Federal Court Decisions

     IMM-1652-97

BETWEEN:

                 DORCA HARRIS, and

                 KENNY TOMAS GEORGE SHEPARD

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

TEITELBAUM, J:

     This is an application for judicial review of a decision of the Immigration and Refugee Board (Board) Convention Refugee Determination Division. In a decision dated April 7, 1997, the Board found the applicants, Dorca Harris and her minor son Kenny Tomas George Shepard, citizens of the Dominican Republic and of Montserrat not to be convention refugees. The Board found that the applicants' fear of persecution in Montserrat not well founded. The Board did not deal with the issue of persecution in the Dominican Republic as it felt that as citizens of Montserrat the applicants could have remained and can still remain in Montserrat without fear of persecution.

FACTS

     The applicant Dorca Harris was 27 years of age at the time of her hearing before the Board. Her son Kenny was 2 years old. Dorca Harris was born in the Dominican Republic and resided in the Dominican Republic until March of 1990. She left the Dominican Republic and went to Antigua until September of 1990. She left the Dominican Republic because she was a member of the "PRD", that is, "The Dominican Revolutionary Party" and, as such, she "was ill-treated and harassed by the reformist party then in power in the Dominican Republic". The main applicant then left Antigua and went to live in Montserrat. She obtained citizenship in Montserrat.

     In her affidavit, sworn on May 23, 1997, she states, "that, in Montserrat I was being followed by 2 individuals from the groups "Belanquista" and, as a result "I developed a strong fear of persecution".

BOARD'S DECISION

     In a brief decision, the Board determined that the applicants, Dorca and her son Kenny, were not Convention refugees.

Après avoir analysé toute la preuve tant testimoniale que documentaire, nous en sommes venus à la conclusion que les revendicateurs ne sont pas des "réfugiés au sens de la Convention" pour la raison suivante.

Soulignons la crainte de persécution de la part de la revendicatrice, la revendicatrice se rend à Montserrat pour échapper à la persécution qu'elle avait subie en République Dominicaine. À Montserrat, elle devient citoyenne de cet État et durant toute la période de résidence dans ce pays, soit cinq ans, la revendicatrice n'a jamais eu de menace et n'a jamais été persécutée par qui que ce soit. Le seul incident que la revendicatrice nous relate est le fait qu'à quelques reprises, elle a croisé dans la rue deux personnes qu'elle présumait faire partie du groupe "Belanquista". Mais ces deux personnes ne lui ont jamais adressé la parole ou ne lui ont jamais adressé de menaces; nous trouvons la crainte de la part de la revendicatrice invraisemblable.

DISCUSSION

     The only issue raised by counsel for the applicants at the hearing of the judicial review is the fact that the Board erred in law in not determining whether or not the applicant Dorca was persecuted while in the Dominican Republic and, as a result, was persecuted in Montserrat by being followed by the two persons allegedly belonging to a group known as "Belanquista".

     The fact that the applicant Dorca was or was not persecuted in the Dominican Republic is of no consequence in the circumstances of the present case. The applicant Dorca left the Dominican Republic and resided in Montserrat where she became a citizen. The Board did not have to deal with the issue of persecution in the Dominican Republic if, as it was, satisfied the applicant was not being persecuted in Montserrat.

     In the case of Bouianova v. Minister of Employment and Immigration (1994) 67 F.T.R. 74 at 76, Mr. Justice Rothstein, in reviewing the issue of dual citizenship states:

In M.E.I. v. Adnan Omar Akl (1990), 140 N.R. 323, the court 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."

     In the case of Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 at 694, it is stated:

Appellant conceded dual nationalityIrish and British. The burden of proof, including a showing of well-founded fear of persecution in all countries of which the claimant is a national, lies with appellant and not the Minister.

The Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality. Any home state protection is a claimant's sole option when available since international refugee protection is to serve as "surrogate" shelter coming into play only upon failure of national support.

and, at page 751 and 752:

Dual Nationality

Ward's citizenship, by virtue of his being a resident of Northern Ireland which forms part of the United Kingdom, effectively endows him with British citizenship; see the British Nationality Act 1981 (U.K.), 1981, c. 61. On January 1, 1983, British citizenship was automatically acquired by all those citizens of the United Kingdom and the Colonies who had the right of abode in the United Kingdom on that date pursuant to the British Nationality Act 1981. During the oral hearing, Ward's counsel effectively admitted the Board's error in this regard and conceded Ward's dual nationality. This makes unnecessary a consideration of burden of proof, but it is right to say that I agree with the Court of Appeal that the Board erred in placing the burden of proof on the Minister. This burden includes a showing of well-founded fear of persecution in all countries of which the claimant is a national.

In considering the claim of a refugee who enjoys nationality in more than one country, the Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality. Although never incorporated into the Immigration Act and thus not strictly binding, paragraph 2 of Art. 1(A)(2) of the 1951 Convention infuses suitable content into the meaning of "Convention refugee" on the point. This paragraph of the Convention provides:

Article 1

. . .

A . . . .

(2) . . .

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on a well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

As described above, the rationale underlying international refugee protection is to serve as "surrogate" shelter coming into play only upon failure of national support. When available, home state protection is a claimant's sole option. The fact that this Convention provision was not specifically copied into the Act does not render it irrelevant. The assessment of Convention refugee status most consistent with this theme requires consideration of the availability of protection in all countries of citizenship.

This conclusion is bolstered by general rules of statutory interpretation. Section 33(2) of the Interpretation Act, R.S.C. 1985, c. I-21, stipulates that words in the singular include the plural. Consequently, references to "country of nationality" in the definition of "Convention refugee" in s. 2(1) of the Immigration Act should be read as including "countries of nationality".

     The Board clearly and rightly understood that if it was satisfied that the applicants would not be subject to persecution in Montserrat it did not need to discuss the issue of persecution in the Dominican Republic.

     The Board, in stating that the evidence did not disclose any evidence of threats to the applicants while in Montserrat, nor of any other type of acts of persecution, are correct in concluding "que la revendicatrice, Madame Dorca Harris et son fils, Kenny Tomas George Shepard, ne sont pas des "réfugiés au sens de la Convention" tel que défini à l'article 2(1) de la Loi sur l'immigration."

CONCLUSION

     The application for judicial review is denied. When asked, neither party had a question to be certified.

                        

                    

                             J U D G E

OTTAWA

October 31, 1997