Ottawa, Ontario, March 23, 2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) with respect to a decision of Mindy Avrich-Skapinker of the Refugee Protection Division of the Immigration and Refugee Board (RPD) denying Marien Hamud Lobaina's (Applicant or Ms. Lobaina) claim for refugee protection. In its decision dated April 25, 2005, the RPD determined that the Applicant is neither a Convention refugee nor a person in need of protection as per sections 96 and 97 of the IRPA. The RPD found that the Applicant would be at risk if returned to Cuba but rejected the Applicant's claim because she could easily acquire citizenship in Lebanon, a Country of reference/of Nationality.
[2] The Applicant is a citizen of Cuba. She had allegedly been persecuted in Cuba because she is a practising and believing Christian.
[3] The only issue at stake in the present case is whether the RPD erred in concluding that Lebanon is one of the Applicant's "countries of nationality" within the meaning of these sections. In Williams v. Canada(Minister of Citizenship and Immigration), 2005 FCA 126, [2005] F.C.J. No. 603, at para 17, the Federal Court of Appeal decided that such a finding is a "finding of fact which cannot be interfered with by the applications judge unless it amounts to a palpable and overriding error".
[4] In its decision, the RPD found that the Applicant's father, who died in 1955, was a Lebanese citizen. The Applicant's birth certificate refers to his father as a "Native of Lebanon" but his father's death certificate indicates "Siria" as his place of birth (tribunal's file, p. 472).
[5] The RPD determined the Applicant "[...] faces a relatively simple procedure to acquire status in Lebanon and even Lebanese citizenship". As per the Response to Information Request on Lebanese Citizenship, LBN27535.E, dated November 12, 1998 (tribunal's file, p. 304):
[...] [T]he fundamental principle of Lebanese citizenship is that children born to a Lebanese father have the right to Lebanese citizenship. [...] [E]ven though the parents did not register their children with the Lebanese consular service prior to their attaining the age of majority, the children's right to Lebanese citizenship is not affected. The issue of registering children before they attain the age of majority is not relevant to the acquisition of Lebanese citizenship, as it means only that before the age of 18 years the parents must apply for their children, but once the children are adults they must apply themselves. Even though they were not officially registered, children born to a Lebanese father abroad have had de facto Lebanese citizenship since birth and it would only be a matter of completing the administrative formality of registration for the children to be officially granted citizenship. The central issue in the above-mentioned situation is not the acquisition of Lebanese citizenship by the children, but of providing documentary proof of the father's Lebanese citizenship.
[6] This is confirmed in the Response to Information Request, LBN30509.E, dated November 12, 1998, cited in the RPD's decision, at p. 9 :
According to Lebanese law, a father automatically transmits his Lebanese citizenship to his children, whether a son or a daughter. The registration of one's Lebanese citizenship in a Lebanese registry is irrelevant to the children's rights of Lebanese citizenship. It is a right recognized by the constitution.
[7] The Applicant argued that it is not within her control to obtain Lebanese citizenship. She cited Williams, supra, at para. 22, for the applicable test to determine whether a given country could be considered a "country of nationality" for a refugee claimant :
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."
[8] According to the RPD, an application for citizenship could be made at any Lebanese consulate abroad and it would be a mere formality for Ms. Lobaina to obtain Lebanese citizenship. The RPD relied on the Response to Information Request, LBN31947.E, dated June 4, 1999 :
The father's nationality must first be established and his name must be in the Lebanese Civil Registry. Once this is established the child simply registers at a Lebanese consulate. The file would be sent to Lebanon to verify that the father is in the Lebanese Civil Registry.
[9] A similar statement is found in the Response to Information Request on Lebanese Citizenship, LBN27535.E, dated November 12, 1998:
The source cited that children born outside Lebanon to Lebanese parents can apply for Lebanese citizenship at all Lebanese consulates abroad. The children must complete the proper administrative forms and provide proof (passport, identity card, birth certificate, etc.) that their father is a Lebanese citizen. In cases of citizenship application and its determination, the Lebanese consul is authorized to exercise authority of a Lebanese judge and to grant Lebanese citizenship. The consul would notify the Foreign Ministry in Beirut of the decision, which would transfer it to the Ministry of the interior for official registration.
[10] This is the legal situation insofar as Lebanese citizenship is concerned. Although it explained how a Lebanese citizen's daughter could easily acquire Lebanese citizenship, the RPD did not explain why it assumed or found that the Applicant's father was a Lebanese citizen,:
"It is clear that the claimant is the child of Idiat Hamed Hussein that her father was a Lebanese citizen, as stated on her birth certificate, although he was born in Syria at the time of the claimant father's birth Syria was part of Lebanese."
[11] Documentary evidence (item 1.2.2, Tribunal's file, p. 64) explains how Lebanon became a country. However, this is not, in my view, sufficient to show that the Applicant's father is a Lebanese citizen. At page 19 of the PIF, it is stated that the Applicant's father is a Lebanese citizen (p.19). However, this was not mentioned in the decision. No other persuasive evidence that her father was a Lebanese citizen was referenced by the RPD in its decision either. Further, there was contradicting evidence with respect the Applicant's father's place of birth. It is my opinion that even if the evidence shows that a person whose father is a Lebanese citizen is entitled to Lebanese citizenship, the determination that the Applicant's father is a Lebanese citizen is at the core of the reasoning of the RPD. In this context, the determination that the Applicant is entitled to Lebanese citizenship "in a non-discretionary manner" is not properly justified. The RPD therefore committed an error of fact under any standard of review.
[12] Finally, I note that the RPD adjourned the hearing on February 1, 2005 to allow the Applicant and her counsel to contact Lebanese authorities to determine whether or not the claimant is entitled to Lebanese citizenship. The Applicant submitted a letter dated February 25, 2006. It reads (Applicant's record, p. 38):
Please advise the Board Member that I wrote to the Lebanese Embassy on February 2, 2005, inquiring whether Ms. Lobaina was entitled to Lebanese Citizenship.
The next day, the Lebanese consul contacted me by phone and advised that Ms Lobaina would have to make that inquiry in person at the Lebanese Embassy in Cuba.
Clearly, Ms. Lobaina cannot go back to Cuba to inquire about possible Lebanese citizenship.
I respectfully submit that as of this moment Ms. Lobaina is not a Lebanese citizenship. The only way the Lebanese government would consider her request is if she applied in person at the Lebanese Embassy in Cuba, which she cannot do.
I requested a written confirmation of their position, but have not received a written reply to date from the Lebanese Embassy in Ottawa.
This letter does not address whether the particulars of the Applicant's situation were conveyed to the Lebanese authorities in Ottawa, and no confirmation from the Lebanese authorities in Ottawa was provided. The Applicant's efforts to collect information were insufficient. The Applicant's counsel did not provide the RPD with the best available information, i.e. a letter stating:
- that the Applicant is not in a position to apply in person at the Lebanese Embassy in Cuba
- whether she can apply for Lebanese citizenship in Ottawa as an alternative;
- whether she is entitled to Lebanese citizenship through her father's citizenship.
[13] The parties were invited to submit a question for certification, but no questions were submitted.
[14] For these reasons, the application for judicial review is allowed.
JUDGMENT
THIS COURT ORDERS THAT:
- This application for judicial review is allowed;
- The decision of the Board is quashed;
- The matter is referred back for re-determination before a differently constituted panel;
- No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2996-05
STYLE OF CAUSE: MARIEN HAMUD LOBAINA
Applicant
And
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: March 14, 2006
APPEARANCES:
John Rokakis, Esq.
Margherita Braccio
SOLICITORS OF RECORD:
JOHN ROKAKIS, ESQ.
Barrister & Solicitor
Windsor, ON
John H. Sims, Q.C.
Deputy Attorney General of Canada