Ottawa, Ontario, July 13, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
AND IMMIGRATION
Applicant
and
LUCIA ABLAHAD TOURANY
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made “without regard to the evidence”: see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 741 (F.C.T.D.).
The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
. . .
However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
As specified by Mr. Justice John Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL).
According to the case law cited, it is the contradictory nature of the evidence which gives rise to a duty to analyze and comment upon it.
In the case at bar, there is no doubt that the documentary evidence filed by the Minister’s representative contained several points which, if accepted, could undermine the respondent’s well-founded fear.
. . .
These two aspects, the failure to analyze the contradictory evidence and the failure to deal with the respondent's subjective fear, require the Court’s intervention and oblige it to quash the RD’s decision.
As in Canada (Minister of Citizenship and Immigration) v. Nseme, 2002 FCT 261, [2002] F.C.J. No. 330 (QL), per Mr. Justice François Lemieux.
NATURE OF THE LEGAL PROCEEDINGS
[2] This is an application for judicial review, brought under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated November 4, 2005, according to which the respondents are Convention refugees within the meaning of section 96 of the Act.
FACTS
[3] The respondents, Jean Said Kaaib, aged 72, and Lucia Ablahad Tourany, aged 76, were born in Syria. They are both Lebanese citizens.
[4] In 1998, Ms. Tourany came to Canada for the first time. She subsequently made other trips to Canada before settling here permanently in June 2004.
[5] Mr. Kaaib came to Canada on August 17, 2004.
[6] On March 3, 2005, Mr. Kaaib and Ms. Tourany made a claim for refugee protection, alleging their fear in respect of Lebanon only.
[7] On August 4, 2005, the Department of Citizenship and Immigration submitted evidence showing that Mr. Kaaib and Ms. Tourany had stated that they were born in Syria, and that Ms. Tourany had travelled on a Syrian passport on her first trip to Canada.
[8] On September 8, 2005, the Board held a hearing in connection with the claim for refugee protection made by Mr. Kaaib and Ms. Tourany.
IMPUGNED DECISION
[9] The Board accepted the claim for refugee protection made by Mr. Kaaib and Ms. Tourany. It concluded that they were Convention refugees, as they had discharged the burden of establishing a well-founded fear of persecution in Lebanon.
[10] The Board did not analyze the possibility that Mr. Kaaib and Ms. Tourany could be Syrian citizens or the risks they would face in Syria.
ISSUE
[11] Did the Board err in failing to determine whether Mr. Kaaib and Ms. Tourany were citizens of Syria or could obtain citizenship of this country through a mere formality?
ANALYSIS
Legislation
[12] Paragraph 95(1)(b) of the Act specifies that refugee protection is conferred on a person when the Board determines that a person is a refugee or in need of protection.
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95. (1) Refugee protection is conferred on a person when
(a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;
(b) the Board determined the person to be a Convention refugee or a person in need of protection; or
(c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. |
95. (1) L’asile est la protection conférée à toute personne dès lors que, selon le cas :
a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection;
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). |
[13] Under section 96 of the Act, a person is a refugee if he or she has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion:
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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. |
96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
[14] Subsection 97(1) of the Act reads as follows:
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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
(i) the risk is not caused by the inability of that country to provide adequate health or medical care. |
97. 1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes – sauf celles infligées au mépris des normes internationales – et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Standard of review
[15] This case involves a question of fact, which means that the applicable standard of review is patent unreasonableness (M.R.A. v. Canada (Minister of Citizenship and Immigration), 2006 FC 207, [2006] F.C.J. No. 252 (QL), at paragraphs 6‑7; Williams v. Canada (Minister of Citizenship and Immigration), 2005 FCA 126, [2005] F.C.J. No. 603 (QL), at paragraphs 17‑18; L.L. v. Canada (Minister of Citizenship and Immigration), 2005 FC 467, [2005] F.C.J. No. 566 (QL), at paragraph 7).
Did the Board err in failing to determine whether Mr. Kaaib and Ms. Tourany were citizens of Syria or could acquire Syrian citizenship by mere formalities?
[16] Considering the evidence submitted, the Board erred in failing to determine whether Mr. Kaaib and Ms. Tourany were Syrian citizens or could obtain Syrian citizenship by mere formalities.
[17] Under sections 96 and 97 of the Act, when deciding a claim for refugee protection, the Board must determine if the person in question has demonstrated a well‑founded fear of persecution or a danger of torture, a risk to their lives, or a risk of cruel and unusual treatment or punishment for each one of his countries of citizenship.
[18] The same principle was applicable under the former act, the Immigration Act, R.S.C., 1985, c. I‑2. Although under this Act the definition of a “Convention refugee” was not as clear as in the present Act, the case law was to the effect that claimants for refugee protection had to show a well‑founded fear of persecution in connection with every one of their countries of citizenship, considering the suppletive role of international protection. (Canada (Minister of Employment and Immigration) v. Akl, [1990] F.C.J. No. 254 (F.C.A.) (QL), at paragraph 3; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] 2 S.C.R. No. 74 (QL), at paragraph 89; Williams, supra, at paragraphs 19‑20).
[19] In the case at bar, Mr. Kaaib and Ms. Tourany claimed refugee protection only with respect to Lebanon. The Board determined that they had proven a well-founded fear of persecution with respect to this country and accordingly concluded they were Convention refugees.
[20] However, the evidence submitted by the Minister shows that Mr. Kaaib and Ms. Tourany stated having been born in Syria (requests for exemption from immigrant visa requirement, tribunal record, at pages 110 and 112) and that, during one of her prior trips to Canada, Ms. Tourany had travelled on her Syrian passport. (FOSS notes, tribunal record, at pages 136‑137). This evidence suggested that Mr. Kaaib and Ms. Tourany could be citizens of Syria.
[21] First of all, many states grant citizenship or the right to citizenship by reason of birth within their territory (see for example section 3 of the Citizenship Act, R.S.C., 1985, c. C‑29; Williams, supra). Therefore, the fact that Mr. Kaaib and Ms. Tourany were born in Syria was a clue that they could be citizens of that country.
[22] Second, the fact that Ms. Tourany held a Syrian passport allowed the conclusion that she was a citizen of this country. Mr. Justice James O’Reilly stressed this principle in Mathews v. Canada (Minister of Citizenship and Immigration), 2003 FC 1387, [2003] F.C.J. No. 1777 (QL), at paragraph 11:
I am not convinced that counsel’s interpretation of the Indian statute is correct. Nevertheless, it is unnecessary for me to arrive at a definitive conclusion on that issue. The Board rested its finding (which was urged upon it by the applicants’ counsel at the time) on the fact that the boys had travelled on Indian passports. A holder of a particular country's passport is presumed to be a citizen of that country: United Nations Handbook on Criteria for the Determination of Refugee Status, at para. 93. Unless contested, a passport is evidence of nationality: Adar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 695 (QL) (T.D.) . . . .
[23] Considering the evidence submitted by the Minister, the Board had to determine if Mr. Kaaib and Ms. Tourany held Syrian citizenship, because if that was the case, it was obliged to analyze whether they had a well-founded fear of persecution with respect to Syria or if they were subject to a risk specified in section 97 of the Act if they returned to this country.
[24] In addition, in case Mr. Kaaib and Ms. Tourany did not have Syrian citizenship, considering the evidence it had, the Board also had to determine if they could obtain Syrian citizenship through simple formalities.
[25] The Federal Court of Appeal stated the following in Williams, supra, at paragraphs 19‑23:
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.
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 (F.C.A.), and in 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 (supra, para. 12) and the principle eventually made its way into the IRPA, section 96 referring to “each of their countries of nationality.”
In another decision rendered before the Supreme Court of Canada rendered its own in Ward, Bouianova v. 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.
I fully endorse the reasons for judgment of Rothstein J., 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’ sole option.”
The principle enunciated by Rothstein J. in Bouianova was followed and applied ever since in Canada. Whether the citizenship of another country was obtained at birth, by naturalization or by State succession is of no consequence provided it is within the control of an applicant to obtain it. (The latest pronouncements are those of Kelen J. in Barros v. Minister of Citizenship and Immigration, [2005] F.C.J. No. 361, 2005 FC 283 and Snider J. in Choi v. Canada (Solicitor General), [2004] F.C.J. No. 347, 2004 FC 291.)
[26] In Bouianova v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 576 (QL), at paragraphs 10‑12, Mr. Justice Marshall Rothstein affirmed the following in connection with the decision in Akl, supra:
In M.E.I. v. Adnan Omar Akl (1990), 140 N.R. 323, the court stated:
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“The court in the Ward case, on this issue, was unanimous in finding that a ‘refugee claimant must establish that he is unable or unwilling to avail himself of all of his countries of nationality’ if his claim is to be upheld.” |
The applicant says that Akl, (supra), does not apply in the present case because in Akl the applicant had been a citizen of two countries and simply did not wish to return to one of the countries although he had no fear of persecution in that country, while in the case at bar the applicant does not hold Russian citizenship. However, in my opinion, counsel for the applicant construes the Akl decision too narrowly. In my view, the decision in Akl is wide enough to encompass the situation of an applicant 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 an applicant. The condition of not having a country of nationality must be one that is beyond the power of the applicant to control. Otherwise, a person could claim statelessness merely by renouncing his or her former citizenship. This would then render unnecessary those provisions of the definition of convention refugee that require that a person demonstrate an inability or unwillingness by reason of a well‑founded fear of persecution to return to the person's country of former citizenship. The definition should not be interpreted in such a manner as to render some of its words unnecessary or redundant. The applicant in this case has advanced an excessively technical interpretation of the definition of convention refugee. In my opinion, the definition should not be applied based upon such a technical approach.
[27] After all, as stated by Mr. Justice Michael Kelen in De Barros v. Canada (Minister of Citizenship and Immigration), 2005 FC 283, [2005] F.C.J. No. 361 (QL), at paragraph 9, international protection is awarded to persons who cannot obtain protection from their country of citizenship or residence. It is not awarded to persons who can obtain citizenship from another country by mere formalities:
The basic principle of refugee law is to grant status to those requiring surrogate protection and not to those who have a ready and automatic right to another country’s nationality and protection. Grygorian v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 52 (F.C.T.D.). Accordingly, a person who is able to obtain citizenship in another country by complying with mere formalities is not entitled to avail themselves of protection in Canada. Bouianova v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 576.
CONCLUSION
[28] In conclusion, considering the preceding, the Board erred in failing to analyze the matter of whether Mr. Kaaib and Ms. Tourany are Syrian citizens or could have obtained this citizenship by mere formalities. Therefore, this application for judicial review is allowed, and the decision is referred to a differently constituted panel for rehearing and redetermination.
JUDGMENT
THE COURT ORDERS that the application for judicial review be allowed and the matter be referred to a differently constituted panel for rehearing and redetermination.
Obiter
Further to a commencement of proof that took place at the initial hearing, it is up to the decision‑maker at that level to consider the unresolved issue of citizenship. It is even possible that the administrative tribunal’s conclusion or the result would be the same because of the history of the region as regards countries’ sovereignty (or lack thereof) and the granting of citizenship at the time in question (the 1930s). However, this question cannot remain unanswered because of the legal consequences that citizenship itself will entail, once the issue is resolved.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7169-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION v.
JEAN SAID KAAIB and
LUCIA ABLAHAD TOURANY
PLACE OF HEARING: Montréal, Quebec
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
APPEARANCES:
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Marie-Claude Paquette
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FOR THE APPLICANT |
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Anthony Karkar
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FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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FOR THE APPLICANT |
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ANTHONY KARKAR Montréal, Quebec
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FOR THE RESPONDENTS |