Chapter 2 - Country of Reference

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This chapter discusses issues concerning the identification of the appropriate country or countries of reference for assessing a claim for refugee protection. The chapter covers both nationals of a country and stateless persons.

2.1. Introduction
2.2. Country of nationality
1. 2.2.1. Multiple nationalities
2. 2.2.2. Establishing nationality
3. 2.2.3. Right to citizenship
  1. 2.2.3.1. Israel's law of return
4. 2.2.4. Effectiveness of nationality
5. 2.2.5. Failure to access possible protection in a third country
2.3. Former habitual residence - Stateless persons
1. 2.3.1. Principles and criteria for establishing country of former habitual residence
2. 2.3.2. Multiple countries of former habitual residence
3. 2.3.3. Nature of ties to the country
4. 2.3.4. Subsisting well-founded fear of persecution
5. 2.3.5. Evidence of persecution for a convention reason
6. 2.3.6. State protection

2. Country of reference

2.1. Country of nationality

2.2. 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}

2.2.1. Multiple nationalities

If a claimant is a national of more than one country, the claimant must show that they are 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 demonstrate that they have a well-founded fear of persecution in all countries of nationality before they can be conferred refugee protection 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 them from persecution.^{Note 6}

2.2.2. Establishing nationality

Each state determines under its own laws who are its nationals.^{Note 7} Determining nationality is a question of fact^{Note 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 passport^{Note 10} as well as birth in a country^{Note 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 convenience^{Note 12} or that they are not otherwise entitled to that country's nationality.^{Note 13} Recourse to paragraph 89 of the UNHCR Handbook^{Note 14} is necessary only when a person's nationality cannot be clearly established.^{Note 15}

2.2.3. 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 their 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 state^{Note 19} (to the country of their former nationality), even if they do 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 ancestry^{Note 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 they do 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 Bouianova^{Note 28} that refugee protection will be denied where the evidence shows, at the time of the hearing, that it is within the control of the claimant to acquire the citizenship of a particular country with respect to which the claimant has no well-founded fear of persecution.^{Note 29} Justice Décary then elaborated on 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. The “control” test was reaffirmed as the correct approach by the Court of Appeal in Tretsetsang.^{Note 30}

Thus, the Board must address whether the claimant has the requisite degree of control over the outcome,^{Note 31} and that it is not subject to administrative discretion. If obtaining citizenship is a matter of formalities, then the control should be certain.^{Note 32} The Federal Court stated in Kim^{Note 33}:

[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].

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.

The Refugee Appeal Division (RAD) in a decision^{Note 34} that was designated as a Jurisprudential Guide by the IRB Chairperson on December 5, 2016 dealt with the issue of whether North Korean citizens are recognized as citizens by South Korea and concluded that “[A] plain reading of South Korean legislation leads the RAD to conclude the following. First, South Korea’s constitution defines that country’s territory as including the entire Korean peninsula. Second, South Korean’s Nationality Act provides that an individual is a national of South Korea if that person’s father or mother is a national of the Republic of Korea at the time of the person’s birth. Read together, these provisions make it clear that an individual born in North Korea to a national of North Korean is deemed a citizen of South Korea as well. Third, the Protection Act does not grant or deny citizenship; it clearly considers “protection” as settlement assistance.” (para 74). The RAD found that it was not bound by the Federal Court decision in Kim because the RAD had updated information on the issue of nationality and this information makes it clear that the “will and desire” issue was based on an incorrect link between protection under the Protection Act and citizenship under the Nationality Act.

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 35} A claimant is not required to demonstrate that it was more likely than not, if they applied, they would not be granted citizenship.^{Note 36}

A number of cases have dealt with the situation of claimants who are of Tibetan origin, fear harm in China and have ties (which may or may not amount to nationality) with India.^{Note 37} In Tretsetsang,^{Note 38} the Federal Court of Appeal set out the following approach.

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:

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
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.

The Court reformulated the certified question 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 s. 96 of the IRPA?” and answered it in the negative.

What will constitute reasonable efforts to overcome a significant impediment can only be determined on a case-by-case basis based on the claimant’s personal circumstances.^{Note 39} The reasonableness of the steps that have been taken by a refugee claimant to assert their citizenship rights will depend on the nature and significance of the impediment at issue.^{Note 40} 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 efforts.^{Note 41}

In Shaheen,^{Note 42} the RPD applied the test in Tretsetsang to a claim where the claimant was a Palestinian born in Kuwait, but his mother was an Egyptian citizen. Egyptian laws allowed citizenship for Palestinians with Egyptian mothers, but the claimant alleged he did not enjoy “effective citizenship” due to his inability to secure a passport. The RPD rejected his claim, finding he had not made reasonable efforts to overcome the impediments, including not attempting to make written appeals to the Egyptian government and not attending the Kuwaiti embassy in Canada to obtain a birth certificate. The Court quashed the decision, noting that the claimant had asked Egyptian officials on different occasions for assistance and had made attempts to obtain an updated birth certificate.

2.2.3.1. Israel's Law of Return

In Grygorian,^{Note 43} 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 44} 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 45} 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.

2.2.4. 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 they are a national.^{Note 46} After citing Ward and James C. Hathaway's The Law of Refugee Status^{Note 47} the Trial Division in Martinez^{Note 48}, 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 49} 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.

2.2.5. 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 50} 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 51} 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 52} 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 53} 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 54} 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 55} 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.

2.3. Former habitual residence - Stateless persons

A consideration of former habitual residence is only relevant where the claimant is stateless.^{Note 56} A stateless person is someone who is not recognized by any country as a citizen.^{Note 57} 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 they resided, the claim is properly assessed on the basis that the claimant has a country of nationality.^{Note 58}

2.3.1. Principles and criteria for establishing country of former habitual residence

In the Maarouf^{Note 59} 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 60}

The phrase “significant period of de facto residence” was recently considered in Al-Khateeb.^{Note 61} The Court stated that “significant” can mean something other than a substantial period of time and that a short period can be significant.

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 62}

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 63}

In Alkurd,^{Note 64} the Court declined to deal with the argument that Gaza and the Occupied Palestinian Territories should not be considered a country of former habitual residence because it is not a sovereign nation-state. The Court ultimately found the RPD’s determination that Gaza was the country of former habitual residence to be reasonable.

2.3.2. Multiple countries of former habitual residence

The Federal Court of Appeal in Thabet^{Note 65} clarified the conflicting case law emanating from the Trial Division^{Note 66} 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 67} 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.

The principles of the Thabet decision were also applied in Alhaddad.^{Note 68} In that case, the Court agreed that because the claimant did not allege a risk of persecution in Saudi Arabia, one of her countries of former habitual residence, and did not credibly explain why she could not return there, since her husband was still there, then the RAD could stop the analysis there and not look at the risk in her other country of former habitual residence.

It is an error to apply the reasoning in Zeng,^{Note 69} a case dealing with exclusion under Article 1 E (see chapter 10), to a determination about multiple countries of former habitual residence under Thabet (CA). In Alsha’bi,^{Note 70} in response to the Minister’s argument that the respondents had deliberately allowed their status to expire and that Zeng should apply when the RPD is considering the loss of status in countries of former habitual residence, the Court found that Thabet, not Zeng, is the applicable case law. Unlike Zeng, Thabet simply requires that the tribunal ask why the claimant cannot return to the country of their former habitual residence.

2.3.3. 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.

In Al-Khateeb,^{Note 71} a case involving a stateless Palestinian who was born in Gaza and had lived there for 6 months before the family moved to Qatar, the Court allowed the judicial review application on the basis that the Board should have considered Gaza as a potential country of former habitual residence. The Court noted that “a period of residence can acquire significance for reasons other than longevity.”^{Note 72}

A country cannot qualify as a country of former habitual residence if the claimant never resided there.^{Note 73}

In Kruchkov,^{Note 74} the Trial Division held that the determination of one's country of former habitual residence is a question of fact, not of law.

2.3.4. 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 75}

2.3.5. 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 6} 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 77}

In Thabet,^{Note 78} 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. In Wahgmo,^{Note 79} the Court found that the evidence supported the RAD’s conclusion that the applicant had not demonstrated she could not likely return to India and because she could likely return, it was unnecessary to consider whether her inability to return constitutes persecution. 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 80}

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 81} It is a reviewable error not to specifically consider a claimant's UNWRA registration document when assessing a claim for refugee protection.^{Note 82} It is a highly relevant document, provided the conditions that originally enabled qualification are shown to persist.^{Note 83}

Finally, in Qassim,^{Note 84} a case where the RPD found that the only country of former habitual residence was the UAE, the Court held that it was not necessary to consider whether the UAE would attempt to remove the claimant to Iraq, or whether he would face persecution there.

2.3.6. 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 85} 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 jurisprudence is 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 86} Justice McKeown agreed with this approach. However, other decisions have taken into account state protection that might be available to the claimant in their country of former habitual residence.^{Note 87} For example, in Nizar,^{Note 88} 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 defacto (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 89} 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.)

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 para 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.

Return to note 1 referrer

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.

Return to note 2 referrer

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”.

Return to note 3 referrer

Note 4

Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998.In Soto, Dora Agudin v. M.C.I. (F.C., no. IMM-3072-10), Beaudry, January 31, 2011; 2011 FC 98, the elderly and mentally infirm claimant was a national of Cuba and Spain. The fact that her mental state made it difficult for her to apply for state protection in Spain did not relieve her of her obligation to seek such protection. Analogous to a minor, she could apply with the assistance of a representative.

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Note 5

Harris, Dorca v. M.C.I. (F.C.T.D., no. IMM-1652-97), Teitelbaum, October 31, 1997; Martinez Cabrales v. Canada (Minister of Citizenship and Immigration), 2019 FC 1178 , at para 53.

Return to note 5 referrer

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.

Return to note 6 referrer

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.

Return to note 7 referrer

Note 8

Hanukashvil i, supra, note 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). In Muhamed Atia, Samir Mamood v. M.C.I. (F.C., no. IMM-4900-07), Frenette, May 26, 2008; 2008 FC 662, the Court noted the evidence that Palestinians, even if born in Iraq, are not recognized as Iraqi citizens.

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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. See also Yah Abedalaziz, Rami Bahjat v. M.C.I. (F.C., no. IMM-7531-10), Shore, September 9, 2011; 2011 FC 1066, a case involving a Palestinian claimant who was born in Jordan and had a Jordanian passport. The Court noted that paragraph 93 of the UNHCR Handbook recognizes the existence of a prima facie presumption that a passport holder is a national of the country of issue and reiterated the principle that the mere assertion by a passport holder that it was issued as a matter of convenience for travel purposes is not sufficient to rebut the presumption of nationality. 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

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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).

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Note 12

Radic, supra, note 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, note 9. See also Hassan, supra, note 10 and Diawara, Aicha Sandrav. M.C.I. (F.C., no. IMM-2624-17), Brown, December 5, 2017; 2017 FC 1106. 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.

In Martinez Cabrales v. Canada (Minister of Citizenship and Immigration), 2019 FC 1178, the claimant, a citizen of Colombia and Israel, alleged that she falsely converted to Judaism for the purpose of obtaining Israeli citizenship and therefore Israel should not be a country of reference since she could be stripped of her citizenship for misrepresentation. The RPD found that the claimant did complete the conversion process properly prior to obtaining her Israeli citizenship. Further, given that no formal proceedings to strip her status were currently underway, and her spouse was issued an Israeli passport renewal, the claimant was not at risk of citizenship revocation. The Court upheld the RPD’s findings as reasonable. However, in obiter the Court noted that the case hinged on the RPD’s factual finding that the claimant did complete the conversion process prior to obtaining Israeli citizenship. If the RPD had been convinced that the claimant obtained her Israeli citizenship by fraud, the Court stated that “it would have been erroneous to discount Colombia as a country of reference because there would be grounds for Israel to strip their status in the future” (at para 56).

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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, note 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.

In Lhazom, Tsering v. M.C.I (F.C., no. IMM-5457-14), Boswell, July 21, 2015; 2015 FC 886, the Court cautioned against making findings about the content of foreign laws on nothing more than a questionable, literal interpretation of a translated statute.

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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, note 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.

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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, note 9 (re Ukraine); Bouianova, supra, note 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, note 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).

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Note 21

Kochergo, supra, note 9; Freij, Samir Hanna v. M.E.I. (F.C.T.D., no. A-1690-92), Jerome, November 3, 1994; Chavarria, supra, note 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.

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Note 23

Chavarria, supra, note 9, where the wife's entitlement to Honduran citizenship, though dependent on her husband's application for citizenship, 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.

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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.).

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Note 25

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

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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. Also see Diawara, supra, note 13 where the Court could not determine how the RPD reached the conclusion that the claimant was able to re-acquire Guinean citizenship given the complexities and variables, including a residency requirement and investigation.

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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, note 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.

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Note 28

Bouianova, supra, note 9.

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Note 29

In Umuhoza, Julienne v. M.C.I. (F.C., no. IMM-8792-11), Shore, June 5, 2012; 2012 FC 689, the Court agreed with the RPD's finding that the claimant could automatically regain her citizenship in the DRC, thus following the approach set out in Williams, but found that the RPD failed to deal with the further requirement to analyze the protection that the DRC could offer the claimant.

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Note 30

Tretsetsang, Chime v. M.C.I. (F.C.A, no. A-260-15), Ryer, Webb, Rennie (dissenting), June 9, 2016; 2016 FCA 175.

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Note 31

In Dolker, Pema v. M.C.I. (F.C., no. IMM-6969-13), Hughes, February 2, 2015; 2015 FC 124, the Court agreed with the applicant’s submission that no Canadian authority requires that an applicant must first seek and then be refused citizenship in a safe country where they are entitled to do so before claiming refugee status. However, in obiter, it added that although Williams speaks to whether it is within the control of a person to acquire citizenship, nothing in that case encourages claimants not to make reasonable efforts to secure such citizenship.

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Note 32

Crast, supra, note 26.

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Note 33

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 34

RAD TB4-05778, Bosveld, June 27, 2016.

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Note 35

Khan, Deachon Tsering v. M.C.I. (F.C., no. IMM-4202-07), Lemieux, May 8, 2008; 2008 FC 583, where the Court held that because acquisition of citizenship by marriage was the basis of the applicant’s claim to citizenship in Guyana, this negated the existence of control. The Court stated: “The determining error the tribunal made was to trespass upon forbidden territory when, after recognizing the authorities in Guyana were not compelled on her application to grant Mrs. Khan citizenship, it (the tribunal) could opine how the Minister in Guyana might exercise the discretion conferred upon him. Such circumstances are not within her control.” Khan was distinguished in Ashby where the Court held that the applicant was a Guyanese citizen by birth and had never officially renounced it. The Court also stated that even if she had lost it due to acquiring another nationality, it was within her control to reacquire it by obtaining “remigrant status.” See Ashby, Tomeika v. M.C.I. (F.C. no. IMM-3169-10), Near, March 9, 2011; 2011 FC 277.

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Note 36

M.C.I. v. Hua Ma, Shirley Wu Cai (F.C., no. IMM-4223-08), Russell, July 29, 2009; 2009 FC 779. In a case involving a Somali claimant who was born in Somalia, the RPD found him to be a citizen of Ethiopia by virtue of the Ethiopian Constitution which provides that if the parents are born in Ethiopia, the offspring are considered to be citizens. The RPD found he was not a citizen of Somalia even though the Somali Citizenship Act would consider his parents, who were born in the Ogaden region, to be Somali. The Court found that the RPD failed to consider whether the possibility that the claimant could acquire Ethiopian citizenship was realistic in the circumstances (the parents were born in the desert and the claimant had no supporting documentation about where they were born). See Hogjeh, Samir Nur v. M.C.I. (F.C., no. IMM-6550-10), O’Reilly, June 9. 2011; 2011 FC 665.

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Note 37

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Note 38

Tretsetsang, supra, note 30.

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Note 39

In Dakar v. Canada (Minister of Citizenship and Immigration), 2017 FC 353, the Court found the fact the claimant, a Tibetan, obtained a legal opinion regarding his inability to be granted citizenship in India did not constitute a reasonable effort in the context of that case.

In Khando v. Canada (Minister of Citizenship and Immigration), 2018 FC 1223, the Court found the RPD’s conclusion that the claimant, a Tibetan, had not made reasonable efforts to acquire Indian citizenship to be reasonable. Her attempts to obtain citizenship were limited to making enquiries of the Consulate General of India in Toronto shortly before the RPD hearing and asking her father whether he could produce her Indian birth certificate. With regards to the significant impediment branch of the Tresetsang test, the claimant had argued that the RPD unreasonably found there were no significant impediments to ethnic Tibetans obtaining Indian citizenship, in light of evidence indicating that passport officers required ethnic Tibetans to cancel their registration and identification certificates, give up Central Tibetan Administration benefits, and submit declarations that they have satisfied these requirements before a passport will be issued. However, the Court found that even if there were shortcomings in the RPD’s analysis of the impediments faced by the claimant, its conclusion that she made insufficient efforts to overcome them was reasonable.

In Phuntsok v. Canada (Minister of Citizenship and Immigration), 2020 FC 1110, the Federal Court upheld a RAD decision in which the RAD found that the applicant, a Tibetan born in India, had not taken reasonable steps to obtain recognition of his right to citizenship in India. The applicant had not provided proof of any concrete steps he had taken to try to obtain his passport beyond an application he made in 2003 and more recent conversations with some friends. The Court found that the RAD examined the applicant’s personal circumstances, as it was “required to do by the case law” (para 36). The Court found that it was not unreasonable to expect the applicant to take steps to obtain recognition of his citizenship in India, in light of his extensive education, work history, and his demonstrated resourcefulness in obtaining the necessary travel documents to come to Canada and pursue his refugee claim.

Compare: Pasang v. Canada (Minister of Citizenship and Immigration), 2019 FC 907. In this case, the Federal Court quashed a RAD decision in which the RAD found that the applicant, a Tibetan born in India, did not face a serious impediment to obtaining Indian citizenship. In Pasang, the Court distinguished Khando because there was no evidence in Khando that the claimant relied upon those Central Tibetan Administration benefits or had lived in refugee settlements. In Pasang, the applicant was not well educated, lived in a refugee settlement, and relied on those benefits to survive. Therefore, the RAD erred by failing to consider the personal implications for the applicant of applying for Indian citizenship.

In Lhazom v. Canada (Minister of Citizenship and Immigration), 2019 FC 715, the Court quashed an RPD decision in which the RPD had found the claimant, a Tibetan, had not shown any significant impediment to obtain Indian citizenship and had not made reasonable efforts to overcome the impediment she faced. The claimant was an illiterate woman with a grade one education who had asked a friend to assist her in applying for a passport, one of the documents she could use to support her citizenship application. She testified that her friend looked at the on-line passport application and found that the claimant lacked the necessary documents. Since the claimant lacked those documents, and could not obtain them, the Court held that the RPD`s conclusion she had made insufficient efforts to acquire Indian citizenship was unreasonable.

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Note 40

In Yalotsang v. Canada (Minister of Citizenship and Immigration), 2019 FC 563, the Court quashed an RPD decision in which it was concluded that it was within the control of the claimant, a Tibetan, to obtain Indian citizenship. The Court found that the RPD erred by engaging in an analysis of the efforts the claimant made to obtain an Indian passport, before considering whether the Indian authorities would recognize the claimant’s Indian citizenship. The Court stated that “the reasonableness and sufficiency of the steps that have been taken by a refugee claimant to assert his or her citizenship rights in a given country will depend on the nature and significance of whatever impediment to accessing state protection may exist in the case in question” (at para 14).

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Note 41

Tretsetsang, supra, note 30, at para 73.

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Note 42

Shaheen, Imadeddin A.M. v. M.C.I. (F.C. no. IMM-5241-17), Favel, August 24, 2018; 2018 FC 858.

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Note 43

Grygorian, supra, note 24, at 55.

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Note 44

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.).

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Note 45

The requirement of showing a “genuine link” is not addressed extensively in Canadian jurisprudence, although the principle was quoted with approval in Crast, supra, note 26. 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 46

Ward, supra, note 3, at 754

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Note 47

Toronto: Butterworths, 1991, page 59.

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Note 48

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

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Note 49

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

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Note 50

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

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Note 51

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

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Note 52

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

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Note 53

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 54

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 55

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 56

A case where the RPD erred in considering the claim against Greece (where the claimant had resided without status) instead of Bangladesh, where he would be considered a citizen because he was Bihari (Urdu speaker), is Choudry, Robin v. M.C.I. (F.C., no. IMM-2353-11), Russell, December 2, 2011, 2011 FC 1406.

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Note 57

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 58

Gadeliya, supra, note 9

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Note 59

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 60

Maarouf, ibid., at 739-740.

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Note 61

Al-Khateeb, Mahmoud Issa Ahmad v. M.C.I (F.C. no., IMM-2962-16, Simpson, January 11, 2017; 2017 FC 31.

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Note 62

Maarouf, supra, note 59; 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, note 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, note 22.

Return to note 62 referrer

Note 63

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.”

Return to note 63 referrer

Note 64

Alkurd v. Canada (Minister of Citizenship and Immigration), 2019 FC 298.

Return to note 64 referrer

Note 65

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

Return to note 65 referrer

Note 66

Maarouf, supra, note 59; 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).

Return to note 66 referrer

Note 67

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

Return to note 67 referrer

Note 68

Alhaddad v. Canada (Minister of Citizenship and Immigration), 2019 FC 655.

Return to note 68 referrer

Note 69

M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275 09). Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118.

Return to note 69 referrer

Note 70

M.C.I. v. Alsha’bi, Hanan (F.C., no. IMM-2032-15), Strickland, December 14, 2015; 2015 FC 1381.

Return to note 70 referrer

Note 71

Al-Khateeb, supra, note 61. Al-Khateeb was distinguished in Qassim, Wasam F Y Sheikh v. M.C.I. (F.C., no. IMM-2311-17), Kane, February 28, 2018; 2018 FC 226, where the Court rejected the argument that family ties are more important than the duration of residence. In that case, the Court found that, unlike in Al-Khateeb, where the claimant had been born in and had resided in Gaza for a brief time, in Qassim the claimants’ two visits to Iraq totaling 13 weeks for vacation and to visit family did not amount to de facto residence.

Return to note 71 referrer

Note 72

The Court found that the RAD had failed to consider the following factors:

there can be more than one CFHR (country of former habitual residence);
the Applicant’s birth in Gaza gives him status akin to nationality;
his rights of return and residence are also akin to the rights associated with citizenship;
there is no minimum period for residence to establish a CFHR;
CFHR’s are “former”. The fact that he was a habitual resident of Gaza many years ago is not a bar to it being a CFHR; and he has family in Gaza and he is Palestinian.

Return to note 72 referrer

Note 73

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. In similar circumstances in Chehade, Ahmad v. M.C.I. (F.C., no. IMM-2617-16), Strickland, March 16, 2017; 2017 FC 282 the Court held that the claimants had only visited Lebanon for vacation and to see family and, as such, had not established a de facto residence there. See also Salah, Mohammad v. M.C.I. (F.C., no. IMM-6910-04), Snider, July 6, 2005; 2005 FC 944.

Return to note 73 referrer

Note 74

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, note 66, 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.

Return to note 74 referrer

Note 75

Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4; Lenyk, supra, note 63, at 152: Thabet, supra note 65; Zaqout v. Canada (Minister of Citizenship and Immigration), 2019 FC 779, at para 23. See also UNHCR Handbook, paragraph 102.

Return to note 75 referrer

Note 76

Maarouf, supra, note 59, 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, note 66 at 693; Thabet (C.A.), supra, note 65 at 41; Chehade, supra, note 73 at 29; Iraqi v. Canada (Minister of Citizenship and Immigration), 2019 FC 1049, at para 33.

Return to note 76 referrer

Note 77

In Arafa, supra, note 75, 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, note 73, 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, note 74, 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, note 67, 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.

In Iraqi v. Canada (Minister of Citizenship and Immigration), 2019 FC 1049, at para 33, the Court upheld the RAD's finding that the denial of a right to return to the UAE for stateless Palestinians did not amount to persecution. The RAD had found that the denial of the right to return was a result of the applicants' being absent from the UAE for more than six months and losing their UAE sponsor. In the RAD's view, the denial of the right to return did not amount to persecution, as it was the result of laws of general application and suggested no persecutory intent or conduct based on the applicants' Palestinian heritage.

Return to note 77 referrer

Note 78

Thabet (C.A.), supra, note, 65, at 41.

Return to note 78 referrer

Note 79

Wahgmo, Kalsang v. M.C.I. (F.C., no. IMM-6321-13), Locke, September 29, 2014: 2014 FC 923.

Return to note 79 referrer

Note 80

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

Return to note 80 referrer

Note 81

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 UNHCRHandbook 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.

Return to note 81 referrer

Note 82

El-Bahisi, ibid.; 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.

Return to note 82 referrer

Note 83

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.

Return to note 83 referrer

Note 84

Qassim, supra, note 71 at 2. See also Chehade, supra, note 73 at 24 and Iraqi v. Canada (Minister of Citizenship and Immigration), 2019 FC 1049, at para 35.

Return to note 84 referrer

Note 85

Basmenji, supra, note 50; Adereti, supra, note 2.

Return to note 85 referrer

Note 86

El Khatib, supra, note 62, 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, note 74, at 89, the Trial Division also held that where the claim is that of a stateless person, the claimant need only show that they are 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 them. One aspect the Court did not address is the requirement in Ward, supra, note 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, note 77, to the same effect, which cited the Court of Appeal decision in Thabet (C.A.), supra, note 65, though that decision did not specifically rule on the issue.

Return to note 86 referrer

Note 87

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. Both Falberg and Popov were quoted with approval in Vetcels, Maksims v. M.C.I. (F.C., no. IMM-7952-12), Hughes, June 14, 2013; 2013 FC 653. The RPD’s conclusions regarding state protection and persecution were found to be reasonable. In Khattr, Amani Khzaee v. M.C.I. (F.C. no. IMM-3249-15), Zinn, March 22, 2016; 2016 FC 341, the Court again affirmed the principle from Popov that the presumption of state protection applies when determining whether a stateless person has a well-founded fear of persecution in their country of former habitual residence

Return to note 87 referrer

Note 88

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

Return to note 88 referrer

Note 89

Thabet (C.A.) , supra, note 65, at 33 and 39.

Return to note 89 referrer

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Chapter 2 - Country of Reference

On this page

2. Country of reference

2.1. Country of nationality

2.2. Country of nationality

2.2.1. Multiple nationalities

2.2.2. Establishing nationality

2.2.3. Right to citizenship

2.2.3.1. Israel's Law of Return

2.2.4. Effectiveness of nationality

2.2.5. Failure to access possible protection in a third country

2.3. Former habitual residence - Stateless persons

2.3.1. Principles and criteria for establishing country of former habitual residence

2.3.2. Multiple countries of former habitual residence

2.3.3. Nature of ties to the country

2.3.4. Subsisting well-founded fear of persecution

2.3.5. Evidence of persecution for a convention reason

2.3.6. State protection

Notes

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Chapter 2 - Country of Reference

On this page

2. Country of reference

2.1. Country of nationality

2.2. Country of nationality

2.2.1. Multiple nationalities

2.2.2. Establishing nationality

2.2.3. Right to citizenship

2.2.3.1. Israel's Law of Return

2.2.4. Effectiveness of nationality

2.2.5. Failure to access possible protection in a third country

2.3. Former habitual residence - Stateless persons

2.3.1. Principles and criteria for establishing country of former habitual residence

2.3.2. Multiple countries of former habitual residence

2.3.3. Nature of ties to the country

2.3.4. Subsisting well-founded fear of persecution

2.3.5. Evidence of persecution for a convention reason

2.3​.6. State protection

Notes

Thank you for your help!

2.3.6. State protection