Judgments

[1996] 1 F.C. 685

IMM-1398-95

Marwan Youssef Thabet (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Thabet v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Noël J.—Toronto, November 29; Ottawa, December 20, 1995.

Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of CRDD’s decision applicant not Convention refugee as not having well-founded fear of persecution if returned to either country of former habitual residence — Applicant, stateless person, living in Kuwait for first 18 years, U.S.A. for next 11 years — During Gulf War harassed in Louisiana because of Palestinian origin — “Former habitual residence” in Immigration Act, s. 2(1) definition of “Convention refugee” referring to last country of habitual residence, not all such countries — Contrast provisions in Act, Convention dealing with multiple nationalities — Applicant former habitual resident of U.S.A. — Not fearing persecution elsewhere than Louisiana — Question whether stateless person habitually residing in more than one country prior to making refugee claim must establish claim by reference to all such countries or by reference to some only, and if so, which, certified.

Construction of statutes — “Former habitual residence” in Immigration Act, s. 2(1) definition of “Convention refugee” meaning last country of habitual residence, not all such countries — Intent derived from Convention Refugee Determination Division Rules, s. 14(3) providing reference to nationality shall be read as reference to country of former habitual residence — French text referring to “son dernier pays de résidence habituelle” — Preferred to English version as more precise yet in harmony therewith.

This was an application for judicial review of the CRDD’s decision that the applicant was not a Convention refugee because he did not have a well-founded fear of persecution if he were to return to either one of his two countries of former habitual residence. The applicant is stateless. He was born in Kuwait and lived there on a residency permit sponsored by his father, a Palestinian refugee who had a work permit, for eighteen years. He entered the United States of America to attend university and resided there for the next eleven years. During the Gulf War, while living in Louisiana, the applicant experienced harassment because of his Palestinian origin. The applicant arrived in Canada in 1994 and claimed refugee status. Immigration Act, subsection 2(1) defines “Convention refugee” as a “person who by reason of a well-founded fear of persecution … not having a country of nationality, is outside the country of the person’s former habitual residence and is unable, or by reason of that fear, unwilling to return to that country”. In his personal information form the applicant indicated Kuwait as his only country of habitual residence, but indicated that he feared persecution in both Kuwait and the United States. The Board decided that the applicant was a former habitual resident of both the United States and Kuwait. It found that the applicant did not fear persecution elsewhere in the United States than in Louisiana, and had thus failed to demonstrate a well-founded fear of persecution with respect to the United States. It also found that the applicant had not demonstrated a fear of persecution should he be returned to Kuwait because his family continued to reside there and to lead a lifestyle similar to that which they had enjoyed prior to Iraq’s invasion of Kuwait. The Board accepted that at the relevant time Kuwait refused to admit stateless Palestinians.

The issues were whether the United States was a country of former habitual residence and whether the applicant had to establish a fear of persecution by reference to both countries of former habitual residence.

Held, the application should be dismissed.

Provisions in the Immigration Act and the Convention that deal with multiple nationalities make it clear that each country of nationality is to be considered in assessing a refugee claim. There are no similar provisions with respect to multiple countries of habitual residence. That no attempt was made to resolve the ambiguity suggests that there was no ambiguity to resolve. That is the result if a stateless person’s “former habitual residence” refers to that person’s last country of habitual residence. This is consonant with one of the two prime meanings attributed to the word “former” and is to be preferred. If “habitual residence” referred to all countries of past habitual residence, it would be because of a conscious desire to achieve symmetry with the concept of nationality and the ensuing ambiguity could not have escaped the authors of the Convention.

The issue must turn on the extent of the ties which bind a stateless person to a given country at the time when a claim is made. The proximity in time of those ties invariably links a stateless person more closely to the last country of his former habitual residence than to any other, and that is what the authors of the Convention had in mind in framing the definition as they did.

This conclusion also coincides with the intent of the Canadian legislation in so far as it can be gathered from the wording of Regulations enacted under the Immigration Act. Convention Refugee Determination Division Rules, subsection 14(3) provides that a reference to a person’s nationality shall be read as a reference to the person’s country of former habitual residence. The French text refers to “son dernier pays de résidence habituelle”. While providing a meaning that is in harmony with the English text, it is more precise and should be preferred to the English text.

The applicant was a former habitual resident of the United States where he married twice, filed income tax returns and held a social security number. As the claimant conceded that he had no fear of persecution elsewhere in the United States, his claim was correctly rejected by reference to that country.

The following question was certified: Whether a stateless person who has habitually resided in more than one country prior to making a refugee claim must establish the claim by reference to all such countries or by reference to some only, and if by reference to some only, by reference to which.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Convention Refugee Determination Division Rules, SOR/93-45, s. 14(3).

Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), (1.1) (as enacted by S.C. 1992, c. 49, s. 1).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1A(2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (1993), 72 F.T.R. 6; 23 Imm. L.R. (2d) 163 (T.D.); Abdel-Khalik v. Minister of Employment and Immigration (1994), 73 F.T.R. 211; 23 Imm. L.R. (2d) 262 (F.C.T.D.).

REFERRED TO:

Deltonic Trading Corp. v. Minister of National Revenue (Customs and Excise) (1990), 113 N.R. 7; 3 TCT 5173 (F.C.A.); Canada (Attorney-General) v. Jouan (1995), 122 D.L.R. (4th) 347; 179 N.R. 127 (F.C.A.).

AUTHORS CITED

Country Reports on Human Rights Practices for 1993: Report submitted to the Committee on Foreign Relations U.S. Senate and the Committee on Foreign Affairs House of Representatives by the Department of State. Washington: U.S. Government Printing Office, 1994.

Grahl-Madsen, Atle. The Status of Refugees in International Law. Leyden: A. W. Sijthoff, 1966.

Hathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.

Shorter Oxford English Dictionary, 3rd ed., Oxford: Clarendon Press, 1990, “former”.

United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, September 1979.

APPLICATION for judicial review of the CRDD’s decision that the applicant, a stateless person, was not a Convention refugee because he did not have a well-founded fear of persecution if he were to return to either of his two countries of former habitual residence. Application dismissed.

COUNSEL:

Ghina Al-Sewaidi for applicant.

David Tyndale for respondent.

SOLICITORS:

Loebach, Corrigan & Al-Sewaidi, London, Ontario, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Noël J.: This is an application for judicial review of the decision, dated May 11, 1995, of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) wherein the Board determined that the applicant, Marwan Youssef Thabet, was not a Convention refugee because he did not have a well-founded fear of persecution if he were to return to either one of his two countries of former habitual residence.

1.         The Facts

The applicant is a stateless person. He was born on July 31, 1965 in Kuwait. His father, a Palestinian refugee, moved from the Gaza Strip to Kuwait to seek employment and works as a physician for the Kuwait government on a work permit. The applicant lived in Kuwait on a residency permit sponsored by his father. In 1983, after residing in Kuwait for eighteen years, the applicant went to the United States to go to University in order to obtain an engineering degree. In 1986, the applicant’s residence status in Kuwait, sponsored by his father, came to an end. The applicant had to return to Kuwait to make an independent application to renew his residency permit. He returned to the United States on a visitor’s visa. In 1989, the applicant was apprehended by U.S. Immigration authorities for working illegally. He applied for political asylum, but his request was denied, and a deportation order issued against him. He was to leave the country by January 31, 1991. He filed an appeal, which is still pending. While in the U.S., the applicant married twice. The first marriage, in 1989, was one of convenience. The applicant divorced within a year. The second marriage appears to have been genuine but also ended in a divorce.

During the Gulf War, while he was living in Louisiana, the applicant experienced harassment because of his Palestinian origin, appearance or language. This harassment included insults, threats, and incidents of physical violence.

The applicant left the U.S. for Canada in April of 1994, after residing there for eleven years. He applied for refugee status at the Windsor-Detroit tunnel. In his personal information form, he indicated Kuwait as his only country of former habitual residence but he indicated that he feared persecution in both Kuwait and the United States.

2.         The Decision of the Board

As the applicant was a stateless person, a preliminary issue before the Board was to determine the applicant’s country of former habitual residence pursuant to subparagraph 2(1)(a)(ii) of the definition of Convention refugee contained in the Immigration Act.[1] The Board decided that the applicant was a former habitual resident of both the United States and Kuwait. It came to this conclusion because of his long residence in both countries and the fact that he was admitted in both countries with a view to a continuing residence of some duration. The Board went on to hold that the applicant had to demonstrate a well-founded fear of persecution with respect to both countries.

The Board noted that the applicant had testified that although he had experienced problems in the state of Louisiana because of his Palestinian origin, he did not fear persecution in other parts of the United States. As a result of this admission, the Board concluded that the applicant had failed to demonstrate a well-founded fear of persecution with respect to the United States and that his claim to Convention refugee status thus failed. However, the Board went on to consider the merits of the applicant’s claim as against Kuwait, and concluded that the applicant had not demonstrated a fear of persecution in the event that he should return to that country. In support of this conclusion, the Board stated:[2]

The claimant testified that his family consisting of his parents and one sister still reside in Kuwait. His father, a physician is employed by the government of Kuwait and they lead a somewhat similar lifestyle as they did prior to Iraq’s invasion of Kuwait. His sister, Arwa has been able to leave and return to Kuwait because she has valid residency papers, and she has done so. His parents have not been able to leave Kuwait because being stateless Palestinians, no other country would accept them. Kuwait has not restricted his parents’ ability to leave Kuwait.

…

Frankly, since the liberation of Kuwait and the normalization process, Palestinians from Gaza have received extensions of their residence permits and are not being deported as they were at the conclusion of the Gulf war.[3]

3.         The Application for Judicial Review

The applicant now concedes that he has not established a well-founded fear of persecution by reference to the United States. He argues, however, that the Board erred in law when it held that the United States was a country of former habitual residence. He further alleges that even if he was a former habitual resident of the United States, the Board erred in holding that he had to establish a fear of persecution by reference to both countries of former habitual residence. He maintains that it was sufficient for him to establish a well-founded fear of persecution by reference to Kuwait as it was his original country of former habitual residence.

In this respect, the applicant claims that the Board erred in determining that he would not suffer persecution as a Palestinian in Kuwait. He submits that the Board ignored the documentary evidence describing the mistreatment of Palestinians for their perceived political opinion after the Iraqi invasion of Kuwait as well as the applicant’s testimony. The applicant also alleges that the Board erred in law in failing to consider whether the denial of his right of return by the state of Kuwait could in itself constitute an act of persecution.

The respondent concedes that the applicant needs only to establish a well-founded fear of persecution by reference to his original country of former habitual residence, and that the Refugee Board erred in holding otherwise. He submits, however, that the Board correctly held that the applicant had failed to establish a well-founded fear of persecution in Kuwait and that this conclusion is determinative of the issues raised in this application.

4.         Analysis

As both the applicant and the respondent are of the view that the claim must be considered by reference to Kuwait, I will first review the Board’s decision as it pertains to that country.

A fact which was central to the applicant’s case and which appeared to have been accepted by the Board was Kuwait’s refusal to re-admit within its borders stateless Palestinians at the relevant time. The following statement contained in the Country Reports on Human Rights Practices for 1993, United States Department of State, February 1994, was placed before the Board:[4]

The Government continued to refuse to readmit stateless, Iraqi, and Palestinian individuals who had strong family ties to Kuwait ….

At the conclusion of its reasons, the Board noted that the applicant’s right of re-entry was unsure and commented that:

Though this situation does not make one a Convention refugee it certainly cries out for a specific Immigration policy for stateless persons unable to return to their CFHRs for non Convention reasons.

In Maarouf v. Canada (Minister of Employment and Immigration), the Federal Court, Trial Division, considered the meaning of the concept of country of former habitual residence. The Court was asked to decide whether this concept required that the claimant be legally able to return to the country in question. Cullen J. held that importing such a requirement into the definition would create a substantial hurdle and be contrary to the shelter rationale underlying international refugee protection:[5]⁵

As a final act of persecution a state could strip a person of his right to return to that country. Thus, to require that a claimant have a legal right of return would allow the persecuting state control over the claimant’s recourse to the Convention and effectively undermine its humanitarian purpose.

The Court thus recognized that:[6]

… the claimant does not have to be legally able to return to a country of former habitual residence as denial of a right of return may in itself constitute an act of persecution by the state. [Emphasis is mine.]

That the denial of a right of return to one’s country of former habitual residence may constitute persecution was also recognized in Abdel-Khalik v. Minister of Employment and Immigration.[7] In that case, Reed J. noted that the denial of a right to return to a country of former habitual residence can be an act of persecution and proceeded to set aside the decision of the Board on the ground that it had failed to properly weigh the evidence relating to this denial.

In the case at bar, the Board, relying on Maarouf, did find that the applicant was a former habitual resident of Kuwait despite the fact that his right of re-entry into that country had been denied, but it did not ask itself nor discuss in any way the more fundamental question from the applicant’s perspective as to whether such a denial was in itself an act of persecution. The question was particularly significant inasmuch as the essence of the fear alleged by the applicant was the documented policy of exclusion practised by the Kuwaiti government in the aftermath of the Gulf War which was aimed at changing the demographic balance by excluding inter alia stateless Palestinians.[8] To the extent that the Board did accept that the applicant was confronted with a denial of his right to return to Kuwait, the Board had to inquire into the reason for this denial, and ask itself whether it amounted to an act of persecution. As I am satisfied that the Board could have reached a different conclusion if it had addressed this question, that in itself is reason enough to set aside the decision in so far as the claim relating to Kuwait is concerned.

However, the Board also dismissed the applicant’s claim by reference to the United States. The applicant attacks this conclusion on two grounds. First, he alleges that the Board erred in holding that he was a former habitual resident of the United States. The Board, however, was on very solid ground when it so held.[9] The applicant resided in that country for eleven years. While there, he married twice. He filed income tax returns and held a social security card. This is not a borderline case. Habitual residence is a de facto status, and having regard to the relevant facts, there is no doubt, in my mind, that the applicant was a former habitual resident of the United States.

That being said, was it open for the Board to hold that the applicant had to prove his claim by reference to both Kuwait and the United States in order to be admitted as a refugee? The Board proceeded on the assumption that he did, without discussing the question. The applicant challenges this assumption, and the respondent Minister concedes the point inasmuch as he asserts that the claim needs only be assessed by reference to Kuwait. No decision from this Court has been brought to my attention in connection with this narrow issue.

The United Nations Handbook [Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees] suggests, in paragraph 101, that the phrase from the Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6] definition pertaining to stateless refugees:

101. … is parallel to the preceding phrase, which concerns refugees who have a nationality. In the case of stateless refugees, the “country of nationality” is replaced by “the country of his former habitual residence”, and the expression “unwilling to avail himself of the protection …” is replaced by the words “unwilling to return to it”. In 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.

Paragraph 104 goes on to state:

104. A stateless person may have more than one country of former habitual residence, and he may have a fear of persecution in relation to more than one of them. The definition does not require that he satisfies the criteria in relation to all of them. [Emphasis is mine.]

According to the Handbook, therefore, a person who has more than one country of former habitual residence may become a refugee if he can demonstrate a reasonable fear of persecution by reference to one of these countries. But which one should it be? Should it be the first, the last, or is the matter left to the discretion of the claimant?

There are two diverging points of view which have been expressed by the authors on this question. Atle Grahl-Madsen expressed the view that:[10]

It would seem to be best in keeping with the intention of the drafters if in the greatest possible number of cases application of the term “country of former habitual residence” would lead to the same practical result as application of the term “country of nationality” ….

The yardstick we seek may be found in the case of a person who, before becoming a refugee, has resided in the country of which he is a national. In his case the “country of former habitual residence” should be identical with the “country of his nationality”. The unity of the two concepts in such a case should not be broken if the person in question moves first to one foreign country, then to a second, so to a third, a fourth, and a fifth. In any event, the term “country of his former habitual residence” should denote the same country as does the term “country of his nationality”, namely his “country of origin”.

This same view is held by Robinson…. He poses the question whether the “country of former habitual residence” only means the country where a non-persecuted stateless person resided and where he experienced persecution, or fear of persecution, for the first time (the country of “original persecution”), or if the term may also apply to a country where such person found refuge and took up residence, but where he later was subjected to persecution (country of “secondary persecution”). A stateless person who has resided in country A flees from that country and finds refuge and takes up residence in country B. Eventually he has to leave that country, too, for fear of persecution. After some time he is able to return to country B. If that country may be construed as his “country of former habitual residence,” the stateless person’s return thereto would deprive him of his status as “refugee”, although he would still have a well-founded fear of being persecuted if he returned to country A, from which he originally fled.

It is apparent that if the term may be interpreted in this sense, the stateless person in question will be in a less favourable position than that of a person in similar circumstances who is a national of country A, or that of a stateless person who had to flee from country A, but who was not subjected to persecution in country B and therefore never left that country. …

It seems to be generally conceded that if a stateless person has found refuge in another country, he does not lose his refugee status if he goes to another country which offers him an opportunity for re-establishing himself.…

This concept [—country of former habitual residence—] is related to the concept of “country of nationality” in that both are of a stable nature. As mentioned above, both concepts may be brought under the joint heading of “country of origin” (or “country of original persecution”). We saw … that if a person has a nationality at the time when he becomes a refugee, he is to be considered a person having a nationality for the purpose of Article 1(A)(2). It follows that the country of which he was a national at the relevant date is the “country of his nationality” in the sense of the said provision, and that it remains as such irrespective of whether he eventually loses his nationality. Similarly, the country from which a stateless person had to flee in the first instance, remains the “country of his former habitual residence” throughout his life as a refugee, irrespective of any subsequent changes of factual residence.

Thus, in Grahl-Madsen’s view, the country of former habitual residence against which refugee status must be ascertained is the country from which a stateless person had to flee in the first instance or the country of first persecution. Grahl-Madsen also recognizes that a claimant may exceptionally have to establish his or her refugee status by reference to more than one country of former habitual residence if the person concerned habitually resided in more than one country at once at the time he or she is constituted as a refugee.[11]

What is paradoxical in the opinion expressed by Grahl-Madsen is that while he stresses the importance of construing the notion of nationality and the notion of residence in symmetry, he breaks that symmetry altogether inasmuch as according to his approach, a former habitual resident of more than one state would only have to establish his claim by reference to the first, whereas a national of more than one state must establish his refugee claim by reference to all countries of nationality.

James C. Hathaway criticizes this view precisely because of the lack of symmetry which it entails. He states:[12]

Under this rubric, Atle Grahl-Madsen’s argument that country of former habitual residence should usually be equated with the state in which the stateless claimant first experienced persecution is not fully sustainable. The country from which flight first occurred is often the state to which the refugee claimant retains the greatest formal legal ties, simply because subsequent states of residence which admitted her on the basis of her fear of persecution may not have granted her an unconditional right to return. On the other hand, the refugee claimant may have as strong or stronger formal ties to some other country or countries, in which case the claim to need protection should be assessed in relation to any and all countries to which she is formally returnable. This position respects the need for symmetrical treatment of persons with and without nationality, since in the case of the former group the Convention requires proof of lack of protection in all states of nationality.

For Hathaway, therefore, the matter turns on the strength of the formal ties which bind a refugee claimant to his countries of former habitual residence. According to Hathaway, the strength of these ties is to be measured by reference to those which bind a refugee claimant to the country of first persecution. If the ties which bind the refugee claimant to a subsequent country of habitual residence are as strong or stronger than those which bind him or her to the first, then the claim should be assessed by reference to that country as well.[13]

Before considering these diverging views, I believe that a preliminary question needs to be answered, namely, whether the phrase “is outside the country of the person’s former habitual residence” refers to all such countries if there should be more than one, or only the last one. The word “former” is capable of two prime meanings. The first is “pertaining to the past or to a period anterior to that in question”, and the second is “the immediately preceding”.[14] Obviously, if the second meaning was intended, the controversy addressed by the authors does not arise.

The first meaning requires that consideration be given to all countries of past habitual residence. As such, it results in a significant degree of symmetry being achieved between the concepts of nationality and habitual residence for purposes of the Convention.

These concepts, when viewed outside the scope of the Convention, are significantly different. Of importance, for our purposes, is the fact that nationality confers a de jure status usually acquired by birth, but capable of being acquired otherwise, which attaches to an individual throughout his or her lifetime and which is not usually lost by the acquisition of further nationalities. One may therefore possess more than one country of nationality at a given point in time. By contrast, habitual residence is a temporary status inasmuch as it is entirely dependent on a de facto relationship between a person and a given country and ceases to exist at once upon that relationship coming to an end. As such, a person usually resides in one country at any given point in time, and loses this status altogether immediately upon the de facto cessation of residence in that country. The two concepts are therefore fundamentally different in that one confers a de jure status of enduring effect, and the other confers a de facto status which lasts only so long as the factual situation giving rise to it continues to exist. One of the consequences is that while a person may have more than one country of nationality at a given point in time, he or she never resides in more than one country at once.[15]

If, despite these differences, the words “former habitual residence” do require that all countries in which an individual has resided in the past be taken into account in assessing a refugee claim, it can only be because the concept of habitual residence was intended to have an enduring effect akin to that which attaches to the concept of nationality for purposes of the Convention. However, if that be the case, the ensuing ambiguity as to which country was to be considered for purposes of assessing a refugee claim would have been readily apparent to the authors of the Convention. Must such a claim be proven by reference to all countries of former habitual residence, or by reference to some only, and in the latter case, by reference to which?

In this regard, it is worth noting that both the Convention and the Immigration Act resolve this ambiguity, but only in so far as it results from multiple nationalities. There are no provisions anywhere that deal with multiple countries of habitual residence.[16]¹⁶ Article 1A(2) of the Convention reads:

1A(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 well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

Subsection 2(1.1) [as enacted by S.C. 1992, c. 49, s. 1] of the Immigration Act provides in turn that:

2. …

(1.1) For the purposes of the definition of “Convention refugee” in subsection (1), where a person has more than one nationality, all references to the person’s nationality in that definition shall be construed as applying to each of the countries of which the person is a national.

These provisions make it clear that in the case of multiple nationalities, each country of nationality is to be taken into account in assessing a refugee claim. However, the absence of similar provisions with respect to multiple countries of former habitual residence seriously undermines the thesis that any country beyond the last one is to be taken into account in assessing a refugee claim made by a stateless person.

The fact that no attempt was made to resolve that ambiguity strongly suggests that there was no ambiguity to resolve in the first place. That is, of course, the result if a stateless person’s country of “former habitual residence” is read as referring to that person’s last country of habitual residence. As noted earlier, this reading is consonant with one of the two prime meanings attributed to the word “former” and is, in my view, to be preferred. I come to this conclusion with little hesitation because, if, indeed, the term “habitual residence” did refer to all countries of past habitual residence rather than only the last one, it would be because of a conscious desire to achieve symmetry with the concept of nationality, and the ensuing ambiguity could not conceivably have escaped the authors of the Convention. The concept of habitual residence was obviously used because it broadly compares to the concept of nationality and stands to achieve similar results.[17] However, these concepts remain fundamentally different and there is no basis upon which they could be viewed as being one and the same for purposes of the Convention.

I believe that the conclusion that I have reached is also justified from a policy standpoint. As Professor Hathaway points out, there is no objective basis for preferring one’s first country of habitual residence to any other country of habitual residence.[18] If anything, the issue must turn on the extent of the ties which bind a stateless person to a given country at the time when a claim is made, and a person’s last country of habitual residence will always be the one with which he or she has the freshest and most vivid ties. The proximity in time of those ties invariably links a stateless person more closely to the last country of his former habitual residence than to any other, and that, in my view, is what the authors of the Convention had in mind in framing the definition as they did.

I note before ending that this conclusion also coincides with the intent of the Canadian legislation in so far as it can be gathered from the wording of regulations made under the Immigration Act. Subsection 14(3) of the Convention Refugee Determination Division Rules[19] prescribes the information which must accompany a refugee claim made by a stateless person under the Act. It provides:

14. …

(3) In the case of a stateless person, a reference … to the person’s nationality shall be read as a reference to the person’s country of former habitual residence.

The French text of the same Regulation refers to such information being provided with respect to “son dernier pays de résidence habituelle” (emphasis added). The French text, while it provides for a meaning that is in harmony with the English text, is more precise and does not reflect the ambiguity which the English text bears. As such, it should, based on the applicable principles, be preferred to the English text.[20]

I therefore come to the conclusion that a stateless refugee who has habitually resided in more than one country before making a refugee claim must establish his or her claim by reference to his or her last country of habitual residence. In the case at hand, this was the United States and as the claimant has conceded that he holds no fear of persecution in the United States, his claim was correctly rejected by reference to that country. The application for judicial review must accordingly be dismissed.

Both parties asked that I certify the following question:

Whether a stateless person has to demonstrate a well-founded fear of persecution against all countries of former habitual residence or simply the country of original habitual residence.

Having regard to the reasons given, I believe the question should be broadened to read:

Whether a stateless person who has habitually resided in more than one country prior to making a refugee claim must establish his or her claim by reference to all such countries or by reference to some only, and if by reference to some only, by reference to which.

An order dismissing the application and stating this question will be issued.

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