VB3-02363

RPD File No. / No de dossier de SPR : VB3-02363 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 Emergency Preparedness Demandeur(e) Respondent(s) XXXX XXXX XXXX XXXX Personne(s) protégée(s) Date(s) of Hearing November 13, 2014 Date(s) de l'audience and March 25, 2015 Place of Hearing Vancouver, BC Lieu de l'audience Date of Decision March 27, 2015 Date de la décision Panel Paula Faber Tribunal Counsel for the Roger Bhatti Conseil(s) de la (des) Protected Person Barrister and Solicitor personnes protégée(s) Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Alannah Hatch Conseil du ministre and Jennifer Mensink RPD File No. / N° de dossier de la SPR : VB3-02363 REASONS FOR DECISION [1] These are the reasons of the Refugee Protection Division (RPD) with respect to the application made by the Minister of Public Safety and Emergency Preparedness (the "Applicant") replaced by the Minister of Citizenship and Immigration Canada (CIC), for cessation of refugee status granted to XXXX XXXX XXXX XXXX (the "Respondent") by the Refugee Protection Division on December 18, 2009 when a determination was made that he is a Convention refugee. The Minister made an application pursuant to section 108(1) of the Immigration and Refugee Protection Act (the "Act")1 and Rule 64(1) of the RPD Rules.2 The oral hearing of this application was conducted by the RPD on November 13, 2014 and was continued on March 25, 2015. The Minister of CIC was represented by a new minister's representative in the second sitting. DETERMINATION [2] The Panel finds that the respondent has not re-availed himself of the protection of his country of nationality, therefore the Minister's application is rejected. BACKGROUND [3] The respondent, XXXX XXXX XXXX XXXX, is a citizen of Sri Lanka. He applied for refugee status in Canada on or about August 18, 2008, alleging a well-founded fear of persecution in Sri Lanka. [4] In the Personal Information (PIF) before me, the respondent alleged that he worked in the gem and jewelry industry in Sri Lanka, he owned a business called XXXX XXXX. He lived in Western Province and traveled to Eastern Province to buy gems for his business. When travelling to a mine in the Eastern Province in XXXX 2008, the respondent alleges that he was stopped by members of the Liberation Tigers of Tamil Eelam (LTTE) and was ordered to pay XXXX lakh rupees. He went to the police and reported what happened. In XXXX 2008, members of the LTTE appeared at his home demanding that the respondent pay. He was beaten for not paying on time and for reporting the incident to the police. 3 [5] The respondent left Sri Lanka for the United States on XXXX XXXX, 2008. He was afraid of being detained if he made a refugee claim in the United States, so he came to Canada on XXXX XXXX, 2008, and made his claim for refugee protection on July 21, 2008. The respondent indicates in his PIF narrative that the LTTE went to his home in Sri Lanka twice looking for him and even attacked his father because of the respondent's failure to pay. [6] The RPD's Reasons for Decision are not before me, but the Notice of Decision is. Mr. XXXX XXXX received a positive determination by the RPD on December 18, 2009.4 He became a permanent resident of Canada on January 24, 2011. MINISTER'S APPLICATION [7] The Minister submits that the respondent has voluntarily re-availed himself of the protection of his country of nationality, and is a person described in the Act subsection 108(1) (a). [8] The respondent is in possession of a valid Sri Lankan passport issued on XXXX XXXX, 2005 which was renewed and is valid until XXXX XXXX, 2015. [9] On May 1, 2013, Mr. XXXX XXXX declared to a Canada Border Services Agency officer at the Vancouver International Airport that he was returning from Sri Lanka and that this was his second trip to Sri Lanka since obtaining refugee status. His first trip was from XXXX XXXX, 2011 until XXXX XXXX, 2011, a 119-day trip. The second trip was from XXXX XXXX, 2012 until XXXX XXXX, 2013, a 147- day trip. [10] The minister submits that based on the evidence5, the Division should cease the Respondent's refugee protection. RESPONDENT'S POSITION [11] The respondent's counsel submits that he did not intend to re-avail himself of protection of Sri Lanka. [12] The purpose of his trip in XXXX 2011 was to see his mother. He alleges that his mother was sick, suffering from hypertension at a very high level which caused other medical complications including partial paralysis. [13] The respondent's parents arranged his marriage during this trip. He was married on XXXX XXXX, 2011. This was the date of the Nikah Registration, but not the reception. The Respondent returned to Canada on December 2, 2011. [14] He returned to Sri Lanka a year later on XXXX XXXX, 2012 for the wedding reception which had been delayed because of a serious accident involving the respondent's father-in-law and was further delayed because of his death. [15] The respondent's intention was to return to Canada right after the reception; however, his wife, who was having difficulties following the death of her father, became pregnant and wanted him to stay with her. His wife had a miscarriage on XXXX XXXX, 2013, which further delayed his departure from Sri Lanka. [16] The respondent indicates that his brother re-opened a business in Sri Lanka under the name of XXXX XXXX because the business with that name had been a success. His brother started this business in 2010 or 2011. The business exports gems to the United States, Malaysia and Thailand. His brother owns 90 percent of the business and the respondent owns 10 percent. LEGAL PRINCIPLES [17] Paragraph 108(1) of the Act provides the grounds for cessation. 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 themself of the protection of their country of nationality. [18] Section 108 of the Act places the burden of proof on the Minister to show that the individual who had been determined to be a Convention refugee under the Act has ceased to be a Convention refugee. [19] An excerpt from the United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status6 has been provided by the applicant7. The cessation clauses of the Refugee Convention outline conditions under which a refugee ceases to be a refugee. They are based on the consideration that international protection should not be granted where it is no longer necessary or justified. [20] This international instrument states that at paragraph 119 that the cessation clause implies three requirements:8 (a) voluntariness: the refugee must act voluntarily; (b) intention: the refugee must intend by his action to re-avail himself of the protection of the country of his nationality; (c) re- availment: the refugee must actually obtain such protection. [21] The UNHCR Handbook provides additional interpretative guidance on what constitutes circumstances as to when a refugee has acted voluntarily, and as to when they have demonstrated intent. [22] Certain acts cannot be considered to be a "voluntary re-availment of protection" and will not deprive a person of refugee status. [23] The UNHCR Handbook states: "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.9" [24] The UNHCR Handbook states that a refugee obtaining a national passport may, under certain exceptional circumstances, not involve termination of refugee status.10 [25] The UNHCR Handbook provides that certain States have removed refugee status from refugees who have visited their former home country with a travel document issued by the refugee's country of residence instead of a national passport issued from the former home country. The Handbook states that these kinds of cases should be judged on their individual merits, and that "Visiting an old or sick parent will have a different bearing on the refugee's relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.11" ANALYSIS [26] The issue before me is whether the respondent has rebutted the presumption that obtaining or renewing his passport and returning to his country of origin on two occasions constitutes an intention to avail himself of the protection of Sri Lanka. [27] I have considered all of the evidence before me including counsel's and minister's counsel's submissions, and I find on a balance of probabilities that the respondent has rebutted the presumption and has therefore not voluntarily re-availed. [28] The respondent was a credible witness. He testified in a straightforward manner, and there were no inconsistencies or contradictions within his testimony or between his testimony and any of the documentary evidence provided. [29] The respondent admits that he has made two trips to Sri Lanka. His testimony is confirmed by evidence before me, including stamps in the respondent's passport and the Integrated Customs Enforcement System traveller history.12 [30] The respondent testified that he did not intend to re-avail himself of protection of Sri Lanka. He testified that he renewed his Sri Lankan passport on XXXX XXXX, 2011, extending the document's validity to XXXX XXXX, 2015 for the purpose of returning to Sri Lanka to see his sick mother. He had been told by previous counsel that he would not be able to travel to Sri Lanka on a Canadian issued travel document. And although the Mr. XXXX XXXX had serious concerns about going back to Sri Lanka given what had happened to him there, counsel submits that he had no choice because he believed that his mother may be dying. The respondent testified that his mother suffered from high blood pressure and that she had a fall in XXXX 2011, resulting in a fracture of her shoulder which required surgery. Her blood pressure increased to the point that she was paralysed on one side. The respondent testified that his mother was very scared and thought that she was going to die. The respondent provided in the evidence corroboration his mother's medical condition.13 [31] I am bound by the decision of the Federal Court of Canada in the case of Nsende,14 which finds that, simply to secure a passport without more is insufficient to make a finding of re-availment. In this particular case, I find that there is more. Mr. XXXX XXXX's renewal of his passport for the purpose of visiting his sick mother in Sri Lanka was not voluntary and therefore does not lead me to a finding of re-availament. [32] The respondent returned to Sri Lanka in XXXX 2011 to see his mother. While he was there, arrangements were made for his wedding. The respondent testified that his mother wanted to witness her son's marriage because she did not think she would live much longer. The respondent also testified that his elder brother had married a Sinhalese girl and his parents did not arrange or approve of the marriage. It was important to the respondent's parents that he marries according to their customs and traditions. [33] Information contained in the Sponsored Spouse Questionnaire15, indicate that the marriage was arranged by his parents, and the respondent and his wife, who is also Muslim, met for the first time on XXXX XXXX, 2011. The wedding was set for XXXX XXXX, 2011 and the reception for XXXX XXXX, 2011. Counsel submits that the intention of the respondent was to marry, have the reception and then return to Canada by the end of September. [34] The date of the wedding had to be postponed due to a serious accident involving the respondent's father-in-laws which happened on XXXX XXXX, 2011. [35] Mr. XXXX XXXX testified that his wedding finally took place on XXXX XXXX, 2011. This was the Nikah ceremony and it took place at the respondent's parent's house. According to custom, the respondent's wife did not attend. [36] While they were legally married after the Nikah ceremony, the respondent testified that he and his wife were not able to live with each because they had not yet had the wedding reception, and his wife and her family were against having the reception while her father was still seriously ill. The respondent returned to Canada on December 2, 2011. [37] The wedding reception requirement of the Muslim wedding was scheduled to take place in XXXX 2012. After the death of the respondent's father-in-law on XXXX XXXX, 2012, the wedding reception was rescheduled to take place in XXXX 2012. A copy of the respondent's father-in-law's death certificate has been submitted.16 [38] The respondent returned to Sri Lanka for his wedding reception on XXXX XXXX, 2012. He was originally planning to stay in Sri Lanka for 10 days, but was asked by his wife and mother-in-law to stay longer because his wife was depressed and having a hard time coping following her father's death. [39] The respondent's return trip to Canada was further delayed because his wife required surgery following a miscarriage. The respondent testified that his wife was totally devastated after losing her father and her baby. She did not want to be alone and she asked the respondent to stay with her. Counsel submits that the claimant remained with his wife out of necessity; he had no choice but to stay. Medical documents with respect to the miscarriage and depression diagnosis are contained within the package of documents.17 [40] The respondent returned to Canada on May 1, 2013. He testified that while his wife was still not better, she was stabilized to the extent that he could leave her. He also testified that the sponsorship application was in the final stages and he knew they would be reunited soon in Canada. In fact, the respondent testified that his wife received her visa and was preparing to leave Sri Lanka when she received notice from the embassy that her visa was cancelled due to the respondent's cessation investigation. [41] The respondent also testified that he wanted to leave because being in Sri Lanka was like being under house arrest. [42] The Minister's representative submits that the respondent did not maintain a low profile upon his returns to Sri Lanka. This is due to his wedding and other activities including several trips to medical clinics because of a knee injury. [43] The respondent testified as to the ways he mitigated his risk of persecution while in Sri Lanka. He testified that he mostly stayed inside the house; he did not work or go to school. He testified that he avoided contact with neighbours and government officials and went to smaller private medical clinics with appointments instead of attending a public hospital. [44] The respondent did not expect or need the assistance of Sri Lankan authorities when he entered Sri Lanka and he testified that he had no intention of asking for protection during the visit. Counsel also submits that in his refugee claim, the respondent did not fear the authorities or the government of Sri Lanka; rather, it is the LTTE that he feared. Nevertheless, the respondent did not intend to avail himself of the authorities in Sri Lanka. [45] While his brother operates a company called XXXX XXXX, the respondent is not involved with this business and did not work while in Sri Lanka. The respondent testified that any profit from his 10 percent share goes to his father. This is confirmed by the Notaries Agreement document.18 United Nations High Commissioner for Refugees Handbook [46] I accept the respondent's testimony as credible on all of these facts, and when I have considered the three requirements implied under paragraph 119 of the UNHCR handbook: Voluntariness [47] I find that the Respondent's actions were not "voluntary" in the sense envisioned by the UNHCR Handbook. As previously mentioned, a refugee may be constrained by circumstances beyond his or her control to have recourse to a measure of protection from their country of nationality. He first returned to his country of nationality to visit his sick mother. He returned again to fulfill a cultural marriage requirement which could not have been fulfilled during the first trip because of his father-in-law's accident. He remained in the country longer than anticipated because of his wife's mental health condition. I accept the respondent's explanations for his passport extension and for his returns to the country and I find that his actions were not voluntary. According to the excerpt of The Refugee in International Law,19 being involuntary, the protection obtained should not bring refugee status to an end. Intention [48] I find based on all of the evidence before me, that the respondent did not intend by his actions to re-avail himself of the protection of the country of his nationality; Re-availment [49] I find that the respondent did not actually obtain such protection and that he has therefore not re-availed. This finding is supported by the excerpt of The Refugee in International Law20 which suggests that physical presence in the territory of the home country does not per se constitute re-availament of protection. CONCLUSION [50] For all these reasons, I find that the respondent has not voluntarily re-availed himself of the protection of his country of nationality. [51] The respondent has rebutted the presumption of re-availament for having renewed his Sri Lankan passport and for having traveled to Sri Lanka on two occasions through his evidence, reasonable explanations and credible testimony. [52] The Minister's application pursuant to section 108 (1) (a) of the Act is therefore dismissed and the respondent remains a Convention refugee. (signed) "Paula Faber" Paula Faber March 27, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Immigration and Refugee Protection Act, Refugee Protection Division Rules, SOR/2012-256. 3 Exhibit 1, Item 8. 4 Exhibit 1, p.1. 5 Exhibit 1. 6 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention. 7 Exhibit 1, p. 65. 8 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, para. 119. 9 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention. 10 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, para.124. 11 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, para. 125. 12 Exhibit 2. 13 Exhibit 6. 14 Nsende v. Canada (Minister of Citizenship and Immigration), [2008] F.C. 531. 15 Exhibit 4. 16 Exhibit 3, p.13. 17 Exhibit 3, pp. 23-26 and Exhibit 6, p. 10. 18 Exhibit 3, p. 43. 19 Exhibit 8. 20 Exhibit 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 10 RPD.29.1 (August 2014) RPD File No. / No de dossier de SPR : VB3-02363 1