TC0-08712

RAD File / Dossier de la SAR : TC0-08712 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 29, 2021 Date de la décision Panel Ravi Seyan Tribunal Counsel for the person who is the subject of the appeal D. Clifford Luyt Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the appellant) argues that the Refugee Protection Division (the RPD) erred when it rejected her claim for refugee protection. [2] She was born in India and alleges that she is a citizen of China. She has no permanent status in India and faces deportation to China, where she will be persecuted because she is a follower of the Dalai Lama. Determination [3] I confirm the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. [4] The determinative issue is whether the ability to acquire Indian citizenship is within the control of the appellant (country of reference). Allegations [5] The appellant's grandparents fled Tibet when China occupied the country. Her father was born in 1967 in India, her mother in 1971. Her parents have made no efforts to obtain Indian passports. [6] The appellant is in possession of a Registered Foreigner's Certificate, which must be renewed every five years. Her current one expires in XXXX 2022. She traveled to Canada in XXXX 2019 and asked for refugee protection. [7] The appellant alleges she has no permanent residence in India, and that she cannot return to China, where she will be persecuted. She believes in a free Tibet. The role of the Refugee Appeal Division [8] I am required to examine the record independently and determine if the RPD arrived at the correct decision.1 No new evidence; no oral hearing [9] The appellant is not submitting any new evidence. Nor is she requesting an oral hearing. [10] New evidence is a pre-requisite for an oral hearing. I have no jurisdiction to convene one. The RPD was incorrect to make no finding with respect to impediments; this is not fatal to the RPD decision [11] The RPD did not make a finding on whether there was an impediment to Indian citizenship. Instead, it found that the appellant had failed to make reasonable efforts to obtain Indian citizenship. [12] This was an error on the part of the RPD as the reasonable efforts depend on the impediment. [13] The relevant test is refined in Tretsetsang: [72] Therefore, 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. [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.2 [14] There is no impediment to the appellant exercising her rights to citizenship. [15] Her parents were born in 1967 and 1971. Citizenship law in India says that individuals born in India between 1950 and 1987 shall be citizens by birth. A plain reading of the law establishes that citizenship is automatic; no additional steps are required. Those who are born after 1987 with one parent who is an Indian citizen shall be citizens by birth. The RPD found that the appellant's parents were citizens of India by birth and therefore the appellant was a citizen by birth. [16] The appellant argues that this finding is in error. Her path to citizenship is entirely dependent on her parents. Therefore, this matter is out of her control. Her parents do not wish to apply to for Indian citizenship. [17] The appellant explains that her parents are teachers. Her mother works for the XXXX XXXX XXXX (the XXXX); her father is a retired XXXX. Both her parents have stated that they will not apply for Indian citizenship as they fear the loss of their benefits and status with the XXXX. [18] She argues that her right to citizenship is an indirect one. She is not a citizen because she was born in India in 1995. She is a citizen because her parents are deemed citizens at the time of her birth. However, her parents have not applied for Indian passports at any point in time. There is no evidence that establishes that her parents must have an Indian passport for her to make an application for one. [19] Nevertheless, a careful reading of the Indian Citizenship (Amendment) Act, 2003 stipulates that "every person born in India (a) on or after the 26th of January 1950, but before the 1st day of July, 1987... shall be a citizen of India by birth". This applies to the appellants parents. They were born in 1967 and 1971, and therefore they shall be citizens of India by birth. [20] Both the appellant's parents are citizens of India by birth. Therefore, the appellant has her own right to citizenship. "Every person born in India... (b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003, and either of whose parents is a citizen of India at the time of his birth... shall be a citizen of India by birth." [21] The appellant shall be a citizen of India under this provision because her parents shall be citizens. The law itself does not require that the appellant's parents formally apply for citizenship. While the appellant raises this as a significant impediment, the evidence before me does not establish that it is a significant impediment when weighed against the appellant's lack of reasonable efforts and the country conditions. [22] In other words, the law grants her automatic citizenship, the same way that it grants her parents automatic citizenship. Therefore, I find that the evidence establishes that she has her own right to citizenship simply through the inconvertible fact that she was born in India to individuals deemed to be citizens. The RPD was correct to find that the appellant did not make reasonable efforts to exercise her right to citizenship [23] The appellant argues that the RPD was incorrect to focus on the right of citizenship rather than whether the Indian authorities would issue the appellant a passport and provide her with state protection. She argues that she provided a reasonable explanation for her lack of reasonable efforts because she does not have a standalone/independent right to citizenship. It was incorrect of the RPD to find that she ought to have made reasonable efforts. [24] I disagree with the appellant. [25] I find that the appellant has a standalone right to citizenship. The laws of India give her the right. There is no objective evidence in the NDP that establishes that her parents must formally apply for a passport before she can make an application. They are not naturalized citizens; they are citizens by virtue of their birth in India within a prescribed period. [26] The appellant argues that though Tibetans have the right to citizenship in India, they are being refused passports. The Regional Passport Officers are ignoring the Office Memorandum issued March 2017 which directs them to issue passports to eligible Tibetans. [27] The documentary evidence on Tibetans obtaining Indian passports is mixed. [28] India hosts about 80,000 Tibetan refugees, who reportedly face difficulty in obtaining passports despite meeting requirements. 3 [29] In September 2016, the Delhi High Court issued a decision with respect to the citizenship of three Tibetans born in 1970, 1977 and 1992. Tenzin Dhonden was born in 1992 and is the most similarly situated to the appellant. Dhonden is eligible since his father was born in India. Prior to this ruling, the Ministry of Home Affairs (MHA) required Tibetans to make applications to the MHA to confirm their citizenship before making an application for a passport. The ruling quashed this MHA circular. The court ordered the MHA to treat all eligible Tibetans as Indian citizens by birth and ordered the Ministry of External Affairs (the MEA) to issue passports to the three petitioners. One petitioner obtained his passport in March 2017 after he filed a petition for contempt of court. There is no information if the second petitioner and Dhonden received passports.4 [30] The MEA issued a new policy in March 2017 that directs passport officers to issue passports to Tibetans born in India between 1950 and 1987 and those born after July 1, 1987, who have at least one parent who is a citizen of India by birth.5 The latter part of the policy applies directly to the appellant. [31] There is no information on the implementation of the MEA policy other than the appellant's testimony. [32] Tibetan refugees are required to surrender their Identity Certificate and/or their Refugee/Registration certificate with a completed passport application at the passport office. If the Refugee Certificate has already been surrendered to the authorities, then the individual will submit their surrender certificate. The individual cannot be staying in a designated refugee settlement or enjoy any benefits from the XXXX.6 [33] The appellant is in possession of a Registration Certificate7 and an Identity Certificate. [34] Objective evidence indicates that Tibetans applying for a passport are told to send their Registration Certificate to the Foreigner's Registration Office contrary to the memorandum issued by the MEA. One applicant stated that he/she did not know how long he/she would have to wait for the Foreigner's Registration Office to cancel his/her Registration Certificate. Another individual stated that she is not eligible for an Indian passport because her parents were not born in India between 1950 and 1987. 8 [35] The appellant testified that her efforts consisted of consulting a Wikipedia page, which informed her that she would not be eligible for citizenship. Wikipedia is an online encyclopedia which can be edited by anyone with access to the internet. This undermines the reliability of the information posted on Wikipedia, though the sources can be legitimate ones (government websites, reports from well-established organizations etc.). [36] Her efforts are not reasonable. She is an educated woman who has attended university in India. Before coming to Canada, she was employed fulltime. [37] While she is eligible for Indian citizenship and is in possession of the required documents, she has not made any efforts to apply for an Indian passport. She has not made any inquiries with the relevant government authorities. She has made no efforts to advance her right to citizenship and merely asserts that she is not eligible. I find this allegation to be speculative. [38] While there may be flouting of the Office Memorandum and there may be some individuals who are unable to exercise their right to citizenship, on a balance of probabilities, the appellant is not among them. This is because she has made no efforts to obtain citizenship though she has a right as per the citizenship law. [39] Therefore, I conclude that India is a country of reference. The appellant is not a Convention refugee nor is she a person in need of protection [40] The appellant is a citizen of India by birth. She has raised no allegations of persecution or risk of harm in India. [41] There is no serious possibility of persecution in India. She has not established that she would be subject to a danger of torture, a risk to life or to a risk of cruel and unusual treatment or punishment on a balance of probabilities. Conclusion [42] I dismiss the appeal under s.111(1)(a) and confirm the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection.9 (signed) R. Seyan Ravi Seyan 29 April 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93. 2 Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175 (CanLII), [2017] 3 FCR 399. 3 National Documentation Package (NDP) for India, (July 17, 2020), Item 2.1, United States, Department of State, 11 March 2020. 4 NDP for India (July 17, 2020), Item 3.17, Response to Information Request (RIR), Immigration and Refugee Board of Canada, IND105798.E, 12 May 2017. 5 NDP for India (July 17, 2020), Item 3.17, RIR, Immigration and Refugee Board of Canada, IND105798.E, 12 May 2017. 6 NDP for India (July 17, 2020), Item 3.24. RIR, Immigration and Refugee Board of Canada, IND106312.E, 28 June 2019. 7 Exhibit RPD-1, RPD Record, Exhibit 8, Registration Certificate, p. 183. 8 NDP for India (July 17, 2020), Item 3.24, RIR, Immigration and Refugee Board of Canada, IND106312.E, 28 June 2019. 9 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on December 12, 2017, Pursuant to s.111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-08712 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