MB4-03351

RPD File No. / No de dossier de la SPR : MB4-03351 Client ID No. / No ID client : XXXX XXXX XXXX Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Application to cease refugee protection - Demande de constat de perte d'asile Applicant(s) The Minister of Citizenship and Immigration of Canada Demandeur Respondent XXXX XXXX XXXX Intimée Date of hearing March 19, 2015 Date de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons April 1, 2015 Date de la décision et des motifs Panel Mélanie Daigle Tribunal Counsel for the protected person Me Vincent Desbiens Conseil de l'intimée Designated representative N/A Représentant désigné Counsel for the Minister Sylvie Lacaille Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration of Canada is applying to have the panel, in accordance with section 108 of the Immigration and Refugee Protection Act (the Act), determine that the refugee protection granted to XXXX XXXX XXXX on December 10, 2003, has ceased. ALLEGATIONS [2] On February 5, 2002, the respondent, a citizen of Guinea, claimed refugee protection in Canada through her designated representative, because she was an unaccompanied minor at the time. [3] In her Personal Information Form,1 the respondent indicated that after her parents' divorce, she was forced to go live with her father and his second wife. When her mother found out that her father was planning to marry her off to an elderly man, she arranged for her to leave the country, which is why she sought protection from the Canadian authorities. [4] On October 20, 2003, the refugee protection claim was resolved without a hearing, and on December 10, 2003, the respondent was granted "Convention refugee" status by the Refugee Protection Division. [5] On XXXX XXXX, 2006, the respondent obtained a travel document from Guinea that was valid for XXXX months. [6] On June 19, 2006, the respondent was granted permanent residence in Canada. [7] On XXXX XXXX, 2008, a passport from the Republic of Guinea was issued to the respondent by the authorities of her country. This passport was extended on XXXX XXXX, 2013. The stamps in the passport indicate that the respondent made several trips to the United States and two trips to her country of citizenship, Guinea. [8] On XXXX XXXX, 2013, the respondent was intercepted, carrying her passport, at the Saint-Bernard-de-Lacolle port of entry from the United States. The respondent's passport was seized. [9] On XXXX XXXX, 2013, the respondent was issued a travel document from Canada, which she then used to travel. [10] On August 26, 2014, the Minister applied to have the panel cease the respondent's refugee protection on the ground that she voluntarily reavailed herself of the protection of the authorities of her country of nationality, as set out in paragraph 108(1)(a) of the Act, by applying for and obtaining a passport from the Guinean authorities, a passport she used, among other things, to return to her country of citizenship twice. [11] On March 9, 2015, the Minister submitted an amendment to the application to cease refugee protection, asking the panel to also cease the respondent's refugee protection on the ground that the reasons for which she sought refugee protection have ceased to exist, as set out in paragraph 108(1)(e) of the Act. DETERMINATION [12] After considering all the evidence on the record (M-1 to M-10) and the documents entered into evidence by the respondent (D-1 to D-15), the panel dismisses the Minister's application to cease refugee protection. The panel is of the view that the respondent's actions, as presented, cannot be considered a reflection of her intention to voluntarily reavail herself of the protection of her country of nationality. [13] The panel is also of the view that the Minister failed to establish, on a balance of probabilities, that the change in the reasons that led the respondent to claim refugee protection was in fact sufficiently effective to make the respondent's fear an unreasonable fear. In other words, the panel is of the opinion that the respondent's fear of persecution remains founded. ANALYSIS Paragraph 108(1)(a) of the Act [14] Paragraph 108(1)(a) of the Act provides that a claim for refugee protection shall be rejected, and a person is not a "Convention refugee" or a "person in need of protection," if the person has voluntarily reavailed themself of the protection of their country of nationality. [15] In addition, according to the principles set out in paragraphs 118 to 125 of the Handbook of the Office of the United Nations High Commissioner for Refugees (UNHCR),2 which have since been adopted by Canadian case law,3 if a refugee applies for and obtains a national passport or its renewal, it will, in the absence of evidence to the contrary, be presumed that they intend to reavail themselves of the protection of their country of nationality.4 [16] Although a passport application creates a presumption of intention to reavail oneself of the protection of one's country, evidence to the contrary can rebut that presumption. [17] In this case, the Minister's representative pointed out to the panel that the respondent voluntarily applied to the Guinean authorities for, and subsequently obtained from them, a travel document dated XXXX XXXX, 2006, as well as a passport dated XXXX XXXX, 2008, which was extended at her request on XXXX XXXX, 2013. The Minister's representative also indicated to the panel that the respondent had used this passport for several trips to the United States and for two trips to Guinea in 2009 and 2011 respectively. The respondent did not contest these facts. However, with respect to the respondent's intention when she applied for that passport, the parties presented different viewpoints. [18] For her part, the Minister's representative submitted to the panel that the respondent had not rebutted the presumption that she was intending to reavail herself of the protection of her country's authorities when she applied to her country's authorities for a passport and when she decided to use that passport to travel, including twice to her country of citizenship. [19] More specifically, the Minister's representative submitted to the panel that no one forced the respondent to obtain a travel document or a passport from the authorities in her country. In relation to her two trips to Guinea, the Minister's representative indicated to the panel that the respondent had presented no evidence to corroborate her statements about her mother's illness and that, as a result, she had not provided a valid reason for her presence in Guinea in 2009. [20] For her part, the respondent pointed out the following to the panel: Travel document issued on XXXX XXXX, 2006 - Guinea [21] When asked why she applied for a travel document in 2006, the respondent explained that she was about 15 years old at the time and that her aunt5 wanted to take her to the United States with them. [22] Asked to explain why, under the reasons heading, [translation] "family reasons" was indicated, the respondent stated that she did not know. The respondent went on to explain that it was her aunt who had taken her to Ottawa and that it was she who had filled out the papers. When asked [translation] "Why didn't you travel after this document was issued?", the respondent explained that her aunt had then found out that she had to have a passport and that the travel document was not sufficient. Given that complication and given that that did not prevent her aunt and the members of her family from going to the United States, she had simply not accompanied them, which is why she never used this document. Passport issued on XXXX XXXX, 2008, extended on XXXX XXXX, 2013 - Guinea [23] When asked why she applied for a passport in 2008, the respondent explained that she wanted to take a vacation in the United States with some friends. In response to the questions put to her by the Minister's representative, the respondent stated that she had called Citizenship and Immigration Canada to ask them what she had to do to be able to travel. The respondent went on to explain that they asked her for some personal information such as her name, her identity number, and her permanent resident card number. After she provided her information, she was allegedly told that she had to have a passport and her permanent resident card to be able to travel. The respondent testified that at no point was she informed that she could not travel with a passport from her country or that she needed a travel document issued by Canadian authorities. The respondent also stated that she did not know that she had been accepted as a permanent resident in the protected persons category because, when she claimed refugee protection, she was only 10 years old. Still in response to the questions put to her, the respondent told the panel that both times she decided to return to her country, she contacted Citizenship and Immigration Canada for information on the procedure. Once again, although she clearly identified herself, no one informed her that she was a member of the protected persons category and that she could not return to her country. Rather, what she was told was the procedure for obtaining a re-entry visa from the Canadian embassy once she was in her country; she apparently followed this procedure and obtained one. [24] In addition, the respondent testified that she went to the United States several times after her passport was issued but that it was not until XXXX 2013 that an immigration officer informed her that she could not travel with her passport. The respondent went on to explain to the panel that when she started asking the officer questions, she found out that this was a new regulation, that she could not travel with her passport and that she had to instead obtain a Canadian travel document. The respondent stated that she did not know why they seized her passport that day but that the immigration officer did, however, print for her the information on the procedure for obtaining a travel document. [25] After considering all these explanations, the panel is of the opinion that the respondent provided solid, plausible explanations, in addition to filing as evidence documents that corroborate her statements6 that she applied to the authorities in her country for a passport and that she used this passport to travel based on incorrect information she received from Canadian authorities. [26] Although, during the hearing, the Minister's representative pointed out to the respondent that Citizenship and Immigration Canada's Internet site states that a protected person must obtain a travel document from Canadian authorities to travel, the panel is of the view that, since the respondent contacted Citizenship and Immigration Canada, it was more than reasonable for her to think that the information received was valid and, therefore, that she did not need to look any further to validate whether the information the immigration authorities provided was accurate. In the panel's opinion, it would be completely unreasonable to place such a burden on an individual. [27] In addition, the panel notes that as soon as the respondent was informed that she could obtain a travel document from Canadian authorities, she applied for one immediately, and that once the document was issued, it was the only one she used to travel. The panel notes in this regard that after her passport was seized, the respondent did not try to obtain another passport from the authorities in her country. Trips to Guinea - 2009 and 2011 [28] On the matter of her return to Guinea in 2009, the respondent stressed to the panel that she did not want to go back to Guinea, that she had broken off all contact with her entire family, and that she was even a little angry with her mother, who had sent her here when she was only 10 years old, because she did not really understand the reasons for or the scope of the problem that drove her mother to make her flee her country. The respondent went on to explain that it was pressure from her aunt,7 who had stayed in touch with her mother, that prompted her to return to Guinea. The respondent continued, explaining that at the time they initially thought that her mother had cancer, then that she was dying of AIDS. The respondent explained that, wanting to ease her conscience, she had not really thought things through when she decided to go to Guinea, which is why no one was informed that she was coming before she arrived. On that point, the respondent stated that her mother's brother picked her up at the airport and that she then went to stay with her mother. The respondent explained that her parents were separated, that her sister and younger brothers had all been living with their father since the separation and that there was a great deal of tension between the families. Given this situation and their young ages (15, 7 and 6), the respondent explained that her brothers and her sister did not visit their mother and that they were somewhat indifferent about their mother's health, because they tended to take their father's side more than their mother's side. [29] Asked about the seriousness of her mother's state of health, the respondent stated that they had gone to the hospital but that the tests were inconclusive. The respondent explained that, unable to afford other tests in more sophisticated hospitals, her mother turned to traditional medicine. Her health had supposedly gradually improved, and the conclusion was that she did not have a particular disease but, rather, that she was under some sort of a spell or curse. Realizing that, contrary to her expectations, her mother was not going to die, and because of her obligations in Canada to her employer and of efforts being made to get her to marry a cousin, she decided to return to Canada. In response to one question, the respondent stated that her visit had lasted just over a month. [30] In her submissions to the panel, the Minister's representative stated that the respondent had filed no medical documents as evidence to corroborate her statements and had provided no valid explanation for not doing so, and that therefore, she had provided no reasonable explanation for her presence in Guinea at that time. [31] The panel does not agree. Although it is always nice to have corroborating documents, it is not an essential condition for rejecting testimony, particularly when in the presence of someone such as the respondent, who testified forthrightly and spontaneously, and who provided detailed explanations. Because the respondent provided such clear testimony, the panel believes her explanations as to why she urgently needed to go to her country in 2009 for a short stay with her sick mother. [32] In terms of her return to Guinea following the announcement of her father's death in 2011, the respondent stated once again that she acted on emotion, without thinking, and even more importantly, without notifying anyone on either her mother's or her father's side of her arrival in the country. [33] In response to the questions asked, the respondent stated that she did not stay with her family but rather with the family of a friend she met in Canada. The respondent noted that whenever she went anywhere, she was accompanied by the man of the family and that when she met her father's family on the day of the [translation] "sacrifice," everyone was very surprised to see her. The respondent then testified that her paternal uncles seemed to be in a hurry to divide up her father's inheritance, which she found inappropriate behaviour for the day of the [translation] "sacrifice." The respondent also mentioned that the only thing her uncles said to her that day was that because she was not married, she could not inherit anything from her father. After that, she apparently did not see her family again until the day of the burial in her father's village. [34] Regarding the time spent in her country, the respondent testified that she had planned to stay in her country for just two or three days at the most, but that the information that Citizenship and Immigration Canada had given her about the time frame and location for applying for her re-entry visa was wrong, which meant that she was forced to stay in the country longer. The respondent stated that, except for on the day of the sacrifice and the day of the burial, she had no other contact with her family. The respondent added that this situation caused her enormous stress, because she had planned (employer, return airline ticket, etc.) to stay in the country for only 3 days, and after the trouble and the delay in obtaining her re-entry visa, she was forced to stay in Guinea for 23 days. The panel notes that, in support of her statements, the respondent filed her father's death certificate as evidence,8 as well as her email exchanges with Citizenship and Immigration Canada and her employer about her difficulties returning to Canada.9 [35] Once again, the panel is of the opinion that the respondent provided satisfactory explanations to demonstrate that her presence in Guinea was unplanned and was motivated by the urgency and gravity of the situation-her mother's health and the death of her father. [36] On this matter, the panel is of the opinion that the principles set out in paragraph 124 of the UNHCR Handbook10 apply in this case: 124. Obtaining a national passport or an extension of its validity may, under certain exceptional conditions, not involve termination of refugee status (see paragraph 120 above). This could for example be the case where the holder of a national passport is not permitted to return to the country of his nationality without specific permission. Paragraph 108(1)(e) of the Act [37] Paragraph 108(1)(e) of the Act states that a claim for refugee protection shall be rejected, and a person is not a "Convention refugee" or a "person in need of protection," if the reasons for which the person sought refugee protection have ceased to exist. [38] Writing for the Court of Appeal in Yussuf,11 Justice Hugessen provided the following clarifications regarding the argument of a change in circumstances in the file: ...the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s.2 of the Act [Immigration Act]: does the claimant now have a well founded fear of persecution? [39] This principle has been reiterated in several subsequent decisions, including Campos Umana,12 in which the Court once again concluded that the sole purpose of analyzing the change in circumstances, or whether it is meaningful and effective enough, is to determine whether this change has rendered the fear unreasonable and without foundation. [40] Consequently, in this case, the panel sought to determine whether the death of the primary agent of persecution-her father-was sufficient in itself to conclude that the fear invoked by the respondent in support of her refugee protection claim-that she would be subjected to a forced marriage-was no longer founded as a result of this change. [41] In her submissions, the Minister's representative asserted to the panel that the respondent's father had died and that this event constituted a meaningful change in circumstances, because he was the respondent's primary agent of persecution. On this point, the Minister's representative added that the respondent no longer needed protection because the source of her fear no longer existed. The Minister's representative also pointed out to the panel that, on her return trips to Guinea, the respondent was merely questioned by her paternal uncles, nothing more, and that according to her own statements, she could not be completely sure that she risked forced marriage if she were to return to her own country, which demonstrated, in the Minister's opinion, that she no longer faced a risk. [42] For her part, when questioned about her fears of returning after this significant change in circumstances, the respondent told the panel that she still feared being forced to marry, but that she could not say for certain whether it would happen because she had no contact with her father's family. [43] In addition, during the hearing, the respondent recounted two events that the panel considers very important in its assessment of the objective basis of her fear. [44] First of all, on the matter of her first trip in 2009, when the Minister's representative asked the respondent whether her father knew she was in the country, the respondent answered that she had had no contact with him and that she had not talked about their father with her sister or with her younger brothers during their visits. The respondent went on to explain that her father knew, however, that she was at her mother's, because he was very reluctant to let her younger brothers and her sister come visit her at their mother's as, in his mind, she was a bad daughter. [45] To the question [translation] "Did you have any problems?", the respondent stated that after she arrived in Guinea, her father and her father's family knew that she was not married, which meant that she was a spinster. Her paternal uncles then started making arrangements for her to marry one of her cousins. To keep the peace, her mother advised her not to be rash, to play along and to somehow make people think that she agreed to this marriage until she returned to Canada. The respondent went on to explain that she had in fact purchased an open airline ticket, because she had some fear of returning to her country, but that she had done so because of pressure from her aunt and because she had received information indicating that her mother was dying. The respondent then explained to the panel that when she was given some [translation] "stockings"-in other words, when payment of the dowry started-she thought the situation was starting to [translation] "heat up," and because her mother was doing better, having taken some traditional medicine, she returned to Canada. The respondent also told the panel that her mother had ordered her not to come back, even if her health deteriorated, for fear that she would not be able to get her out of [translation] "this trouble" again. [46] Asked about her return to Guinea in 2011 after her father's death, the respondent told the panel again that she had made that decision without really thinking and that she had told no one of her return, not even her mother. The respondent also stated that she had stayed with a friend's family and that the man of that family had accompanied her everywhere she went. The respondent also mentioned that her paternal uncles were surprised to see her, because she was looked down on by the family, but that they seemed much more concerned about dividing up the inheritance than about her brief presence with them. According to the respondent, she was with them on only two occasions and for only a few hours during that trip. [47] Then, questioned at the start of the hearing about her younger sister, the respondent stated that she had been circumcised and forced to marry. In that regard, the respondent spontaneously told the panel that when she had found out that her sister was going to be married against her will, she called Immigration Canada to find out what she could do to help her but that they told her that because her sister was over 18, there was nothing she could do for her. When asked [translation] "Did your sister's marriage take place?", the respondent answered yes, that she was married on XXXX XXXX, 2014. [48] In this case, the panel is of the opinion that the respondent's answers as outlined above clearly show that the fear of a forced marriage does not stem from the father only, because in 2009, when the respondent's father was still alive, it was not he but the respondent's paternal uncles who went to find her at her mother's and who started making arrangements for her to marry a cousin they had chosen for her. On this point, the panel is of the opinion that the fact that her mother asked her to play along, to pretend that she agreed so as not to antagonize them, and even not to come back and see her, regardless of her health, and the respondent's statements that she came back to Canada when she thought things were [translation] "heating up" clearly show that the lack of any direct involvement by the father and the lack of any contact with the family from 2002 to 2009-more than seven years-did not change the situation. [49] In addition, the panel is of the opinion that the fact that her father's death in 2011 did not keep her paternal uncles from marrying off her younger sister against her will on XXXX XXXX, 2014, reinforces the panel's conclusions that the mere fact that the respondent's father was dead is not, on its own, sufficient to remove the threat of a forced marriage if she were to return to her country. As for her return to Guinea in 2011, the panel is of the opinion that the respondent provided reasonable explanations for why she was not bothered by her uncles, and therefore, that this return to her country in 2011 is not determinative. [50] In light of all the foregoing, the panel is of the opinion that although the death of the respondent's father-the primary agent of persecution-is a meaningful change, the panel concludes that this change is not sufficiently tangible or effective to conclude that the respondent's fears would be unreasonable or without foundation today. CONCLUSION [51] After having reviewed the respondent's statements, the panel is of the view that she rebutted the presumption that she intended to reavail herself of the protection of her country's authorities when she applied to those authorities for a passport and used this document to travel. [52] The panel is also of the view that the Minister failed to establish, on a balance of probabilities, that the change in circumstances that occurred in relation to what led the respondent to claim refugee protection was in fact sufficient to render the respondent's fear unreasonable. In other words, in the panel's view, the respondent's fear of persecution is still founded. [53] Considering all the above reasons, the panel dismisses the application to cease refugee protection filed by the representative of the Minister of Citizenship and Immigration. Consequently, the applicant's refugee status remains unchanged. Mélanie Daigle Mélanie Daigle April 1, 2015 Date IRB translation Original language: French 1 Exhibit M-3: Personal Information Form (PIF), page 15. 2 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees of the Office of the United Nations High Commissioner for Refugees. 3 Cabrera Cadena v. Canada (Public Safety and Emergency Preparedness), 2012 FC 67; Nsende, Jean Claude v. M.C.I. (F.C., No. IMM-3635-07), Lagacé, April 23, 2008, 2008 FC 531. 4 Exhibit M-3: PIF, paragraph 121. 5 Note: The respondent has no blood relation with this person; the respondent uses the word "aunt" because this woman welcomed her and hosted her during her stay in Canada when she was 10 years old. 6 Exhibit D-6: Email from Citizenship and Immigration Canada to XXXX XXXX XXXX, pages 13-17, and D-7: Email exchange between XXXX XXXX XXXX and XXXX XXXX, pages 18-23. 7 Exhibit M-3: PIF, paragraph 121. 8 Exhibit D-4: Death certificate for XXXX XXXX. 9 Exhibits D-6: Email from Citizenship and Immigration Canada to XXXX XXXX XXXX, pages 13-17, and D-5. 10 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees of the Office of the United Nations High Commissioner for Refugees. 11 Yusuf, Sofia Mohamed v. M.E.I. (F.C.A., No. A-130-92), Hugessen, Strayer, Décary, January 9, 1995. Reported: Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.) 12 Campos Umana, Cesar Emilio v. M.C.I. (F.C.T.D., No. IMM-1434-02), Snider, April 2, 2003; 2003 FCT 393. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 13 RPD.26.18 (March 31, 2014) RPD File No. / No de dossier de la SPR : MB4-03351