TC0-10767

RAD File / Dossier de la SAR : TC0-10767 TC0-10768 / TC0-10769 / TC0-10770 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 8, 2021 Date de la décision Panel James Sloan Tribunal Counsel for the persons who are the subject of the appeal Micheal Crane Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This is an appeal of a September 23, 2020 decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) denying the Appellants' claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA). [2] The Appellants are all Turkish citizens: the principal Appellant and the minor Appellants were born there, and the female Appellant married the principal Appellant in XXXX 2009. In addition, the female Appellant and the two minor Appellants are also citizens of Moldova: the female Appellant was born there and the minor Appellants obtained Moldovan citizenship by virtue of their mother's citizenship. The principal Appellant and the female Appellant claim that they face harm in Turkey due to their political opinions and, in the case of the female Appellant only, her religion. The minor Appellants claim that they face harm in Turkey due to their affiliation with their parents and in Moldova due to their inability to speak the national language. The female Appellant claims that she faces harm in Moldova due to her religion. [3] For the reasons that follow, I deny this appeal. DETERMINATIVE ISSUE [4] The determinative issue in this case is whether the principal Appellant is able to access Moldovan citizenship and, if so, whether he faces a serious possibility of persecution or a likelihood of other harm there. STANDARD OF REVIEW [5] In my review of the RPD's decision, I will apply a standard of correctness.1 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.2 ANALYSIS RPD's findings [6] The RPD held that the principal Appellant, by virtue of his marriage to a Moldovan citizen, was able to acquire Moldovan citizenship; he had not established any impediments to his ability to acquire it. Because he had not established that he would face a serious possibility of persecution or a likelihood of other harm there, he could seek protection in Moldova and it did not need to have regard to whether he faced harm in Turkey. In addition, the RPD found that the female Appellant and the minor Appellants had not established that they faced a serious possibility of persecution or a likelihood of other harm in Moldova. Again, it found that it did not need to consider their claim that they faced harm in Turkey. Appellants' arguments [7] The Appellants argue that the RPD erred in its findings regarding the principal Appellant because 1) impediments exist to his obtaining Moldovan citizenship: first, he must reside in Moldova for three years and, second, he must have a knowledge of the Moldovan language sufficient to pass a test; 2) as an Alevi, he would not enjoy freedom of religion in Moldova. The Appellants do not contest the RPD's findings regarding the female Appellant or the minor Appellants. As such, I find that they are neither Convention refugees nor persons in need of protection. 1. Was it reasonable to expect the principal Appellant to exercise his rights of citizenship in Moldova? The legal framework [8] According to the Moldovan citizenship law,3 Moldovan citizenship may be granted, upon request, to a foreigner i) who has been married to a citizen of Moldova for at least three years and ii) who has resided lawfully and habitually on the territory of Moldova for the last three years. In addition, the law provides that knowledge of constitutional provisions and of the national language will be tested by the government.4 [9] In the Tretsetang case, the Federal Court of Appeal held that a refugee claimant "with multiple nationalities must prove that none of their countries of nationality will protect them."5 It held further: [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 establish the protection of that state.6 [73] 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. [10] Because the elements of paragraph 72 are conjunctive, I will assume without deciding that the impediments identified by the Appellants, i.e. the language and residency requirements, are as described in paragraph 72(a) and turn to paragraph 72(b). [11] It is clear from reading paragraph 72(b) in conjunction with paragraph 73, that the Appellants must establish i) that the principal Appellant has made reasonable efforts to overcome the residency and language requirements associated with Moldovan nationality or ii) that it would not be reasonable to require him to make any such effort. i) Did the principal Appellant establish that he made reasonable efforts to overcome the impediments? [12] The Federal Court in Namgyal had made it clear that the Board, in engaging in the case-by-case analysis of what would constitute reasonable efforts under paragraph 72(b), must ask itself whether it was reasonable to expect someone in the applicant's position, "with her specific attributes (including her limited education), to take additional steps in attempting to have her Indian citizenship recognized, once she obtained a legal opinion advising her that she was not entitled to Indian citizenship under Indian citizenship law".7 In the recent case of Phuntsok,8 the Federal Court referred to the approach in Namgyal and noted that a decision-maker must take into account the "specific attributes" of the individual claimant. It continued: Thus, for example, it was found to be unreasonable to expect a street vendor with a modest education who had lived his entire life in a Tibetan refugee settlement to give up his right to work, his home and community, and numerous other benefits in order to pursue his claim to Indian citizenship (Pasang v Canada (Citizenship and Immigration), 2019 FC 907 at para 20). On the other hand, a decision denying refugee status to a claimant with significant education and experience in dentistry in India, who did not demonstrate having taken efforts to obtain citizenship, was found to be reasonable (Dakar v Canada (Citizenship and Immigration), 2017 FC 353 at para 27).9 Because, in this case, there is no evidence that the principal Appellant took any steps to overcome the impediments, it would seem self-evident that he may not be said to have taken steps that were reasonable as called for by the Federal Court of Appeal, even having regard to his personal attributes or circumstances. [13] In the alternative, I will consider whether his failure to take any steps to overcome the impediments to his obtaining Moldovan citizenship was impacted upon by his personal attributes or circumstances.10 I note that there has been no evidence submitted to link his failure to overcome any impediments to obtaining Moldovan nationality to his attributes or circumstances. As the Federal Court held in Phuntsok: "The RAD cannot be faulted for failing to consider aspects of the evidence or arguments that were not put before it."11 [14] When he was asked by the RPD member if he had taken any steps to obtain Moldovan citizenship he answered that he had not, "because it's a poor country and I don't know the language."12 He also stated that he would have to reside there for a prolonged period and noted, "Moldova is [an] old Soviet republic and it's an old-fashioned country and it is not developed enough, so I never considered becoming a citizen of Moldova ever, for those reasons. And I consider them anti-democratic."13 [15] As to the general evidence of his personal circumstances, I note that he is well-educated (he was in a five-year programme in XXXX XXXX at university14) and that he was employed in a XXXX position before coming to Canada (he was a XXXX XXXX XXXX15). Moreover, the fact that he began to become aware that his political views were not well-received in Turkey as long ago as XXXX 2015,16 may also be relevant to the reasonableness of his inaction. [16] I find that his failure to take steps to address impediments to his obtaining Moldovan citizenship was not impacted upon by his personal attributes or circumstances. ii) Did the principal Appellant establish that it would not be reasonable to require him to make any such effort to overcome the impediments? [17] The principal Appellant argues that he does not speak Moldovan and that the evidence does not show that he would be able to pass the test, especially because there is no information on what the test would entail. As to the "impediment" of residing in Moldova, there is no evidence that it would be unreasonable for him to do so; clearly, his view that it is an old-fashioned or undesirable place does not provide a reasonable basis.17 [18] I accept, as the RPD did, that the principal Appellant cannot speak Moldovan. I also accept that considerable effort may be required to overcome this. There is no evidence that this would be unreasonable, however, and I do not find it to be self-evident, especially given the principal Appellant's level of education. [19] As to how much effort will be required to learn Moldovan sufficiently well to gain citizenship, the Appellants are correct that there is no evidence of how difficult the test will be. However, it falls to the Appellants to establish that it would not be reasonable for the principal Appellant to be required to make efforts to overcome the impediments. I am not in a position to make a finding that it would be unreasonably difficult based on the absence of evidence. [20] The principal Appellant has not established that it would not be reasonable to require him to take measures to overcome the impediments. [21] Having regard to the foregoing, I find that the Appellants have not established that an impediment exists preventing the principal Appellant from exercising his rights of citizenship in Moldova. 2. Is the principal Appellant unable to practise his religion in Moldova? [22] The Appellants' argument on this point in their memorandum is very brief: The Appellant argued, inter alia, that he could not live in Moldova due to the fact he could not freely practice his religion. There were no coreligionists in Moldova. Accordingly, the circumstances of the Appellant include that he would not enjoy freedom of religion in Moldova as an Alevi (lh 20-22).18 [23] There is no evidence in the record to indicate that the principal Appellant had a subjective fear of religious persecution in Moldova. The passage from the hearing that the Appellants refer to in the passage quoted above comes from the closing statement of the Appellants' RPD counsel. It may be contrasted with the principal Appellant's testimony. When he was asked by the RPD member if there was any reason he did not want to go to Moldova-other than that it is poor, undeveloped, and anti-democratic-he said there was not.19 When his counsel why he felt it was impossible for him to go to Moldova, the principal Appellant answered that he preferred to be in Canada where his brother lived and that he wanted to maintain family unity (which he feared would be disturbed because he believed the other Appellants should not return to Moldova as they would not be safe there).20 [24] As to the issue of whether, objectively, members of the Alevi faith in Moldova face a serious possibility of persecution or a likelihood of other harm, this was addressed by the RPD. I adopt the reasoning of the RPD at paragraphs 42-47. [25] I find that the Appellants have not shown that there is a serious possibility of persecution or a likelihood of other harm in relation to his religion in Moldova. CONCLUSION [26] Because paragraph 96(a) provides that, in order to be a Convention refugee, a person must be unable or unwilling to avail themself of the protection of each country of nationality, the Board is not required to consider the availability of protection in the second country, if they do not face a serious possibility of persecution in the first. In this case, the principal Appellant, while not a citizen of Moldova, has the opportunity to acquire such status by complying with the required formalities and does not face the serious possibility of persecution or a likelihood of harm there. Consequently, he is not entitled to avail himself of protection in Canada. [27] The appeal is dismissed. (signed) James Sloan James Sloan February 8, 2021 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 3 National Documentation Package (NDP) for Moldova, March 31, 2020, item 3.1, p. 6. 4 The law provides that a person will be considered to know the national language if he or she a) sufficiently understands conversational language and official information; b) discusses and answers questions on social life; c) is able to read and sufficiently understand any written test of a social nature, laws, and other regulations; and d) is able to write an exposition on a social topic. 5 Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175 (CanLII), [2017] 3 FCR 399, at para 1. 6 Ibid., at para 72. 7 Namgyal v. Canada (Citizenship and Immigration), 2016 FC 1060 (CanLII). 8 Phuntsok v. Canada (Citizenship and Immigration), 2020 FC 1110 (CanLII). 9 Ibid., at para 17. 10 See ibid., at paras 35 and 36, where the Federal Court took this approach. 11 Ibid., at para 37. 12 Transcript of RPD hearing, at p. 10. 13 Ibid., at p. 11. 14 Ibid., at p. 8. 15 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 89. 16 Ibid., Exhibit 2.1, at pp. 25-28. 17 The Appellants rely on Diawara v. Canada (Citizenship and Immigration), 2017 FC 1106 (CanLII), for the proposition that it would be unreasonable to expect the principal Appellant to reside in Moldova. The Court referred to the Guinean law, which provided for reinstatement of Guinean nationality i) after an investigation, ii) where the applicant was residing in Guinea at the time of reinstatement; and iii) where the applicant demonstrates he or she had Guinean status. The Court did not make clear whether it was the need to go to Guinea, the need to reside there, the need to establish Guinean status, or the combination of the three elements that made the RPD's requirement that she restore her citizenship unreasonable. The only further elaboration given by the Court was that it concluded that "the critical threshold determination of Guinean citizenship does not meet the transparency and interlegibility criteria set out in Dunsmuir" (Ibid., para 17, relying on Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1) or fall within the range of reasonable possibilities as per that case. I can see no basis for a finding that the Diawara case stands for the proposition that a requirement that a claimant reside in a country in order to obtain nationality there would be an impediment that he or she was not obliged to make efforts to overcome. 18 Exhibit P-2, Appellants' Record, p. 6, at para 23. 19 Transcript of RPD hearing, at p. 11. 20 Ibid., p. 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-10767 TC0-10768 / TC0-10769 / TC0-10770 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