Background
Thandyi Dolma, a Tibetan Buddhist with Chinese citizenship by descent, was born and raised in exile in India. She immigrated to Canada in late 2022 and filed a refugee claim alleging fear of persecution in China based on her religious identity. The Refugee Protection Division rejected her claim on the ground that she had access to Indian citizenship rights and thus had an alternative country of protection. The Refugee Appeal Division upheld this decision, finding she had failed to make reasonable efforts to exercise her citizenship rights in India.
Under India’s Citizenship Act 1955, Ms. Dolma qualified for Indian citizenship by descent—her mother was born in India in 1978. A 2017–2018 Indian policy prevented Tibetan Buddhists in Central Tibetan Authority settlements from holding Indian citizenship, requiring them to maintain Registered Foreigner status instead. Ms. Dolma had lived off-settlement in Delhi for four years before coming to Canada, working as a nurse. She claimed she was unaware of her citizenship rights until after arriving in Canada, at which point her Registered Foreigner certificate had expired and she could not apply for an Indian passport from abroad.
Ms. Dolma sought judicial review, arguing the RAD erred in finding she should have made efforts to exercise her Indian citizenship rights and that significant impediments—including loss of CTA settlement benefits and societal discrimination—prevented her from doing so.
The Court’s Holding
Justice Fuhrer upheld the RAD decision and dismissed the application for judicial review. The Court held that established refugee law precedent requires an applicant to demonstrate that impediments to exercising available citizenship rights are beyond her control and that she made reasonable efforts to overcome them. The onus is on the applicant to establish both that impediments exist and that they are insurmountable.
The Court rejected Ms. Dolma’s arguments on several grounds. First, it found reasonable the RAD’s rejection of her claim that she was ignorant of citizenship laws. Given her profile as an educated woman who lived off-settlement for four years, the Court agreed that she could reasonably have made inquiries about her rights. Second, the Court found that her argument about risks posed by an expired Registered Foreigner certificate—potential detention or deportation to China upon return—was not raised before the RAD and thus the decision-maker could not be faulted for not addressing it. Third, the Court upheld the RAD’s finding that loss of CTA settlement benefits was not a significant impediment because Ms. Dolma had not relied on those benefits while living in Delhi.
The Court distinguished her case from precedent involving more vulnerable claimants and found the RAD conducted a thorough, fact-specific analysis proportionate to her circumstances as an educated professional with prior work experience.
Key Takeaways
- Refugee claimants with access to citizenship in an alternative country must demonstrate reasonable efforts to exercise that citizenship before seeking protection elsewhere
- Lack of knowledge about citizenship laws is not a credible impediment for educated individuals positioned to make reasonable inquiries
- Arguments not raised before the Immigration and Refugee Board are generally not reviewable on judicial review
- Loss of settlement residence or social benefits is not automatically a significant impediment if the claimant was not actually dependent on those benefits
Why It Matters
This decision reinforces that refugee protection functions as a surrogate mechanism for persons whose own governments cannot or will not protect them. A claimant cannot rely on refugee protection in another country if a viable pathway to protection exists through citizenship in a country where they face no persecution. The decision clarifies that decision-makers may reasonably discredit ignorance-based arguments when an applicant’s profile suggests they could have inquired about their legal rights, raising the bar for credibility on this issue.
For Tibetan Buddhists from India specifically, the decision establishes that the 2017–2018 Indian policy preventing Tibetan Buddhists with Indian citizenship from residing in CTA settlements is not, by itself, an insurmountable barrier to exercising citizenship rights. Applicants must show concrete, fact-specific obstacles—not merely abstract policy restrictions—and must demonstrate they took reasonable steps to overcome them before claiming refugee protection in another country.