Date: 19990611
Docket: IMM-1520-98
BETWEEN:
KATIA GUILLEN CANALES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN, J.:
[1] The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), dated 23 March 1998 and signed 7 April 1998, in which the CRDD determined that the applicant was not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act , R.S.C. 1985, c. I-2 (the "Act"). Leave to commence this application for judicial review was granted on 4 March 1999.
Background
[2] The applicant, Katia Guillen Canales, is a 30-year-old citizen of Costa Rica. She entered Canada on 21 July 1995 and claimed Convention refugee status in Etobicoke, Ontario in October 1995. Her claim is based on her membership in a particular social group, women subject to domestic violence. A hearing was held before a panel of the CRDD on 2 February 1998 and 23 March 1998, at which time an oral decision was rendered.
CRDD"s Decision
[3] The CRDD determined that it would rule first on the issue of whether the applicant has multiple nationalities by virtue of her mother"s birth in Honduras. The applicant"s mother moved to Costa Rica as a young girl and became a naturalized citizen of Costa Rica after her marriage. The hearing was adjourned in February so that the applicant"s counsel could explore this issue and make inquiries of the Honduran embassy.
[4] After reconvening, the CRDD determined that the applicant"s claim for Convention refugee status must fail because she did not seek protection in Honduras, where she has a right to Honduran citizenship. This finding was based on the applicant"s mother"s Honduran birth, a letter from the Honduran Ambassador, and article 23 of Honduras" constitution.
[5] The Ambassador"s letter, in response to an inquiry made by the applicant"s counsel, reads:
| On this regard, Ms. Guillen Canales can apply for Honduran citizenship since her mother is Honduran born and as long as she meets all the requirements of the law. She can make the necessary legal arrangements to become a citizen with the help of a lawyer in Honduras. As a Central American born in Costa Rica, Ms. Guillen Canales does not require an entry visa to enter the country. |
(Applicant"s application record ["AR"], tab 12, p. 338)
[6] Article 23 of the Constitution of the Republic of Honduras provides:
| 23. The following are Hondurans by birth: |
| (2) those born abroad of a Honduran father or mother by birth. |
(AR, reasons for decision, tab 3, p. 6)
[7] The panel determined that the applicant has a clear right to Honduran citizenship, and that she should have sought national protection in Honduras. Accordingly, it did not consider or rule on the merits of the applicant"s claim of persecution.
Applicant"s Position
[8] The applicant submits that the CRDD erred in concluding that she is entitled to Honduran citizenship and conducted an inadequate analysis of the totality of the evidence. The applicant contends that the information in the Ambassador"s letter does not support the conclusion that she is entitled to Honduran citizenship, but rather that she is merely entitled to apply for such as the Ambassador"s words indicate that a process of application is required. The process offers no guarantee of Honduran citizenship by operation of law.
[9] The applicant relies on Katkova v. Canada (MCI) (1997), 40 Imm.L.R. (2d) 216 (F.C.T.D.), wherein Mr. Justice McKeown concluded that there must be a genuine connection and physical link with the home state, and that it is important that potential nationality not be confused with actual nationality. The applicant submits that she has no connection or physical link to Honduras, a country she has never visited. Her sole connection with that country is the fact of her mother"s birth there.
[10] In the alternative, the applicant argues that the panel erred when it made no analysis of whether it was reasonable for her to fear persecution in Honduras. The applicant had submitted evidence regarding high levels of domestic violence in Honduras and the government"s failure to adequately protect women who are victims of such violence.
Respondent"s Position
[11] The respondent submits that the applicant offered no evidence that there are any requirements of Honduran law with which she would be unable to comply and which would present an obstacle to Honduran citizenship for her. The fact that the Ambassador suggests at the applicant engage the services of a lawyer does not indicate that she is not entitled to citizenship, but rather is a suggestion to assist her in making the necessary legal arrangements.
[12] The respondent also submits that the panel addressed the issue of whether the applicant"s fear of persecution was well-founded in Honduras when it concluded,
| Therefore she ought to have sought national protection in Honduras where she would have been free from the alleged source of persecution, her common-law spouse. |
(AR, reasons for decision, tab 3, p. 7)
Analysis
[13] In Desai v. Canada (MCI), [1994] 88 F.T.R. 161 (T.D.), Mr. Justice Muldoon dismissed a refugee claimant"s application for judicial review on the basis that Indian citizenship was a viable option for that claimant. He was born in Kuwait of Indian parents, but had never visited or lived in India, and was stateless. Indian citizenship laws, however, allow certain persons born outside of India to acquire deemed Indian citizenship after first registering at an Indian embassy, high commission, or consulate. Thus, the Court held, Indian citizenship awaited the applicant upon application. The applicant need only present himself at an Indian diplomatic or consular office with evidence that his parents were born in India in order to have his Indian citizenship confirmed.
[14] The Court in Desai cited with approval Mr. Justice Rothstein"s decision in Bouianova v. Canada (MEI) (1993), 67 F.T.R. 74 (T.D.), which also dealt with a stateless claimant"s options for citizenship. In that case, the claimant was an ethnic Russian resident of Latvia. Rothstein J. concluded,
| In my view, the applicant, by simply making a request and submitting her passport to be stamped becomes a citizen of Russia. On the evidence before me there is no discretion by the Russian officials to refuse her Russian citizenship. I do not think the necessity of making an application, which in these circumstances is nothing more than a mere formality, means that a person does not have a country of nationality just because they choose not to make such an application. |
[15] Rothstein J. cited and applied Canada (MEI) v. Akl (1990), 140 N.R. 323 (F.C.A.), wherein the Federal Court of Appeal stated,
| The Court in the Ward case, on this issue, was unanimous in finding that a "refugee claimant must establish that he is unable or unwilling to avail himself of all of his countries of nationality" if his claim is to be upheld. |
[16] Grygorian v. Canada (MCI) (1995), 33 Imm.L.R. (2d) 52 (F.C.T.D.) concerned an ethnic Jewish citizen of Azerbaijan who sought refugee status. The CRDD rejected her application on the basis that she was entitled to Russian nationality by virtue of her birth, as well as Israeli nationality under the provisions of Israel"s Law of Return. The Court declined to intervene, and stated that the basic principle of refugee law is to grant such status only to those requiring surrogate protection and not to those who have a ready and automatic right to another country"s nationality.
[17] In De Rojas v. Canada (MCI) (IMM-1460-96, 31 January 1997), the applicant was a citizen of Venezuela, having moved there from Colombia at an early age. The CRDD concluded that the applicant had a well-founded fear of persecution should she be returned to Venezuela, and determined that she could re-acquire Colombian citizenship by complying with mere formalities. Mr. Justice Gibson dismissed the application for judicial review and held that the applicant was required to obtain Colombian citizenship before seeking to avail herself of refugee protection in Canada.
[18] In Sahal v. Canada (MCI) (IMM-2722-98, 21 April 1999), Mr. Justice Evans declined to intervene in a CRDD decision that determined that an Ethiopian-born applicant fleeing persecution in Somalia was required to seek protection in Ethiopia, where she had no well-founded fear of persecution. In that case, the applicant had to do more than just comply with mere formalities; she had to satisfy Ethiopian authorities of her birth, which required, as the Court recognized, some degree of diligence on her part. The Court referred to the decision in Zdanov v. Canada (MEI) (1994), 81 F.T.R. 246 (T.D.), where the CRDD"s decision that an applicant was a citizen of Russia was upheld, even though, as Evans J. put it, the applicant"s citizenship status was "far from being cut and dried." In Zdanov , Rouleau J. stated,
| The applicant in the present case has not applied for citizenship nor has he made any inquiries as to whether or not citizenship would be denied him; he has no desire to do so and consequently he describes himself as a "stateless person." In my opinion, he cannot expect to base his claim to be a Convention refugee on the fact that he has not applied for, or been granted, Russian citizenship; to hold otherwise would allow him to undermine the rationale underlying international refugee law... . |
Evans J. held that this statement was applicable to the facts in Sahal where the applicant had not made any effort to present evidence to the Ethiopian authorities that she was born in Ethiopia and is an Ethiopian citizen.
[19] In Katkova, which the applicant relies on, McKeown J. held that the CRDD erred in its interpretation of nationality when it determined that a claimant, who was an Eastern European Jew, could seek citizenship in Israel. The claimant had maintained no desire to settle in Israel, which is a requirement for immigration purposes under that country"s Law of Return. The Court stated that it is important not to confuse potential nationality with actual nationality. Furthermore, there must be a genuine connection and physical link with the home state. The Court noted that the concept of genuine connection was elaborated on in a previous CRDD decision, [1996] C.R.D.D. No. 17 (No. T94-01251), which quoted the International Court of Justice ("ICJ") on the issue. The ICJ opined that nationality is a legal bond based on the fact of social attachment, a genuine connection of existence, interests, and sentiments, along with the existence of reciprocal rights and duties.
[20] The issue in Katkova was whether the claimant"s Jewishness automatically meant that Israel must be considered a country of nationality, in light of her stated lack of desire to seek refuge in that country. A desire to settle in Israel is a requirement under that country"s Law of Return, and the Court concluded that the Law of Return is discretionary in nature.
[21] In the instant case, no conditions precedent exist so as to bar the applicant from obtaining citizenship in Honduras. In order to comply with Honduran law, as set out in article 23 of its constitution, the applicant must present proof of her mother"s Honduran birth. Indeed, the application process contemplated is not one from "scratch" because the applicant has a right to Honduran citizenship enshrined in that country"s constitution, which explicitly states that those persons born of Honduran parents are also themselves Hondurans by birth. The applicant"s status is not such that she is merely eligible to seek and apply for Honduran citizenship; the constitution of that country provides that she is already considered a Honduran by birth. Any application she might make would be only for the purpose of confirming her pre-existing status as a Honduran by virtue of her parentage, a situation factually similar to that in Desai .
[22] Mr. Justice Joyal"s statement in Grygorian , that the basic principle of refugee law is to grant such status only to those requiring surrogate protection and not to those who have a ready and automatic right to another country"s nationality, is applicable in the circumstances of the instant case. The relevant jurisprudence makes it clear that a refugee claimant must seek the protection of countries in which she can assert nationality as a basis for citizenship before making a claim for asylum in Canada.
[23] However, before the applicant is obliged to seek protection from Honduran authorities, the CRDD should have considered whether the applicant has a well-founded fear of persecution with reference to Honduras. The respondent"s argument that the panel properly addressed this issue cannot be supported by reference to the hearing transcript. The panel did not entertain submissions regarding any well-founded fear of persecution the applicant may have in Honduras, nor can it be said that the panel made any findings on this issue.
[24] In Bouianova, the Court noted that there was no evidence that the applicant had a well-founded fear of persecution in Russia, which the panel found to be a country of nationality for the applicant. In Grygorian, there was no claim as to persecution in Russia. In De Rojas, the CRDD determined that the applicant faced no serious possibility of persecution should she be required to go to Colombia, a second country of nationality for the applicant. In Zdanov, the applicant"s claim was based on persecution in Estonia. After determining that the applicant was a Russian national, the CRDD went on to assess the applicant"s claim with respect to Russia. In all of these cases, after determining that the claimant was entitled to citizenship in another country, the CRDD then assessed the applicant"s claim vis-à-vis the second country.
[25] Thus, after determining that another country of nationality exists, the CRDD must assess the application with reference to that particular country, something it did not do in the case at bar. Accordingly, this matter should be sent back for reassessment on the issue of the applicant"s well-founded fear of persecution with reference to Honduras.
[26] The parties submitted different questions for certification but I have determined that neither is acceptable for certification consideration.
Ottawa, Ontario
June 11, 1999
B. Cullen
J.F.C.C.