VB0-01863

RPD File No. / No de dossier de SPR : VB0-01863 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXXXXXXXXXX Demandeur(e)(s) d'asile Date(s) of Hearing 19 January 2011 Date(s) de l'audience Place of Hearing Heard by telephone in Lieu de l'audience Calgary, AB Date of Decision 24 February 2011 Date de la décision Panel Tribunal Counsel for the Maja Starovic Conseil(s) du / de la / des Claimant(s) demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) des tribunaux Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Pete Stathakos Conseil du ministre REASONS FOR DECISION [1] The Respondent, XXXXXXXXXXX, was a citizen of the former Yugoslavia who is of Croatian ethnicity. She had been living in the city of Sarajevo (Bosnia) until 1993, when the war broke out, and she fled to the city of Belgrade (Serbia). The Respondent came to Canada in 1997 and made a claim for refugee protection on the basis of her mixed marriage to a Serb. On April 14, 1999, the Respondent was determined to be a Convention refugee.1 Thereafter, she submitted an application for permanent residency in which she included her husband in Serbia. Her husband was determined to be inadmissible. Her own application was later deemed to be abandoned because the Respondent returned to Serbia in 2002, but after judicial review, it was reopened. This application is still pending though the Respondent is in Serbia today. MINISTER'S APPLICATION FOR CESSATION [2] On May 10, 2010 the Minister made an application,2 pursuant to section 108(2) of the Immigration and Refugee Protection Act (the "Act")3 for cessation of the Respondent's status as a protected person. [3] The Minister alleges that the Respondent first returned to Serbia in XXX 2002 to visit her husband who was ill at the time. When she applied for a visa to return to Canada, it was refused on XXXXXX, 2002 and she remained in Serbia. She later acquired a new Serbian passport and national identity card, both issued in XXXXXX 2008. In XXXXXX 2008, the Respondent was issued a visa and came to Canada in XXXXXX 2009 where she remained until her visa expired in XXX. She returned to Serbia where she has remained since. [4] In the May 10, 2010 application for cessation, the Minister argued that the Respondent voluntarily re-availed herself of the protection of Serbia and reacquired her nationality. At the hearing, the Minister argued that it could also be argued that the Respondent acquired a new nationality or that she had voluntarily re-settled in the country she left. As such, the Minister seeks the cessation of her status as a protected person. DETERMINATION [5] 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 and her claim is deemed to be "rejected" in accordance with section 108(3) of the Act. ANALYSIS [6] The Respondent testified at the January 19, 2011 cessation hearing by telephone from the Canadian embassy in Belgrade where her identity was confirmed by staff there. She generally testified in a forthright manner and the panel believes that she made efforts to be honest in giving responses, though sometimes she did not follow what was being asked of her or did not know what action was taken on her behalf by her daughters in Canada or her previous counsel. Overall, some of the Respondent's testimony and her actions were not consistent with someone who did not intend to return to Belgrade after receiving refugee status. [7] Section 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 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. [8] I will examine the circumstances set out above, although only one circumstance need apply for cessation of the Respondent's refugee status to be allowed. In examining these sections, I have determined that the Respondent's country of nationality has not changed because Serbia is a successor state of the former Yugoslavia. I will first discuss how I arrived at this finding. [9] Serbia was once a republic in a Yugoslavian federation comprised also of Croatia, Slovenia, Macedonia, Bosnia, and Montenegro. In 1992, after the other four republics had seceded a year earlier, the 'Federal Republic of Yugoslavia' was comprised only of the republics of Serbia and Montenegro. Circumstances in the Serbian province of Kosovo beginning in 1999 ultimately led to its independence years later. In 2003, the 'Federal Republic of Yugoslavia' became known as 'Serbia and Montenegro.' In 2006, Montenegro seceded from this federation and the two republics ultimately became separate nation states. With this in mind, one must consider that 'Serbia' has existed as a republic in many forms since the creation of Yugoslavia in 1929, and was the last to leave it. A detailed description of the evolution of Serbia is found in the evidence.4 [10] In further support of this continuity, I considered the Respondent's acquisition of successive passports. The Respondent lived in Sarajevo (present-day Bosnia) until the war broke out in 1992 when she and her family fled to the city of Belgrade in Serbia. In Belgrade, she reacquired a Yugoslavian passport5 in 1993 because she had abandoned hers in Sarajevo when she fled. She travelled on this passport to Canada in 1997, as evidenced by the visa therein. While in Canada, after being determined to be a Convention refugee, she reacquired a new Yugoslavian passport6 in XXXXXX 2002 at the embassy in Ottawa before returning to Belgrade. In 2008, the Respondent acquired a biometric Serbian passport.7 These passports reflect the changes to the composition of the former Yugoslavia and its ultimate dissolution. It is significant that to acquire these passports, no formal naturalization process was required of the Respondent. She was accepted as a national of each successor state as a matter of course when predecessors ceased to exist. Her citizenship evolved in accordance with the transition of the Yugoslavian republics and was accepted by successive authorities. [11] It is significant that through this transition of states, the Respondent testified that she has never been asked by authorities to leave Serbia. That she travelled through, or to, as the case may be, France, Montenegro and Croatia between 2002 and 2008 without difficulty illustrates that she was permitted to properly exit and re-enter Serbia and her passports were accepted as valid by Serbia and these other countries. Over the past nearly 20 years, when she has not been in Canada, the Respondent has only ever lived in one city; Belgrade. Though an ethnic Croat, this is all indicative of the fact that the Respondent has always - from the time she first moved to Belgrade - been recognized as Serbian in whatever form Serbia existed at the time. [12] For these reasons, I have taken a practical approach and do not consider the Respondent to have acquired a "new" nationality, as contemplated in section 108(1)(c) of the Act. Voluntary Re-availment of Protection of Country of Nationality - 108(1)(a) [13] Section 108(1)(a) of the Act is consistent with Article 1 C (1) of the 1951 Convention: "He has voluntarily re-availed himself of the protection of the country of his nationality." [14] The Minister argues that the Respondent acquired a new Yugoslavian passport after she had been determined to be a Convention refugee and she voluntarily chose to return to Serbia in XXX 2002, thereby availing herself of its protection. The Respondent argues that she returned to Serbia only to visit her husband who had survived a XXXXXXXXXXX. She then attempted to obtain a Canadian visa, but it was denied in XXXX 2002. Therefore, she could not return to Canada, though she wanted to, and was forced to remain in Serbia. It was not until 2008 that she finally obtained a Canadian visa, but she was compelled by its expiration to return to Serbia. [15] The UNHCR Handbook indicates that this cessation clause implies three requirements: voluntariness, intention, and re-availment.8 There is, of course, overlap among these requirements. I agree with the Minister that the Respondent returned to Serbia voluntarily, by choice, and under no duress. She was not constrained by or required, out of some legal necessity or otherwise, to acquire a passport or return to Serbia. She was not deported, extradited or kidnapped. No person, institution or entity forced or pressured her to return. She did so for personal reasons; to visit her sick husband. I accept that her reasons for doing so were reasonable in these circumstances. The UNHCR Handbook suggests that visiting old or sick parents, for example, is unlike holidays or business trips back to the home country where persecution occurred.9 However, the Respondent's behavior and testimony reveals that returning to Serbia was not unplanned, even though her husband's illness was unexpected. In finding this, I considered that the Respondent acquired a new Yugoslavian passport in XXXXX 2002; five months before her husband fell ill. Also critical is that the Respondent testified that she would have returned to Serbia to visit her husband even if he had not been sick. She also testified that she thought it was good to have if she ever had to return to Serbia. [16] The Respondent's testimony and actions also demonstrate her intention. She intended to return to Serbia to visit or to see her husband if she could, regardless of his illness. It is clear that she would have preferred that he was found to be admissible for permanent residency. But, she decided to obtain a Yugoslavian passport in the event that she needed to go back, even before he was deemed to be inadmissible in XXXX 2002. The UNHCR Handbook states that: 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... ... obtaining an entry permit or a national passport for the purposes of returning will, in the absence of proof to the contrary, be considered as terminating refugee status. ...with the receipt of such a document [passport] he normally ceases to be a refugee.10 [17] Goodwin-Gill, author and Legal Advisor to the UNHCR affirms this, stating: In other cases of application for and obtaining a national passport or the renewal of a passport, it may be presumed, in the absence of evidence to the contrary, that reavailament of protection is intended. The presumption may be strengthened where the refugee in fact makes use of the passport for travel, or for return to the country of origin... possession of a passport and a visit to the country would seem conclusive as to cessation of refugee status.11 [18] This is not only a case of an application for and receipt of a passport; the Respondent went back to Serbia. She remained there for over six years until her six-month visa to Canada was granted. This is not only a case of abstract plans and desires to return, nor is it merely a passport or repatriation application from abroad. The Respondent returned and has been living under the protection of Serbia for several years. The UNHCR Handbook confirms that even where a refugee returns to his or her country of origin, not with a corresponding passport, as in the Respondent's case, but with a travel document issued by the refugee granting country, the refugee is still considered to have re-availed himself of the protection of his former home country and to have lost refugee status under this cessation clause.12 [19] According to Canadian refugee law scholar, Hathaway, there is no "automatic linkage" between the renewal of a passport and the granting of protection and it is "critical that the real reason it is being sought form part of the determination authority's consideration."13 In this case, the Respondent wanted to have the option to return and wanted to visit her husband even before he became ill. [20] The Respondent argued that her passports were passports of convenience and refers to the cases of Zidaravic14and Radic.15 I am not persuaded by this. The analysis in these cases relates to refugee determination, not cessation. Refugee claimants frequently use forged passports or genuine passports improperly obtained, or passports with falsified information in order to escape their countries. This enables a refugee claimant to avoid home country exit visa requirements, Canadian visa entry requirements, or in cases in which the agent of persecution is the state, detection by authorities. Any of these factors could subvert a refugee's escape if false documents were not used. To address these obstacles, most often, the passport of convenience is one from a country different than that of the refugee. The Board therefore ought not assume that a claimant has citizenship in the country of the passport of convenience. In this case, the Respondent does not deny that she has been recognized by Serbian authorities as a citizen and she used lawful means to obtain her 2002 and 2008 passports. Moreover, the Respondent obtained more than one Serbian passport over a period of time, and not to make an "escape" from Serbia, but specifically to visit family members in Canada and Serbia and made three such trips. [21] The Respondent did not make efforts to find out how to obtain permission or a Canadian travel document that could allow her return to Canada. She testified that on receiving news that her husband had suffered his heart attack, there was little time and her lawyer was on holidays. Despite the fact that she has two adult daughters in Canada who speak English and who could have advocated for her, she did not seek proper permission from authorities to leave under the circumstances or apply for any travel documents issued to refugees. Article 28 of the Convention binds signatories to issue travel documents to refugees lawfully in the country. Had she done so, she could have re-entered Canada after an emergency visit to her husband. It is reasonable to expect that a successful refugee claimant, presumably with a well founded fear of persecution in the home country, would approach immigration authorities to seek permission to leave, or discuss the implications of returning to the country against which a refugee claim is made, while a residency application in Canada is in process. [22] I have taken into account the Respondent's reason for returning to Serbia in XXX 2002, that being her husband's health, and while I am sympathetic, I do not find that the reason overcomes application of section 108(1)(a) of the Act in view of the Respondent's testimony about wanting to return to visit her husband regardless of his illness, maintaining a bona fide passport even before her husband fell ill, and actually returning to Serbia with it, as opposed to getting permission from Canadian authorities or obtaining a travel document for refugees. Voluntarily Reacquisition of Nationality - 108(1)(b) [23] I do not find that the Respondent "re-acquired" her Serbian nationality because it does not appear that she ever lost it. Obviously, nationality must first be lost in order to be reacquired. Indeed, in reference to this cessation clause, Article 1 C (2) of the 1951 Convention states, "Having lost his nationality, he has voluntarily re-acquired it." [24] The Yugoslavian passport that the Respondent first travelled to Canada with in 1997 expired the following year in 1998. She was issued another in 2002 by the Yugoslavian embassy in Ottawa. The Respondent did not lose her citizenship by virtue of the expiry of her passport; a passport is not a condition of citizenship, though citizenship is generally a condition of a passport. Before the expiry of this second passport, she received a third one in 2008 which is still valid today. This demonstrates that section 108(1)(b) of the Act does not apply to the Respondent's case because she has continued to maintain her nationality, as evidenced by these passports, irrespective of her protected person status. In accordance with my analysis about citizenship among successor states, I do not find that the Respondent ever lost her citizenship. Acquisition of New Nationality - 108(1)(c) [25] As stated earlier, I have taken the position that the Respondent has not acquired a "new" nationality per se because Serbia is a successor state of the former Yugoslavia. The Respondent acquired successive passports throughout the transition and dissolution of Yugoslavia. She has been recognized by Yugoslavia, and then Serbia, as a national and was not required to undergo a naturalization process. Today, she resides in the same city that she fled from in 1997, demonstrating continuity of place, and has been able to enter and exit Serbia freely, thereby having her citizenship recognized internally and internationally. In making this determination, I conclude that section 108(1)(c) of the Act is not a relevant issue. Voluntary Re-establishment - 108(1)(d) [26] The language of section 108(1)(d) of the Act is consistent with Article 1 C (4) of the 1951 Convention; "He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution." [27] Although not argued in the original application for cessation, at the hearing, the Minister argued that the Respondent voluntarily returned to Serbia twice - in 2002 and in 2009 - and has re-established herself there. Re-establishment is evidenced by the fact that since obtaining protected person status in 1999, the Respondent has been living in Serbia from XXX 2002 to XXXXX 2009, and again from XXX 2009 to the present: a total of eight years. [28] The Respondent argues that her returns and re-establishment were not voluntary. On the first occasion she was compelled to visit her sick husband, and on the second occasion she was compelled by the expiration of her Canadian visa. She does not wish to live in Serbia and her living conditions there are deplorable. She and her husband live on his paltry army pension and, since he refused combat during the war, they have been denied proper accommodations that the army would have normally provided him. As such, the Respondent rents the same "refugee motel" unit they have lived in since 1993 when they fled Sarajevo, without heat and proper maintenance. After receiving refugee protection, she never intended to re-establish herself in Serbia, but has been forced to do so by circumstance; specifically the Canadian government's refusal to grant her re-entry. In addition, during her 2009 visit to Canada, she transferred two trunks full of her property to Canada (see shipment documents)16 demonstrating her plans to establish herself in Canada. [29] The UNHCR Handbook states that: The clause refers to "voluntary re-establishment". This is to be understood as return to the country of nationality or former habitual residence with a view to permanently residing there. A temporary visit by a refugee to his former home country, not with a national passport but, for example, with a travel document issued by his country of residence, does not constitute "re-establishment" and will not involve loss of refugee status under the present clause.17 [30] The panel accepts that the Respondent did not return to Serbia in 2002 with an immediate view to reside there; she was there under the unfortunate circumstance of her husband's illness. She immediately applied for a visa to return to Canada and when her permanent residence application was deemed to be abandoned, she applied for judicial review to challenge this decision, which was allowed. She then reapplied for permanent residency, but this application is pending. I acknowledge the unfortunate situation in which the Respondent found herself in with respect to re-entry to Canada. It is peculiar that her visa was denied in 2002 having been found to be a Convention refugee by Canada and I understand the Respondent's frustration in this regard. [31] Denial of re-entry being the case, and in view of the fact that the Respondent's husband has been deemed to be inadmissible, the Respondent chose to remain in Serbia for years rather than going elsewhere to remove herself from the situation of persecution. While living in Serbia, she took vacations to France, Croatia and Montenegro and returned to Serbia rather than trying to resettle in these countries. She had money and opportunity to leave Serbia, but returned to the country. The panel would take a different view if the Respondent demonstrated efforts to resettle elsewhere once she was denied re-entry to Canada and while her permanent residency application is pending. The Respondent was asked why she did not make efforts to re-establish herself elsewhere, where she has no fear of persecution, even if simply to wait for the results of her permanent residency application. The Respondent testified that she and her husband are simply too old to start over to fight for "papers" in these places and that it is hard to obtain them, even in Croatia, though she is a Croat. [32] I do not find this to be reasonable. If the Respondent did not wish to reside in Serbia because of persecution there, not only was it open for her to re-establish herself elsewhere, but she had the opportunity to do so, but nevertheless returned to Serbia. She chose to live in and remain in Serbia when Canadian authorities refused her re-entry in 2002. According to James Hathaway: Re-establishment in the state of origin is perhaps the clearest indication that a refugee no longer views himself as being at risk. In voluntarily taking up residence in the country which induced her flight, the refugee is in the most direct way possible signaling her willingness to entrust her welfare to that state. ... Careful scrutiny of more prolonged and frequent visits for such purposes as holidays or business is warranted, however, since at some point the degree of attachment may qualify as re-establishment. While an occasional visit of up to a few weeks is too transitory to sustain the cessation of status, a regular presence in the state of origin for a significant part of the year is prima facie inconsistent with a continued need for protection [emphasis added].18 [33] More than eight years of residence in Serbia is prolonged and indicative of regular presence and attachment. The Respondent voluntarily opted to live in Serbia when Canada was not an option and entrusted her welfare to that state. She allowed an unfortunate temporary situation to become permanent and created a de facto situation of re-establishment. Although during her 2009 trip to Canada she moved her property, indicating a desire at that time to establish herself here, she nonetheless resigned herself for many years to indefinitely living in a country in which she claims she suffers persecution; after all, her permanent residency application was, and is still not a certainty, as her husband's inadmissibility ought to have demonstrated to her. The key issue is that the Respondent entrusted her interests to the protection of Serbia by resettling there when Canada did not admit her for permanent stay. Doing so is contrary to the very principles of the Convention. Reasons for Protection Cease to Exist - 108(1)(e) [34] The Minister did not argue that the circumstances that gave rise to the Respondent's fear of persecution have ceased to exist. As such, I do not find that section 108(e) of the Act is relevant. Other Considerations [35] It was argued for the Respondent that one of the principles of the Act is family unity and the Minister's application should be rejected in part, on this basis. While the concept of family unity may be apparent in some aspects of the Act such as immigration sponsorship, the concept as it applies to refugees is not born out in Canadian jurisprudence.19 [36] In the present case, I have found that the Respondent's voluntary re-availment and re-establishment in the country have caused the cessation of her status as a Convention refugee, pursuant to section 108(a) and 108(d) of the Act. Notwithstanding this finding, I am sympathetic to the predicament that Respondent found herself in with respect to being denied a visa to re-enter Canada in 2002 after she visited her husband when he fell ill. Although it was not reasonable for her to travel to Serbia without the permission of Canadian immigration authorities or to fail to make efforts to re-settle elsewhere, it is nonetheless peculiar that she was denied entry to Canada under the circumstances, having been found to be a Convention refugee. This caused her to be unable to be interviewed in Canada for her residency application and the Minister therefore declared her residency application abandoned. More troubling is the fact that after the Federal Court ordered that the Respondent's permanent residence application be referred back to the Minister for processing because it had improperly been deemed abandoned, the Minister placed the Respondent's residency matter on hold pending the outcome of this cessation application. While I have no authority in matters related to visas and residency applications, I nonetheless note the unfairness in this. Unfortunately, this does not overcome the findings with respect to section 108 of the Act. CONCLUSION [37] Section 108(1)(a) and 108(1)(d) apply to the case of the Respondent. As such, 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 and her claim is deemed to be rejected in accordance with section 108(3) of the Act. (signed) 24 February 2011 Date (day/month/year) 1 Exhibit 9. 2 Exhibit 10. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 4 Exhibit 19, National Documentation Package, (NDP), Item 1.3, The Europa World Year Book 2009. 2009. "Bosnia and Herzegovina," pp. 926-950. London: Routledge. 5 Exhibit 2, pp. 19-23. 6 Exhibit 18, p. 29-31. 7 Exhibit 18, p. 28. 8 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988. (paragraph 119). 9 Ibid., paragraph 125. 10 Ibid., paragraph 121-123. 11 Ibid., p. 48. 12 Ibid., paragraph 125. 13 Ibid., p. 195. 14 Zidarevic, Branko v. M.C.I. (F.C.T.D., no. IMM-1572-94), Dubé, January 16, 1995. Reported: Zidarevic v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 190 (F.C.T.D.). 15 Radic, Marija v. M.C.I. (F.C.T.D., no. IMM-6805-93), McKeown, September 20, 1994. 16 Exhibit 16. 17 Supra, Footnote 8, paragraph 134. 18 Hathaway, pp. 197-199. 19 Shaikh, Sarwar v. M.C.I. (F.C.T.D., no. IMM-2489-98), Tremblay-Lamer, March 5, 1999, and Castellanos, Julio Alfredo Vaquerano v. M.C.I. (F.C.T.D., no. IMM-2082-94), Gibson, October 18, 1994. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 2 RPD.15.7 (18 May 2010) Disponible en français RPD File No. / N° de dossier de la SPR : VB0-01863 RPD File No. / N° de dossier de la SPR : VB0-01863 1