Canada Immigration Case law Canada Dolma, IMMIGRATION — Refugee status — Requirements

Judgement for this Case: Click here!

IMMIGRATION — Refugee status — Requirements — Effective nationality — Refugee claimant who was born in India in 1982 claimed refugee status on ground Indian authorities would not recognize her as citizen if she returned there since she was ethnic Tibetan — Claimant alleged that Indian authorities would deport her to China, where she would be persecuted as ethnic Tibetan and follower of Dalai Lama — RPD considered citizenship laws of India which stated that individual born in India on or after January 26, 1950 but before July 1, 1987 was citizen by birth and concluded that Indian citizenship was therefore within claimant’s control. — Refugee Protection Division denied claim — Claimant applied for judicial review — Issue whether RPD erred in concluding that India was country of reference for assessment of refugee claim because claimant was legally entitled to Indian citizenship by birth, and regardless of whether she would have difficulties obtaining recognition of that citizenship — Application granted — Board erred in law by failing to consider difficulty claimant would face in obtaining recognition of her Indian citizenship and rights and privileges that attached thereto, finding instead that her legal entitlement to citizenship was determinative — Nationality must be effective, rather than merely formal — Elements in concept of “effective nationality” include recognition of nationality by state of nationality and absence of practical impediments to accessing benefits of nationality — Where citizenship in country is purely formal rather than pragmatically effective, country should not be considered as country of reference — Given humanitarian objects of Refugee Convention, it could not have been intended that person would be denied international protection by virtue of formal but relevantly ineffective nationality