MB6-01352

RPD File No. / N° de dossier de la SPR : MB6-01352 Client ID No. / N° ID client : 40556968 Private Proceeding / Huis clos Reasons and Decision  Motifs et décision Application to Cease Refugee Protection Applicant(s) The Minister of Citizenship and Immigration Demandeur(e)(s) Respondent(s) XXXX XXXX XXXX Intimé(s) Date(s) of hearing February 16, 2018 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons May 4, 2018 Date de la décision et des motifs Panel Mélanie Daigle Tribunal Counsel for the respondent(s) Me Stéphanie Valois Conseil(s) de la (des) des intimé(e)(s Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Salvatore D'Aloia Conseil du (de la) ministre REASONS FOR DECISION [1] The Minister of Public Safety and Emergency Preparedness is applying to have the panel, under section 108 of the Immigration and Refugee Protection Act (IRPA), determine that the refugee status granted to XXXX XXXX XXXX on August 9, 2000, has ceased. ALLEGATIONS [2] On December 16, 1999, the respondent claimed refugee protection at the offices of Citizenship and Immigration Canada in Montréal. [3] On August 9, 2000, the respondent was determined to be a "Convention refugee" by the Convention Refugee Determination Division. On August 28, 2001, he was granted permanent residence in Canada. [4] On August XXXX, 2009, the respondent applied for a travel document at the Canadian Mission in Tripoli, where he declared that he had left Canada on November XXXX, 2005, had lived in the XXXX neighbourhood in Chad since 2005, and worked in Human Resources in N'Djamena between 2006 and 2007. [5] On August XXXX, 2009, the Embassy of Canada in Tunis found that the respondent had failed to comply with his permanent residency obligation. [6] On September 30, 2009, the respondent filed an appeal with the Immigration Appeal Division (IAD) regarding the loss of his permanent residence for failing to comply with his residency obligation. [7] On October 21, 2011, the IAD allowed the respondent's appeal and found that he did not lose his permanent residence for humanitarian and compassionate considerations. Following this decision, the respondent obtained a travel document on November XXXX, 2012, which he did not use. [8] On June XXXX, 2013, the respondent applied for another travel document at the Canadian mission in Tunis. [9] On July 8, 2013, a second finding of non-compliance with the permanent residency obligation was issued against the respondent. On August 8, 2013, the respondent filed an appeal with the IAD against that decision. [10] On March 4, 2016, the Minister applied to the panel to determine that the respondent's refugee protection had ceased, because he voluntarily reavailed himself of the protection of his country of nationality, in this case Chad, and also because he voluntarily became re-established in Chad, the country he had left and in respect of which he had claimed refugee protection in Canada. DECISION [11] Having considered all the evidence on the record (exhibits M-1 to M-12), the panel determines that the respondent's refugee protection has ceased, on the ground that he voluntarily reavailed himself of the protection of his country of nationality. ANALYSIS [12] Paragraph 108(1)(a) of the IRPA requires that a claim for refugee protection is to be rejected and that a person is not considered a Convention refugee or a person in need of protection if they reavail themselves of the protection of their country of nationality. [13] Furthermore, in accordance with the principles set out in articles 118 to 125 of the Office of the United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status,1 principles that have since been supported by the jurisprudence in Canadian law, 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 reavail himself of the protection of the country of his nationality.2 [14] While a passport application creates a presumption of intention to reavail, proof to the contrary may rebut that presumption. [15] In that respect, the panel is of the opinion that it is important to note that although the respondent's representative mentioned more than once in her submissions that the IAD panel previously concluded that the respondent had compelling reasons to leave Canada, this panel rejects this argument for the following reasons. [16] First, the RPD is in no way bound by the IAD's conclusions in a completely separate case, namely, an appeal of a determination of non-compliance with the permanent residency obligation. Then, upon reading the IAD's decision, it becomes very clear that the concept of compelling reasons is completely different for the loss of permanent residency and cessation of refugee protection. In this case, the concept of ceasing refugee protection applies when analyzing an application to cease refugee protection under paragraph 108(1)(e) and subsection 108(4) of the IRPA, and Article 136 of the UNHCR Handbook. However, this is not the case here. [17] The panel is of the opinion that, when it comes to analyzing an application to cease refugee protection under paragraph 108(1)(a) of the IRPA, the panel must consider whether or not the explanations provided by the respondent constitute exceptional conditions to rebut the presumption,3 or whether he acted due to circumstances beyond his control.4 [18] In this case, when asked about the passports issued by the authorities in his country in 2005 and then in 2010, the respondent declared that he applied for these passports for the sole purpose of obtaining a travel document to return to Canada. However, when the panel asked him what passport he used to travel when he left Canada for Chad in 2005, the respondent answered that it was his Chadian passport issued in 1999. When the panel asked whether or not that passport had expired in 2005, the respondent stated that he had gone to the Embassy of Chad in Canada and extended it. It became clear from the respondent's testimony that the reason he extended his passport was to return to Chad to care for his family after his father's death. [19] In this respect, when he was asked to explain the different dates on the record relating to his father's death, the respondent answered that his father had indeed died in February 2003 and that the other dates written were errors. [20] When asked to explain why it was necessary for him to be in Chad in 2005, the respondent stated that his father was a transporter and merchant in Chad, and people owed him money. The respondent went on to explain that the bank also wanted to seize the family home and was threatening to throw the family out on the street because of problems with mortgage payments. The respondent also alleged that he was second in the family, and that tradition required him to contribute. [21] When the panel pointed out to him that at the time of his father's death he had brothers who were already Canadian citizens, the respondent answered that this was true. Asked to explain why his brothers had not gone to Chad to settle their father's affairs, the respondent repeated that there were customs and traditions. When confronted with the fact that he is not the eldest in the family, and that there was a two-year gap between the his father's death and his departure to Chad in February 2005, the respondent stated that his older brother had gone to Chad in 2004 to handle the family's affairs, and that he had stayed there until the end of 2004. The respondent went on to explain that afterwards, they reached an agreement, and since he was the second son, they agreed that he should take over for a while, since not everything had been settled. The respondent also reiterated that he had to respect the tradition and that he felt obligated to go. [22] When confronted with the fact that the panel found it implausible that his brothers, Canadian citizens, would have wanted him to go to Chad to settle the family affairs while he still had refugee status, status that Canada had granted him a few years earlier because he feared for his life in Chad, the respondent answered that his older brother had to come back to Canada, because he was only missing four credits to get his bachelor's degree and he was just about to finish his studies. The respondent continued to explain that he was the next in the family line and they all had to assume their share of the responsibility. When faced again with the fact that he had nevertheless claimed refugee protection in Canada against his own country, the respondent answered that he would not have returned in regular circumstances, but given the situation, he could not do otherwise. When the panel pointed out that it did not agree with this view and found it surprising that his brothers had wanted him to return to Chad, risking his life, simply because his older brother wanted to return to Canada to finish his studies, the respondent replied: [translation] "There are things in life that you can't take lightly, such as the death of your father," and that his mother and younger brothers needed him. The respondent then testified that he had taken the risk, that they had thought about it, but that he regretted it to this day and that he had been unable to finish his studies. [23] The panel is of the opinion that the reasons given by the respondent to justify his presence in Chad two years after his father's death do not constitute exceptional circumstances or circumstances beyond his control. In this case, it is clear from the respondent's testimony that his older brother had gone to Chad after their father's death, that he had taken care of the family's affairs, and that the only reason that the respondent returned to Chad to take over from him was so that his brother could return to Canada to finish his studies. In other words, the panel considers that the respondent did not provide valid explanations as to why his physical presence in Chad was not only necessary or urgent, but also the only possible option for him to assist his family. [24] Consequently, the panel concludes that the respondent, XXXX XXXX XXXX, did not rebut the presumption that he voluntary reavailed himself of the protection of his country of nationality, Chad, by applying for and obtaining a passport from his country's authorities, and by using it to return to Chad in 2005 to take the place of his older brother in settling family affairs. [25] As for the argument put forth by the respondent's representative, to the effect that he did not intend to avail himself of the protection of his country's authorities because he fears them, the panel rejects this argument. [26] The panel is of the opinion that it does not matter whether the respondent, while extending his passport with his country's authorities and using it to enter the country and stay there for a certain amount of time, had the express intention of turning to those same authorities should the need arise. In the view of the panel, by applying for a passport and, moreover, by using it to enter his country of nationality, the respondent implicitly placed himself de facto under the protection of the authorities of Chad, his country of nationality, not of Canada. [27] Consequently, the panel finds that the Minister's application to cease refugee protection under paragraph 108(1)(a) is well-founded. [28] Given that the Minister's representative made a strong case under paragraph 108(1)(a) with respect to the respondent, and that alone is a sufficient ground to allow the Minister's application to cease refugee protection, the panel considers that, in the interest of expediting the judicial process, it is unnecessary to consider the second ground for ceasing refugee protection that was also raised by the Minister, namely, that XXXX XXXX XXXX voluntarily became re-established in his country of nationality, as set out in paragraph 108(1)(d) of the IRPA. [29] As for the argument put forth by the respondent's representative at the very end of her submissions-namely, that there was an abuse of process by the Minister, mainly on the grounds that since 2009, in fact that the respondent left Canada for Chad, that he was not allowed to return to Canada, and that he had to wait until 2016 to file this application-the panel is of the opinion that it has not been established that there was an abuse of process in this case for the following reasons. [30] For a delay to constitute an abuse of process in cases where the fairness of a hearing has not been compromised, which the panel considers to be the case here,5 it has been established in various case law decisions, including in Blencoe v. British Columbia, that the delay must have directly caused significant harm and be clearly unacceptable, in other words, such that the human rights system would be brought into disrepute: 115 I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person's reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an 'unacceptable delay' that amounts to an abuse of process. [31] In this case, the Minister's representative has provided no argument on this point. [32] The panel notes that following the Canadian authorities' refusal to issue a travel document to the respondent, and after the finding of non-compliance with his residency obligation in August 2009, the respondent decided to appeal the decision. The panel also notes that following the IAD's decision on October 21, 2011, which allowed the respondent's appeal and concluded that he did not lose his permanent residence on humanitarian and compassionate considerations, Canadian authorities issued the respondent a travel document on November XXXX, 2012, allowing him to enter Canada, but the respondent did not use it.6 The panel also notes that the respondent applied for another travel document on June XXXX, 2013, and that following the Canadian authorities' decision to issue a second finding of non-compliance with his permanent residency obligation, the respondent decided to appeal the decision again. [33] Looking at these facts, it is clear that the delay was caused partly because the respondent availed himself of the legal options available to him, though it is his right to do so, to challenge the decisions made by Canadian authorities abroad to not issue him a travel document in 2009 and then in 2013, as well as their findings of non-compliance with his permanent residency obligation. [34] Based on the foregoing facts, the panel is of the opinion that it has not been established that filing this application to cease refugee protection in March 2016 directly caused significant harm to the respondent, nor that it was clearly unacceptable, that is, such that it would bring the human rights system into disrepute. CONCLUSION [35] Having considered the reasons set out above, the panel allows the application of the Minister of Public Safety and Emergency Preparedness and determines that the respondent's refugee protection has ceased under subsection 108(2) of the IRPA. [36] Consequently, the refugee protection claim of XXXX XXXX XXXX is rejected, and he is not considered to be a "Convention refugee" or a "person in need of protection" pursuant to paragraph 108(1)(a) of the IRPA, as he has voluntarily reavailed himself of the protection of Chad, his country of nationality. Mélanie Daigle Mélanie Daigle May 4, 2018 Date IRB translation Original language: French 1 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, Office of the United Nations High Commissioner for Refugees 2 Cabrera Cadena, Sandra Luz v. M.P.S.E.P, (F.C., No. IMM-3456-11), Shore, January 19, 2012; 2012 FC 67, at paragraph 19. 3 Supra, footnote 1, Article 124 4 Supra, footnote 1, Article 120 5 Blencoe v. British Columbia (Human Rights Commission), [2000] 2 SCR 307, 2000 SCC 44 6 Exhibit M-8: Application for travel document R300053486, page 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 8 RPD.26.18 (2015.02.26) RPD File No. / No de dossier de la SPR : MB6-01352