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CHAPTER 2
2. COUNTRY OF PERSECUTION
2.1. COUNTRY OF NATIONALITY
The claimant must establish that he
or she is a Convention refugee from the country of his or her nationality.
In this context nationality means citizenship of a particular country.1
If the claimant has a country of nationality, the claim should be assessed
only against that country and not against some other country where the
claimant may have residency status.2
2.1.1. Multiple Nationalities
If a claimant is a national of more
than one country, the claimant must show that he or she is a Convention
refugee with respect to all such countries.3
A refugee claimant must thus prove that he or she has a well-founded fear
of persecution in all countries of nationality before he or she can be
conferred refugee status in Canada.4
Consequently, the CRDD
(now RPD)
is not required to consider the fear of persecution in the second country
of citizenship, once it has been determined that the claimant does not
have a well-founded fear of persecution in the first.5
2.1.2. Establishing Nationality
Determining nationality is a question
of fact.6
Nationality can be established by examining the laws (constitution, citizenship
legislation) and their interpretation (most authoritatively, by officials
of the relevant government) and the state practice of the country in question.7
Possession of a national passport8
as well as birth in a country9
can create a rebuttable presumption that the claimant is a national of
that country. However, the claimant can adduce evidence that the passport
is one of convenience10
or that he or she is not otherwise entitled to that country's nationality.11
Recourse to paragraph 89 of the UNHCR
Handbook12
is necessary only when a person's nationality cannot be clearly established.13
2.1.3. Right to Citizenship
In the case of Bouianova, in
the context of the break-up of the former Soviet Union, Mr. Justice
Rothstein of the Trial Division stated:
In my view, the decision in Akl,14 is wide enough to encompass the situation of [a
claimant] who, by reason of her place of birth, is entitled to be a citizen
of a particular country, upon compliance with requirements that are mere
formalities.
In my view the status of statelessness is not one that is optional
for [a claimant]. The condition of not having a country of nationality
must be one that is beyond the power of the [claimant] to control. Otherwise,
a person could claim statelessness merely by renouncing his or her former
citizenship.
In a series of decisions, the Trial
Division has held that a claimant may be considered to be a national of
a successor state15 (to the country of his or her former nationality),
even if he or she does not reside in that successor state, where the evidence
establishes that application for citizenship is a mere formality and the
authorities of the successor state do not have any discretion to refuse
the application.16
The Trial Division has also held, in non-successor
state contexts, that a legal entitlement to citizenship by birth in a
place (jus soli),17
through one's parents or by descent (jus sanguinis),18
through marriage,19
or even through ancestry20
may also confer effective nationality. One cannot "choose" to be stateless
in these circumstances.
In Grygorian,21
the Trial Division found reasonable the CRDD
decision which held that Israel's Law of Return conferred a right to citizenship
on a Russian-born claimant of Jewish origin who had never expressed an
intention to immigrate to Israel and who had never resided there. The
Court viewed this as an application of the principle in Bouianova.
The Grygorian decision was found not to
be a binding precedent and was not followed in Katkova,22
where the Court again considered Israel's Law of Return in the context
of a Jewish citizen of Ukraine who did not wish to go to Israel. This
factor was considered to be crucial given that the Law of Return stated
that the desire to settle in Israel was a prerequisite to immigration.
The Court also drew a distinction between potential rights and pre-existing
status as a national of a particular country -- that is, between potential
as opposed to actual nationality, and stated that Ward (S.C.C.)
did not deal with potential nationality. Moreover, the Court was of the
view that there had to be a genuine connection or link with the home state.23
Finally, the Court held that the Law of Return conferred a discretionary
power on the Israeli Minister of the Interior to deny citizenship.
2.1.3.1. Failure to Access Possible Protection
in a Third Country
There is some confusion in the case law of the Trial
Division as to whether or not an adverse inference can be drawn from the
failure to access possible protection or status in a third country, in
cases where there is no automatic right to citizenship. In Basmenji,24
the Court rejected the proposition that the claimant, an Iranian married
to a Japanese national, should have attempted to claim some form of status
while in Japan before making a refugee claim in Canada. A similar position
was taken in Priadkina,25
where the Court stated that the claimants, Russian Jews from Kazakhstan,
had no duty to seek refugee status in Russia or Israel before claiming
in Canada.
However, in Moudrak,26
the Court held that the CRDD
did not err in taking into account the failure of the claimant, a national
of Ukraine of Polish descent, to investigate the possibility of acquiring
Polish citizenship (which was not guaranteed) when she travelled to Poland:
"the Board was perfectly entitled to find that this was inconsistent with
a well-founded fear of persecution." In Osman,27
the Court found that the CRDD's
emphasis on the claimant's failure to return to the Philippines, where
he had married and had two children, was in the context of his subjective
fear and credibility and was not unreasonable. A similar finding was made
in Kombo,28
where the CRDD
challenged the claimant's credibility and subjective fear because he had
taken no action to secure international protection by registering with
the UNHCR
in Kenya, where he had resided for eleven years as a refugee from Somalia,
had married a Kenyan citizen and had two Kenyan children.
On the other hand, in Pavlov,29
the Court held that the CRDD's
conclusion about the lack of credibility of the Russian Jewish claimants
(who "could have gone to Israel as full citizens
In the panel's
view, their failure to take advantage of this option is indicative of
a lack of subjective fear") was related to a misapprehension of the law:
The CRDD
mistakenly assumed that the claimants were required to seek protection
in Israel, which was not as of right and which the claimants did not wish
to do, before applying for Convention refugee status in Canada. The Court
cited Basmenji, but did not refer to Moudrak and Osman.
2.1.4. Effectiveness of Nationality
In Martinez,30
the Trial Division, after citing Ward31
and James C. Hathaway's The Law of Refugee Status,32
appeared to accept that there is a need to ensure that a state of citizenship
accords effective, rather than merely formal nationality, as well as to
assess any evidence impeaching that state's protection against return
to the country of persecution.
2.2. FORMER HABITUAL RESIDENCE
Former habitual residence is only relevant where
the claimant is stateless, i.e., he does not have a country of nationality.33
2.2.1. Principles and Criteria for Establishing
Country of Former Habitual Residence
In the Maarouf34
decision, Mr. Justice Cullen of the Trial Division, after an extensive review
of the legal principles and authorities, endorsed the following propositions:
In my view, the concept of "former habitual residence" seeks
to establish a relationship to a state which is broadly comparable to
that between a citizen and his or her country of nationality. Thus the
term implies a situation where a stateless person was admitted to a given
country with a view to continuing residence of some duration, without
necessitating a minimum period of residence.
a "country of former habitual residence" should not be
limited to a country where the claimant initially feared persecution.
Finally, the claimant does not have to be legally able to return to a
country of former habitual residence as a denial of a right of return
may in itself constitute an act of persecution by the state. The claimant
must, however, have established a significant period of de facto
residence in the country in question.35
The Trial Division has held, in a number
of decisions, that a country may be a country of former habitual residence
even if the claimant is not legally able to return to that country.36
A country can be a country of former
habitual residence even though it is a successor state to a larger country
which the claimant left.37
2.2.2. Multiple Countries of Former Habitual
Residence
The Federal Court of Appeal in Thabet38
clarified the conflicting case law emanating from the Trial Division39
regarding the country of reference in claims made by stateless persons
who have habitually resided in more than one country. The Court of Appeal
answered the certified question put to it as follows:
In order to be found to be a Convention refugee, a stateless
person must show that, on a balance of probabilities he or she would suffer
persecution in any country of former habitual residence, and that he or
she cannot return to any of his or her other countries of former habitual
residence. (At 40.)
The Court of Appeal considered four options -- the
first country, the last one, all the countries, or any of the countries -- but
rejected all of them. Instead it adopted as a test what it termed "any
country plus the Ward factor" as being consistent with the language
of the Convention refugee definition and the teachings of the Supreme
Court of Canada in Ward. Mr. Justice Linden expressed the Court's ruling in another way in
the reasons for judgment:
If it is likely that a person would be able to return to a country
of former habitual residence where he or she would be safe from persecution,
that person is not a refugee. This means that the claimant would bear
the burden
of showing on a balance of probabilities that he or
she is unable or unwilling to return to any country of former habitual
residence. (At 39.)
In effect, this means that if a stateless person
has multiple countries of former habitual, the claim may be established
by reference to any such country. However, if the claimant is able to
return to any other country of former habitual residence, the claimant
must, in order to establish the claim, also demonstrate that he or she
faces persecution there.
The Trial Division applied the principles
of the Thabet decision in Elbarbari.40 Since the claimant could not return to any of
the three countries in which he had formerly resided, the CRDD
erred by not considering his fear of persecution in Iraq, after finding
that the claimant did not have a well-founded fear of persecution in Egypt
and the United States.
2.2.3. Nature of Ties to Country
The Federal Court has not yet treated in any depth
the nature of the ties required for a country to constitute a country
of former habitual residence in cases where there are two or more countries
in which the claimant has resided. However, it is suggested that, at a
minimum, the assessment include the factors mentioned in Maarouf,
namely, whether the person was admitted into the country for the purpose
of continuing residence of some duration (without necessitating a minimum
period of residence), and whether there was a significant period of de
facto residence. On the other hand, there is no requirement that
the claimant be legally able to return.
In Kruchkov,41
the Trial Division held that the determination of one's country of former
habitual residence is a question of fact, not of law.
2.2.4. Subsisting Well-Founded Fear of Persecution
Statelessness per se does not
give rise to a claim to refugee status: the claimant must demonstrate
a well-founded fear of persecution based on a Convention ground.42
Alternatively, the claimant must be outside his or her country of former
habitual residence for a Convention reason.43
The requirement of having to demonstrate a subsisting
well-founded fear of persecution, where the stateless claimant is unable
to return to his or her country of former habitual residence, was not
resolved by the Federal Court of Appeal. In Shahin,44
Mr. Justice Linden stated:
As for the legal issue of whether a stateless person needs to
prove only an inability to return home, or whether a showing of a reasonable
fear of persecution is also required, we do not feel we should try to
resolve that matter at this stage of the proceeding, preferring instead
to leave that matter to be dealt with by the new panel.
2.2.5. Evidence of Persecution for a Convention
Reason
A denial of a right to return may, in
appropriate circumstances, in itself constitute an act of persecution
by the state.45
However, for it to be the basis of a claim, the refusal must be based
on a Convention ground, and not be related simply to immigration laws
of general application.46
In Thabet,47
the Court of Appeal held that the CRDD
had addressed that question adequately when it found that the claimant
could not return to Kuwait because he lacked a valid residency permit.
A recent application to return to one's
country of former habitual residence is not a requirement: a claimant
can rely on earlier unsuccessful attempts by family members as well as
on documentary evidence.48
Having regard to paragraph 143 of the
UNHCR
Handbook, an UNWRA document issued to a Palestinian refugee was
found to be cogent, though not determinative evidence of refugeehood.49
2.2.6. State Protection
As to whether or not stateless claimants need to
avail themselves of state protection, the decisions of the Trial Division
are not consistent. The UNHCR
Handbook, in paragraph 101, states that "
[i]n the case
of a stateless refugee, the question of 'availment of protection' of the
country of his former habitual residence does not, of course, arise. "
In El Khatib,50 Mr. Justice
McKeown agreed with this approach and stated:
the discussion and conclusions reached in Ward51
apply only to a citizen of a state, and not to stateless people. In my
view the distinction between paragraphs 2(1)(a)(i) and
2(1)(a)(ii) of the [Immigrationt] Act52
is that the stateless person is not expected to avail himself of state
protection when there is no duty on the state to provide such protection.
However, other Trial Division decisions
have taken into account state protection that might be available to the
claimant in his or her country of former habitual residence.53 For example, in Nizar,54
the Court was of the view that, even though states owe no duty of protection
to non-nationals, "it is relevant for a stateless person, who has a country
of former habitual residence, to demonstrate that defacto (sic)
protection within that state, as a result of being resident there, is
not likely to exist. "The Court reasoned that this was relevant to the
well-foundedness of the claimant's fear.
The Court of Appeal in Thabet,55
in the context of discussing whether a stateless claimant who has more
than one country of former habitual residence must establish the claim
with respect to one, some or all of the countries, had this to say about
the issue of state protection:
The definition takes into account the inherent difference
between those persons who are nationals of a state, and therefore are
owed protection, and those persons who are stateless and without recourse
to state protection. Because of this distinction one cannot treat the
two groups identically, even though one should seek to be as consistent
as possible. (at 33)
If it is likely that a person would be able to return
to a country of former habitual residence where he or she would be safe
from persecution, that person is not a refugee. This means that the claimant
would bear the burden
of showing on the balance of probabilities
that he or she is unable or unwilling to return to any country of former
habitual residence. (at 39)
- 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 (F.C.T.D.
)
- Absee, Mrwan Mohamed v.
M.E.I.
(F.C.T.D.,
no.
A-1423-92), Rouleau, March 17, 1994
- Adar, Mohamoud Omar v. M.C.I.
(F.C.T.D.,
no.
IMM-3623-96), Cullen, May 26, 1997
- Aguero, Mirtha Marina Galdo v.
M.C.I.
(F.C.T.D.,
no.
IMM-4216-93), Richard, October 28, 1994
- Akl: M.E.I.
v. Akl, Adnan Omar (F.C.A.,
no.
A-527-89), Urie, Mahoney, Desjardins, March 6, 1990
- Altawil, Anwar Mohamed v.
M.C.I.
(F.C.T.D.,
no.
IMM-2365-95), Simpson, July 25, 1996
- Alusta,Khahil v. M.E.I.
(F.C.T.D.,
no.
A-779-92), Denault, May 16, 1995
- Arafa, Mohammed v. M.E.I.
(F.C.T.D.,
no.
A-663-92), Gibson, November 3, 1993
- Avakova, Fatjama (Tatiana) v.
M.C.I.
(F.C.T.D.,
no.
A-30-93), Reed, November 9, 1995
- Basmenji, Aiyoub Choubdari v.
M.C.I.
(F.C.T.D.,
no.
IMM-4811-96), Wetston, January 16, 1998
- Beliakov, Alexandr v. M.C.I.
(F.C.T.D.,
no.
IMM-2191-94), MacKay, February 8, 1996
- Bohaisy, Ahmad v. M.E.I.
(F.C.T.D.,
no.
IMM-3397-93), McKeown, June 9, 1994
- Bouianova, Tatiana v. M.E.I.
(F.C.T.D.,
no.
92-T-1437), Rothstein, June 11, 1993
- Canales, Katia Guillen v.
M.C.I.
(F.C.T.D.,
no.
IMM-1520-98), Cullen, June 11, 1999
- Casetellanos v. Canada (Solicitor
General), [1995] 2 F.C.
190 (T.D.)
- Chavarria, Eduardo Hernandez v.
M.C.I.
(F.C.T.D.,
no.
IMM-2192-94), Teitelbaum, January 3, 1995
- Chipounov, Mikhail v. M.C.I.
(F.C.T.D.,
no.
IMM-1704-94), Simpson, June 16, 1995
- Chouljenko, Vladimir v.
M.C.I.
(F.C.T.D.,
no.
IMM-3879-98), Denault, August 9, 1999
- CRDD
T94-07106, Zimmer, Hope, November 13, 1996
- Daghmash, Mohamed Hussein Moustapha v.
M.C.I.
(F.C.T.D.,
no.
IMM-4302-97), Lutfy, June 19, 1998
- Dawlatly, George Elias George v.
M.C.I.
(F.C.T.D.,
no.
IMM-3607-97), Tremblay-Lamer, June 16, 1998
- De Rojas, Teresa Rodriguez v.
M.C.I.
(F.C.T.D.,
no.
IMM-1460-96), Gibson, January 31, 1997
- Desai, Abdul Samad v. M.C.I.
(F.C.T.D.,
no.
IMM-5020-93), Muldoon, December 13, 1994
- El Khatib, Naif v. M.C.I.
(F.C.T.D.,
no.
IMM-5182-93), McKeown, September 27, 1994
- El Khatib: M.C.I.
v. El Khatib, Naif (F.C.A.,
no.
A-592-94), Strayer, Robertson, McDonald, June 20, 1996
- Elastal, Mousa Hamed v.
M.C.I.
(F.C.T.D.,
no.
IMM-3425-97), Muldoon, March 10, 1999
- El-Bahisi, Abdelhady v.
M.E.I.
(F.C.T.D.,
no.
A-1209-92), Denault, January 4, 1994
- Elbarbari, Sohayl Farouk S. v.
M.C.I.
(F.C.T.D.,
no.
IMM-4444-97), Rothstein, September 9, 1998
- Falberg, Victor v. M.C.I.
(F.C.T.D.,
no.
IMM-328-94), Richard, April 19, 1995
- Freij, Samir Hanna v.
M.E.I.
(F.C.T.D.,
no.
A-1690-92), Jerome, November 3, 1994
- Giatch, Stanislav v. M.E.I.
(F.C.T.D.,
no.
IMM-3438-93), Gibson, March 22, 1994
- 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 (F.C.T.D.
)
- Hanukashvili, Valeri v.
M.C.I.
(F.C.T.D.,
no.
IMM-1732-96), Pinard, March 27, 1997
- Harris, Dorca v. M.C.I.
(F.C.T.D.,
no.
IMM-1652-97), Teitelbaum, October 31, 1997
- Hassan, Ali Abdi v. M.C.I.
(F.C.T.D.,
no.
IMM-5440-98), Evans, September 7, 1999
- Hurt v. Canada (Minister
of Manpower and Immigration), [1978] 2 F.C.
340 (C.A.)
- 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.)
- Igumnov, Sergei v. M.C.I.
(F.C.T.D.,
no.
IMM-6993-93), Rouleau, December 16, 1994
- 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 (F.C.T.D.
)
- Kochergo, Sergio Calcines v.
M.E.I.
(F.C.T.D.,
no.
IMM-2475-93, Noël, March 18, 1994
- Kombo, Muhammad Ali v. M.C.I.
(F.C.T.D.,
no.
IMM-4181-00), McKeown, May 7, 2001; 2001 FCT 439
- Kruchkov, Valeri v. S.G.C.
(F.C.T.D.,
no.
IMM-5490-93), Tremblay-Lamer, August 29, 1994
- Kuznecova, Svetlana v. M.C.I.
(F.C.T.D.,
no.
IMM-2750-99), Pinard, May 17, 2000
- 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 (F.C.T.D.
)
- Lin, Yu Hong v. M.C.I.
(F.C.T.D.,
no.
IMM-1855-94), Reed, December 12, 1994
- Maarouf v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C.
723 (T.D.), (1993), 23 Imm.
L.R. (2d) 163 (F.C.T.D.
)
- Martchenko, Tatiana v. M.C.I.
(F.C.T.D.,
no.
IMM-3454-94), Jerome, November 27, 1995
- Martinez, Oscar v. M.C.I.
(F.C.T.D.,
no.
IMM-462-96), Gibson, June 6, 1996
- Mensah-Bonsu, Mike Kwaku v.
M.E.I.
(F.C.T.D.,
no.
IMM-919-93), Denault, May 5, 1994
- Mohammadi, Seyed Ata v.
M.C.I.
(F.C.T.D.,
no.
IMM-1432-00), Lutfy, February 13, 2001; 2001 FCT 61
- Moudrak, Vanda v. M.C.I.
(F.C.T.D.,
no.
IMM-1480-97), Teitelbaum, April 1, 1998
- Nizar v. M.C.I.
(F.C.T.D.,
no.
A-1-92), Reed, January 10, 1996
- Osman, Abdalla Abdelkarim v.
M.C.I.
(F.C.T.D.,
no.
IMM-527-00), Blanchard, March 22, 2001; 2001 FCT 229
- 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 (F.C.T.D.
)
- Pavlov, Igor v. M.C.I.
(F.C.T.D.,
no.
IMM-4401-00), Heneghan, June 7, 2001; 2001 FCT 602
- Priadkina, Yioubov v. M.C.I.
(F.C.T.D.,
no.
IMM-2034-96), Nadon, December 16, 1997
- Radic, Marija v. M.C.I.
(F.C.T.D.,
no.
IMM-6805-93), McKeown, September 20, 1994
- Sahal, Shukri Mohamed v.
M.C.I.
(F.C.T.D.,
no.
IMM-2722-98), Evans, April 21, 1999
- Sayar, Ahmad Shah v. M.C.I.
(F.C.T.D.,
no.
IMM-2178-98), Sharlow, April 6, 1999
- Schekotikhin, Valeri v.
M.E.I.
(F.C.T.D.,
no.
A-1178-92), McGillis, November 8, 1993
- 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 (F.C.T.D.
)
- Shahin, Jamil Mohammad v.
S.S.C.
(F.C.A.,
no.
A-263-92), Stone, Linden, Robertson, February 7, 1994
- Solodjankin, Alexander v.
M.C.I.
(F.C.T.D.,
no.
IMM-523-94), McGillis, January 12, 1995
- 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.
)
- Thabet v. Canada (Minister
of Citizenship and Immigration), [1995] 1 F.C.
685 (T.D.)
- Thabet v. Canada (Minister
of Employment and Immigration), [1998] 4 F.C.
21 (C.A.); 48 Imm.
L.R. (2d) 195 (F.C.A.
)
- Tit, Victor v. M.E.I.
(F.C.T.D.,
no.
93-A-17), Noël, June 3, 1993
- Vickneswaramoorthy: M.C.I.
v. Vickneswaramoorthy, Pologam
(F.C.T.D.,
no.
IMM-2634-96), Jerome, October 2, 1997
- Ward: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689; 20 Imm.
L.R. (2d) 85 (at 751 of S.C.R.)
- Zaidan, Bilal v. S.S.C.
(F.C.T.D.,
no.
A-1147-92), Noël, June 16, 1994
- 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 (F.C.T.D.
)
- Zdanov, Igor v.
M.E.I.
(F.C.T.D.,
no.
IMM-643-93), Rouleau, July 18, 1994
- Zheng, Yan-Ying v. M.C.I.
(F.C.T.D.,
no. IMM-332-96), Gibson,
October 17, 1996
- 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 (F.C.T.D.)
- 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 (F.C.T.D.)
- Hanukashvili, Valeri v.
M.C.I.
(F.C.T.D.,
no. IMM-1732-96), Pinard,
March 27, 1997.
- Hurt v.
Canada (Minister of Manpower and Immigration), [1978] 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. This is subject to a possible exclusion issue arising
under Article 1E of the 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.
- See section 96(a) of the Immigration
and Refugee Protection Act, S.C.
2001, c. 27 (IRPA).
The former Immigration Act, S.C.
1992, c. 49, s. 1, was amended in 1993 to add s. 2(1.1), a provision
dealing with "multiple nationalities". These provisions are consistent
with the interpretation of the Convention refugee definition endorsed
by the Supreme Court of Canada in Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689; 20 Imm.
L.R. (2d) 85 (at 751 of S.C.R.),
where the Court said, at 754, that a valid claim against one country
of nationality will not fail if the claimant is denied protection (e.g.,
by being denied admittance) by another country of which he or she is
a national.
- Dawlatly, George Elias George v.
M.C.I.
(F.C.T.D.,
no. IMM-3607-97), Tremblay-Lamer,
June 16, 1998.
- Harris, Dorca v.
M.C.I.
(F.C.T.D.,
no. IMM-1652-97), Teitelbaum,
October 31, 1997.
- Hanukashvili, supra, footnote
1.
- 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.
- 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.
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
- Sviridov, Timur v.
M.C.I.
(F.C.T.D.,
no. IMM-2414-94), Dubé,
January 11, 1995. 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).
- Radic, Marija v.
M.C.I.
(F.C.T.D.,
no. IMM-6805-93), McKeown,
September 20, 1994; 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 (F.C.T.D.).
- Schekotikhin, supra, footnote
7. See also Hassan, supra, footnote 8.
- 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.
- Kochergo, supra, footnote 7.
- 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 Ward,
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.
- The dissolution of the USSR
resulted in the emergence of 15 new states. The Russian Soviet Federative
Socialist Republic (R.S.F.S.R.) 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".
- Tit, supra, footnote 7 (re
Ukraine); Bouianova, supra, footnote 7 (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., Schekotikhin,
supra, footnote 7 (re Israel and Ukraine); Casetellanos
v. Canada (Solicitor General),
[1995] 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).
The definition of "stateless person" found in the 1954 United Nations
Convention Relating to the Status of Stateless Persons, in
Article 1, stipulates:
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.
To be considered a national by operation of law means that, under
the terms outlined in the state's enacted legal instruments pertaining
to nationality, the individual concerned is ex lege, or automatically,
considered a national. Those who are granted citizenship automatically
by the operation of these legal provisions are definitively nationals
of that state. Those who have to apply for citizenship and those the
law outlines as being eligible to apply, but whose application could
be rejected, are not citizens of that state by operation of that state's
law. Wherever an administrative procedure allows for discretionary
granting of citizenship, such applicants cannot be considered citizens
until the application has been approved and completed and the citizenship
of that State bestowed in accordance with the law.
- Kochergo, supra, footnote 7; Freij,
Samir Hanna v. M.E.I.
(F.C.T.D.,
no. A-1690-92), Jerome, November 3,
1994; De Rojas, Teresa Rodriguez v.
M.C.I.
(F.C.T.D.,
no. IMM-1460-96), Gibson,
January 31, 1997. In Chavarria, supra, footnote 7, the Court
found this to be so notwithstanding the requirement to become domiciled
in Honduras (the country of the claimant's birth), state his intention
to recover his Honduran nationality, and renounce his Salvadoran citizenship.
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.
- Desai, Abdul Samad v.
M.C.I.
(F.C.T.D.,
no. IMM-5020-93), Muldoon,
December 13, 1994(in obiter); Martinez, Oscar v.
M.C.I.
(F.C.T.D.,
no. IMM-462-96), Gibson,
June 6, 1996; Canales, Katia Guillen v.
M.C.I.
(F.C.T.D.,
no. IMM-1520-98), Cullen,
June 11, 1999(over the claimant's objections that she had no connection
or physical link to Honduras, the country of her mother's birth, which
she had never visited). In Canales, the Court overturned the
CRDD
decision because the CRDD
failed to consider whether the claimant had a well-founded fear of persecution
with reference to Honduras.
- Chavarria, supra, footnote 7, where
the wife's entitlement to Honduran citizenship, though dependent on
her husband's application for same, only required a pro forma
application like his. 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 (F.C.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.
- 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 (F.C.T.D.).
- Grygorian,ibid., at 55.
- 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 (F.C.T.D.). The
Court certified a question regarding the Law of Return. See also CRDD
T94-07106, Zimmer, Hope, November 13, 1996, where the claimant
was found to express a desire to settle in Israel because she had applied
to immigrate there before coming to Canada.
- 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.
- Basmenji, Aiyoub Choubdari v.
M.C.I.
(F.C.T.D.,
no. IMM-4811-96), Wetston,
January 16, 1998.
- Priadkina, Yioubov v.
M.C.I.
(F.C.T.D.,
no. IMM-2034-96), Nadon,
December 16, 1997.
- Moudrak, Vanda v.
M.C.I.
(F.C.T.D.,
no. IMM-1480-97), Teitelbaum,
April 1, 1998.
- Osman, Abdalla Abdelkarim v.
M.C.I.
(F.C.T.D.,
no. IMM-527-00), Blanchard,
March 22, 2001; 2001 FCT 229.
- Kombo, Muhammad Ali v.
M.C.I.
(F.C.T.D.,
no. IMM-4181-00), McKeown,
May 7, 2001; 2001 FCT 439.
- Pavlov, Igor v.
M.C.I.
(F.C.T.D.,
no. IMM-4401-00), Heneghan,
June 7, 2001; 2001 FCT 602.
- Martinez, supra, footnote 18, at 5-6.
- Ward, supra, footnote 3, at
754.
- (Toronto: Butterworths, 1991), page 59.
- Lin, Yu Hong v.
M.C.I.
(F.C.T.D.,
no. IMM-1855-94), Reed,
December 12, 1994.Note that residency may also be a relevant factor
when considering exclusion under Article 1E of the Convention (see Chapter
10, section 10.1.).
- Maarouf v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C.
723 (T.D.); (1993), 23 Imm.
L.R. (2d) 163 (F.C.T.D.)
- Maarouf, ibid., at 739-740.
- Maarouf, supra, footnote 34; 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 16; 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 (F.C.T.D.);
El Khatib, Naif v. M.C.I.
(F.C.T.D.,
no. IMM-5182-93), McKeown,
September 27, 1994; Desai, supra, footnote 18.
- 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 (F.C.T.D.),where
the claimants had left Ukraine when it was part of the USSRMadame
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."
- Thabet v.
Canada (Minister of Employment and Immigration), [1998] 4 F.C.
21 (C.A.); 48 Imm.
L.R. (2d) 195 (F.C.A.).
- Maarouf, supra, footnote 34;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), [1996] 1 F.C.
685 (T.D.) (the last country).
- Elbarbari, Sohayl Farouk S. v.
M.C.I.
(F.C.T.D.,
no. IMM-4444-97), Rothstein,
September 9, 1998.
- Kruchkov, Valeri v.
S.G.C. (F.C.T.D.,
no. IMM-5490-93), Tremblay-Lamer,
August 29, 1994, at 2. 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
Thabet (T.D.), supra, footnote 39, the Trial Division
held 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 claim was assessed only against Jordan. 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 held that the CRDD
was correct to base its determination on his habitual residence in Morocco.
- Arafa, Mohammed v.
M.E.I.
(F.C.T.D.,
no. A-663-92), Gibson, November 3,
1993, at 4; Lenyk, supra, footnote 37, at 152. See
also UNHCR
Handbook, paragraph 102.
- Maarouf, supra, footnote 34, at 737.
- Shahin, Jamil Mohammad v.
S.S.C.
(F.C.A.,
no. A-263-92), Stone, Linden,
Robertson, February 7, 1994, at 2.
- Maarouf, supra, footnote 34,
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 (F.C.T.D.),
at 263-264; Thabet(T.D.), supra, footnote 39 at 693;
Thabet (C.A.),
supra, footnote 3834 at 41.
- In Arafa, supra, footnote 42,
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 U.A.E. for more than
6 months. In Alusta, supra, footnote 41, 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
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.
- Thabet (C.A.),
supra, footnote, 38, at 41.
- Shahin, supra, footnote 44, at 2.
- El-Bahisi, Abdelhady v.
M.E.I.
(F.C.T.D.,
no. A-1209-92), Denault,
January 4, 1994, at 2-3. However, in 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.
- El Khatib, supra, footnote
36, 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" analyis 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.
In Tarakhan, supra, footnote 41,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 (F.C.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 46, to the same effect, which cited the Court
of Appeal decision in Thabet (C.A.),
supra, footnote 38, though that decision did not specifically
rule on the issue.
- Ward, supra, footnote 3,at
751.
- The difference in language is retained in subsections
96(a) and (b) of IRPA.. The former provision refers
to "unwilling to avail" of the protection of the country of nationality,
whereas the latter refers to "unwilling to return" to the country of
former habitual residence.
- 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 (F.C.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 the decision
in 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.
- Nizar v.
M.C.I.
(F.C.T.D.,
no. A-1-92), Reed, January 10,
1996, at 5.
- Thabet C.A.,
supra, footnote 38, at 33 and 39.
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