Docket: IMM-3651-04
Toronto, Ontario, April 7th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
LILLIAN LUGUNDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a 26 year old woman from Uganda. She was born in Rwanda to Rwandan parents in a town called Katuna which borders Uganda and Rwanda. She was adopted by a Ugandan woman at the age of six and allegedly registered in Uganda. In 1999 her adoptive mother forced her "to marry" a man twice her age by the name of Hadji Zeidu, in exchange for a dowry.
[2] Mr. Zeidu became abusive and eventually began to rape the Applicant, regularly claiming that he had bought her and therefore she could not refuse his sexual advances. She reported the incident to the police but they said it was a domestic matter that should be resolved in the home and would not accept her report.
[3] In December of 2000, the Applicant met a man called Peter who helped her leave Uganda. She arrived in Canada on December 29, 2000 and made a refugee claim on March 21, 2001. Considering what happened to her in the past, she fears a return to Uganda.
[4] The Board found there was insufficient evidence to establish that the Applicant was a citizen of Uganda or had renounced her Rwandan citizenship. The Board held that since the Applicant was born in Rwanda to Rwandan parents and holds a valid Rwandan birth certificate, Rwanda is the Applicant's country of citizenship and her fear of persecution should be considered in relation to that country.
[5] The Board agreed she is entitled to be afraid of Mr. Zeidu in Uganda but found she failed to demonstrate the Rwandan authorities were unable or unwilling to grant her protection. Accordingly, her claim was denied.
[6] The Applicant argues that the Board erred in considering her to be Rwandan rather than Ugandan.
[7] Both sides agreed that on the basis of Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17 the standard of review is patent unreasonableness.
[8] The Applicant submits that:
- this application turns on whether she is a citizen of Rwanda and the issue of state protection. The Applicant was born in Rwanda but acquired Ugandan citizenship when she was adopted by a Ugandan family. The Applicant contends that subsections 15(1) and (4) of The 1995 Constitution of the Republic of Uganda state that upon acquiring citizenship of Uganda, an individual relinquishes their former citizenship, in the Applicant's case, her Rwandan citizenship. [This document was not produced before the Board, see paragraph 13 below.] She retained her Rwandan birth certificate but she was no longer a Rwandan citizen and could not avail herself of that state's protection.
- the International Convention on Certain Questions Relating to the Conflict of Nationality Laws, April 12, 1930 [179 LoNTS 89] states that each state determines under its own law who are its nationals and other states shall recognize these nationality laws. Questions of nationality of a particular state will be determined in accordance with the laws of that state.
- the Board failed to take into account that she could not have dual citizenship, in accordance with Ugandan law. Her claim should have been assessed in accordance with Ugandan law as that is her country of citizenship at the present time and her country of residence before she came to Canada, not Rwanda.
- the UNHCR Handbook states the following at paragraph 89:
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.
- she successfully rebutted the presumption of state protection as she suffered persecution in Uganda, her country of citizenship and habitual residence, and was not able to avail herself of the state protection of that country.
[9] In my view, none of these arguments are persuasive.
[10] The Immigration and Refugee Protection Act, ( 2001, c. 27 ) ("IRPA") recognizes that a person can have more than one nationality. It provides at section 96 as follows:
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. (Underlining added)
[11] The Applicant in this case travelled on a false British passport to Canada. The RPD File Screening Form, (found in the Tribunal Record at p. 56,) given to the Applicant on November 14, 2003 specifically stated:
Claimant must provide proof of Ugandan citizenship
Claimant must obtain proof that she no longer has Rwandan citizenship and cannot regain it. Otherwise the claimant must provide proof that she cannot obtain protection as a citizen of Rwanda
Claimant to obtain death certificates for family, proof or residence with fiancee, Hadji Zaidi (correspondence addressed to both at the same residence etc) and records of family business.
[12] However, for the hearing the Applicant only produced:
1. A completed Personal Information Form ("PIF") in which she stated she was a Ugandan citizen;
2. An affidavit from a friend in Uganda certifying that she suffered abuse in Uganda;
3. A certificate evidencing that she resided in Mukono District, Uganda;
4. A police report from Uganda evidencing that she had reported mistreatment by her husband to the police;
5. A death certificate from Rwanda for her father;
6. A birth certificate from Rwanda for herself.
[13] For this judicial review hearing the Applicant also produced an affidavit sworn by herself and the Constitutions of Uganda and Rwanda. However, as these documents were not before the Board this Court will not take them into account following Lemiecha (Litigation Guardian of) v. M.E.I. (1993) 72 F.T.R. 49.
[14] No evidence of the law or Constitutions of Uganda or Rwanda were produced before the Board. Given that the only valid identity document produced by the Applicant was a birth certificate from Rwanda and given that the Applicant herself stated that she was born in Rwanda, the Board determined that her fear of persecution should be determined with respect to Rwanda. In fact, the only document before the Board that indicated her alleged Ugandan citizenship was her PIF.
[15] The Board's decision also asserts that in answer to the question whether she was a Ugandan citizen, she answered categorically "no". However, as there is no transcript of the Board's hearing and this cannot be verified, this Court will disregard that portion of the Board's decision.
[16] It is well established that a refugee must seek protection in the countries in which she can assert nationality before making a claim for asylum in Canada (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.)
[17] It is equally well established that the onus is on the Applicant to establish her claim for refugee status (see Fernandopulle v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 412, 2005 FCA 91 at paragraph 13.) She had over a year to produce the necessary documentation and failed to do so, notwithstanding the specific request set out in the RPD File Screening Form. The Applicant did not produce any document that established that she was an Ugandan citizen, nor did she produce any evidence that a Ugandan is not allowed to have another nationality or must renounce another nationality if she acquires Ugandan citizenship. The evidence presented only established that she was entitled to Rwandan citizenship.
[18] Thus, the Board merely applied the principle so succinctly stated by Joyal J. in Grygorian v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1608 at paragraph 15:
the basic principle of refugee law is to grant such status only to those requiring surrogate protection and not to those who have ready an automatic right to another country's nationality.
[19] I do not see how, in light of the evidence before it, the Board could have come to another conclusion. There is nothing unreasonable, let alone patently unreasonable, about the Board's decision.
[20] Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3651-04
STYLE OF CAUSE: LILLIAN LUGUNDA
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 6, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: APRIL 7, 2005
APPEARANCES BY:
Mr. Christopher Okumu
FOR THE APPLICANT
Ms. Neeta Logsetty
FOR THE APPLICANT
SOLICITORS OF RECORD:
Christopher Okumu
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT