 |
| Phil Trotter |
Canada has welcomed thousands of Tibetans since the turn of the century. There is a thriving community of Tibetan Buddhists (and at least one family of Tibetan Muslims, a Tibetan minority group who also consider His Holiness the Dalai Lama as their spiritual leader) blended into multicultural Canada. Under Canada’s refugee law system, it is accepted that Tibetans cannot safely return to Tibet and that there is a serious risk of persecution for Tibetans in China based on their ethnicity and political and religious beliefs. No Tibetan has ever been deported to China from Canada. The Immigration and Refugee Board (IRB) finds Tibetans to be convention refugees under section 96 of Canada’s Immigration and Refugee Protection Act (IRPA), which aligns with the UN Convention Relating to the Status of Refugees. However, since Tibetans come from India, Nepal or Bhutan, countries that are not signatories to the UN Convention, the IRB must consider whether they have access to rights equal to nationals in the country they
Art Place: ISTOCKPHOTO.COM
If a Tibetan can prove they were born in Tibet and do not have access to citizenship in any other country than China, their claims succeed as long as the IRB decision-maker is aware of the facts and understands the law. Country conditions documentary evidence reveals that most Tibetans living in India, Nepal and Bhutan do not have rights equal to citizens in those countries. A vast majority of them live in Tibetan refugee settlements, as documented or undocumented foreigners from Tibet or China. They cannot travel freely, own property, work in public sector jobs or access social services like citizens of those countries. Most importantly, they do not have permanent residence rights, which makes them vulnerable to being removed to Tibet where they will face persecution.
Tibet Justice Center, an organization of Tibetan lawyers, has reported three cases of Tibetans being deported from India to China and being imprisoned upon arrival in China because they did not obtain or failed to renew their registration certificate (RC), the temporary stay visa issued to Tibetans by the Indian Foreigner’s Registration Office (FRO). One of them was even born in India.
Tibetans in exile in India are grateful to India for having given them temporary refuge (the Indian government leased lands to the Central Tibetan Administration government in exile in the 1960s so that exiled Tibetans could live, farm and create schools, monasteries and cultural institutions). But without permanent residence and other important rights, they are nonetheless vulnerable and without long-term security.
In India, some Tibetans have managed to legally obtain Indian passports under s. 3 of the Indian Citizenship Act, which states that a person born in India between Jan. 26, 1950, and July 1, 1987, are citizens of India. The Act further states that if born after 1987, one of the parents must be a citizen for the person born after 1987 to be a citizen. However, citizenship is not automatic for those Tibetans. To this day, Tibetans applying for passports are refused by local passport authorities, even when they are eligible and have the required documents. Moreover, as per an order from the Indian Minister of External Affairs to local passport offices, Tibetans who apply for an Indian passport (thus exercising one citizenship right), must give up their RC, their right to live on a settlement, and any CTA benefits including their CTA allotted home or farmland, on which most Tibetans in India depend for their survival.
As per the Federal Court of Appeal, when a Tibetan is born in India and said to be citizens under s. 3 of the Act, they must show that they made an effort to obtain a passport and were refused or that there were impediments making it unreasonable for them to even apply Tretsetsang v. Canada (Citizenship & Immigration), 2016 FCA. In Yalotsang v. Canada (Minister of Citizenship & Immigration), 2019 FC 563, the Federal Court acknowledged that ongoing refusals of local authorities to give passports to eligible Tibetans, and the need for eligible Tibetans to litigate to obtain an Indian passport, were impediments making it unreasonable for the refugee claimant to have applied for an Indian passport. In Pasang v. Canada (Minister of Citizenship & Immigration), 2019 FC 907, the Federal Court found that it was unreasonable for the IRB to expect a Tibetan to go homeless in exchange for Indian citizenship. Some Tibetans eligible to apply for Indian citizenship who had obtained higher education at Indian colleges or universities had their refugee claims rejected under Article 1E, and the Federal Court found those IRB decisions reasonable.
In response, for educated claimants, I introduced new evidence that despite having a college education, Tibetans outside their settlements still face systemic discrimination. The discrimination may not amount to persecution, but it is a significant impediment to their applying for Indian citizenship. Country conditions reveal that most educated Tibetans who stay in India return to live in Tibetan settlement communities, due to discrimination in a highly competitive economy in which Tibetans are generally seen as foreigners and unable to find decent-paying jobs (unlike in Canada). According to 2022 data, only 300 Tibetans (out of an estimated 85,000) obtained Indian passports legally. And while about 1,000 have been given voting rights, with the help of local politicians who want their vote, there is no evidence of any Tibetans owning property, working in the Indian public sector, or exercising other rights of Indian citizens.
In Nepal and Bhutan, some Tibetans were granted citizenship decades ago, but the vast majority live in those countries as documented foreigners or undocumented foreigners, currently unable to obtain citizenship legally. Decades ago, Nepal and Bhutan stopped issuing foreigner documents to new Tibetan arrivals who had fled China. Without documents, Tibetans have even fewer rights and are more vulnerable to removal, especially in Nepal, where China’s influence has grown steadily since the early 2000s, and Tibetans are no longer free to peacefully protest for a free Tibet, display a Tibetan flag on clothes or a bag or publicly celebrate His Holiness the Dalai Lama.
Many Tibetans are therefore seeking refuge in Canada, an ideal country for them to obtain greater security and rights and preserve their Tibetan identity as a minority among many minorities living with freedom in multicultural Canada. Tibetans are integrating into Canada’s economy and society, grateful Canada is giving them a place they can proudly call their home while still hoping and working for eventual freedom in Tibet.
Phil Trotter is a lawyer practising refugee law in Toronto,Ontario. Raised in Quebec and educated at McGill University and faculty of law, Trotter began his law practice while developing a strong relationship to the Tibetan Canadian community due to interest in and practice of Tibetan Buddhism. He has been a pro bono lawyer for the Tibetan Canadian Association of Ontario/Tibetan Canadian Cultural Centre since 2012. Practising refugee law since 2010, his law practice has been primarily focused on helping Tibetan refugee claimants in Canada since 2019.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is neither intended to be nor should be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.