VB9-07387

RAD File / Dossier de la SAR : VB9-07387 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered at Montreal, QC Appel instruit à Date of decision July 27, 2020 Date de la décision Panel Michel Colin Tribunal Counsel for the person who is the subject of the appeal Emma Andrews Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Randal Hyland Conseil du ministre REASONS FOR DECISION OVERVIEW [1] MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS & MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP (Appellant) appealed the decision of the Refugee Protection Division (RPD) accepting the asylum claim of XXXX XXXX (Respondent). [2] The RPD found that the Respondent has a well-founded fear of persecution should he return to Rwanda and that there is insufficient evidence that the Respondent would have meaningful access to Ugandan citizenship. [3] The Appellant submits that the RPD erred in law by not following the Federal Court of Appeal's decision in the Williams 1 case and by failing to research the law on Ugandan citizenship, and properly apply that law in the Respondent's refugee claim. It submits that the RPD decision is inadequate in this regard, that the Respondent does have meaningful access to Ugandan citizenship and that, for this reason, he is neither a Convention refugee, nor a person in need of protection. [4] The Respondent submits 5 new documents he wishes to have considered as new evidence before the Refugee Appeal Division (RAD). He submits that the RPD correctly applied the test required by law and correctly concluded that he does not have meaningful access to Ugandan citizenship. Alternately, he submits that he has a well-founded fear of persecution in Uganda. [5] The determinative issue for RAD is whether the Respondent has meaningful access to Ugandan citizenship. [6] I admit the new evidence submitted by the Respondent. Although I find that the reasons provided by the RPD are inadequate regard to meaningful access to Ugandan citizenship, I nevertheless find that its decision is correct, and that the Respondent has established that he would not have such access to Ugandan citizenship. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Respondent is a Convention refugee. NEW EVIDENCE ACCEPTED [8] The Respondent submits the following evidence for consideration by the RAD: [9] Exhibit "A" is a legal opinion letter dated XXXX XXXX, 2019, from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX on how the Respondent could apply for citizenship in Uganda and whether he would be likely to succeed. [10] Exhibit "B" is an article from XXXX XXXX by XXXX XXXX dated XXXX XXXX 2019, XXXX XXXX XXXX XXXX XXXX XXXX XXXX which reports that XXXX XXXX XXXX XXXX is the firm chosen to associate in Uganda with the global law firm XXXX. [11] Exhibit "C" is the internet listing in XXXX XXXX XXXX for XXXX XXXX XXXX (XXXX), including the partners in Ms. XXXX firm - XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX - as "associate partners." [12] Exhibit "D" is an article in XXXX XXXX published XXXX XXXX XXXX 2017: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. This article includes Ms. XXXX biography. [13] Exhibit "E" is a copy of a portion of the Uganda Constitution Amendment Act 2005 aimed at demonstrating that the Constitution has changed since April 2005 when the Williams case was decided. [14] Exhibit "F" is an article by Alice McCool, published on October 4, 2019, by Al-Jazeera: Crossing Closed: How women on the Uganda-Rwanda Border are Coping. [15] Exhibit "G" is an article dated September 14, 2019, titled "Rwanda's Leading Daily", The New Times: Rwanda Asks Uganda to Probe Death of Torture Victim. [16] I find that the admissibility of this evidence is not subject to the requirements of Subsection 110 (4) of the Immigration and Refugee Protection Act (IRPA). Indeed, the Respondent's claim has not yet been rejected. Furthermore, even though Rule 10 (3) of the RAD rules require the Respondent to explain why the Division should hold a hearing under Subsection 110 (6) of the IRPA if he so requests (which is not the case), it does not require him to provide an explanation as to why the evidence which he wants to rely on in the appeal pursuant to Rule 10 (3) (c) meets the admissibility requirements of Subsection 110 (4) of the IRPA. For this reason, I accept this evidence. [17] Neither the Appellant, nor the Respondent requested a hearing under Subsection 110 (6) of the IRPA, and I do not find it necessary to hold one. ANALYSIS [18] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The RPD failed to provide adequate reasons which clearly indicate that it applied the legal test required by the Federal Court of Appeal. However, this error is not determinative of the appeal. [19] I agree with the Appellant that the RPD erred as it failed to provide adequate reasons which clearly indicate that it applied the legal test required by the Federal Court of Appeal's decision in the Williams case. Nevertheless, I do not find this error to be determinative of the appeal, as the evidence on record is sufficient for me to render the correct decision in accordance with the Williams test, as well as further clarifications by the Federal Court of Appeal in Tretsetsang 3. [20] In reaching this conclusion, I in no way mean to imply that the circumstances of Williams were similar to that of the Respondent. I will address the differences in the circumstances raised by the Respondent, including changes to the citizenship laws and factual differences whenever necessary hereunder. It is the failure to clearly apply the legal test set out in the Williams, as clarified further in the Tretsetsang case, which I consider to be erroneous. The applicable test according to case law and framework for analysis I applied is that of the Tretsetsang case. [21] In Tretsetsang, the Federal Court of Appeal prescribed the following test for refugee claimants who say they are unable to obtain citizenship in another country (at para 72): [...] 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: (a) 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 (b) 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. [...] [22] The Federal Court of Appeal expanded upon the meaning of "reasonable efforts" at paragraph 73 in the following terms: [...] What will constitute reasonable efforts to overcome a significant impediment (that has been established by any particular claimant) in any particular situation can only be determined on a case-by-case basis. 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 claimant to make any such effort [...] [23] The Appellant submits that the Respondent conceded that he could obtain Ugandan citizenship. This is disputed by the Respondent in his response. I will first determine whether the Respondent had Ugandan citizenship; whether he lost it; if so, whether he can recover it by a non-discretionary process according to law; if so, whether there is evidence of administrative discretion despite the law; and whether it was necessary for him to attempt to obtain this citizenship. In doing so, I will address whether he has "meaningful access" to this citizenship today. For purposes of greater clarity, I will adopt the framework for analysis established at paragraphs 39 and 40, of the Tretsetsang decision. The Respondent had citizenship by birth in Uganda. [24] According to the Constitution of Uganda, one may acquire Ugandan citizenship by birthright (Article 10. Citizenship by birth) or by naturalization (Article 12. Citizenship by registration). Article 13, also opens the possibility of citizenship by naturalization by referring to other legislation. [25] Article 10, Citizens by birth, is divided into two subsections: subsection a. which pertains to indigenous groups and their decedents, and subsection b. which states, "every person born in or outside Uganda one of whose parents or grandparents was at the time of birth of that person a citizen of Uganda by birth". [26] In the legal opinion filed by the Respondent as Exhibit A, the Ugandan counsel gives extensive explanations as to why the Respondent does not qualify as a descendent of indigenous groups within the meaning of Article 10 a. While I see no reason to doubt this opinion, I find that, in any case, this question is immaterial because I find that the respondent qualifies as a Citizen by birth according to Article 10 b. as I shall explain in the following paragraphs, and furthermore, the Appellant never alleged that the Respondent qualifies under paragraph a. of this Article. [27] Before going further, I take this opportunity to specify that I have taken into consideration the arguments found in this legal opinion, but I have not relied on any facts which it may contain that are not in evidence, nor have I adopted the analysis or conclusions which it contains. I have conducted an independent analysis of all of the evidence on the record, and I simply intend to explain wherever relevant, whether I reach the same conclusions as those found in the opinion and why. [28] The reason why I find that the Respondent meets the requirements of Article 10 b. is that, according to the evidence, the Respondent was born in Uganda and that his mother was at the time of his birth, a citizen of Uganda. I note that the legal opinion reaches the same conclusion. It states that, "Your client could therefore also qualify at the time of his birth to be a Ugandan citizen" but then goes on to refer to the difficulties which would likely result from having to prove his parentage which I will address later (at paragraph 47 and following of this decision). [29] I note for now that there is no mention of any discretion to deny citizenship with regard to the application of Article 10 b. [30] Therefore, I do not agree with the Respondent's argument that he was never a citizen of Uganda. He testified at the hearing that he "[...] did not have Ugandan citizenship because his family 'never claimed for it', [...]", since having asked for citizenship is not a condition with regard to the application of Article 10 b. [31] I note that, contrary to Article 12, Article 10 b. does not contain any provisions which disqualify the Respondent from being a citizen because his father was a refugee. [32] Indeed, the Respondent fails to qualify under Article 12 - Citizenship by registration, because at the time of his birth, his father was a refugee, because he is not married to a Ugandan citizen, because he had not lived in Uganda for 20 years before 1995, and because has not legally and voluntarily migrated to Uganda, any one of which suffices to disqualify him under this article. [33] Having concluded that pursuant to Article 10 b. the Respondent was a citizen of Uganda, I will now address the question of whether he has lost this citizenship, and if so, whether he may now recover it and how. The Respondent lost his Ugandan citizenship when he turned 18. [34] In paragraph 4 of the Williams decision, one can read an excerpt of Article 15 of the Constitution of Uganda, in which it is specifically mentioned that "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." [Emphasis added] As this was the constitution in force when the Respondent turned 18, and that he indeed retained Rwandan citizenship, I conclude that he lost Ugandan citizenship pursuant to this article, as it then read. [35] However, Article 15 was amended in 2005. The text, a copy of which is in evidence at tab 3.1 of the National Documentation Package (NDP) 4 now reads, "A Citizen of Uganda of eighteen years and above, who voluntarily acquires the citizenship of a country other than Uganda may, retain the citizenship of Uganda subject to this Constitution and any law enacted by Parliament." [emphasis added] [36] I will now therefore, turn my attention to the possibility for him to recover it provided in the new Constitution and the Act of Parliament that it refers to in the next section. Attempting to recover citizenship by asking to be recognized as a dual citizen or to be naturalized is subject to discretionary powers. [37] The legal opinion enumerates nine conditions required to be recognized as a dual citizen according to the Uganda Citizenship and Immigration Control Act. These may also be found in the section which pertains to the 2009 amended version of this Act, at tab 3.9 of the NDP. I find that, at least two of them are clearly discretionary, namely the ability to speak a "prescribed vernacular" of English or Swahili and possession of "rare skills and capacity for technology transfer". This discretion fails to meet the requirements of paragraph 39 a) and following of the Tretsetsang decision with regard to the dual citizenship provisions. [38] Similarly, the ability of the Respondent to acquire citizenship by naturalization pursuant to Article 13 of the Constitution, also refers to the same legislation which in turn, provides for a series of conditions some of which the Respondent clearly does not meet, namely, having "resided in Uganda for an aggregate period of twenty years" and, having "resided in Uganda throughout the period of twenty-four months immediately preceding the date of application ..." These provisions therefore preclude recovery of citizenship for the Respondent based on this Article. Nevertheless, the Respondent has the right to recover his citizenship if he renounces Rwandan citizenship. [39] With regard to the possibility of acquiring Ugandan citizenship by renouncing his Rwandan one, the law is clear, Article 19 (5) of this Act states, "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." Therefore, the Respondent would immediately recover his Ugandan citizenship simply by doing so. [40] The legal opinion nevertheless states in the paragraph that follows the list of documents required, "The documents are typically presented to the Board which uses its discretion, guided by the provisions of the law, to either grant or reject the application. The applicant does not have to argue his case to the Board but where necessary, the Board may call upon an applicant to authenticate any of the facts referred to in the application form and may also require the applicant to produce recommendatory letters from any persons." [Emphasis added] I find that the discretion referred to here, pertains to the appreciation of the evidence submitted, which I will address later at paragraph 54, and not to the right to citizenship per se. [41] Also, Article 19 G of the 2009 amended version of this Act, indicates criteria which I find to be discretionary. However, I do not find this Article to be applicable to the Respondent, as it pertains to those who officially renounced their Ugandan citizenship, which is not his case. [42] The Respondent states in his response, "The Appellant is mistaken about the law. Ugandan citizenship law was amended in 2005 to allow dual citizenship ... Renouncing Rwandan citizenship to obtain Ugandan citizenship is no longer a necessity." I have already explained above that the recognition of dual citizenship is subject to discretionary rules. It follows that if one is recognized as having met these discretionary criteria, it is not necessary to renounce the other citizenship. [43] However, this is not the question at hand since, regardless of whether dual citizenship is possible, Canadian case law, both, at the time of the Williams decision and since then, has consistently stated that an asylum seeker may reasonably be expected to abandon another citizenship if this affords him the opportunity to acquire or conserve that of another country which may offer him protection. [44] Since, according to Article 19 (5) of this Act, the Respondent would immediately and without discretion recover Ugandan citizenship, he may be expected to do so. He therefore has "entitlement to citizenship on the face of the law", and thus, "citizenship is within the claimant's control" within the meaning of paragraphs 39 a) and 39 b) of the Tretsetsang decision. There is evidence which establishes that the state or its officials are - notwithstanding the law - exercising an administrative discretion to thwart recognition of that legal entitlement to citizenship. [45] The burden is on the Respondent to establish that a presumptive legal right to citizenship is being denied through administrative practices in such circumstances.5 [46] I find that the Respondent has met this burden for reasons I will address further. However, I would mention immediately that my reasons are not those found in the following passage of the legal opinion, which states, "Our experience has been that citizens of Rwanda who seek to acquire Ugandan citizenship are viewed with suspicion and on many occasions, their applications are rejected. This situation is not helped by the currently frosty relations between Uganda and Rwanda which have been reported in various local and international media." This, in my opinion, fails to establish, on a balance of probabilities, that citizenship would be denied through administrative practices. [47] The Respondent argues that neither he nor his family members have ever seen the birth certificate of his mother that would be necessary to successfully obtain Ugandan citizenship. He simply advised the Ugandan counsel of this fact, yet nothing in the evidence suggests that Ugandan authorities (by way of this counsel or otherwise) were asked if it could be easily found in public records. [48] While the failure to make such an effort is an important consideration 6, it is by no means the only one. As stated earlier, the Federal Court of Appeal in Tretsetsang added that "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 claimant to make any such effort." The Respondent was not obligated to make any effort to overcome such impediment as it would not be reasonable to require him to make any such effort in his specific circumstances. [49] In the very particular circumstances of this case, I find that the Respondent was not "obligated to make any effort to overcome such impediment" in part because of the way Ugandan authorities disposed of his brother's status in that country. I find this to be relevant, as his brother's circumstances are virtually identical to that of the Respondent with regard to the recovery of his citizenship, as they were both born in Uganda from the same mother, both obtained Ugandan citizenship for that reason, both lost it for the same reasons, both have the same rights in terms of recovering it, and both face the same challenges in doing so. [50] The brother of the Respondent obtained Convention refugee status in Uganda as was established by his "Asylum Seeker Registration Information Sheet" and a "Notice of Decision of Eligibility Committee", both of which were provided to the RPD. However, the Appellant submits that the RPD failed to consider if the Respondent's brother "correctly or expeditiously" applied for asylum in Uganda. [51] I find no error in the RPD's failure to do so, since, regardless of whether he correctly or expeditiously applied for asylum, the Ugandan authorities granted it. In doing so, Ugandan authorities necessarily found that his brother was outside his country of citizenship as this is an essential condition to be recognized as a Convention refugee. [52] In the absence of any contrary evidence, I find that, on a balance of probabilities, the Ugandan authorities correctly applied their own rules of evidence and found that the Respondent's brother is not a citizen of that country. If the Respondent's brother could obtain Ugandan citizenship by a mere formality, his asylum claim would likely have been refused by Ugandan authorities based on the Convention which fundamentally protects people who are outside of their country of citizenship. [53] Furthermore, according to the Act mentioned earlier and its annexes 7, a significant amount of detail would be required to establish the Respondent's parental citizenship, including the date and place of birth of his mother, as well as the date and place of registration of her birth. The Act does not provide for situations when some of this information is unavailable. It does acknowledge however, that some births may not have been registered in certain villages, but then requires a statement from village authorities who knew the child that was born and lived in the area. This would be most unlikely today, half a century later. It is therefore quite likely that the Respondent, who has never seen the birth certificate of his mother, would have significant difficulty in proving his mother's birth in that country and her citizenship, a necessary step in the process to recover his Ugandan citizenship. [54] All of the above carries sufficient weight on a balance of probabilities, to conclude that Respondent does not likely have "meaningful access" to Ugandan citizenship. It is far from a mere formality, due to the evidentiary challenges particular to him, just as appears to have been his brother's case. The legal opinion which I quoted at paragraph [40] above, also confirms that discretion is exercised by authorities as to the appreciation of the documents submitted in evidence when asked to recognize a non-discretionary recovery of citizenship. [55] Essentially, the Respondent's circumstances are significantly different from those of the asylum seeker in the Williams case because of a combination of factors; not only because the citizenship laws have changed in Uganda since then, but also because of the particular challenges that the Respondent would likely face in proving his parental citizenship and the administrative discretion exercised by authorities with regard to which documents they deem satisfactory for that purpose. All of these factors combined, make it more likely than not that the Respondent would be subject to administrative discretion pertaining to the quality of the evidence he could offer when attempting to recover his Ugandan citizenship. This is consistent with the experience of his brother whose circumstances are similar, and who presently resides in Uganda as a refugee rather than a citizen. [56] In paragraph 40 of the Tretsetsang decision, the Federal Court of Appeal states, "One of the primary ways for a claimant to demonstrate this is to take bona fide steps to attempt to acquire citizenship. A claimant may also use other evidence to demonstrate that discretion is being exercised contrary to law." I find that the Respondent has provided such "other evidence". [57] I therefore find that the RPD decision is correct when it eliminated Uganda from further consideration as a country of reference. Other submissions of the respondent need not be considered in such circumstances. [58] In such circumstances, I find it unnecessary to examine other submissions made by the Respondent and the Appellant including, whether or not he alleged a well-founded fear of persecution in Uganda, and has a well-founded fear in that country as I have considered all relevant evidence to the determinative issue, taking into consideration the most recent case law. [59] The Minister submitted no arguments regarding the RPD's analysis of the respondent's risk in Rwanda, and I do not find any errors either. CONCLUSION [60] I dismiss the appeal. The RPD was correct in finding that the Respondent is a Convention refugee. (signed) Michel Colin Michel Colin July 27, 2020 Date 1 Canada (Minister of Citizenship and Immigration) v. Williams 2005 FCA 126. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175. 4 RPD-1, National Documentation Package (NDP) Uganda, dated June 28, 2019, at tab 3.1, ?Chapter 3: Citizenship. Uganda's Constitution of 1995 with Amendments through 2017. Uganda. 2017. (also in the most recent NDP at the same tab). 5 Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, [2017] 3 FCR 399paragraph 39 c) 6 Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, [2017] 3 FCR 399paragraph 39 d) 7 RPD-1, National Documentation Package (NDP) Uganda, dated June 28, 2019, at tab 3.9, The Uganda Citizenship and Immigration Control (Amendment) Act, 2009. Uganda. 2009. (also in the most recent NDP at the same tab). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-07387 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français