VB4-01572

RPD File No. / N° de dossier de la SPR : VB4-01572 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Application to Cease Refugee Protection - Demande de constat de perte d'asile Applicant The Minister of Public Safety and Demandeur(e) Emergency Preparedness Respondent(s) XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) protégée(s) Date(s) of Hearing September 23, 2014 Date(s) de l'audience September 29, 2014 Place of Hearing Lieu de l'audience Date of Decision October 7, 2014 Date de la décision Panel Daniel Tucci Tribunal Counsel for the Douglas Cannon Conseil(s) de la (des) Protected Person Barrister and Solicitor personnes protégée(s) Tribunal Officer Agent(e) des tribunaux Designated Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Susan Barr Conseil du ministre RPD File No. / N° de dossier de la SPR : VB4-01572 REASONS FOR DECISION [1] This is the decision in the application from the Minister of Citizenship and Immigration Canada (CIC) (Applicant) pursuant to Section 108 of the Immigration and Refugee Protection Act (IRPA).1 [2] The application from CIC is to cessate the refugee status of XXXX XXXX XXXX XXXX XXXX XXXX, a citizen of Iraq. The hearing into this application was over two days on September 23, 2014 and September 29, 2014. [3] The respondent was present at the hearing with his counsel. The Minister's representative was also present at the hearing. [4] The legislation on cessation of refugee protection is found at Section 108 of the IRPA. Section 108 reads as follows: Section 108 (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: a. the person has voluntarily reavailed themself of the protection of their country of nationality; b. the person has voluntarily reacquired their nationality; c. the person has acquired a new nationality and enjoys the protection of the country of that new nationality; d. the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or e. the reasons for which the person sought refugee protection have ceased to exist. (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). (3) If the application is allowed, the claim of the person is deemed to be rejected. (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. THE ALLEGATION [5] The applicant submits that the respondent in the case at hand has voluntarily re-availed himself of the protection of his country of nationality pursuant to Article 108(1)(a) of the IRPA. DETERMINATION [6] The panel grants the Minister's application for cessation under Section 108(1)(e) of the Immigration and Refugee Protection Act (IRPA). The panel having granted the Minister's application under Section 108(1)(e) does not need to make a determination under Article 108(1)(a) of IRPA. The Issues Raised by this Application [7] The application by the Minister raised a number of issues for the panel that will be dealt below. These issues included whether the panel should accept as an Exhibit the latest National Documentation Package (NDP). The representative of the applicant argues that the NDP is not relevant in determining the application. Counsel for the respondent on the contrary argues that the NDP is relevant as the panel can and should consider Section 108(1)(e) of IRPA even if this ground of cessation has not been advanced by the applicant. Counsel further argues that the panel requires an understanding of the present conditions in Iraq as well as an understanding of the respondent's reasons for making his original claim in order to determine whether the reasons for the claim have ceased. [8] Another issue for the panel to consider in this application is whether the panel has the jurisdiction to consider all the five grounds for cessation even if the applicant is seeking on only one of the enumerated grounds in Section 108 of IRPA. The applicant's position is that the panel cannot consider any other grounds for cessation except the ones alleged by the applicant in the application. Counsel for the respondent argues that the panel can and must consider all the of the cessation grounds enumerated at Section 108 of IRPA even if the applicant is seeking cessation on only 1 ground. [9] Counsel for the respondent made an application for an immediate dismissal of the application following the applicant's presentation of its case. Counsel for the respondent argues that the applicant failed to comply with RPD Rule 64(2) and as such the applicant's failure to comply is fatal to the application. [10] Counsel for the respondent also asked for dismissal of the application arguing that bringing this application before the RPD constitutes an abuse of process. Counsel for the respondent argues that the respondent was given Convention Refugee (CR) protection by a Canadian official overseas in 2002. The respondent then waited in Lebanon for five years for his Permanent Resident (PR) application to be processed. Counsel argues that during this five year period between 2002 and 2007, there was a change of regime in Iraq and the reasons for the respondent seeking protection had ceased. The Canadian authorities did not consider this and they did not claw back the respondent's CR status and in fact the authorities granted the respondent PR status based on their determination that the respondent was a CR. Counsel argues that it is an abuse of process to revisit the CR of the claimant in 2014 and to interrupt the process of citizenship undertaken by the respondent. [11] Finally, the respondent's counsel argues that Refugee Convention does not apply to the respondent as once he became a PR in Canada he no longer required the CR status he had been granted. Counsel refers to the Exclusion clause under 1E of the Refugee Convention whereby the Convention does not apply to a person who is recognized by the competent authorities of the country in which he has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country. Counsel's position is that CR status is transitory and it continues until a person has another status and once they have this status, they no longer need CR protection. Counsel argues that the cessation clauses should not apply to a PR if the PR is not facing impending removal from Canada. The Facts [12] The respondent is a citizen of Iraq. He left Iraq in 1998 and eventually made his way to Lebanon. The respondent had spent a number of years in jail in Iraq as he was an opponent of the regime of Saddam Hussain. The respondent made an application to the United Nations High Commissioner for Refugees (UNHCR) in Lebanon. The respondent's case was referred to Canadian officials in Lebanon. The respondent was found to be a Convention Refugee overseas by a Canadian official. The respondent was then eligible to become a PR upon his arrival in Canada. The processing of his PR application took approximately five years. The respondent became a PR on November 6, 2007. [13] There is no dispute between the applicant and respondent regarding the dates of his travel back to Iraq.2 The respondent traveled to Iraq on six occasions between XXXX XXXX, 2008 and XXXX XXXX, 2012. There is also no dispute that the respondent applied for and received a passport issued in Baghdad by the government of Iraq on XXXX XXXX, 2010. [14] The applicant's position is that the claimant has re-availed the protection of the government of Iraq by applying for and being issued a passport by the Iraqi government and using this passport to travel to Iraq. The applicant's position is that by obtaining and Iraqi passport the respondent has established a presumption that he has re-availed the protection of the Iraqi government. The applicant further argues that the respondent's six trips to Iraq between 2008 and 2012 serve as additional evidence that the respondent re-availed the protection of the Iraqi government. [15] The panel asked counsel for the applicant and the respondent whether the panel could consider another ground of cessation under Section 108 beyond the one alleged by the applicant under Section 108(1)(a). The applicant took the position that the panel does not have the jurisdiction to assess any other grounds of cessation except the one that has been alleged in the application. The applicant went on to say that if the panel ruled that it could consider other grounds than those alleged by the Minister, then the panel must make a ruling on all the cessation grounds considered the by panel. [16] Counsel for the respondent took the position that the panel can consider any of the grounds under Section 108 once the Minister files an application for cessation. Counsel for the respondent goes further by stating that the panel must look at other grounds for cessation given the specific facts of this case. He argues that the panel must consider Section 108(1)(e) since there the reasons for granting CR protection to the respondent have ceased to exist. As the applicant is the only one that can initiate the cessation process, the respondent has no mechanism under the IRPA to cease his own CR protection. Specifically, the respondent takes the position that the reasons he was granted CR protection ceased to exist prior to his first trip back to Iraq and that he can only argue that point once the applicant filed the present application. [17] The panel finds that it has the jurisdiction to consider any of the five grounds for cessation enumerated at Section 108 of IRPA even if one or more of the grounds have not been included in the application for cessation. A plain reading of Section 108 provides the five grounds on which CR protection ceases. If one or more of the conditions enumerated at Section 108 have been established by the evidence before the panel, the panel must make a finding that CR protection has ceased. [18] Section 108(2) of IRPA provides the conditions under which the panel can consider cessation of CR protection. The provision states, "On application by the Minister"... The Section therefore directs the panel to consider cessation of CR protection only when the applicant (the Minister) files an application with the Refugee Protection Division to have an individual's CR protection ceased and his claim deemed to be rejected. The panel finds that no one other than the Minister can initiate this process. [19] Section 108(2) goes on to state that once the Minister has filed the application, "the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). The panel finds that a plain reading of this Section provides the panel with the jurisdiction to consider all the reasons for cessation enumerated at Section 108(1). The panel therefore rejects the applicant's argument that the panel is limited to consider only the grounds for cessation alleged in the application even if other grounds for cessation exist. [20] Having found that the panel can consider grounds for cessation other than the one alleged in the application, the panel must now decide where there is a possibility of two or more grounds for cessation whether the panel needs to assess a second ground for cessation if it finds that one of the grounds has been established on a balance of probabilities. In other words, if the panel finds that the case has been made out for cessation under Section 108(1)(e), then the panel needs to assess the evidence to determine whether the case has been made under Section 108(1)(a). The panel finds that once the case for cessation of CR protection has been made out on one of the enumerated grounds under Section 108(1), there is no need for the panel to consider other grounds for cessation. The approach adopted by the panel is similar to the approach used by the Immigration Division when the Minister submits a Section 44 Report on a foreign national or permanent resident and alleges criminal convictions under Section 36 of IRPA. Once the Minister establishes that one of the convictions results in the person being found to be inadmissible under Section 36, the Immigration Division does not look into the other convictions as the Minister has made out its case under Section 36. [21] Counsel for the respondent questioned the respondent at length regarding his reasons for fleeing Iraq. The respondent explained that he was opposed to the regime Saddam Hussain and as a result he had been imprisoned for approximately six years by the regime. He was able to escape captivity and he eventually made his way to Lebanon. He was recognized as a refugee by the UNHCR. His case was referred to the Canadian government. An overseas Canadian official assessed the respondent's claim and determined that the respondent was a CR in 2002. The respondent then remained in Lebanon until 2007 awaiting his Permanent Residency from the Canadian government. The respondent became a permanent resident in Canada upon his arrival in the country in November 2007. [22] The claimant returned to Iraq on six occasions after becoming a PR. He used a Canadian travel document for two trips back to Iraq. He was told by a CBSA officer after returning from his first trip to Iraq that he could not use the Canadian travel document as it did not allow for its use to travel back to Iraq. The respondent still used the Canadian travel document to return to Iraq a second time because he did not have an Iraqi passport. The respondent upon arriving in Iraq on his second trip applied for and received an Iraqi passport. He then used this passport for subsequent trips to Iraq. [23] The respondent further testified at the hearing that although he was concerned for his safety when he returned to Iraq, his original reason for fearing persecution in Iraq no longer existed. The respondent was aware when he returned to Iraq that the regime of Saddam Hussain was no longer in place and he therefore no longer feared the regime. [24] The panel finds that the respondent was a very credible witness. The applicant did not allege that he lacked credibility. The panel finds that he testified in straightforward manner, that he provided spontaneous answers to the questions posed to him and there were no contradictions in his testimony and evidence. The panel therefore finds that the respondent fled Iraq because he feared persecution at the hands of the Saddam Hussain regime. [25] In order to consider cessation under Section 108(1)(e), the panel must be in a position to consider whether the reasons for granting CR protection to the respondent have ceased to exist. The panel must then look at the reasons for the respondent's claim and then analyze them in the context of the current conditions. Counsel for the respondent asked for the current National Documentation Package (NDP) on Iraq to be included as an Exhibit in this hearing. The applicant objected to the NDP being included as an Exhibit as the applicant submitted that it was irrelevant as the panel cannot look at present conditions in Iraq in determining the cessation application. [26] Having found that the panel can consider a ground other than the one alleged by the applicant under Section 108(1) and that the panel is considering cessation under Section 108(1)(e), the panel finds that the current NDP on Iraq is relevant to the application and therefore rules that the current NDP will be entered in as an Exhibit in this proceeding.3 [27] Having considered the testimony of the applicant and having found him to be credible, the panel finds that the claimant had a well-founded fear of persecution in Iraq based on his fear of persecution at the hands of the Saddam Hussain Regime. The panel finds that based on the current information contained in the NDP on Iraq, that there has been a change of regime in Iraq. The regime of Saddam Hussain has been removed from power and Iraq is now a constitutional parliamentary republic with elections in 2010 that were considered free and fair. [28] The panel must consider a number of factors to determine whether the reasons for the respondent's CR protection have ceased to exist. There is some debate whether the panel must assess whether the change in Iraq must be to the point where there are no longer serious reasons to consider that he faces a risk of persecution or whether the test is a higher one where the panel can only cease protection if it satisfied that there reasons for protection have ceased. The latter is a higher test than former requirement. The panel finds that the test for cessation under 108(1)(e) requires a higher threshold that the reasons for protection have ceased rather than the lower test that there is no longer a serious possibility that the respondent would be persecuted if he returned to Iraq. This more stringent test is to the benefit of the respondent. [29] The applicant's representative argued if the panel finds that they can assess the grounds for cessation under Section 108(1)(e) then it should be rejected as the respondent has not established that the changes in Iraq are permanent or durable. The panel finds it odd that the applicant would argue against a finding that Section 108(1)(e) does not apply in this case by basing an argument that the change in Iraq is not durable or permanent. The strict interpretation of Section 108(1)(e) as outlined by the panel is to the benefit of the person that is subject of a cessation proceeding. It seems disingenuous for the applicant to argue against the application of a cessation clause because it prefers another section under 108(1). The Minister has not provided any rationale of why it prefers one section of 108(1) over another section when the result of a finding under any section results in the cessation of CR protection. [30] In order to find that the reasons for protection have ceased the panel must consider whether the change is durable, lasting, and substantial. The panel finds that the changes in Iraq are durable, lasting and substantial. The regime of Saddam Hussain was eliminated and a new political process was put in place. The Baathist regime no longer wields power in Iraq and a democratic regime has replaced it. The panel finds that the risk faced by the respondent when he lived in Iraq has been eliminated. The panel therefore finds that the reasons for which the respondent sought protection have ceased. [31] The panel's jurisdiction in this matter is limited to the consideration of the circumstances under Section 108(1). If the respondent's circumstances fall within one of five enumerated sections under 108(1), then the panel must find that the respondent's CR status has ceased. The panel cannot concern itself with the impact of a finding under section 108(1) beyond the effect of the decision under Section 108(3) of IRPA. The applicant may prefer a finding under one of the sections under 108(1) over another section of 108(1) but this is of no concern to the panel. The panel must simply assess whether the respondent falls within the ambit of one of the sections and if he does, the panel must allow the application. [32] The panel therefore allows that the application under Section 108(1)(e) of IRPA as the panel finds that the reasons for which the respondent sought protection have ceased to exist. Having allowed the application under Section 108(1)(e), the panel must now assess whether there are compelling reasons arising out of the previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country they left as outlined in Section 108(4). The panel has not been provided with any evidence of compelling reasons why the respondent would refuse to avail himself of the protection of the government of Iraq. [33] The panel rejects the respondent's application to dismiss this matter based on the applicant's failure to comply with RPD Rule 64(2). The respondent argued that the applicant did not provide a copy of the decision granting the respondent CR protection by Canadian authorities. The panel finds that the applicant has provided sufficient information to comply with RPD Rule 64(2). The applicant did provide sufficient evidence to establish that the respondent was found to be a CR overseas in 2002. Although there wasn't an abundance of detail with respect to the respondent's claim, the panel finds that the applicant did provide sufficient information to comply with RPD Rule 64(2). [34] The respondent argued that the application should be dismissed because the applicant's actions in this matter constitute an abuse of process. Counsel for the respondent argues that the applicant waited until the respondent was at the end of the citizenship process before filing the application and that this was an inappropriate delay on the part of the applicant as the claimant first returned to Iraq in 2008. Counsel further argues that it is abusive for the applicant to bring this application under Section 108(1)(a) with the respondent potentially losing his PR status in Canada for actions that were taken when they would not have resulted in his loss of PR status. [35] The panel does find it problematic that the respondent could lose his PR status if the application is granted under Section 108(1)(a) for actions that were taken at a time when those same actions would not have resulted in a loss of PR status. Section 46(1)(c.1) states that a person loses their permanent resident status on a final determination under Section 108(2) for any of the reasons enumerated under paragraph 108(1)(a) to (d). Although the panel rejects the respondent's application to dismiss the application as an abuse of process, the panel does believe this application under 108(1)(a), given the specific circumstances of this case, runs counter to Canada's international obligations and it also runs counter to the objectives of IRPA. The panel agrees with Counsel for the respondent that an important objective of the Refugee Convention and the IRPA is the settlement of refugees. People granted CR protection by Canada have a right to move on with their lives and be settled. The panel is of the opinion that this application based on the circumstances of the respondent runs counter to the objectives of the Refugee Convention and IRPA. [36] Having allowed the application under Section 108(1)(e) of IRPA, the panel finds that there is no need to make a determination of the application under Section 108(1)(a) of IRPA. The panel therefore finds that the reasons for which the respondent sought refugee protection have ceased to exist. CONCLUSION [37] The panel therefore finds that the claim of XXXX XXXX XXXX XXXX XXXX XXXX is rejected pursuant to Section 108(3) of IRPA. [38] The panel finds that the respondent's refugee protection conferred by the RPD on October 13, 2011, has ceased and the respondent's claim is deemed to be rejected. (signed) "Daniel Tucci" Daniel Tucci October 7, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit 1 at page 6 of the Minister's cessation application (items 4-10). 3 Exhibit 9, National Documentation Package (NDP), Iraq, March 14, 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 2 RPD File No. / N° de dossier de la SPR : VB4-01572 1