georgia).

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Note 10

Radic, Marija v. M.C.I. (F.C.T.D., no. IMM-6805-93), McKeown, September 20, 1994; Aguero, Mirtha Marina Galdo v. M.C.I. (F.C.T.D., no. IMM-4216-93), Richard, October 28, 1994. In Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no. IMM-3623-96), Cullen, May 26, 1997, the Court held that, unless its validity is contested, a passport is evidence of citizenship. Thus the onus shifts to the claimant to prove that he or she is of a different citizenship than that indicated in the passport. In Lolua, Georgi v. M.C.I. (F.C., no. IMM-9674-04, Blanchard, November 7, 2005; 2005 FC 1506, the Court discussed the applicability of this presumption in a case where the claimant's passport stated that he was a citizen of the now defunct USSR; there was no evidence on the record to establish that since the dissolution of that country, citizens of the USSR are de facto citizens of Russia. Mijatovic, Mira v. M.C.I. (F.C., no. IMM-4607-05), Russell, June 2, 2006; 2006 FC 685, involved a case where the claimant, born in the former Socialist Republic of Bosnia and Herzegovina, was issued a passport by the Federal Republic of Yugoslavia. The Board concluded that the passport was evidence that the claimant was a citizen of Serbia and Montenegro but the Court held that the Board had misinterpreted the evidence.

Having regard to paragraph 93 of the UNHCR Handbook, the Court held in Mathews, Marie Beatrice v. M.C.I. (F.C., no. IMM-5338-02), O'Reilly, November 26, 2003; 2003 FC 1387, that a holder of a country's passport is presumed to be a citizen of that country. In Chowdhury, Farzana v. M.C.I. (F.C., no. IMM-1730-05), Teitelbaum, September 14, 2005; 2005 FC 1242, the Court held that it was an error to rely on paragraph 93 of the UNHCR Handbook to find that the applicant's passport was genuine, despite her statement that it was fake. This provision deals with the presumption of the claimant's nationality once a passport is deemed valid. It then goes on to discuss how to approach a situation where a claimant has a passport that they are claiming is valid but cannot be proven to be so.

It appears that, even if a passport may have been obtained irregularly, effective nationality can be established, provided that the country in question confers on the holder national status and all its attendant rights. See Zheng, Yan-Ying v. M.C.I. (F.C.T.D., no. IMM-332-96), Gibson, October 17, 1996.  However, that case was distinguished in Hassan, Ali Abdi v. M.C.I. (F.C.T.D., no. IMM-5440-98), Evans, September 7, 1999, where the Court noted that the Kenyan Immigration Department only stated that, on the basis of the official's perusal of the file, the claimant appeared to be a citizen; accordingly, if the Kenyan authorities subsequently determine the claimant had not been entitled to a Kenyan passport because he was not a national (as he alleged), he could be deported from that country.

Return to note 10 referrer

Note 11

Sviridov, Timur v. M.C.I. (F.C.T.D., no. IMM-2414-94), Dubé, January 11, 1995. In Sahal, Shukri Mohamed v. M.C.I. (F.C.T.D., no. IMM-2722-98), Evans, April 21, 1999, the Court held that while the claimant did not have documents proving her place of birth in Ethiopia and might face some difficulty in satisfying the authorities of her citizenship, she had the obligation to make efforts to obtain documentation to assert her Ethiopian citizenship. In Chouljenko, Vladimir v. M.C.I. (F.C.T.D., no. IMM-3879-98), Denault, August 9, 1999, the Court found that the CRDD did not have reasonable grounds, in light of the claimant's and his mother's unequivocal testimony, to require that he make "every possible effort" to obtain documents proving his Armenian citizenship (the claimant was advancing a claim against Armenia).

Return to note 11 referrer

Note 12

Radic, supra, footnote 10; Zidarevic, Branko v. M.C.I. (F.C.T.D., no. IMM-1572-94), Dubé, January 16, 1995. Reported: Zidarevic v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 190 (T.D.).

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Note 13

Schekotikhin, supra, footnote 9. See also Hassan, supra, footnote 10. If a claimant asserts that they lost or renounced their citizenship, the claimant must produce evidence to establish that. See Lagunda, Lillian v. M.C.I. (F.C., no. IMM-3651-04), von Finckenstein, April 7, 2005; 2005 FC 467.

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Note 14

Paragraph 89 of the Handbook states in part:

There may, however, be uncertainty as to whether a person has a nationality. … Where his nationality cannot be clearly established, his refugee status should be determined in a similar manner to that of a stateless person, i.e. instead of the country of his nationality, the country of his former habitual residence will have to be taken into account.

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Note 15

Kochergo, supra, footnote 9.

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Note 16

The following approach was recommended in Nationality and Statelessness: A Handbook for Parliamentarians, a 2005 publication of the Inter-Parliamentary Union and the United Nations High Commissioner for Refugees (at 10-11):

To be considered a national by operation of law means that an individual is automatically considered to be a citizen under the terms outlined in the State's enacted legal instruments related to nationality or that the individual has been granted nationality through a decision made by the relevant authorities. Those instruments can be a Constitution, a Presidential decree, or a citizenship act. …

Whenever an administrative procedure allows for discretion in granting citizenship, applicants for citizenship cannot be considered nationals until their applications have been completed and approved and the citizenship of that State is granted in accordance with the law. Individuals who have to apply for citizenship, and those the law outlines as being eligible to apply, but whose applications are rejected, are not citizens of that State by operation of that State's law.

Return to note 16 referrer

Note 17

El Rafih, Sleiman v. M.C.I. (F.C., no. IMM-9634-04), Harrington, June 10, 2005; 2005 FC 831; Sumair, Ghani Abdul v. M.C.I. (F.C., no. IMM-341-05), Kelen, November 29, 2005; 2005 FC 1607. But see De Barros, Carlos Roberto v. M.C.I. (F.C., no. IMM-1095-04), Kelen, February 2, 2005; 2005 FC 283, where the Court found that claimant was not taken by surprise or prejudiced in the circumstances of that case.

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Note 18

M.E.I. v. Akl, Adnan Omar (F.C.A., no. A-527-89), Urie, Mahoney, Desjardins, March 6, 1990. In Akl, the Court cited Ward, supra, footnote 3, and reiterated that a claimant must establish that he or she is unable or unwilling to avail him- or herself of all of his or her countries of nationality.

Return to note 18 referrer

Note 19

The dissolution of the USSR resulted in the emergence of 15 new states. The Russian Soviet Federative Socialist Republic (RSFSR) is the "continuing state", having continued to respect all international treaties of the former state (USSR), and the remaining states are "successor states". For the purpose of this paper, both the continuing state and the successor states will be referred to as "successor states".

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Note 20

Tit, supra, footnote 9 (re Ukraine); Bouianova, supra, footnote 9 (re Russia); Zdanov, Igor v. M.E.I. (F.C.T.D., no. IMM-643-93), Rouleau, July 18, 1994 (re Russia, regardless of the fact that the claimant had not applied for Russian citizenship and had no desire to do so); Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994 (re Russia, notwithstanding the existence of the propiska system, which the Court found not to be persecutory); Chipounov, Mikhail v. M.C.I. (F.C.T.D., no. IMM-1704-94), Simpson, June 16, 1995 (re Russia) ; Avakova, Fatjama (Tatiana) v. M.C.I. (F.C.T.D., no. A-30-93), Reed, November 9, 1995 (re Russia); Kuznecova, Svetlana v. M.C.I. (F.C.T.D., no. IMM-2750-99), Pinard, May 17, 2000 (re Russia). Some CRDD decisions have been set aside on judicial review because the evidence did not support the conclusion that citizenship would be granted automatically or as of right, e.g., Schekotikhin, supra, footnote 9 (re Israel and Ukraine); Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.) (re Ukraine); Solodjankin, Alexander v. M.C.I. (F.C.T.D., no. IMM-523-94), McGillis, January 12, 1995 (re Russia).

Return to note 20 referrer

Note 21

Kochergo, supra, footnote 9; Freij, Samir Hanna v. M.E.I. (F.C.T.D., no. A-1690-92), Jerome, November 3, 1994; Chavarria, supra, footnote 9; and De Rojas, Teresa Rodriguez v. M.C.I. (F.C.T.D., no. IMM-1460-96), Gibson, January 31, 1997.

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Note 22

Desai, Abdul Samad v. M.C.I. (F.C.T.D., no. IMM-5020-93), Muldoon, December 13, 1994 (in obiter); Martinez, Oscar v. M.C.I. (F.C.T.D., no. IMM-462-96), Gibson, June 6, 1996. In Canales, Katia Guillen v. M.C.I. (F.C.T.D., no. IMM-1520-98), Cullen, June 11, 1999, the CRDD determined that the claimant had a right to citizenship in Honduras, over the claimant's objections that she had no connection or physical link to Honduras, the country of her mother's birth, and which she had never visited. The Court overturned the CRDD decision because it failed to consider whether the claimant had a well-founded fear of persecution with reference to Honduras.

Return to note 22 referrer

Note 23

Chavarria, supra, footnote 9, where the wife's entitlement to Honduran citizenship, though dependent on her husband's application for same, only required a pro forma application like her husband's. This is contrasted with Beliakov, Alexandr v. M.C.I. (F.C.T.D., no. IMM-2191-94), MacKay, February 8, 1996, where the wife had to do more than simply apply for Russian citizenship; a precondition was that her husband apply for and be granted citizenship which, semble, was not automatic in his case. In Zayatte, Genet Yousef v. M.C.I. (F.C.T.D., no. IMM-2769-97), McGillis, May 14, 1998. Reported:  Zayatte v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 152 (T.D.), an Ethiopian citizen had married a diplomat from Guinea and thus acquired a diplomatic passport from that country. By the time she made her refugee claim in Canada, she was divorced. Letters from the Guinean embassy indicated that she had lost her diplomatic passport but could retain Guinean nationality if she so wished. However, the embassy had failed to consider that under Guinean law, there was a two-year residency requirement in order to become a naturalized national, and the claimant had never resided in Guinea. The CRDD decision finding her to be a Guinean citizen was therefore overturned.

Return to note 23 referrer

Note 24

Grygorian, Antonina v. M.C.I. (F.C.T.D., no. IMM-5158-94), Joyal, November 23, 1995. Reported:  Grygorian v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 52 (T.D.).

Return to note 24 referrer

Note 25

Roncagliolo, Carlos Gonzalo Gil v. M.C.I. (F.C., no. IMM-8667-04), Blanchard, July 25, 2005; 2005 FC 1024.

Return to note 25 referrer

Note 26

In Crast, Adriana Santamaria v. M.C.I. (F.C., no. IMM-1353-06), Hughes, February 7, 2007; 2007 FC 146, the Court held that the RPD erred by not addressing the issue of what constituted evidence of the residency requirement in an application for reinstatement of Argentine citizenship. The claimant was first required to reside in Argentina, and then make an application to a federal court judge to regain the Argentine citizenship. See also the discussion of Fabiano in 2.1.4. Effectiveness of Nationality; and Alvarez, Xiomara v. M.C.I. (F.C., no. IMM-2388-06), Phelan, March 20, 2007; 2007 FC 296, where the RPD received conflicting evidence on Venezuelan citizenship laws which it had to resolve.

Return to note 26 referrer

Note 27

Williams v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 429 (F.C.A.); 2005 FCA 126. The Federal Court of Appeal overturned Manzi, Williams v. M.C.I. (F.C., no. IMM-4181-03), Pinard, April 6, 2004; 2004 FC 511, where the Federal Court had held that, since the claimant had to renounce his Rwandan citizenship in order to regain Ugandan citizenship, Uganda was not a country of nationality. In Manzi, the Court did not consider Chavarria, supra, footnote 9. In that case, the Federal Court found the claimant had a right to citizenship in Honduras, the country of his birth, notwithstanding the requirement to become domiciled in Honduras, state his intention to recover his Honduran nationality, and renounce his Salvadoran citizenship.

Return to note 27 referrer

Note 28

Bouianova, supra, footnote 9.

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Note 29

Crast, supra, footnote 26.

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Note 30

Kim, Min Jung v. M.C.I. (F.C., no. IMM-5625-09), Hughes, June 30, 2010; 2010 FC 720. The Court found that there was no certainty as to the outcome.  The Court noted that the evidence was not clear that the claimants would automatically be given South Korean citizenship or that the acquisition of such citizenship is entirely within their control.  There were considerations as to the "will and desire" to live in South Korea that must be assessed by some official and perhaps the courts, as well as consideration given to the length of time that the claimants resided in China and Canada.

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Note 31

Khan, Deachon Tsering v. M.C.I. (F.C., no. IMM-4202-07), Lemieux, May 8, 2008; 2008 FC 583.

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Note 32

M.C.I. v. Hua Ma, Shirley Wu Cai (F.C., no. IMM-4223-08), Russell, July 29, 2009; 2009 FC 779.

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Note 33

Grygoriansupra, footnote 23, at 55.

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Note 34

Katkova, Lioudmila v. M.C.I. (F.C.T.D., no. IMM-3886-96), McKeown, May 2, 1997. Reported: Katkova v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 216 (T.D.).  See also CRDD T94-07106, Zimmer, Hope, November 13, 1996, where the claimant was found to express a desire to settle in Israel because she had applied to immigrate there before coming to Canada.

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Note 35

The term "genuine and effective link" was first enunciated in the Nottebohm case (International Court of Justice Reports, 1955, at 23), in the context of opposability between states, as a means of characterizing citizenship attribution which should be recognized at the international level. The concept, as extrapolated from that case and the nationality practice of states in general, has since been molded and shaped into a broader principle in international law. The concept of an ascertainable tie between the individual and a state is an important doctrine in the area of nationality law. This doctrine is based upon principles embodied in state practice, treaties, case law and general principles of law. The genuine and effective link between an individual and a state manifested by factors such as birth and/or descent, and often including habitual residence, is reflected to some degree in a majority of domestic nationality legislation.

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Note 36

Ward, supra, footnote 3, at 754 (S.C.R.).

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Note 37

(Toronto: Butterworths, 1991), page 59.

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Note 38

Martinez, supra, footnote 22, at 5-6.

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Note 39

Fabiano, Miguel v. M.C.I. (F.C., no. IMM-7659-04), Russell, September 14, 2005; 2005 FC 1260.

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Note 40

Basmenji, Aiyoub Choubdari v. M.C.I. (F.C.T.D., no. IMM-4811-96), Wetston, January 16, 1998.

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Note 41

Priadkina, Yioubov v. M.C.I. (F.C.T.D., no. IMM-2034-96), Nadon, December 16, 1997.

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Note 42

Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998.

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Note 43

Osman, Abdalla Abdelkarim v. M.C.I. (F.C.T.D., no. IMM-527-00), Blanchard, March 22, 2001; 2001 FCT 229.

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Note 44

Kombo, Muhammad Ali v. M.C.I. (F.C.T.D., no. IMM-4181-00), McKeown, May 7, 2001; 2001 FCT 439.

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Note 45

Pavlov, Igor v. M.C.I. (F.C.T.D., no. IMM-4401-00), Heneghan, June 7, 2001; 2001 FCT 602.

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Note 46

Lin, Yu Hong v. M.C.I. (F.C.T.D., no. IMM-1855-94), Reed, December 12, 1994. The definition of "stateless person", found in the 1954 United Nations Convention Relating to the Status of Stateless Persons, in Article 1, states:

For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its laws.

Note that residency in a country may also be a relevant factor when considering exclusion under Article 1E of the Convention (see Chapter 10, section 10.1.).

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Note 47

Gadeliya, supra, footnote 9.

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Note 48

Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.); (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D).

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Note 49

Maarouf, ibid., at 739-740.

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Note 50

Maarouf, supra, footnote 48; Bohaisy, Ahmad v. M.E.I. (F.C.T.D., no. IMM-3397-93), McKeown, June 9, 1994; Ibrahim, Ali Ibrahim Khalil v. S.S.C. (F.C.T.D., no. IMM-4190-93), Pinard, July 8, 1994. Reported:  Ibrahim v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 157 (F.C.T.D); Zdanov, supra, footnote 20; Shaat, Rana v. M.E.I. (F.C.T.D., no. A-539-92), McGillis, August 4, 1994. Reported: Shaat v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 41 (T.D.); El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994; and Desai, supra, footnote 22.

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Note 51

Lenyk, Ostap v. M.C.I. (F.C.T.D., no. IMM-7098-93), Tremblay-Lamer, October 14, 1994. Reported:  Lenyk v. Canada (Minister of Citizenship and Immigration) (1994), 30 Imm. L.R. (2d) 151 (T.D.), where the claimants had left Ukraine when it was part of the USSR. Justice Tremblay-Lamer stated at 152: "The change of name of the country does not change the fact that it was the place where the [claimants] always resided prior to coming to Canada, and therefore it is their country of former habitual residence."

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Note 52

Thabet v. Canada (Minister of Employment and Immigration), [1998] 4 F.C. 21 (C.A); 48 Imm. L.R. (2d) 195 (F.C.A.).

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Note 53

Maarouf, supra, footnote 48; Martchenko, Tatiana v. M.C.I. (F.C.T.D., no. IMM-3454-94), Jerome, November 27, 1995 (any country); Thabet v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 685 (T.D.) (the last country).

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Note 54

Elbarbari, Sohayl Farouk S. v. M.C.I. (F.C.T.D., no. IMM-4444-97), Rothstein, September 9, 1998.

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Note 55

Kadoura, Mahmoud v. M.C.I. (F.C., no. IMM-4835-02), Martineau, September 10, 2003; 2003 FC 1057. This was so even though the claimant, a stateless Palestinian born in the United Arab Emirates, had a travel and other documents issued by the Lebanese authorities. Although he had a right to reside in Lebanon, the claimant had never resided there. See also Salah, Mohammad v. M.C.I. (F.C., no. IMM-6910-04), Snider, July 6, 2005; 2005 FC 944.

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Note 56

Kruchkov, Valeri v. S.G.C. (F.C.T.D., no. IMM-5490-93), Tremblay-Lamer, August 29, 1994. This decision was followed in Tarakhan, Ali v. M.C.I. (F.C.T.D., no. IMM-1506-95), Denault, November 10, 1995. Reported:  Tarakhan v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 83 (F.C.T.D), at 86. In that case, the Court upheld the CRDD's decision that the only relevant country was Jordan, where the claimant, a stateless Palestinian, was born and resided until age 23; he then moved to different posts as directed by his employer, the PLO (1 year in Lebanon, 2 years in Yemen, and 5 years in Cyprus), before leaving for Holland where he made an unsuccessful refugee claim. In Thabet (T.D.), supra, footnote 53, the Trial Division upheld the CRDD's decision that the claimant was a former habitual resident of the United States, since he had resided there for 11 years, first as a student, and then as a visitor and refugee claimant; while there, he married twice, held a social security card, and filed income tax returns. (The Court of Appeal overturned this decision on other grounds.)  In Absee, Mrwan Mohamed v. M.E.I. (F.C.T.D., no. A-1423-92), Rouleau, March 17, 1994, the claimant, a stateless Palestinian, was born in the Occupied Territories, moved to Jordan at age 6, and resided for short periods in Kuwait (on a temporary basis) and in the United States (illegally). The CRDD's decision to assess the claim only against Jordan was upheld. In Alusta, Khahil v. M.E.I. (F.C.T.D., no. A-779-92), Denault, May 16, 1995, the stateless Palestinian-born claimant lived in Germany for 20 years, and then in Morocco for 14 years, with his Moroccan wife and 4 children, on the basis of a residence permit renewable annually on proof of employment. The Court upheld the CRDD's decision that Morocco was a country of former habitual residence.

In Marchoud, Bilal v. M.C.I. (F.C., no. IMM-10120-03), Tremblay-Lamer, October 22, 2004; 2004 FC 1471, the claimant was a stateless Palestinian, who was born and lived in Lebanon until age four. He spent the majority of his life until age 23 in the United Arab Emirates (1980-1998), before becoming a university student in the United States (1998-2001), having returned to Lebanon only for a period of one week. The Court upheld the RPD's decision that the only country of former habitual residence was the UAE, and that Lebanon was not such a country notwithstanding the fact that the claimant had travel documents issued by the Lebanese authorities and could reside there. Since the panel had concluded that the claimant could return to the UAE, it was not obligated to analyze the possibility of refoulement to Lebanon by the UAE. In Daoud, Senan v. M.C.I. (F.C., no. IMM-6450-04), Mosley, June 9, 2005; 2005 FC 828, the Court did not fault the RPD by referring to Jordan as a place to which the stateless claimant could return, as he travelled with a Jordanian passport and had transited Jordan to reach the United States and Canada. Should he be removed from Canada, presumably it would be first to the United States, and from there to Jordan. It was, therefore, appropriate to consider whether he had any real fear of persecution in Jordan, even though the passport gives him no rights as a national and no right to live there.

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Note 57

Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4; Lenyk, supra, footnote 51, at 152. See also UNHCR Handbook, paragraph 102.

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Note 58

Maarouf, supra, footnote 48, at 737.

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Note 59

Shahin, Jamil Mohammad v. S.S.C. (F.C.A., no. A-263-92), Stone, Linden, Robertson, February 7, 1994, at 2.

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Note 60

Maarouf, supra, footnote 48, at 739-740; Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported: Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (T.D.), at 263-264; Thabet (T.D.), supra, footnote 53 at 693; Thabet (C.A.), supra, footnote 52 at 41.

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Note 61

In Arafa, supra, footnote 57, the claimant's continued permission to remain in the United Arab Emirates, once he turned 18, was dependent upon the continuation of his education or obtaining a work permit and employment there; his last one-year authorization became invalidated when he resided outside the UAE for more than 6 months. For a similar fact situation, see also Kadoura, supra, footnote 55, where the Court noted that the United Arab Emirate's cancellation of, or failure to issue, a residence permit was not an act of persecution, but a direct consequence of the decision of the claimant, who chose to leave the UAE to come to Canada to study. Furthermore, the conditions imposed by the UAE (that the person have a work permit or be enrolled in full-time studies) had no nexus to any of the grounds set out in the Convention. The denial of a right of return was not for a Convention reason.

In Alusta, supra, footnote 56, the condition for obtaining a Moroccan residence permit, namely proof of employment, was found to be unrelated to a Convention ground. In Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996, the claimant lost his residence status in Qatar, which was renewable every 6 months, because he failed to return in 1986 because of the war in Afghanistan where he was a student; the Court upheld the CRDD's determination that he was not outside the country, nor had Qatar denied him reentry, because of a Convention reason. Simpson J. stated at 5-6:  "it seems to me that there must be something in the real circumstances which suggests persecutorial intent or conduct. Absent such evidence, I am not prepared to conclude that the Law, which is one of general application, is persecutorial in effect". In Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998, the Court upheld the CRDD's conclusion that the claimant's inability to return to Saudi Arabia was due to his not being able to obtain an employment sponsor, and not to his Palestinian background; the requirement of an employment contract to maintain one's residency status is unrelated to the grounds in the definition of a Convention refugee. In Elastal, Mousa Hamed v. M.C.I. (F.C.T.D., no. IMM-3425-97), Muldoon, March 10, 1999, the Court cited with approval the CRDD's finding that the claimant's lack of a right to return to the United States was not persecutory because, as an illegal resident, he never had the right to return there. In Salah, supra, footnote 55, the RPD had considered the claimant's reasons for leaving Egypt, and the fact that he had allowed his residency permit to lapse, and reasonably concluded that the claimant had not left or been denied re-entry into Egypt on a Convention ground. The claimant provided no evidence to support his conclusion that his inability to work in Egypt legally (he had worked there illegally for at least 3 years) amounted to persecution. See also Karsoua, Bahaedien Abdalla v. M.C.I. (F.C., no. IMM-2931-06), Blanchard, January 22, 2007; 2007 FC 58, where the Court upheld the RPD's finding that the denial of right of return to the UAE did not constitute persecution.

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Note 62

Thabet (C.A.), supra, footnote, 52, at 41.

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Note 63

Shahin, supra, footnote 59, at 2.

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Note 64

El-Bahisi, Abdelhady v. M.E.I. (F.C.T.D., no. A-1209-92), Denault, January 4, 1994, at 2-3. Paragraph 143 of the UNHCR Handbook provides, in part:

It should normally be sufficient to establish that the circumstances which originally made him qualify for protection or assistance from UNWRA still persist and that he has neither ceased to be a refugee under one of the cessation clauses nor is excluded from the application of the Convention under one of the exclusion clauses.

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Note 65

El-Bahisi, supra, footnote 64; Kukhon, Yousef v. M.C.I. (F.C.T.D., no. IMM-1044-02), Beaudry, January 23, 2003; 2003 FCT 69; Abu-Farha, Mohammad v. M.C.I. (F.C., no. IMM-4515-02), Gibson, July 10, 2003; 2003 FC 860.

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Note 66

In Mohammadi, Seyed Ata v. M.C.I. (F.C.T.D., no. IMM-1432-00), Lutfy, February 13, 2001; 2001 FCT 61, the Court found that a certificate issued by the UNHCR in 1994, which was valid for six months, recognizing the Iranian claimant as a refugee, was of little, if any, significance, to the determination of refugee status in 2000. In Castillo, Wilson Medina v. M.C.I. (F.C., no. IMM-4982-03), Kelen, March 17, 2004; 2004 FC 410, the Court found that the RPD did not err by dismissing the relevance of the UNHCR recognition, in 1982, of the claimant as a Convention refugee based on his father's recognition a year earlier. The RPD took into account the changed circumstances since that time, including the fact that the claimant returned to Colombia, his country of nationality, in 1995, without any problem.

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Note 67

Basmenji, supra, footnote 40; Adereti, supra, footnote 2.

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Note 68

El Khatib, supra, footnote 50, at 2. The Court agreed to certify the following question:

On a claim to Convention refugee status by a stateless person, is the "well-foundedness" analysis set out by the Supreme Court of Canada in [Ward] applicable, based as it is on the availability of state protection, or is it only applicable if the claimant is a citizen of the country in which he or she fears persecution?

The Court of Appeal, in dismissing the appeal in El Khatib, declined to deal with the certified question because it was not determinative of the appeal. See M.C.I. v. El Khatib, Naif-El (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996.

In Tarakhan, supra, footnote 56, at 89, the Trial Division also held that where the claim is that of a stateless person, the claimant need only show that he or she is unable, or by reason of a well-founded fear of persecution, is unwilling to return to the country of former habitual residence. The claimant does not have to prove that the authorities of that country are unable or unwilling to protect him or her. One aspect the Court did not address is the requirement in Ward, supra, footnote 3, at 712, that the analysis of whether a well-founded fear of persecution exists include a consideration of the state's inability to protect. In Pachkov, Stanislav v. M.C.I. (F.C.T.D., no. IMM-2340-98), Teitelbaum, January 8, 1999. Reported: Pachkov v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 55 (T.D.), the Court held that the CRDD erred in imposing on the claimant, who was a stateless person, a duty to refute the presumption of state protection. See also Elastal, supra, footnote 61, to the same effect, which cited the Court of Appeal decision in Thabet (C.A.), supra, footnote 52, though that decision did not specifically rule on the issue.

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Note 69

Ward, supra, footnote 3, at 751.

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Note 70

The difference in language is retained in subsections 96(a) and (b) of IRPA:  the former provision refers to "unwilling to avail" of the protection of the country of nationality, whereas the latter refers to "unwilling to return" to the country of former habitual residence.

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Note 71

Giatch, Stanislav v. M.E.I. (F.C.T.D., no. IMM-3438-93), Gibson, March 22, 1994; Zaidan, Bilal v. S.S.C. (F.C.T.D., no. A-1147-92), Noël, June 16, 1994; Zvonov, Sergei v. M.E.I. (F.C.T.D., no. IMM-3030-93), Rouleau, July 18, 1994. Reported: Zvonov v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 23 (T.D.); Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995. This issue was further confused by M.C.I. v. Vickneswaramoorthy, Pologam (F.C.T.D., no. IMM-2634-96), Jerome, October 2, 1997, where the Court suggested that the same standard of proof to demonstrate the state's inability to protect persecuted individuals applies to stateless persons as to those with a country of nationality.   See also Popov, Alexander v. M.C.I. (F.C., no. IMM-841-09), Beaudry, September 10, 2009; 2009 FC 898, where the Court upheld the RPD's determination that the stateless claimants had not rebutted the presumption of protection in relation to the USA, a country of former habitual residence.

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Note 72

Nizar v. M.C.I. (F.C.T.D., no. A-1-92), Reed, January 10, 1996, at 5.

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Note 73

Thabet (C.A.), supra, footnote 52, at 33 and 39.

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