TB9-06416

RAD File / Dossier de la SAR : TB9-06416 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX(a.k.a XXXX XXXX) Personne en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision June 20, 2019 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the person who is the subject of the appeal Phillip J.L. Trotter 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 INTRODUCTION [1] XXXX XXXX a.k.a. XXXX XXXX (Appellant) appealed the February 20, 2019 decision of the Refugee Protection Division (RPD) that rejected his claim for refugee protection. DECISION [2] The appeal is dismissed. OVERVIEW [3] The facts in this case are relatively undisputed. The Appellant is an ethnic Tibetan whose parents fled to India in 1960 after the Chinese invasion. The Appellant was born in India in 1985 and was formally educated through Tibetan institutions including the XXXX XXXX XXXX XXXX XXXX in XXXX, India. He is a XXXX trained in the Tibetan culture. [4] The Appellant has some international travel history. In XXXX 2014 he traveled to Switzerland to volunteer with 'XXXX XXXX XXXX', where he met other Tibetans. He explored the possibility of seeking asylum in Switzerland but, through informal enquiries, he learned that only Tibetans born in Tibet would be accepted, not those from India. Also in 2014, the Appellant was rejected for a student related trip to the USA. In 2015, a visa application for Canada was rejected. In XXXX 2016, an application for a USA visitor visa was rejected. [5] The Appellant secured employment with the XXXX XXXX XXXX in 2015 and is still employed in this organization, which he described as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant married in India in XXXX 2017 and has one child. [6] In XXXX 2017, the Appellant was granted a US visa to attend the XXXX XXXX XXXX XXXX at the XXXX XXXX XXXX. The Appellant left India on XXXX XXXX, 2017 and spent XXXX weeks in the USA, where he enquired about asylum. He decided not to apply in the USA and traveled across the border to Canada where made a refugee claim on October 13, 2017. [7] The Appellant fears deportation to China because he lacks citizenship in India. He claims that he will be persecuted in Tibet for religious beliefs as a follower of the Dalai Lama and for political opinions relating to his work in preservation of Tibetan culture and public commentary against the Chinese policy of assimilation. [8] The Appellant's status in India has been by way of an annually renewable Registered Foreigners' Certificate (RC) that is currently expired. The RPD decision [9] The RPD member correctly identified the legal principal that a claimant cannot be given refugee protection when they have citizenship available to them in another safe country and it is within their power to acquire that citizenship.1 The determinative finding for rejecting the claim was that the Appellant has a right to citizenship in India and that it is within the Appellant's control to access that citizenship. [10] The RPD member reviewed the law and jurisprudence, including Section 3(1) of the Indian Citizenship (Amendment) Act, 2003, which confers the right of citizenship to Tibetans born in India between 1950 and 1987, such as the Appellant. The RPD member reviewed disparate views that are evident in the applicable jurisprudence and commentaries, considered the Appellant's specific circumstances, and concluded that his right to citizenship in India would be recognized by the Indian government and that it is within the Appellant's control to access that citizenship. ANALYSIS [11] There is no dispute from the Appellant that India is a potential country of nationality for this Appellant because he falls within the scope of the law affording citizenship to persons born in India between 1950 and 1987. The Appellant agrees with the legal test set out in paragraph [7] of the RPD decision where the member confirms the statutory right of citizenship for the Appellant being India but that "one must consider what happens in practice as well as whether there are any particular obstacles faced by the claimant in the case at hand." [12] The Appellant takes issue with the RPD member's findings and conclusion about the circumstantial component of the test for citizenship access. He argues that the RPD member failed to give appropriate weight to evidence of the practical obstacles affecting the issuing of passports by local authorities to Tibetan exiles in India. The Appellant argues that evidence fails to establish that he will likely be granted a passport and other citizenship rights if he applies for them in India. [13] The determinative question is whether the RPD member was correct to find that it is within the Appellant's control to access the right of citizenship in India and that he did not make reasonable efforts to do so. [14] In his memorandum of argument, the Appellant referenced a Federal Court of Appeal (FCA) decision, Tretsang v. MCI, 2016 FCA 2752 but likely intended to refer to the case of Tretsetsang v. Canada (Citizenship and Immigration) FCA 2016 FCA 175. The RPD member relied on the majority reasoning in that case and, despite expressing some concern with the FCA's reasoning, the Appellant endorses its two part test for assessing whether a claimant has met the onus of establishing inability or justified unwillingness to avail herself or himself of the protection of the country of nationality.3 That test is applicable and the circumstances of that case are instructive in this appeal because the case also concerned a Tibetan exile born in India who fell within the same range of birth years for access to Indian citizenship. [15] The Tretsetsang case confirms that, in order to reject India as a country of nationality, the onus is on the Appellant to show (i) significant impediment(s) reasonably prevented him from exercising the citizenship rights and (ii) that reasonable efforts were made to overcome such impediment and that such efforts were unsuccessful such that the claimant was unable to obtain the state's protection. [16] The Appellant submits that the first part of the two part test is satisfied because there are significant impediments that reasonably prevented him from trying to exercise citizenship rights in India and that prevent him from applying for a passport in India. For reasons that follow, I disagree and find that the RPD member was correct to conclude otherwise. [17] Based on the evidence before them, the FCA in Tretsetsang confirmed the legal entitlement of Indian citizenship for Tibetans born in the stipulated period. The FCA endorsed these two critical findings of the Refugee Appeal Division (RAD) in relation to Mr. Tretsetsang: that he had failed to establish that his Indian citizenship rights would not provide him with state protection, and appropriate rejection of his argument that India would not recognize his citizenship right without being forced to do so through a court application. The FCA concurred with the RAD's conclusion that in not taking any steps at all to determine whether India would recognize him as a citizen without requiring him to litigate the matter, Mr. Tretsetsang had failed to establish that there was any impediment, much less any significant impediment, to his ability to access the state protect rights inherent in his Indian citizenship. The FCA went on to answer its Reformulated Certified Question as follows:4 Question: Is any impediment that a refugee claimant may face in accessing state protection in a country in which that claimant is a citizen sufficient to exclude that country from the scope of the expressions "countries of nationality" and "country of nationality" in section 96 of the Immigration and Refugee Protection Act? Answer: No. [18] The circumstances in Tretsetsang are similar to this case. The RPD member adopted the FCA's reasoning and approach in Tretsetsang and found that the Appellant, Mr. Tsering, has similarly not made reasonable efforts to access his citizenship benefits in India. It rejected the Appellant's reasons for not doing so as involving fears that were speculative. [19] The Appellant's main argument against the RPD decision is that the gap between the law and its implementation makes it unlikely that the Appellant would obtain citizenship if he applied.5 [20] The Appellant understandably interchanges commentary and argument about obtaining a passport with citizenship because of the documentary evidence that speaks to the manner in which passport applications are handled for Tibetans in India. The law confers citizenship on Tibetans like the Appellant who were born in Tibet but the documentary evidence reports that, upon making a passport application, Tibetans must relinquish their Resident Card (RC) and engage consequences of having to leave their settlement area and forfeit privileges and benefits from the Central Tibetan Administration (CTA). A December 23, 2016 press release from the Ministry of External Affairs6 announced new passport rules, explaining the process and documents required by an applicant and, according to that guide, the Appellant has the necessary documents or the ability to access the required documents, to make a passport application. The RPD member canvassed efforts made by the Appellant and concluded that he did not make reasonable attempts to secure, for example, a birth certificate, and that he has other documents such as a non-expiring AADHAAR (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) card and an expired but renewable RC card, that would satisfy the documentary requirements for obtaining a passport as set out in the December 23, 2016 press release. I agree with the RPD member for the reasons given. The Appellant's arguments vaguely refer to applying twice in Canada for a passport and that in India he tried to obtain documents he needed to apply but his BOC narrative refers only to two visa applications for Canada and obtained identity documents sufficient for travel but did not demonstrate that he sought Indian citizenship. Rather, he explained not doing so because of a perception that he would suffer negative response from officials and negative repercussions personally if he did so. [21] The Appellant expressed concerns that are specific to his circumstances, citing the effect of a memorandum from the Kashag secretariat's office on Year 2017 Month 7 Day 5 that addresses the topic of passports for Tibetans in exile. That memorandum sets out four rules that underlie the discussions and concerns expressed in the articles about access to passports by Tibetans:7 1) Those who apply to become Indian citizen must return the refugee document {R.C) and the yellow travel document (Identity Certificate in Lieu of Passport), 2) Cannot be a resident of the Tibetan refugee settlements, 3) Must, in writing, declare to not request for resources from the Tibetan administration (CTA), 4) And must, in writing, declare to not request for recourses made available to Tibetan refugees and to return any currently possessed. [22] The Appellant's main arguments against the RPD decision include that, despite apparent access to Indian citizenship and a passport, the impediments faced by Tibetans like him include continuing refusals by local authorities to issue passports and an alleged fear of imprisonment in India or deportation to Tibet from India because of his expired RC card. The Appellant relies heavily on the case and related articles concerning Lobsang Wangyal, who won a High Court case after being refused a passport. The Appellant submits that the FCA in Tretsetsang did not have that evidence before it and he points to 2017 posts by Wangyal of Tibetans facing discrimination and even harassment when applying for passports and arbitrary rules imposed by local authorities when Tibetans apply for passports, including the requirement to produce evidence of a permanent address, imposition of fines and failure to assist Tibetans with information. The Appellant submits that, as a result, Tibetans have no choice to but to appeal to courts for relief and that most Tibetans, including the Appellant, cannot afford litigating and remains vulnerable to refusals by local officials. [23] Based on the evidence before me, I find that the Appellant's concern about not being issued a passport without litigation is not supported on a balance of probabilities. He has not applied for a passport. The country documents and articles offered in support of his claim refer to litigation in specific circumstances but also reflect that passports are issued to Tibetans who apply for them. The problem reflected in those articles is less about the issuing of passports than about relinquishing the RC card and related entitlements as Tibetan refugees in exile. That loss of entitlement is not reasonably characterized as a serious impediment as contemplated by the test set out in Tretsetsang. In its certified question, the FCA confirmed that any impediment that a person may face in accessing state protection in a country where citizenship is available is not sufficient to exclude that country from the scope of the country of nationality as provided in section 96 of the Immigration and Refugee Protection Act (IRPA).8 There must be something significant that reasonably prevents the exercise of citizenship rights. [24] The Appellant acknowledges that the Appellant would be likely to obtain a passport in India if he applied for one but argues that his rights in India would not be equal to other citizens in India because of the intolerable burden of homelessness, unemployment and loss of meaningful ties to the Tibetan community living in Tibetan Settlements upon doing so.9 The Appellant is asking, in essence, that ongoing tensions between the status of Tibetan exiles and their rights as Indian citizens be interpreted or characterized as a fact that equates to not having reasonable access to Indian citizenship. The RPD member acknowledged that the Appellant would have choices to make regarding how to celebrate and cultivate his Tibetan identity and correctly pointed out that giving up some of those benefits and attributes of his Tibetan identity would result whether he acquired citizenship in India or in Canada.10 The RPD member correctly identified that difficulties of finding work or schooling for his child outside the Tibetan settlement in India were not sufficient to justify the choice not to apply for an Indian passport, and correctly noted that this 'natural course' occurs irrespective of the country he resides in outside of Tibet. I concur with that reasoning. [25] In summary, the Appellant has not shown that he made reasonable efforts to overcome real or perceived impediments to accessing citizenship rights, including applying for a passport, or that efforts he has made such as seeking a birth certificate were unsuccessful. The RPD member correctly concluded that 'difficulties in securing citizenship do not invalidate the requirements to pursue it where it is available'11 and that the Appellant's concerns about orders from the Central Tibetan Administration (CTA) or identity as a Tibetan exile are not obligations or requirements set out by the Indian government. The RPD member's assessment of accessibility to Indian citizenship correctly distinguished between what is, in essence, reasonably characterized as a tension between status as a Tibetan exile or as a citizen in India. In finding that the Appellant had not made reasonable efforts in India to have his citizenship rights recognized, the RPD member considered the potential loss of an RC card and other repercussions to benefits of Tibetan exile status and reasonably concluded that the Appellant has access to Indian citizenship should he choose to pursue it. I concur with that assessment. [26] The Appellant has proffered arguments concerning harassment or limits to services for a Tibetan in India but did not advance those arguments in support of a claim against India. Rather, they are addressed in relation to the assessment of availability of citizenship in India as discussed above. [27] In summary, my assessment of the totality of the evidence and arguments in this appeal do not provide a basis to allow the appeal. The Appellant cannot be given refugee protection in Canada because he has citizenship available to him in India, a safe country, and it is within his power and control to acquire that citizenship. CONCLUSION [28] 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 section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Maryanne Kingma" Maryanne Kingma June 20, 2019 Date 1 RPD Record (RPDR), RPD Reasons for decision, para. 5. 2 Appellant's Record (AR), Appellant's Memorandum, paras. 22 to 24. 3 AR, Appellant's Memorandum, paras. 23 and 24. 4 Tretsetsang, paragraphs [76] to [79]. 5 See, for example, AM paragraphs 9, 14 & 17. 6 RPD Record pp. 102-104. 7 RPD Record p. 108. 8 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 9 AR, Appellant's Memorandum, para. 41. 10 RPDR, RPD Reasons for Decision, para. 15. 11 RPD decision paragraph [25]. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-06416 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français