- Note 1
Hanukashvili, Valeri v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997. The Supreme Court of Canada pointed out in
R. v. Cook,  2 S.C.R. 597, at paragraph 42, that, although the terms "nationality" and "citizenship" are often used as if they were synonymous, the principle of nationality is much broader in scope than the legal status of citizenship.
Return to note 1 referrer
- Note 2
Hurt v. Canada (Minister of Manpower and Immigration),  2 F.C. 340 (C.A.);
Mensah-Bonsu, Mike Kwaku v. M.E.I. (F.C.T.D., no. IMM-919-93), Denault, May 5, 1994;
Adereti, Adebayo Adeyinka v. M.C.I. (F.C., no. IMM-9162-04), Dawson, September 14, 2005; 2005 FC 1263. This is subject to a possible exclusion issue arising under Article 1E of the Refugee Convention (see Chapter 10, section 10.1.). In
Sayar, Ahmad Shah v. M.C.I. (F.C.T.D., no. IMM-2178-98), Sharlow, April 6, 1999, the Court held that since the CRDD found that the claimant was excluded under Article 1E, it did not need to determine whether he had a well-founded fear of persecution in his country of citizenship. In
Liu, Qi v. M.C.I. (F.C., no. IMM-6390-09), Zinn, August 13, 2010; 2010 FC 819, the Court held that the living arrangements of refugee claimants are not relevant considerations, absent evidence of persecution. The RPD found that there was no evidence that, if the principal claimant returned to China without his daughter, who was a citizen of Argentina, he would experience any difficulty there.
Return to note 2 referrer
- Note 3
Immigration and Refugee Protection Act, S.C. 2001, c. 27. This provision is consistent with the interpretation of the Refugee Convention endorsed by the Supreme Court of Canada in
Canada (Attorney General) v. Ward,  2 S.C.R. 689; 20 Imm. L.R. (2d) 85. The former
Immigration Act, S.C. 1992, c. 49, s.1, was amended in 1993 to add s. 2(1.1), a provision dealing specifically with "multiple nationalities".
Return to note 3 referrer
- Note 4
Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998. In
Soto, Dora Agudin v. M.C.I. (F.C., no. IMM-3072-10), Beaudry, January 31, 2011; 2011 FC 98, the elderly and mentally infirm claimant was a national of Cuba and Spain. The fact that her mental state made it difficult for her to apply for state protection in Spain did not relieve her of her obligation to seek such protection. Analogous to a minor, she could apply with the assistance of a representative.
Return to note 4 referrer
- Note 5
Harris, Dorca v. M.C.I. (F.C.T.D., no. IMM-1652-97), Teitelbaum, October 31, 1997.
Return to note 5 referrer
- Note 6
M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84.
Return to note 6 referrer
- Note 7
Article 1 of the
Hague Convention of 1930 states:
It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.
Return to note 7 referrer
- Note 8
supra, footnote 1. See, however,
Nur, Khadra Okiye v. M.C.I. (F.C., no. IMM-6207-04), De Montigny, May 6, 2005; 2005 FC 636, where the Court stated that it is a matter of law. The Court also stated that since nationality is determined in accordance with the law of the country, it cannot be the subject of specialized knowledge.
Return to note 8 referrer
- Note 9
Tit, Victor v. M.E.I. (F.C.T.D., no. 93-A-17), Noël, June 3, 1993;
Bouianova, Tatiana v. M.E.I. (F.C.T.D., no. 92-T-1437), Rothstein, June 11, 1993;
Schekotikhin, Valeri v. M.E.I. (F.C.T.D., no. A-1178-92), McGillis, November 8, 1993;
Kochergo, Sergio Calcines v. M.E.I. (F.C.T.D., no. IMM-2475-93, Noël, March 18, 1994;
Chavarria, Eduardo Hernandez v. M.C.I. (F.C.T.D., no. IMM-2192-94), Teitelbaum, January 3, 1995;
Bady-Badila, Bruno v. M.C.I. (F.C.T.D., no. IMM-5510-01), Noël, April 3, 2003; 2003 FCT 399 (re Guinea); and
Gadeliya, Konstantin Alek v. M.C.I. (F.C., no. IMM-5905-03), Beaudry, September 7, 2004; 2004 FC 1219 (re Georgia). In
Muhamed Atia, Samir Mamood v. M.C.I. (F.C., no. IMM-4900-07), Frenette, May 26, 2008; 2008 FC 662, the Court noted the evidence that Palestinians, even if born in Iraq, are not recognized as Iraqi citizens.
Return to note 9 referrer
- Note 10
Radic, Marija v. M.C.I. (F.C.T.D., no. IMM-6805-93), McKeown, September 20, 1994;
Aguero, Mirtha Marina Galdo v. M.C.I. (F.C.T.D., no. IMM-4216-93), Richard, October 28, 1994. In
Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no. IMM-3623-96), Cullen, May 26, 1997, the Court held that, unless its validity is contested, a passport is evidence of citizenship. Thus the onus shifts to the claimant to prove that he or she is of a different citizenship than that indicated in the passport. See also
Yah Abedalaziz, Rami Bahjat v. M.C.I. (F.C., no. IMM-7531-10), Shore, September 9, 2011; 2011 FC 1066, a case involving a Palestinian claimant who was born in Jordan and had a Jordanian passport. The Court noted that paragraph 93 of the UNHCR Handbook recognizes the existence of a prima facie presumption that a passport holder is a national of the country of issue and reiterated the principle that the mere assertion by a passport holder that it was issued as a matter of convenience for travel purposes is not sufficient to rebut the presumption of nationality. In
Lolua, Georgi v. M.C.I. (F.C., no. IMM-9674-04, Blanchard, November 7, 2005; 2005 FC 1506, the Court discussed the applicability of this presumption in a case where the claimant's passport stated that he was a citizen of the now defunct USSR; there was no evidence on the record to establish that since the dissolution of that country, citizens of the USSR are
de facto citizens of Russia.
Mijatovic, Mira v. M.C.I. (F.C., no. IMM-4607-05), Russell, June 2, 2006; 2006 FC 685, involved a case where the claimant, born in the former Socialist Republic of Bosnia and Herzegovina, was issued a passport by the Federal Republic of Yugoslavia. The Board concluded that the passport was evidence that the claimant was a citizen of Serbia and Montenegro but the Court held that the Board had misinterpreted the evidence.
Having regard to paragraph 93 of the UNHCR
Handbook, the Court held in
Mathews, Marie Beatrice v. M.C.I. (F.C., no. IMM-5338-02), O'Reilly, November 26, 2003; 2003 FC 1387, that a holder of a country's passport is presumed to be a citizen of that country. In
Chowdhury, Farzana v. M.C.I. (F.C., no. IMM-1730-05), Teitelbaum, September 14, 2005; 2005 FC 1242, the Court held that it was an error to rely on paragraph 93 of the UNHCR
Handbook to find that the applicant's passport was genuine, despite her statement that it was fake. This provision deals with the presumption of the claimant's nationality once a passport is deemed valid. It then goes on to discuss how to approach a situation where a claimant has a passport that they are claiming is valid but cannot be proven to be so.
It appears that, even if a passport may have been obtained irregularly, effective nationality can be established, provided that the country in question confers on the holder national status and all its attendant rights. See
Zheng, Yan-Ying v. M.C.I. (F.C.T.D., no. IMM-332-96), Gibson, October 17, 1996. However, that case was distinguished in
Hassan, Ali Abdi v. M.C.I. (F.C.T.D., no. IMM-5440-98), Evans, September 7, 1999, where the Court noted that the Kenyan Immigration Department only stated that, on the basis of the official's perusal of the file, the claimant appeared to be a citizen; accordingly, if the Kenyan authorities subsequently determine the claimant had not been entitled to a Kenyan passport because he was not a national (as he alleged), he could be deported from that country.
Return to note 10 referrer
- Note 11
Sviridov, Timur v. M.C.I. (F.C.T.D., no. IMM-2414-94), Dubé, January 11, 1995. In
Sahal, Shukri Mohamed v. M.C.I. (F.C.T.D., no. IMM-2722-98), Evans, April 21, 1999, the Court held that while the claimant did not have documents proving her place of birth in Ethiopia and might face some difficulty in satisfying the authorities of her citizenship, she had the obligation to make efforts to obtain documentation to assert her Ethiopian citizenship. In
Chouljenko, Vladimir v. M.C.I. (F.C.T.D., no. IMM-3879-98), Denault, August 9, 1999, the Court found that the CRDD did not have reasonable grounds, in light of the claimant's and his mother's unequivocal testimony, to require that he make "every possible effort" to obtain documents proving his Armenian citizenship (the claimant was advancing a claim against Armenia).
Return to note 11 referrer
- Note 12
supra, footnote 10;
Zidarevic, Branko v. M.C.I. (F.C.T.D., no. IMM-1572-94), Dubé, January 16, 1995. Reported: Zidarevic v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 190 (T.D.).
Return to note 12 referrer
- Note 13
supra, footnote 9. See also
supra, footnote 10 and
Diawara, Aicha Sandra v. M.C.I. (F.C., no. IMM-2624-17), Brown, December 5, 2017; 2017 FC 1106. If a claimant asserts that they lost or renounced their citizenship, the claimant must produce evidence to establish that. See
Lagunda, Lillian v. M.C.I. (F.C., no. IMM-3651-04), von Finckenstein, April 7, 2005; 2005 FC 467.
Return to note 13 referrer
- Note 14
Paragraph 89 of the
Handbook states in part:
There may, however, be uncertainty as to whether a person has a nationality. … Where his nationality cannot be clearly established, his refugee status should be determined in a similar manner to that of a stateless person, i.e. instead of the country of his nationality, the country of his former habitual residence will have to be taken into account.
Return to note 14 referrer
- Note 15
supra, footnote 9.
Return to note 15 referrer
- Note 16
The following approach was recommended in
Nationality and Statelessness: A Handbook for Parliamentarians, a 2005 publication of the Inter-Parliamentary Union and the United Nations High Commissioner for Refugees (at 10-11):
To be considered a national by operation of law means that an individual is automatically considered to be a citizen under the terms outlined in the State's enacted legal instruments related to nationality or that the individual has been granted nationality through a decision made by the relevant authorities. Those instruments can be a Constitution, a Presidential decree, or a citizenship act. …
Whenever an administrative procedure allows for discretion in granting citizenship, applicants for citizenship cannot be considered nationals until their applications have been completed and approved and the citizenship of that State is granted in accordance with the law. Individuals who have to apply for citizenship, and those the law outlines as being eligible to apply, but whose applications are rejected, are not citizens of that State by operation of that State's law.
Lhazom, Tsering v. M.C.I (F.C., no. IMM-5457-14, Boswell, July 21, 2015; 2015 FC 886, the Court cautioned against making findings about the content of foreign laws on nothing more than a questionable, literal interpretation of a translated statute.
Return to note 16 referrer
- Note 17
El Rafih, Sleiman v. M.C.I. (F.C., no. IMM-9634-04), Harrington, June 10, 2005; 2005 FC 831;
Sumair, Ghani Abdul v. M.C.I. (F.C., no. IMM-341-05), Kelen, November 29, 2005; 2005 FC 1607. But see
De Barros, Carlos Roberto v. M.C.I. (F.C., no. IMM-1095-04), Kelen, February 2, 2005; 2005 FC 283, where the Court found that claimant was not taken by surprise or prejudiced in the circumstances of that case.
Return to note 17 referrer
- Note 18
M.E.I. v. Akl, Adnan Omar (F.C.A., no. A-527-89), Urie, Mahoney, Desjardins, March 6, 1990. In
Akl, the Court cited
supra, footnote 3, and reiterated that a claimant must establish that he or she is unable or unwilling to avail him- or herself of all of his or her countries of nationality.
Return to note 18 referrer
- Note 19
The dissolution of the USSR resulted in the emergence of 15 new states. The Russian Soviet Federative Socialist Republic (RSFSR) is the "continuing state", having continued to respect all international treaties of the former state (USSR), and the remaining states are "successor states". For the purpose of this paper, both the continuing state and the successor states will be referred to as "successor states".
Return to note 19 referrer
- Note 20
supra, footnote 9 (re Ukraine);
supra, footnote 9 (re Russia);
Zdanov, Igor v. M.E.I. (F.C.T.D., no. IMM-643-93), Rouleau, July 18, 1994 (re Russia, regardless of the fact that the claimant had not applied for Russian citizenship and had no desire to do so);
Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994 (re Russia, notwithstanding the existence of the
propiska system, which the Court found not to be persecutory);
Chipounov, Mikhail v. M.C.I. (F.C.T.D., no. IMM-1704-94), Simpson, June 16, 1995 (re Russia) ;
Avakova, Fatjama (Tatiana) v. M.C.I. (F.C.T.D., no. A-30-93), Reed, November 9, 1995 (re Russia);
Kuznecova, Svetlana v. M.C.I. (F.C.T.D., no. IMM-2750-99), Pinard, May 17, 2000 (re Russia). Some CRDD decisions have been set aside on judicial review because the evidence did not support the conclusion that citizenship would be granted automatically or as of right, e.g.,
supra, footnote 9 (re Israel and Ukraine);
Casetellanos v. Canada (Solicitor General),  2 F.C. 190 (T.D.) (re Ukraine);
Solodjankin, Alexander v. M.C.I. (F.C.T.D., no. IMM-523-94), McGillis, January 12, 1995 (re Russia).
Return to note 20 referrer
- Note 21
supra, footnote 9;
Freij, Samir Hanna v. M.E.I. (F.C.T.D., no. A-1690-92), Jerome, November 3, 1994;
supra, footnote 9; and
De Rojas, Teresa Rodriguez v. M.C.I. (F.C.T.D., no. IMM-1460-96), Gibson, January 31, 1997.
Return to note 21 referrer
- Note 22
Desai, Abdul Samad v. M.C.I. (F.C.T.D., no. IMM-5020-93), Muldoon, December 13, 1994 (in
Martinez, Oscar v. M.C.I. (F.C.T.D., no. IMM-462-96), Gibson, June 6, 1996. In
Canales, Katia Guillen v. M.C.I. (F.C.T.D., no. IMM-1520-98), Cullen, June 11, 1999, the CRDD determined that the claimant had a right to citizenship in Honduras, over the claimant's objections that she had no connection or physical link to Honduras, the country of her mother's birth, and which she had never visited. The Court overturned the CRDD decision because it failed to consider whether the claimant had a well-founded fear of persecution with reference to Honduras.
Return to note 22 referrer
- Note 23
supra, footnote 9, where the wife's entitlement to Honduran citizenship, though dependent on her husband's application for citizenship, only required a
pro forma application like her husband's. This is contrasted with
Beliakov, Alexandr v. M.C.I. (F.C.T.D., no. IMM-2191-94), MacKay, February 8, 1996, where the wife had to do more than simply apply for Russian citizenship; a precondition was that her husband apply for and be granted citizenship which,
semble, was not automatic in his case. In
Zayatte, Genet Yousef v. M.C.I. (F.C.T.D., no. IMM-2769-97), McGillis, May 14, 1998. Reported:
Zayatte v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 152 (T.D.), an Ethiopian citizen had married a diplomat from Guinea and thus acquired a diplomatic passport from that country. By the time she made her refugee claim in Canada, she was divorced. Letters from the Guinean embassy indicated that she had lost her diplomatic passport but could retain Guinean nationality if she so wished. However, the embassy had failed to consider that under Guinean law, there was a two-year residency requirement in order to become a naturalized national, and the claimant had never resided in Guinea. The CRDD decision finding her to be a Guinean citizen was therefore overturned.
Return to note 23 referrer
- Note 24
Grygorian, Antonina v. M.C.I. (F.C.T.D., no. IMM-5158-94), Joyal, November 23, 1995. Reported: Grygorian v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 52 (T.D.).
Return to note 24 referrer
- Note 25
Roncagliolo, Carlos Gonzalo Gil v. M.C.I. (F.C., no. IMM-8667-04), Blanchard, July 25, 2005; 2005 FC 1024.
Return to note 25 referrer
- Note 26
Crast, Adriana Santamaria v. M.C.I. (F.C., no. IMM-1353-06), Hughes, February 7, 2007; 2007 FC 146, the Court held that the RPD erred by not addressing the issue of what constituted evidence of the residency requirement in an application for reinstatement of Argentine citizenship. The claimant was first required to reside in Argentina, and then make an application to a federal court judge to regain the Argentine citizenship. See also the discussion of
2.1.4. Effectiveness of Nationality; and
Alvarez, Xiomara v. M.C.I. (F.C., no. IMM-2388-06), Phelan, March 20, 2007; 2007 FC 296, where the RPD received conflicting evidence on Venezuelan citizenship laws which it had to resolve. Also see
Diawara, supra, footnote 13 where the Court could not determine how the RPD reached the conclusion that the claimant was able to re-acquire Guinean citizenship given the complexities and variables, including a residency requirement and investigation.
Return to note 26 referrer
- Note 27
Williams v. Canada (Minister of Citizenship and Immigration),  3 F.C.R. 429 (F.C.A.); 2005 FCA 126. The Federal Court of Appeal overturned
Manzi, Williams v. M.C.I. (F.C., no. IMM-4181-03), Pinard, April 6, 2004; 2004 FC 511, where the Federal Court had held that, since the claimant had to renounce his Rwandan citizenship in order to regain Ugandan citizenship, Uganda was not a country of nationality. In
Manzi, the Court did not consider
supra, footnote 9. In that case, the Federal Court found the claimant had a right to citizenship in Honduras, the country of his birth, notwithstanding the requirement to become domiciled in Honduras, state his intention to recover his Honduran nationality, and renounce his Salvadoran citizenship.
Return to note 27 referrer
- Note 28
supra, footnote 9.
Return to note 28 referrer
- Note 29
Umuhoza, Julienne v. M.C.I. (F.C., no. IMM-8792-11), Shore, June 5, 2012; 2012 FC 689, the Court agreed with the RPD’s finding that the claimant could automatically regain her citizenship in the DRC, thus following the approach set out in Williams, but found that the RPD failed to deal with the further requirement to analyze the protection that the DRC could offer the claimant.
Return to note 29 referrer
- Note 30
Tretsetsang, Chime v. M.C.I. (F.C.A, no. A-260-15), Ryer, Webb, Rennie (dissenting), June 9, 2016; 2016 FCA 175.
Return to note 30 referrer
- Note 31
Dolker, Pema v. M.C.I. (F.C., no. IMM-6969-13), Hughes, February 2, 2015; 2015 FC 124, the Court agreed with the applicant’s submission that no Canadian authority requires that an applicant must first seek and then be refused citizenship in a safe country where they are entitled to do so before claiming refugee status. However, in
obiter, it added that although
Williams speaks to whether it is within the control of a person to acquire citizenship, nothing in that case encourages claimants not to make reasonable efforts to secure such citizenship.
Return to note 31 referrer
- Note 32
Crast, supra, footnote 26.
Return to note 32 referrer
- Note 33
Kim, Min Jung v. M.C.I. (F.C., no. IMM-5625-09), Hughes, June 30, 2010; 2010 FC 720. The Court found that there was no certainty as to the outcome. The Court noted that the evidence was not clear that the claimants would automatically be given South Korean citizenship or that the acquisition of such citizenship is entirely within their control. There were considerations as to the “will and desire” to live in South Korea that must be assessed by some official and perhaps the courts, as well as consideration given to the length of time that the claimants resided in China and Canada.
Return to note 33 referrer
- Note 34
RAD TB4-05778, Bosveld, June 27, 2016.
Return to note 34 referrer
- Note 35
Khan, Deachon Tsering v. M.C.I. (F.C., no. IMM-4202-07), Lemieux, May 8, 2008; 2008 FC 583, where the Court held that because acquisition of citizenship by marriage was the basis of the applicant’s claim to citizenship in Guyana, this negated the existence of control. The Court stated: “The determining error the tribunal made was to trespass upon forbidden territory when, after recognizing the authorities in Guyana were not compelled on her application to grant Mrs. Khan citizenship, it (the tribunal) could opine how the Minister in Guyana might exercise the discretion conferred upon him. Such circumstances are not within her control.”
Khan was distinguished in
Ashby where the Court held that the applicant was a Guyanese citizen by birth and had never officially renounced it. The Court also stated that even if she had lost it due to acquiring another nationality, it was within her control to reacquire it by obtaining “remigrant status.” See
Ashby, Tomeika v. M.C.I. (F.C. no. IMM-3169-10), Near, March 9, 2011; 2011 FC 277.
Return to note 35 referrer
- Note 36
M.C.I. v. Hua Ma, Shirley Wu Cai (F.C., no. IMM-4223-08), Russell, July 29, 2009; 2009 FC 779. In a case involving a Somali claimant who was born in Somalia, the
RPD found him to be a citizen of Ethiopia by virtue of the
Ethiopian Constitution which provides that if the parents are born in Ethiopia, the offspring are considered to be citizens. The
RPD found he was not a citizen of Somalia even though the Somali
Citizenship Act would consider his parents, who were born in the Ogaden region, to be Somali. The Court found that the
RPD failed to consider whether the possibility that the claimant could acquire Ethiopian citizenship was realistic in the circumstances (the parents were born in the desert and the claimant had no supporting documentation about where they were born). See
Hogjeh, Samir Nur v. M.C.I. (F.C., no. IMM-6550-10), O’Reilly, June 9. 2011; 2011 FC 665.
Return to note 36 referrer
- Note 37
Tretsetsang, supra, footnote 30. Also see
Dakar, Tenzin v. M.C.I. (F.C., no. IMM-3062-16), Gleeson, April 7, 2017; 2017 FC 353 where the Court found the fact the claimant, a Tibetan, obtained a legal opinion regarding his inability to be granted citizenship in India did not constitute a reasonable effort in the context of that case.
Return to note 37 referrer
- Note 38
Grygorian, supra, footnote 24, at 55.
Return to note 38 referrer
- Note 39
Katkova, Lioudmila v. M.C.I. (F.C.T.D., no. IMM-3886-96), McKeown, May 2, 1997. Reported:
Katkova v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 216 (T.D.).
Return to note 39 referrer
- Note 40
The requirement of showing a “genuine link” is not addressed extensively in Canadian jurisprudence, although the principle was quoted with approval in
Crast, supra, footnote 26. The term “genuine and effective link” was first enunciated in the
Nottebohm case (International Court of Justice Reports, 1955, at 23), in the context of opposability between states, as a means of characterizing citizenship attribution which should be recognized at the international level. The concept, as extrapolated from that case and the nationality practice of states in general, has since been molded and shaped into a broader principle in international law. The concept of an ascertainable tie between the individual and a state is an important doctrine in the area of nationality law. This doctrine is based upon principles embodied in state practice, treaties, case law and general principles of law. The genuine and effective link between an individual and a state manifested by factors such as birth and/or descent, and often including habitual residence, is reflected to some degree in a majority of domestic nationality legislation.
Return to note 40 referrer
- Note 41
Ward, supra, footnote 3, at 754
Return to note 41 referrer
- Note 42
Toronto: Butterworths, 1991, page 59.
Return to note 42 referrer
- Note 43
Martinez, supra, footnote 22, at 5-6.
Return to note 43 referrer
- Note 44
Fabiano, Miguel v. M.C.I. (F.C., no. IMM-7659-04), Russell, September 14, 2005; 2005 FC 1260.
Return to note 44 referrer
- Note 45
Basmenji, Aiyoub Choubdari v. M.C.I. (F.C.T.D., no. IMM-4811-96), Wetston, January 16, 1998.
Return to note 45 referrer
- Note 46
Priadkina, Yioubov v. M.C.I. (F.C.T.D., no. IMM-2034-96), Nadon, December 16, 1997.
Return to note 46 referrer
- Note 47
Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998.
Return to note 47 referrer
- Note 48
Osman, Abdalla Abdelkarim v. M.C.I. (F.C.T.D., no. IMM-527-00), Blanchard, March 22, 2001; 2001 FCT 229.
Return to note 48 referrer
- Note 49
Kombo, Muhammad Ali v. M.C.I. (F.C.T.D., no. IMM-4181-00), McKeown, May 7, 2001; 2001 FCT 439.
Return to note 49 referrer
- Note 50
Pavlov, Igor v. M.C.I. (F.C.T.D., no. IMM-4401-00), Heneghan, June 7, 2001; 2001 FCT 602.
Return to note 50 referrer
- Note 51
A case where the
RPD erred in considering the claim against Greece (where the claimant had resided without status) instead of Bangladesh, where he would be considered a citizen because he was Bihari (Urdu speaker), is
Choudry, Robin v. M.C.I. (F.C., no. IMM-2353-11), Russell, December 2, 2011, 2011 FC 1406.
Return to note 51 referrer
- Note 52
Lin, Yu Hong v. M.C.I. (F.C.T.D., no. IMM-1855-94), Reed, December 12, 1994. The definition of “stateless person”, found in the 1954 United Nations Convention Relating to the Status of Stateless Persons, in Article 1, states:
For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its laws.
Note that residency in a country may also be a relevant factor when considering exclusion under Article 1E of the Convention (see Chapter 10, section 10.1.).
Return to note 52 referrer
- Note 53
Gadeliya, supra, footnote 9
Return to note 53 referrer
- Note 54
Maarouf v. Canada (Minister of Employment and Immigration),  1 F.C. 723 (T.D.); (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D).
Return to note 54 referrer
- Note 55
Maarouf, ibid., at 739-740.
Return to note 55 referrer
- Note 56
Al-Khateeb, Mahmoud Issa Ahmad v. M.C.I (F.C. no., IMM-2962-16, Simpson, January 11, 2017; 2017 FC 31.
Return to note 56 referrer
- Note 57
Maarouf, supra, footnote 54;
Bohaisy, Ahmad v. M.E.I. (F.C.T.D., no. IMM-3397-93), McKeown, June 9, 1994;
Ibrahim, Ali Ibrahim Khalil v. S.S.C. (F.C.T.D., no. IMM-4190-93), Pinard, July 8, 1994. Reported:
Ibrahim v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 157 (F.C.T.D);
Zdanov, supra, footnote 20;
Shaat, Rana v. M.E.I. (F.C.T.D., no. A-539-92), McGillis, August 4, 1994. Reported:
Shaat v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 41 (T.D.);
El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994; and
Desai, supra, footnote 22.
Return to note 57 referrer
- Note 58
Lenyk, Ostap v. M.C.I. (F.C.T.D., no. IMM-7098-93), Tremblay-Lamer, October 14, 1994. Reported:
Lenyk v. Canada (Minister of Citizenship and Immigration) (1994), 30 Imm. L.R. (2d) 151 (T.D.), where the claimants had left Ukraine when it was part of the USSR. Justice Tremblay-Lamer stated at 152: “The change of name of the country does not change the fact that it was the place where the [claimants] always resided prior to coming to Canada, and therefore it is their country of former habitual residence.”
Return to note 58 referrer
- Note 59
Thabet v. Canada (Minister of Employment and Immigration),  4 F.C. 21 (C.A); 48 Imm. L.R. (2d) 195 (F.C.A.).
Return to note 59 referrer
- Note 60
Maarouf, supra, footnote 54;
Martchenko, Tatiana v. M.C.I. (F.C.T.D., no. IMM-3454-94), Jerome, November 27, 1995 (any country);
Thabet v. Canada (Minister of Citizenship and Immigration),  1 F.C. 685 (T.D.) (the last country).
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- Note 61
Elbarbari, Sohayl Farouk S. v. M.C.I. (F.C.T.D., no. IMM-4444-97), Rothstein, September 9, 1998.
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- Note 62
M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275 09). Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118.
Return to note 62 referrer
- Note 63
M.C.I. v. Alsha’bi, Hanan (F.C., no. IMM-2032-15), Strickland, December 14, 2015; 2015 FC 1381.
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- Note 64
Al-Khateeb, supra, footnote 56.
Al-Khateeb was distinguished in
Qassim, Wasam F Y Sheikh v. M.C.I. (F.C., no. IMM-2311-17), Kane, February 28, 2018; 2018 FC 226, where the Court rejected the argument that family ties are more important than the duration of residence. In that case, the Court found that, unlike in
Al-Khateeb, where the claimant had been born in and had resided in Gaza for a brief time, in
Qassim the claimants’ two visits to Iraq totaling 13 weeks for vacation and to visit family did not amount to
de facto residence.
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- Note 65
The Court found that the
RAD had failed to consider the following factors:
- there can be more than one
CFHR (country of former habitual residence);
- the Applicant’s birth in Gaza gives him status akin to nationality;
- his rights of return and residence are also akin to the rights associated with citizenship;
- there is no minimum period for residence to establish a
- CFHR’s are “former”. The fact that he was a habitual resident of Gaza many years ago is not a bar to it being a
- he has family in Gaza and he is Palestinian.
Return to note 65 referrer
- Note 66
Kadoura, Mahmoud v. M.C.I. (F.C., no. IMM-4835-02), Martineau, September 10, 2003; 2003 FC 1057. This was so even though the claimant, a stateless Palestinian born in the United Arab Emirates, had a travel and other documents issued by the Lebanese authorities. Although he had a right to reside in Lebanon, the claimant had never resided there. In similar circumstances in
Chehade, Ahmad v. M.C.I. (F.C., no. IMM-2617-16), Strickland, March 16, 2017; 2017 FC 282 the Court held that the claimants had only visited Lebanon for vacation and to see family and, as such, had not established a
de facto residence there. See also
Salah, Mohammad v. M.C.I. (F.C., no. IMM-6910-04), Snider, July 6, 2005; 2005 FC 944.
Return to note 66 referrer
- Note 67
Kruchkov, Valeri v. S.G.C. (F.C.T.D., no. IMM-5490-93), Tremblay-Lamer, August 29, 1994. This decision was followed in
Tarakhan, Ali v. M.C.I. (F.C.T.D., no. IMM-1506-95), Denault, November 10, 1995. Reported:
Tarakhan v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 83 (F.C.T.D), at 86. In that case, the Court upheld the CRDD’s decision that the only relevant country was Jordan, where the claimant, a stateless Palestinian, was born and resided until age 23; he then moved to different posts as directed by his employer, the PLO (1 year in Lebanon, 2 years in Yemen, and 5 years in Cyprus), before leaving for Holland where he made an unsuccessful refugee claim. In
supra, footnote 60, the Trial Division upheld the CRDD’s decision that the claimant was a former habitual resident of the United States, since he had resided there for 11 years, first as a student, and then as a visitor and refugee claimant; while there, he married twice, held a social security card, and filed income tax returns. (The Court of Appeal overturned this decision on other grounds.) In
Absee, Mrwan Mohamed v. M.E.I. (F.C.T.D., no. A-1423-92), Rouleau, March 17, 1994, the claimant, a stateless Palestinian, was born in the Occupied Territories, moved to Jordan at age 6, and resided for short periods in Kuwait (on a temporary basis) and in the United States (illegally). The CRDD’s decision to assess the claim only against Jordan was upheld. In
Alusta, Khahil v. M.E.I. (F.C.T.D., no. A-779-92), Denault, May 16, 1995, the stateless Palestinian-born claimant lived in Germany for 20 years, and then in Morocco for 14 years, with his Moroccan wife and 4 children, on the basis of a residence permit renewable annually on proof of employment. The Court upheld the CRDD’s decision that Morocco was a country of former habitual residence.
Marchoud, Bilal v. M.C.I. (F.C., no. IMM-10120-03), Tremblay-Lamer, October 22, 2004; 2004 FC 1471, the claimant was a stateless Palestinian, who was born and lived in Lebanon until age four. He spent the majority of his life until age 23 in the United Arab Emirates (1980-1998), before becoming a university student in the United States (1998-2001), having returned to Lebanon only for a period of one week. The Court upheld the RPD’s decision that the only country of former habitual residence was the UAE, and that Lebanon was not such a country notwithstanding the fact that the claimant had travel documents issued by the Lebanese authorities and could reside there. Since the panel had concluded that the claimant could return to the UAE, it was not obligated to analyze the possibility of
refoulement to Lebanon by the UAE. In
Daoud, Senan v. M.C.I. (F.C., no. IMM-6450-04), Mosley, June 9, 2005; 2005 FC 828, the Court did not fault the RPD by referring to Jordan as a place to which the stateless claimant could return, as he travelled with a Jordanian passport and had transited Jordan to reach the United States and Canada. Should he be removed from Canada, presumably it would be first to the United States, and from there to Jordan. It was, therefore, appropriate to consider whether he had any real fear of persecution in Jordan, even though the passport gives him no rights as a national and no right to live there.
Return to note 67 referrer
- Note 68
Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4; Lenyk, supra, footnote 58, at 152. See also UNHCR Handbook, paragraph 102.
Return to note 68 referrer
- Note 69
Maarouf, supra, footnote 54, at 737.
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- Note 70
Shahin, Jamil Mohammad v. S.S.C. (F.C.A., no. A-263-92), Stone, Linden, Robertson, February 7, 1994, at 2.
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- Note 71
Maarouf, supra, footnote 54, at 739-740;
Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported:
Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (T.D.), at 263-264;
supra, footnote 60 at 693;
supra, footnote 59 at 41;
Chehade, supra, footnote 66 at 29.
Return to note 71 referrer
- Note 72
Arafa, supra, footnote 68, the claimant’s continued permission to remain in the United Arab Emirates, once he turned 18, was dependent upon the continuation of his education or obtaining a work permit and employment there; his last one-year authorization became invalidated when he resided outside the UAE for more than 6 months. For a similar fact situation, see also
Kadoura, supra, footnote 66, where the Court noted that the United Arab Emirate’s cancellation of, or failure to issue, a residence permit was not an act of persecution, but a direct consequence of the decision of the claimant, who chose to leave the
UAE to come to Canada to study. Furthermore, the conditions imposed by the UAE (that the person have a work permit or be enrolled in full-time studies) had no nexus to any of the grounds set out in the Convention. The denial of a right of return was not for a Convention reason.
Alusta, supra, footnote 67, the condition for obtaining a Moroccan residence permit, namely proof of employment, was found to be unrelated to a Convention ground. In
Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996, the claimant lost his residence status in Qatar, which was renewable every 6 months, because he failed to return in 1986 because of the war in Afghanistan where he was a student; the Court upheld the
CRDD’s determination that he was not outside the country, nor had Qatar denied him reentry, because of a Convention reason. Simpson J. stated at 5-6: “it seems to me that there must be something in the real circumstances which suggests persecutorial intent or conduct. Absent such evidence, I am not prepared to conclude that the Law, which is one of general application, is persecutorial in effect”. In
Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998, the Court upheld the CRDD’s conclusion that the claimant’s inability to return to Saudi Arabia was due to his not being able to obtain an employment sponsor, and not to his Palestinian background; the requirement of an employment contract to maintain one’s residency status is unrelated to the grounds in the definition of a Convention refugee. In
Elastal, Mousa Hamed v. M.C.I. (F.C.T.D., no. IMM-3425-97), Muldoon, March 10, 1999, the Court cited with approval the CRDD’s finding that the claimant’s lack of a right to return to the United States was not persecutory because, as an illegal resident, he never had the right to return there. In
Salah, supra, footnote 66, the RPD had considered the claimant’s reasons for leaving Egypt, and the fact that he had allowed his residency permit to lapse, and reasonably concluded that the claimant had not left or been denied re-entry into Egypt on a Convention ground. The claimant provided no evidence to support his conclusion that his inability to work in Egypt legally (he had worked there illegally for at least 3 years) amounted to persecution. See also
Karsoua, Bahaedien Abdalla v. M.C.I. (F.C., no. IMM-2931-06), Blanchard, January 22, 2007; 2007 FC 58, where the Court upheld the RPD’s finding that the denial of right of return to the UAE did not constitute persecution.
Return to note 72 referrer
- Note 73
Thabet (C.A.), supra, footnote, 59, at 41.
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- Note 74
Wahgmo, Kalsang v. M.C.I. (F.C., no. IMM-6321-13), Locke, September 29, 2014: 2014 FC 923.
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- Note 75
Shahin, supra, footnote 70, at 2.
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- Note 76
El-Bahisi, Abdelhady v. M.E.I. (F.C.T.D., no. A-1209-92), Denault, January 4, 1994, at 2-3. Paragraph 143 of the
UNHCRHandbook provides, in part:
It should normally be sufficient to establish that the circumstances which originally made him qualify for protection or assistance from UNWRA still persist and that he has neither ceased to be a refugee under one of the cessation clauses nor is excluded from the application of the Convention under one of the exclusion clauses.
Return to note 76 referrer
- Note 77
El-Bahisi, supra, footnote 76; Kukhon, Yousef v. M.C.I. (F.C.T.D., no. IMM-1044-02), Beaudry, January 23, 2003; 2003 FCT 69;
Abu-Farha, Mohammad v. M.C.I. (F.C., no. IMM-4515-02), Gibson, July 10, 2003; 2003 FC 860.
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- Note 78
Mohammadi, Seyed Ata v. M.C.I. (F.C.T.D., no. IMM-1432-00), Lutfy, February 13, 2001; 2001 FCT 61, the Court found that a certificate issued by the UNHCR in 1994, which was valid for six months, recognizing the Iranian claimant as a refugee, was of little, if any, significance, to the determination of refugee status in 2000. In
Castillo, Wilson Medina v. M.C.I. (F.C., no. IMM-4982-03), Kelen, March 17, 2004; 2004 FC 410, the Court found that the RPD did not err by dismissing the relevance of the UNHCR recognition, in 1982, of the claimant as a Convention refugee based on his father’s recognition a year earlier. The RPD took into account the changed circumstances since that time, including the fact that the claimant returned to Colombia, his country of nationality, in 1995, without any problem.
Return to note 78 referrer
- Note 79
Qassim, supra, footnote 64 at 2. See also
Chehade, supra, footnote 66 at 24.
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- Note 80
Basmenji, supra, footnote 45;
Adereti, supra, footnote 2.
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- Note 81
El Khatib, supra, footnote 57, at 2. The Court agreed to certify the following question:
On a claim to Convention refugee status by a stateless person, is the “well-foundedness” analysis set out by the Supreme Court of Canada in [Ward] applicable, based as it is on the availability of state protection, or is it only applicable if the claimant is a citizen of the country in which he or she fears persecution?
The Court of Appeal, in dismissing the appeal in
El Khatib, declined to deal with the certified question because it was not determinative of the appeal. See
M.C.I. v. El Khatib, Naif-El (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996.
Tarakhan, supra, footnote 67, at 89, the Trial Division also held that where the claim is that of a stateless person, the claimant need only show that he or she is unable, or by reason of a well-founded fear of persecution, is unwilling to return to the country of former habitual residence. The claimant does not have to prove that the authorities of that country are unable or unwilling to protect him or her. One aspect the Court did not address is the requirement in
Ward, supra, footnote 3, at 712, that the analysis of whether a well-founded fear of persecution exists include a consideration of the state’s inability to protect. In
Pachkov, Stanislav v. M.C.I. (F.C.T.D., no. IMM-2340-98), Teitelbaum, January 8, 1999. Reported:
Pachkov v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 55 (T.D.), the Court held that the CRDD erred in imposing on the claimant, who was a stateless person, a duty to refute the presumption of state protection. See also
Elastal, supra, footnote 72, to the same effect, which cited the Court of Appeal decision in
Thabet (C.A.), supra, footnote 59, though that decision did not specifically rule on the issue.
Return to note 81 referrer
- Note 82
Giatch, Stanislav v. M.E.I. (F.C.T.D., no. IMM-3438-93), Gibson, March 22, 1994;
Zaidan, Bilal v. S.S.C. (F.C.T.D., no. A-1147-92), Noël, June 16, 1994;
Zvonov, Sergei v. M.E.I. (F.C.T.D., no. IMM-3030-93), Rouleau, July 18, 1994. Reported:
Zvonov v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 23 (T.D.);
Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995. This issue was further confused by
M.C.I. v. Vickneswaramoorthy, Pologam (F.C.T.D., no. IMM-2634-96), Jerome, October 2, 1997, where the Court suggested that the same standard of proof to demonstrate the state’s inability to protect persecuted individuals applies to stateless persons as to those with a country of nationality. See also
Popov, Alexander v. M.C.I. (F.C., no. IMM-841-09), Beaudry, September 10, 2009; 2009 FC 898, where the Court upheld the RPD’s determination that the stateless claimants had not rebutted the presumption of protection in relation to the USA, a country of former habitual residence. Both
Popov were quoted with approval in
Vetcels, Maksims v. M.C.I. (F.C., no. IMM-7952-12), Hughes, June 14, 2013; 2013 FC 653. The RPD’s conclusions regarding state protection and persecution were found to be reasonable. In
Khattr, Amani Khzaee v. M.C.I. (F.C. no. IMM-3249-15), Zinn, March 22, 2016; 2016 FC 341, the Court again affirmed the principle from Popov that the presumption of state protection applies when determining whether a stateless person has a well-founded fear of persecution in their country of former habitual residence
Return to note 82 referrer
- Note 83
Nizar v. M.C.I. (F.C.T.D., no. A-1-92), Reed, January 10, 1996, at 5.
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- Note 84
Thabet (C.A.) , supra, footnote 59, at 33 and 39.
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