Tretsetsang v. Canada (Minister of Citizenship and Immigration), (2016) 483 N.R. 383 (FCA)

• Judge: Ryer, Webb and Rennie, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 09, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 483 N.R. 383 (FCA);2016 FCA 175

Tretsetsang v. Can. (M.C.I.) (2016), 483 N.R. 383 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. JN.008

Chime Tretsetsang (appellant) v. The Minister of Citizenship and Immigration (respondent)

(A-260-15; 2016 FCA 175)

Indexed As: Tretsetsang v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Ryer, Webb and Rennie, JJ.A.

June 9, 2016.

Summary:

The Refugee Appeal Division denied an applicant's claim for Convention Refugee or protected person status, pursuant to s. 96 and 97 of Immigration and Refugee Protection Act, on the basis that the applicant was an Indian citizen and had not alleged any fear of persecution in India. The applicant applied for judicial review.

The Federal Court, in a decision reported [2015] F.T.R. Uned. 206, dismissed the application. The applicant appealed.

The Federal Court of Appeal, Rennie, J.A., dissenting, dismissed the appeal. The majority answered the following certified question in the negative:

"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?"

Aliens - Topic 7

Definitions and general principles - Country of nationality - [See all Aliens - Topic 1323.2 ].

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality - The Federal Court of Appeal answered the following certified question in the negative: "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?" - See paragraphs 63 to 80.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality - Section 96 of the Immigration and Refugee Protection Act defined a Convention refugee as a person who, by reason of a well-founded fear of persecution, was outside each of their countries of nationality and was unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries - The Federal Court of Appeal stated that "... 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. 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" - See paragraph 72.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality - The Federal Court of Appeal stated that the test for determining whether a refugee claimant had a "country of nationality" within the meaning of s. 96 of the Immigration and Refugee Protection Act was whether access to citizenship was within the claimant's control (i.e., the control test set out in MCI v. Williams (FCA 2005)) - The onus was on the claimant to establish the existence of the asserted impediment and that it would result in the applicant not having the power to control whether the country would recognize him as a citizen of that county and provide state protection to him - The court opined that a country of nationality included a country where the claimant was a citizen and where the claimant might face an insignificant or minor impediment to accessing state protection from that country but may not include a country where the claimant was a citizen and faced a significant impediment to accessing state protection from that country - See paragraph 67.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality - Tretsetsang, of Tibetian ethnicity, was born in India in 1968 - His parents had fled to India when the Chinese government took control of Tibet in 1959 - He came to Canada in 2013 and made a refugee claim, alleging that he was stateless and that India would deport him to China, where he would be persecuted - He had not applied for Indian citizenship when he lived in India - The Refugee Appeal Division (RAD) rejected his refugee claim - For the RAD, the determinative issue was whether it was within the Tretsetsand's control to acquire citizenship in India, applying the "control" test in MCI v. Williams (FCA 2005) - The RAD determined that Tretsetsang was not a refugee because he had Indian citizenship and failed to establish that his Indian citizenship rights would not provide him with state protection - Tretsetsang appealed - The Federal Court of Appeal dismissed the appeal, holding that the RAD's decision was reasonable - The Indian Citizenship Act, 1955, provided that every person born in India at the time Tretsetsang was born was a citizen of India - He had taken no steps to enforce his right and provided no explanation for his failure to do so - See paragraphs 74 to 78.

Counsel:

D. Clifford Lyut, for the appellant;

Tamrat Gebeyehu and Meva Motwani, for the respondent.

Solicitors of Record:

D. Clifford Lyut, Toronto, Ontario, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This appeal was heard in Ottawa, Ontario, on February 11, 2016, before Ryer, Webb and Rennie, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered on June 9, 2016, including the following opinions:

Rennie, J.A., dissenting - see paragraphs 1 to 79;

Ryer and Webb, JJ.A. - see paragraphs 59 to 80.