TB5-02742

RPD File No. / N° de dossier de la SPR : TB5-02742 Client ID No./ No ID client: 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 Demandeur(s) Protected person(s) XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX) Personne(s) protégée(s) Date(s) of hearing October 17, 2018, Date(s) de l'audience Place of hearing Toronto, Ontario Lieu de l'audience Date of decision and reasons December 19, 2018 Date de la décision et des motifs Panel K. Foreman Tribunal Counsel for the applicant(s) Wong, A. Conseil (du/des) demandeur(s) Counsel for the Respondent(s) TARA MCELROY Conseil(s) de l'intimé(e)(s)) Designated Representative(s) N/A Représentant(e) désigné(e) REASONS FOR DECISION [1] These are the reasons for the decision in the application made by the Minister of Citizenship and Immigration ("the Minister") to the Refugee Protection Division pursuant to section 108(2) of the Immigration and Refugee Protection Act ("the Act") for the cessation of the grant of refugee protection made to XXXX XXXX XXXX ("the respondent"). BACKGROUND [2] The respondent, XXXX XXXX XXXX, is a citizen of Nigeria. The respondent fled Nigeria in 2001, fearful that she would be forced into a marriage and be subjected to female genital mutilation. She travelled to Canada, where she made a refugee claim that was accepted on July 8, 2003. The respondent became a permanent resident of Canada on July 19, 2004.1 MINISTER'S APPLICATION FOR CESSATION [3] On March 12, 2015, the Minister made an application2 pursuant to section 108(2) of the Immigration and Refugee Protection Act (the "Act") for cessation of the respondent's status as a Convention Refugee. [4] According to the Minister's submissions, the respondent has voluntarily reavailed herself of the protection of Nigeria by applying for and receiving multiple Nigerian passports from government officials. The Minister further alleges that the respondent used those passports to return to Nigeria voluntarily a number of times over an eleven year period.3 [5] In the application for cessation dated March 12, 2015, the Minister argued that the respondent voluntarily re-availed herself of the protection of the Nigerian government, first by renewing her Nigerian passport a number of times, and then by travelling on those passports to Nigeria. The Minister provided documentary evidence in support of these allegations, and is seeking the cessation of the respondent's status as a Convention refugee. DETERMINATION [6] The Minister's application for cessation of the respondent's status as a Convention refugee, pursuant to section 108(2) of the Act, is allowed under section 108(1)(a) and her claim is deemed to be "rejected" in accordance with section 108(3) of the Act. ANALYSIS [7] The respondent was in attendance at the October 17, 2018 hearing and represented by counsel. In rendering this decision, the panel has considered and applied the Chairperson's Guideline 4 on proceedings involving women refugee claimants fearing gender based persecution.4 [8] The respondent testified at the hearing, as did her husband, XXXX XXXX. The panel has considered the Minister's evidence, the evidence and testimony of the respondent, and the written submissions of both the Minister's representative5 and counsel for the respondent6 in reaching its determination. [9] The panel has also considered the relevant legal provisions under the Act, the jurisprudence, and also the paragraphs of the United Nations High Commissioner for Refugees (UNHCR) Handbook pertaining to the issue of cessation of refugee protection.7 Subsection 108 of the Act reads, in part, as follows: 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 re-availed themselves 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. [10] The language of section 108(1)(a) is consistent with Article 1C (1) of the 1951 Convention: "He has voluntarily re-availed himself of the protection of the country of nationality." The UNHCR Handbook relating to the above Article reads, in part, as follows: 118 - This cessation clause refers to a refugee possessing a nationality who remains outside of the country of his nationality.... A refugee who has voluntarily re-availed himself of national protection is no longer in need of international protection. He has demonstrated that he is no longer "unable or unwilling to avail himself of the protection of the country of his nationality." 119- This cessation clause implies three requirements: (a) voluntariness: the refugee must act voluntarily; (b) intention: the refugee must intend by his action to re-avail himself of the protection of his nationality; (c) reavailment: the refugee must actually obtain such protection. 120 - If the refugee does not act voluntarily, he will not cease to be a refugee....He may be constrained by circumstances beyond his control to have recourse to a measure of protection from his country of nationality.... Such an act cannot be considered to be a "voluntary re-availment of protection," and will not deprive a person of refugee status. 121 - In determining whether refugee status is lost in these circumstances, a distinction should be drawn between actual re-availment and occasional and incidental contacts with national authorities. If a refugee applies for and obtains a national passport or its renewal it will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality... 122 - A refugee requesting protection from the authorities of the country of his nationality has only "re-availed" himself of that protection when his request has actually been granted. ... He will not cease to be refugee merely by applying for repatriation. On the other hand, obtaining a national passport for purpose of returning will, in absence of proof to the contrary is considered as terminating refugee status. 123 - A refugee may have voluntarily obtained a national passport, intending either to avail himself of protection of his country of nationality while staying outside that country, or to return to that country. As stated above, with receipt of such a document he normally ceases to be a refugee... 124 - Obtaining a national passport 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 his country of nationality without specific permission. The Minister's position [11] The Minister argues in his application that the respondent's decision to apply for and obtain three Nigerian passports (A2767843, A02023489 and A06302619),8 and her use of those passports to travel to Nigeria on approximately 10-12 occasions meets the requirements as set out in paragraph 119 above that, on a balance of probabilities, the respondent has voluntarily, intentionally and actually re-availed herself of the protection of Nigeria. The Minister submits, therefore, that a prima facie case has been made for re-availment pursuant to subsection 108(1)(a) of the Act, and that the onus is therefore upon the respondent to rebut this presumption. The respondent's evidence [12] The panel notes that obtaining a national passport from the country of origin while outside that country, normally equates with a refugee's re-availment of the protection of his or her country of origin, according to the above-cited paragraphs of the UNHCR Handbook, 'in the absence of proof to the contrary'. The panel has therefore carefully considered the respondent's explanations for taking the actions that she did, in obtaining a new Nigerian passport on three occasions, and using them to travel to Nigeria on several occasions, after she had been granted Convention refugee status in Canada. [13] At the hearing, the respondent testified that she did not travel to Canada on her Nigerian passport, but when it was required for her permanent residency application, she had a friend send it to her in Canada. Her subsequent passports were issued by a competent government authority in Nigeria in 2004, 2009 and 2014. At the hearing, the respondent confirmed that the passports in question were official Nigerian passports, all issued in Abuja, and that she was the rightful holder. She testified that she applied for the passports overseas, because if she applied in Canada, she was informed she had to provide a statement of origin from her home village. This was not required if she applied for a passport in Nigeria. [14] The respondent testified that she needed the passport to travel to Nigeria. The respondent testified that her trips to Nigeria were for a variety of reasons. In 2004, she travelled to see her then boyfriend, XXXX XXXX; in 2005, her trip was for the purpose of marrying Mr. XXXX; in 2006, the respondent was pregnant and felt depressed and wanted to see her husband. Subsequent trips in 2007, 2009 and 2012 were for the purposes of trying to achieve a second pregnancy, as well as for comfort in the face of a number of miscarriages. The respondent testified that her trips in 2010 and 2015 were to see her father and mother, who were at the respective times both gravely ill. The trip in 2013, was the result of trouble in the couple's marriage, and the respondent testified that she was afraid her marriage would end. [15] The respondent testified that she took precautions when travelling to Nigeria, only travelling for 10 days to two weeks at a time. In 2005, the trip was extended under the order of her physician, due to complications in her pregnancy. She would stay at her husband's home in Abuja and did not inform anyone she knew that she had travelled to Nigeria. The respondent only travelled to her home village of Uromi on one occasion, when her father was ill in 2010. She noted that she travelled in the middle of the night and did not speak to any of the family who was present in his home, only visiting with her gravely ill father. [16] The respondent's husband testified that he and his wife spoke little about her history in Nigeria, and that he knew it was hard for her. He stated that only a few friends attended their wedding and his family has never met his wife, or their children. The respondent noted that if she was to have any problems in Nigeria with the agent of persecution, she would have approached the Canadian authorities. She further testified that she was informed by former counsel that there was no issue with her returning to Nigeria. The panel notes that no complaint was filed against former counsel, his conduct or instructions. [17] The respondent testified that she did not become aware of the death of the agent of persecution in 2004, until she was contacted by an Uncle via text message in 2014. Her husband became a permanent resident of Canada in 2007. He testified that he attempted to settle in Canada and had a difficult time, making the decision to return to his legal practice in Nigeria. The panel's findings [18] The panel finds that the determinative issue in deciding this application is the first ground upon which it is based, whether the respondent has through her actions, voluntarily, intentionally and actually re-availed herself of the protection of the authorities in Nigeria and the determination of whether the reasons for the respondent's fear have ceased to exist as set out in subsection 108(1)(e), by fully analyzing whether the respondent's evidence credibly demonstrates on ongoing fear of persecution. The Federal Court in Cabrera Cadena confirms that the RPD was not obliged to analyze all the paragraphs in section 108(1) of the Act to establish the cessation of refugee protection.9 Counsel for the respondent has submitted that the Minister's application should fail on multiple grounds and that if cessation was to be applied, it should only be through the lens of a change of circumstance.10 [19] The panel finds that, on a balance of probabilities, the respondent's actions in obtaining a new passport from Nigerian authorities in Abuja on three separate occasions, was both voluntary and intentional, as required by paragraph 119 of the UNHCR Handbook. The respondent testified that she chose to take this step in order to not have to provide a document from her village to the Nigerian embassy in Canada. The panel finds the reasons why the respondent applied overseas for a passport to be moot, the reality is that she applied and received a passport from Nigerian authorities, on three separate occasions and furthermore, she travelled on those passports on ten separate occasions to Nigeria. [20] The respondent testified that she had to travel to Nigeria to see her then boyfriend, to marry him, to start a family, for support through miscarriages and fertility treatment and finally, to save her marriage. She testified that she also travelled to visit with her parents when they were ill. The panel, in assessing the credibility of a person appearing before it, is entitled to rely on its rationality and common sense. The panel notes that the respondent, according to her own testimony, stated that she was not aware of that her agent of persecution died in 2004. She was informed of his death in 2014, travelling to Nigeria a minimum of five times prior to learning that he was no longer a threat. [21] Counsel for the respondent has made a number of arguments as to why the cessation application should not be allowed.11 She has argued that section 108(4) should apply to the respondent because she ceased to be a refugee prior to her reavailment, as the agent of persecution was dead prior to her first trip to Nigeria in 2004. However, the panel finds that 108(4) applies to those who have not been determined to be Convention Refugees, where the circumstances of their case have changed. It does not apply in this case, as the respondent had been recognized as a Convention refugee whom feared return to Nigeria. [22] Counsel for the respondent has proposed an alternative argument, that if the panel was to apply any grounds for cessation, it should apply section 108(1)(e),12 noting that there has been a change of circumstance due to the death of the agent of persecution which occurred prior to any of the return to trips to Nigeria, despite the fact that the respondent was not aware of the death until 2014. The respondent submits that cessation can occur only one time. This assertion has been dispelled in the recent Federal Court case of Tung: The Applicant argues that the RPD was required to make a definitive finding on when cessation occurred because, she contends, cessation can only occur once. However, this argument is not supported by the wording of section 108(1), which contemplates various circumstances that can give rise to cessation. In essence, what the Applicant is arguing is that the RPD cannot find more than one ground of cessation. For the reasons outlined below, this argument is without merit.13 [23] However, the panel disagrees and finds that the respondent having subjective knowledge of the death of the agent of persecution is relevant. Without being aware of the death of the agent of persecution, the respondent willingly returned to Nigeria believing that the agent was still alive and a threat. If the respondent were to have renewed her Nigerian passport or returned to Nigeria only after learning of the death in 2014, the panel finds that 108 (1)(e) could apply, but that is not the case, as the respondent began travelling to Nigeria some ten years before. The panel is not persuaded in this case that 108(1)(e) applies. [24] In relation to the respondent's reavailment, the panel finds that it was voluntary and it was intentional. The respondent renewed her Nigerian passport in 2004, for the sole purpose of travel to Nigeria. She had already obtained permanent resident status in Canada, and the purpose of her passport after landing was for travel, not for the purpose of identification. While the respondent has outlined a number of reasons for her return trips to Nigeria, to marry, to achieve a pregnancy, for support during miscarriages and to see her ill parents, the panel notes that all of these trips were voluntary, not necessary. [25] While the panel is sympathetic to the reasons why the respondent chose to return, the panel notes that the respondent did make a free choice to marry a man in Nigeria and to have children with him, knowing that doing so would mean she would need to return to the country she fled to maintain the relationship in a way she saw as satisfactory. The voluntariness of these choices was highlighted after the respondent's husband became a permanent resident to Canada in 2007. At that time, the respondent's husband attempted to settle in Canada, but could not adjust. The respondent then continued to make choices to return to Nigeria, while her husband had the ability to be living in Canada on a full-time basis. [26] In relation to the travel relating to the respondent's parents' respective illnesses, the panel notes that there were other family members whom were taking responsibility for her ill parents. The respondent testified that her father's home was full of family members tending to her father when she travelled to his home in 2010. The respondent did not return to care for her ailing family members, she returned to visit with them, and potentially say her last goodbyes, the visits were short and the responsibilities of caring for the ill parties were clearly taken care of by other members of the family, negating any argument that the respondent returned out of 'necessity.'14 [27] Therefore, the panel finds, after considering the respondent's explanations for her actions, there is insufficient 'proof to the contrary' to rebut the presumption that she voluntarily and intentionally re-availed herself of the protection of the authorities of her country of origin, by applying for and obtaining a new national passport. The panel also finds that, by obtaining and using this national passport to return to Nigeria, the respondent did actually obtain the protection of Nigeria authorities, thereby fulfilling the third requirement in the above-cited paragraph 119.15 [28] The panel finds that the respondent not only obtained the services and assistance of Nigeria officials in obtaining a new passport, as she was entitled to do as a citizen of Nigeria, but that her visit there with a valid passport in her own identity meant that she was alerting officials to her presence in the country. While she testified that she remained in Abuja and did not make her presence known to anyone in Nigeria other than her husband, the panel finds that the respondent still entered the country and made her whereabouts known to the officials of the country based on the several entry and exit stamps found in his passport. The respondent through her re-availment was acknowledging her confidence in the Nigeria government to protect her although she was granted refugee protection on the basis of her fear of remaining in Nigeria. CONCLUSION [29] For the foregoing reasons, the Minister's application for cessation for the respondent's status as a Convention refugee, made pursuant to section 108(2) of the Act, is allowed, and the respondent's claim for refugee protection is deemed to be rejected by the Refugee Protection Division. (signed) "K. Foreman" K. Foreman "December 19, 2018" Date 1 Exhibit 1. 2 Ibid. 3 Ibid. 4 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act [Guideline 4]. 5 Exhibit 5. 6 Exhibit 6. 7 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, January 1992, UNCHR 1979. 8 Exhibits 1 and 5. 9 Cabrera Cadena v. Canada (Public Safety and Emergency Preparedness), 2012 FC 67. 10 Exhibit 6. 11 Exhibit 6. 12 Exhibit 6. 13 Tung, Do Mee v. M.C.I.; 2018 FC 1224 14 Tung , Do Mee v. M.C.I.; 2018 FC 1224. 15 Supra, footnote 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD.26.18 (2015.02.26) RPD File No. / N° de dossier de la SPR : TB5-02742