TB9-07781

RAD File / Dossier de la SAR : TB9-07781 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 / heard at Toronto, ON Appel instruit / entendu à Date of decision August 21, 2019 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person who is the subject of the appeal D. Clifford Luyt Barrister and Solicitor 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 (Principal Appellant), citizen of China, appealed a decision of the Refugee Protection Division (RPD), dated March 6, 2019, rejecting his claim for refugee protection. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleges he is unable to obtain Indian citizenship and hence, he is unable to return to India and should he return, he faces the risk of deportation to China. If he was returned to Tibet, he fears he would be persecuted for his religious beliefs. The Appellant's allegations are contained in the Basis of Claim form and its accompanying narrative.1 ANALYSIS OF THE MERITS OF THE APPEAL [4] The Appellant submits: * The RPD misapplied the Tretsetsang Test; and, * The RPD failed to consider the documentary evidence that supported his statements that there are impediments to obtaining an Indian passport. Misapplication of the Tretsetsang Test [5] The RPD was not satisfied, on a balance of probabilities, that the Appellant would not be issued an Indian passport, should he return to India, and apply for one at this time. The RAD has reviewed the citizenship laws of India and finds it agrees with the RPD. Pursuant to the statutes, the Appellant would be considered a citizen of India by birth. The RPD considered what happens in practice and whether there are hindrances faced by the Appellant. The RAD has reviewed the Appellant's personal circumstances and finds the Appellant had not demonstrated a reasonable effort in India to have his citizenship rights recognized. [6] The Appellant testified that he made "numerous inquiries" about obtaining Indian citizenship. The RAD's review of his testimony indicates that he spoke to others about how to proceed, but he provided little specific evidence of any actual applications or personal steps he took. The RAD finds this does not amount to an application or refusal by the Indian authorities. He further stated that he had recently approached the Indian Consulate in Toronto in an attempt to have a passport issued. [7] The RAD has reviewed the documentary evidence, as well as the affidavit submitted by a friend of the Appellant. The RAD notes that the documentary evidence describes the process for an Indian passport being issued abroad. The instructions apply to the re-issuing of passports, not an initial or "fresh" passport. The instructions additionally state that the individual is required to provide proof of residence, as well as proof that they have not acquired permanent status in another country. According to the website of the High Commission of India in Ottawa, the following documents are required for the re-issuing of a passport: * the completed application form; * an existing passport with a photocopy of the first and last page; * three photographs taken within six months prior to the application; * if the person is a landed immigrant, a copy of the Record of Landing or Permanent Resident Card; and, * if the applicant is not a permanent resident of Canada, the immigration documents, such as a work permit or student identity card, along with details of the employer or educational institution.2 [8] In addition, an individual applying for a new passport is required to get a police clearance certificate from the police in their local area in India.3 [9] The Appellant argues that the Indian authorities are not equipped to issue a passport to him in Canada and that this is an impediment that he cannot control. The Appellant alleges that he attended the Indian Consulate in Toronto to try and obtain a passport. He states that he was denied that opportunity. The RAD notes the Appellant has not provided any documentation to confirm that he completed all of the steps required to have a passport issued in India or in Canada. The RAD further notes that the documentary evidence describes that, in order to obtain a passport in Canada, an individual must complete an online application and submit it to an agency that provides contracted services to the Indian government. The RAD finds that the evidence confirms that the Indian consular staff in Toronto do not actually issue the passports and that the agent in Canada is not currently able or equipped to issue a "fresh passport," which would include a passport for Tibetans seeking to access their Indian citizenship. [10] The RAD finds the Appellant has not provided persuasive evidence that, should he return to India, the authorities there would not issue him a passport. [11] The Appellant submits the RPD failed to properly apply the test set out by the Federal Court of Appeal in Tretsetsang, as further described by Justice MacTavish in Namgyal4 (2016 FC 1060). In Namgyal, the court noted that the question that must be asked is whether it was reasonable to expect someone in the claimant's position "with her specific attributes" to take additional steps to have her Indian citizenship recognized. The RAD finds the Appellant has not distinguished his situation from that of any other potential Indian citizen who may wish to acquire a first time or "fresh" passport in Canada. The RAD does not find that this amounts to a serious impediment to obtaining Indian citizenship. The No Objection Certificate Document [12] The Appellant further argues that the RPD failed to address the requirement of the Indian authorities that a Tibetan applying for a passport must produce a No Objection Certificate (NOC) from the Central Tibetan Administration and that these certificates are no longer available. The RAD has reviewed the evidence in the record and finds the Appellant has misconstrued the evidence. The RAD notes the Appellant's own evidence, found in two documents he has submitted, describes the new rules to obtain a passport provided to a series of Tibetans. 1. Registration Certificate (RC) and Identity Certificate (IC) should be cancelled; 2. Applicant should not be staying at any of the designated Tibetan Refugee Settlements; 3. Applicant should furnish an undertaking/declaration on plain paper to the effect that he no longer enjoys CTA [Central Tibetan Administration] benefits; and, 4. Applicant should provide an undertaking/declaration on plain paper that he no longer enjoys any privileges, including subsides, which would have accrued to him/her by virtue of being a RC holder and that these have been returned/surrendered.5 [13] The RAD finds the document indicates that the applicant needs only supply a personal declaration [emphasis added] that he no longer enjoys the CTA benefits. This is not a requirement that the CTA supply a document. The RAD has reviewed the statement from the CTA6 (also provided by the Appellant) and notes that it states: the Tibetan administration is under no circumstance to object to the Indian government's guidelines. It must be made known that henceforth, proof of no objection from the Department of Security and important offices within the Tibetan administration is no longer required. [emphasis added] [14] This document appears to indicate that the CTA is acknowledging that a NOC is no longer required by the Indian authorities. It does not mean, as the Appellant argues, that the CTA is refusing to issue the document. [15] The RAD notes that the documentary evidence identifies that the Indian government has set out a series of requirements in order for Tibetans to acquire citizenship: * The Applicant's Registration Certificate and Identity Certificate must be cancelled; * The Applicant can no longer reside in a refugee settlement; * The Applicant can no longer receive subsidies from the Central Tibetan Administration (CTA); and, * The Applicant can no longer receive privileges or subsidies associated with being an RC holder.7 [16] The RAD notes that, as a Tibetan (refugee) in India, the evidence indicates one is provided with certain benefits in association with the State. The RAD finds it makes sense that, if an individual wishes to attain the benefits of being an Indian citizen, one would have to forfeit certain subsidies and government identification as a Tibetan, as that individual would no longer be able to receive specific subsidies. The RAD further notes that the evidence confirms that individuals who seek to obtain passports which confer Indian Citizenship give up the ability to obtain subsidies from the Central Tibetan Administration (CTA), but not necessarily the right to participate in CTA activities. [17] The RAD finds the documents indicate that Tibetans must make a personal choice and they face a dilemma surrounding the loss of certain documents that identify them as Tibetans in India, as well as the receipt of certain benefits associated with their position, as a defined classification similar to a refugee. The RAD finds this is not an impediment to citizenship. [18] The RAD finds the Appellant's argument that he is unable to acquire a NOC from the CTA and this is an impediment to citizenship must fail. Inability to Return to India [19] The Appellant argues that he is unable to return to India in order to exercise his rights to become an Indian citizen. He argues that his travel from India on an Identity Certificate (IC) document does not necessarily allow him to re-enter India. The documentary evidence notes that this document is a permit system that is issued in place of a passport. Holders are required to apply for an Exit Permit prior to travelling and then apply for a Return Visa before they can re-enter the country.8 The Immigration and Refugee Board (IRB) country documents note that must Tibetans must have a "No Objection to Return to India" stamp, also known as a "NORI stamp," in order to gain re-entry to India. The RAD notes that the NORI stamp must be obtained upon application to exit India. The documents additionally states "that Tibetans who retained their ICs have an easier time obtaining a (return) visa than Tibetans with a Refugee Travel Document or Re-entry permit".9 The RAD finds the Appellant's IC document10 has not expired (it is valid until March 2026) and his NORI stamp is valid. The RAD finds it makes little sense that the Appellant would be issued a NORI certificate and not be issued a visa, which would allow him to re-enter India. The RAD finds this aspect of the Appellant's argument must fail. The Documentary Evidence [20] The Appellant submits that the two articles from the Tibetan Sun newspaper11 confirm that the offices in India have ignored the order of the Indian High Court and refuse to provide passports to Tibetans who meet the qualifications to acquire citizenship. The RAD has reviewed both articles and finds that it further indicates that a number of Tibetans who are applying for passports have found it necessary to seek legal assistance in order to advance their passport application. The RAD further finds that in all of these situations the courts have decided in favour of the applicants. [21] The Appellant submits that it is unreasonable to expect that he must challenge the harassment from various agencies in India in the courts in order to secure a passport. He submits that two articles in the Tibetan Sun newspaper confirm the inability of Tibetans to obtain a passport in India. The articles state: In another case, an applicant from Dehra Oun faced rejection by the RPO stating three discrepancies including: 1. Nationality doubtful; 2. Suppression of material information about holding Identity Certificate; and, 3. Particulars of his IC and his passport application not matching. The same Judge stated in his decision that with respect to points 1 and 2, the issues had already been covered by the same court in the judgement concerning Namgyal Oolkar which had been decided on 22 December 2010. Regarding point 3, the judge gave the applicant three weeks to provide the required documents to the RPO. It also directed the Regional Passport Offices to process the petitioner's application within three weeks after receiving the documents.12 [22] The RAD finds that the Appellant's documentary evidence confirms that the courts have supported the action of the passport applicant. [23] The RAD acknowledges the words of Mr. Justice Mosley in Tretsetsang: I cannot agree with the applicant. Section 96 of the IRPA plainly refers to "countries of nationality," not to countries of nationality where an individual can assert all of his nationality rights without impediment. The Indian legislation is unequivocal that the applicant is a citizen by birth. Two state high courts in India have endorsed that view. The applicant cannot allege that he is not an Indian citizen because some officials might discriminate against him and deny that he is a citizen - no matter how persuasive the evidence of discrimination may be .... .... This is where I must, with respect, decline to follow Wanchuk. At para 10 of that decision, Justice O'Reilly expressed the view that obtaining Indian citizenship was a "mere possibility" for a similarly situated applicant, since it might require litigation. That does not, in my view, amount to the level of the "intolerable burden" that-Justice-Russell found to-apply in Hua Ma in light of the one child policy and other considerations in China. Nor is it consistent with the teachings of Williams. Applicants are expected to take reasonable steps to acquire or enforce any citizenship rights which are available to them. A right which is enshrined in legislation and has been enforced by the courts amounts to more than a "mere possibility". There is nothing unreasonable about expecting the applicant to take legal action if his state of nationality attempts to deny his rights.13 [24] The RAD finds, as set out in the majority decision of the Federal Court of Appeal (FCA) in Tretsetsang, that it is open to the Board to draw reasonable inferences from the failure of a claimant to take reasonable steps. It stated that where an impediment is alleged to exist, a claimant must show, on a balance of probabilities, the following: * 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, * 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.14 [25] The RAD notes that the Appellant has ten years of what appears to be post-secondary education and has worked as a XXXX.15 The RAD further notes the Appellant has demonstrated that he has both the financial means, as well as the skills to apply for visas, and arrange travel and exit from India. In addition, the Appellant has utilized his skills to apply for refugee protection in Canada, seek out legal representation and obtain documentation necessary to support his refugee claim and appeal. The RAD further notes the Appellant has resettled in Canada without reporting any problems. [26] The RAD finds the Appellant has demonstrated his ability to be resourceful and obtain necessary information when needed. [27] The RAD finds in its review of the evidence, as much as there appeared to be a past difference in application between at Ministries in the Indian government, there is confirmation that the Indian Courts have clearly directed the authorities to issue passports to Tibetans born in India between 26/01/1950 and 01/07/1987. [28] The RAD finds the Appellant has not demonstrated that he has made reasonable efforts to overcome impediments he alleges he faces and that such efforts were unsuccessful, such that the claimant was unable to obtain the protection of that state. The RAD further finds, as much as the Appellant alleges that he may be required to seek legal recourse in order to assert his right to Indian citizenship, the evidence before the RAD confirms that he will be able to access that citizenship. The RAD finds the Appellant's argument must fail. CONCLUSION [29] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Robert Bebbington" Robert Bebbington August 21, 2019 Date 1 Exhibit RPD-1, RPD's Record, pp.12-23 and pp. 22-23. 2 Exhibit RPD-1, RPD Record, p. 90, Exhibit 4, National Documentation Package (NDP) for India (4 December 2018), Item 3.7, Response to Information Request (RIR) IND104840.E, Immigration and Refugee Board of Canada (7 May 2014), p. 7, section 3. 3 Ibid. 4 Namgyal, Chime v. M.C.I. (IMM-5687-15), Mactavish, September 19, 2016, 2016 FC 1060. 5 Exhibit RPD-1, RPD Record, Exhibit 4, p.109 and pp.114-115. 6 Ibid, pp.124-126. 7 Exhibit RPD-1, RPD's Record, pp.114-116 and pp.130-132. 8 Exhibit RPD-1, RPD Record, Exhibit 4, p.117. 9Exhibit RPD-1, RPD Record, Exhibit 3, NDP, India, 4 December 2018, IND105024.E, tab 14.5: Immigration and Refugee Board of Canada, 12 December 2014. 10 Exhibit RPD-1, RPD Record, Exhibit 1, pp.48-49, and pp.97-102. 11 Exhibit RPD-1, RPD Record, pp.136-138. 12 Exhibit RPD-1, RPD Record, Exhibit 4, pp.136-137. 13 Tretsetsang v. Canada (Citizenship and Immigration). 2015 FC 455, at paras. 29-31. 14 Tretsetsang v. Canada (Citizenship and lmmigration). 2016 FCA 175, June 9, 2016 at paras. 69 and 72. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-07781 RAD.25.02 (April 04, 2019) Disponible en français 9 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 (April 04, 2019) Disponible en français