A-241-04
2005 FCA 126
The Minister of Citizenship and Immigration (Appellant)
v.
Manzi Williams (Respondent)
Indexed as: Williams v. Canada (Minister of Citizenship and Immigration) (F.C.A.)
Court of Appeal, Décary, Létourneau and Nadon JJ.A.-- Montréal, March 15; Ottawa, April 12, 2005.
Citizenship and Immigration -- Status in Canada -- Convention Refugees -- Appeal from Federal Court decision respondent not required to seek protection from country other than country of nationality -- Respondent refugee claimant from Rwanda -- Previously holding dual nationality from Rwanda and Uganda -- Could obtain Ugandan nationality if renounced Rwandan nationality -- Denied refugee status by Refugee Protection Division of Immigration and Refugee Board -- Whether "countries of nationality" in s. 96(a) of Immigration and Refugee Protection Act (IRPA) includes potential countries of nationality -- Test to apply whether power within control of applicant to acquire citizenship of other country where no fear of persecution -- Applicant expected to make attempts to acquire other citizenship.
Citizenship and Immigration -- Judicial Review -- Appeal on certified question from decision of applications Judge -- Interpretation of IRPA, s. 96 question of law -- Standard of correctness applicable to questions of law.
This was an appeal on a certified question from a decision of the Federal Court overturning a decision of the Refugee Protection Division of the Immigration and Refugee Board. The respondent is a citizen of Rwanda who claimed refugee status and claimed to be a person in need of protection. As a child, the respondent had dual nationality from Rwanda and Uganda but lost his Ugandan citizenship by retaining his Rwandan citizenship when he reached the age of 18. Rwanda was the only country of nationality mentioned in relation to his refugee claim. At the hearing, the respondent conceded that he could elect to obtain Ugandan citizenship and that we would not fear persecution in that country. Despite the fact that the respondent had a well-founded fear of persecution in Rwanda, the Board denied the respondent's claim as a Convention refugee or person in need of protection. The applications Judge allowed the respondent's application for judicial review of the Board's decision. He held that the Board had erred in law in requiring that the respondent avail himself of the protection of a country that was not his country of nationality at that time, within the meaning of paragraph 96(a) of the Immigration and Refugee Protection Act (IRPA).
The issue was whether the expression "countries of nationality" of section 96 of the IRPA includes 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.
Held, the appeal should be allowed.
In terms of standard of review, the Board's finding that the respondent could obtain Ugandan citizenship as a matter of course if he renounced his Rwandan citizenship was a finding of fact that could not be interfered with unless it amounted to a palpable and overriding error. The interpretation of section 96 of the IRPA was a question of law to which the standard of correctness applied.
It was common ground that refugee protection will be denied if, at the time of the hearing, an applicant is entitled to acquire by mere formalities the citizenship (or nationality) of a particular country with respect to which he has no well-founded fear of persecution. The Federal Court of Appeal in Canada (Attorney General) v. Ward established the fundamental principle that international refugee protection is to serve as "surrogate protection" when national support cannot be secured, which was later confirmed by the Supreme Court of Canada. A well-founded fear of persecution must be established in relation to each country of citizenship before asylum can be sought in another country. The Federal Court--Trial Division broadened that concept by holding that if an applicant is entitled to acquire the citizenship of a particular country by reason of his place of birth, and if that acquisition can be completed by mere formalities, then the applicant is expected to seek the protection of that State and will be denied refugee status in Canada unless he has demonstrated that he also has a well-founded fear of persecution in relation to that additional country of nationality.
Based on case law, the true test to be applied in this case was whether the power was within the control of the applicant to acquire citizenship of a country with respect to which he had no well-founded fear of persecution. This test would prevent the practice of "country shopping", which is incompatible with the "surrogate" dimension of international refugee protection recognized in Ward and is not restricted to mere technicalities. This "control" test also reflects the notion 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. It is irrelevant how citizenship is obtained provided it is within the control of an applicant to obtain it. The respondent's argument that this was not a case where mere formalities sufficed to confirm an existing citizenship in another country since actual citizenship had to be renounced, had no merit. Where citizenship in another country is available, an applicant is expected to make attempts to acquire it and will be denied refugee status if it is shown that it is within his power to acquire that other citizenship. Citizenship is a fundamental right and, when faced with a choice, a person would gain by opting for citizenship status in one country rather than for refugee status in another. The applications Judge erred in finding that "countries of nationality" in section 96 of the IRPA did not included potential countries of nationality.
statutes and regulations judicially
considered
Constitution of the Republic of Uganda 1995 (The), art. 15(2),(4).
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97. |
| United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1A(2). |
| Universal Declaration of Human Rights, GA Res. 217 A (III), UN GAOR, December 10, 1948, Art. 15. |
cases judicially considered
applied:
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 20 Imm. L.R. (2d) 85; 153 N.R. 321; affg [1990] 2 F.C. 667; (1990), 67 D.L.R. (4th) 1; 10 Imm. L.R. (2d) 189; 108 N.R. 60 (C.A.); Canada (Minister of Employment and Immigration) v. Akl (1990), 140 N.R. 323 (F.C.A.); Bouianova v. Canada (Minister of Employment and Immigration) (1993), 67 F.T.R. 74 (F.C.T.D.).
considered:
Chavarria v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 17 (T.D.) (QL).
referred to:
De Barros v. Canada (Minister of Citizenship and Immigration), 2005 FC 283; [2005] F.C.J. No. 361 (QL); Choi v. Canada (Solicitor General), 2004 FC 291; [2004] F.C.J. No. 347 (QL); Tecle v. Secretary of State for the Home Department, 2002 EWCA Civ 1358; [2002] E.W.J. No. 4196 (QL).
authors cited
Alland, Denis and Catherine Teitgen-Colly. Traité du droit de l'asile. Paris: Presses Universitaires de France, 2002.
Piotrowicz, R. "Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?" (1996), 8 Int'l J. Refugee L. 319.
United Nations, Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, reedited January 1992.
APPEAL from a Federal Court decision ((2004), 39 Imm. L.R. (3d) 232; 2004 FC 511) overturning a decision of the Refugee Protection Division of the Immigration and Refugee Board rejecting the respondent's refugee claim on the ground that he could seek protection from a country other than his country of nationality by renouncing his citizenship, thereby acquiring citizenship in the other country. Appeal allowed.
appearances:
Michèle Joubert for appellant.
William Sloan for respondent.
solicitors of record:
Deputy Attorney General of Canada for appellant.
William Sloan, Montréal, for respondent.
The following are the reasons for judgment rendered in English by
[1]Décary J.A.: This is an appeal on a certified question from a decision of Pinard J. [(2004), 39 Imm. L.R. (3d) 232] of the Federal Court, overturning a decision of the Refugee Protection Division of the Immigration and Refugee Board (IRB or Board). The Board rejected the respondent's refugee claim on the basis that he could seek protection from a country (Uganda), the nationality of which he could easily obtain upon renouncing the nationality of the country (Rwanda) where he was at risk of persecution. Pinard J. allowed the application for judicial review and certified the following question [at paragraph 7]:
Does the expression "countries of nationality" of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?
Facts
[2]The respondent, Manzi Williams, is a citizen of Rwanda. He claims that he fears persecution at the hands of Rwandan authorities because of his imputed political opinions and his membership in a particular social group. The respondent also claims to be a person in need of protection because he risks being subjected to torture, a threat to his life or a risk of cruel and unusual treatment or punishment in Rwanda.
[3]The respondent was born in Rwanda in 1982 to a Rwandan father and a Ugandan mother. As a result, he was, by birth, a citizen of Rwanda by virtue of his father's Rwandan citizenship (jus sanguinis) and of the fact that he was born in Rwanda (jus solis). He was also born a Ugandan citizen because of his mother's Ugandan citizenship (jus sanguinis). He lived in Rwanda from 1982 to 1988, and then in Uganda with his parents from 1988 to 1996. At the end of 1996, he returned to Rwanda with his father. From August 1998 to November 1999, the respondent spent most of his time in Uganda pursuing his studies.
[4]The respondent had dual nationality until 2000. When he reached the age of 18, by retaining his Rwandan citizenship, he automatically ceased to be a citizen of Uganda pursuant to clause (2) of article 15 of The Constitution of the Republic of Uganda 1995:
15. . . .
(2) A citizen of Uganda shall cease forthwith to be a citizen of Uganda if, on attaining the age of eighteen years he or she, by voluntary act other than marriage acquires or retains the citizenship of a country other than Uganda.
[5]What is interesting in this case, however, is the fact that under clause (4) of article 15 of the Constitution, the respondent has a non-discretionary right to reacquire his Ugandan citizenship:
15. . . .
(4) A Uganda citizen who loses his or her Uganda citizenship as a result of the acquisition or possession of the citizenship of another country shall, on the renunciation of his or her citizenship of that other country, become a citizen of Uganda.
[6]On August 15, 2002, the respondent left Rwanda. Following a stay in Kenya, he arrived in Canada on August 27, 2002 through the United States and claimed asylum upon arrival. Rwanda was the only country of nationality mentioned at this time.
[7]At the hearing before the Board, on April 29, 2003, the Board raised the issue of the availability of Ugandan citizenship and it was then conceded by the respondent that should he elect to obtain Ugandan citizenship he would have no fear of persecution in Uganda. Therefore, the question of "effective" protec-tion in the second State is not an issue in this case.
The decision of the Board
[8]Although the Board found that the respondent had a reasonable and well-founded fear of persecution in Rwanda, it nevertheless concluded that the respondent had the option of seeking protection in Uganda. This was the case because the respondent's mother was born in Uganda; therefore, the respondent could renounce his Rwandan citizenship, obtain Ugandan citizenship as a matter of course and seek the protection of that country. The Board concluded that the respondent was not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[9]The Board also noted that the respondent's mother, daughter and three of his siblings were living in Uganda.
Decision below: Pinard J. of the Federal Court, April 6, 2004
[10]The respondent brought an application for judicial review of the Board's decision to the Federal Court. Pinard J. held that the Board had erred in law in requiring that the respondent avail himself of the protection of a country (Uganda) which at the relevant time was not for him a country of nationality within the meaning of paragraph 96(a) of the IRPA (at paragraph 5 of his reasons):
As can be seen from a plain reading of the text, the provision refers to "countries of nationality," and not to any other countries, including potential countries of nationality. Had it been the intention of the legislator to include such other countries, it would have been very simple to say so.
[11]Pinard J. allowed the application for judicial review and ordered that the matter be sent back to a differently constituted panel of the Refugee Protection Division of the IRB for determination in accordance with his reasons.
Appellant's submissions
[12]The appellant submits that the expression "countries of nationality" in section 96 of the IRPA extends to a country for which citizenship can be regained or obtained if one renounces the citizenship of another country. Relying on Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 709 and 752, the appellant emphasizes that international refugee protection is to serve as "surrogate" protection. It should only come into play when there is inability to secure national support. Here, that national support would be available in Uganda upon renunciation of Rwandan citizenship and non-discretionary acquisition of Ugandan citizenship. Canadian protection is not therefore available to the respondent.
Respondent's submissions
[13]The respondent's main argument is that the case law cited by the appellant relates to situations where the acquisition of citizenship of another country is a "mere formality." This, according to counsel, only occurs when the individual has the second citizenship at the time of the hearing and decision, but does not have the documents confirming that status. Citizenship, the argument goes, is a fundamental right no person should be compelled to renounce.
Relevant statutory or treaty provisions
[14]Immigration and Refugee Protection Act:
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. [My emphasis.]
[15]1951 United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6]:
Article 1
Definition of the Term "Refugee"
A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:
. . .
(2) . . . . In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
[16]Universal Declaration of Human Rights [GA Res. 217 A (III), UN GAOR, December 10, 1948]:
Article 15
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
The standard of review
[17]The finding by the Board that the respondent could obtain Ugandan citizenship as a matter of course upon renouncing his Rwandan citizenship is a finding of fact which cannot be interfered with by the applications judge unless it amounts to a palpable and overriding error. The finding is not challenged by the respondent and, in any event, Pinard J. did not disturb it.
[18]Whether the existence of an option to seek protection in Uganda is a valid cause for the denial of the refugee status is a question which requires the interpretation of section 96 of the IRPA. This is a question of law. It is well settled that on questions of law of such nature, the standard of review is correctness. The Board could not afford to be wrong. Nor could the applications Judge.
Discussion
[19]It is common ground between counsel that refugee protection will be denied where it is shown that an applicant, at the time of the hearing, is entitled to acquire by mere formalities the citizenship (or nationality, both words being used interchangeably in this context) of a particular country with respect to which he has no well-founded fear of persecution.
[20]This principle flows from a long line of jurisprudence starting with the decisions of our Court in Canada (Attorney General) v. Ward, [1990] 2 F.C. 667 (C.A.), and in Canada (Minister of Employment and Immigration) v. Akl (1990), 140 N.R. 323 (F.C.A.), where it was held that, if an applicant has citizenship in more than one country, he must demonstrate a well-founded fear of persecution in relation to each country of citizenship before he can seek asylum in a country of which he is not a national. Our ruling in Ward was confirmed by the Supreme Court of Canada (at paragraph 12 of these reasons) and the principle eventually made its way into the IRPA, section 96 referring to "each of their countries of nationality."
[21]In another decision rendered before the Supreme Court of Canada rendered its own in Ward, Bouianova v. Canada (Minister of Employment and Immigration) (1993), 67 F.T.R. 74, Rothstein J. (sitting then in the Trial Division of the Federal Court of Canada) broadened the holding of our Court in Akl. He held that if, at the time of the hearing, an applicant is entitled to acquire the citizenship of a particular country by reason of his place of birth, and if that acquisition could be completed by mere formalities, thereby leaving no room for the State in question to refuse status, then the applicant is expected to seek the protection of that State and will be denied refugee status in Canada unless he has demonstrated that he also has a well-founded fear of persecution in relation to that additional country of nationality.
[22]I fully endorse the reasons for judgment of Rothstein J., and in particular the following passage at paragraph 12:
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 under the 1951 Convention an the 1967 Protocol relating to the Status of Refugees [Geneva, 1992] emphasizes the point that whenever "available, national protection takes precedence over international protection," and the Supreme Court of Canada, in Ward, observed, at page 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 latest pronouncements are those of Kelen J. in De Barros v. Canada (Minister of Citizenship and Immigration), 2005 FC 283 and Snider J. in Choi v. Canada (Solicitor General), 2004 FC 291.)
[24]The principle has also been recognized in England (Tecle v. Secretary of State for the Home Department, 2002 EWCA Civ 1358, England and Wales Court of Appeal (Civil Division), in Australia (see "Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?", R. Piotrowicz (1996), 8 Int. J. Refugee L. 319) and in France (see Spivak, Conseil d'État, No. 160832, April 2, 1997; Denis Alland and Catherine Teitgen-Colly, Traité du droit de l'asile, Paris: Presses Universitaires de France, 2002, page 446, where reference is made to Bouianova).
[25]It follows that Pinard J. erred in finding that "countries of nationality," in section 96 of the IRPA, did not include potential countries of nationality. It is true that the French text, "tout pays dont elle a la nationalité," as well as both the French and English texts of Article 1A(2) of the Refugee Convention, could support a restrictive interpretation, but such an interpretation, as appears from the case law, would be incompatible with the true purpose of international refugee protection.
[26]Counsel for the respondent argues that none of the cases referred to examined a situation whereby citizenship in another country could only be achieved through renunciation of one's actual citizenship. This case is not one, he says, where mere formalities suffice to confirm an existing citizenship in another country; in this case, the citizenship in another country is conditional upon the renunciation and cannot therefore be said to exist at the time of the hearing.
[27]This argument has no merit. What the case law has established is that, where citizenship in another country is available, an applicant is expected to make attempts to acquire it and will be denied refugee status if it is shown that it is within his power to acquire that other citizenship. It is, here, within the respondent's power to renounce his Rwandan citizenship and to obtain a Ugandan citizenship. That other citizenship is there for him to acquire if he has the will to acquire it. In Chavarria v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 17 (T.D.) (QL), the only case relied upon by the parties that touches the issue of renunciation of citizenship without, however, expanding on it, Teitelbaum J. denied refugee status even though the reacquisition of another citizenship "would probably mean that Eduardo would have to renounce his Salvadoran citizenship" (at paragraph 60).
[28]Counsel for the respondent takes issue with Chavarria which, he says, was wrongly decided. In his view, citizenship is a fundamental right no one should be compelled to renounce. This proposition, in my view, is much too broad.
[29]First, we are not dealing here with forcing an individual to renounce his citizenship. The respondent is free and remains free, in Canada, not to renounce his Rwandan citizenship and not to seek Ugandan citizenship. If he chooses not to renounce and not to seek Ugandan citizenship, he will have to live with the consequences of his choice.
[30]Second, we are not dealing here with someone who, should he renounce his citizenship, will become stateless.
[31]Third, precisely because citizenship is a fundamental right, when faced with a choice between becoming a refugee in one country and a citizen in another, a person would gain by opting for citizenship status rather than for refugee status.
[32]Fourth, a person cannot be said to be deprived of the right of citizenship when he is given the possibility of renouncing the citizenship of a country where he is at risk of persecution in exchange of acquiring as a matter of course the citizenship of a country where he is not at risk. One's loss is one's gain. Further, it appears that a Rwandan citizen has an automatic and natural and historic right to Rwandan citizenship even if he has renounced it in order to acquire foreign citizenship (Rwanda Assessment, October 2002, paragraphs 5.3 to 5.5 and footnote 25(g), A.B., Vol. 1, Tab A, pages 119 and 165).
[33]I would allow the appeal, set aside the decision of the Federal Court and restore the decision of the Refugee Protection Division of the Immigration and Refugee Board in which it determined that the applicant was not a Convention Refugee.
[34]The certified question,
Does the expression "countries of nationality" of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?
should be answered as follows in the circumstances of this case:
Yes.
Létourneau J.A.: I agree.
Nadon J.A.: I agree.