TB7-11289

RPD File No. / N° de dossier de la SPR : TB7-11289 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 Personne(s) protégée(s) Date(s) of hearing January 15, 2019 Date(s) de l'audience Place of hearing Toronto, Ontario Lieu de l'audience Date of decision and reasons February 5, 2019 Date de la décision et des motifs Panel B. Lloyd Tribunal Counsel for the applicant(s) Michelle Clark Conseil (du/des) demandeur(s) Counsel for the Respondent(s) Adrienne C. Smith Conseil(s) de l'intimé(e)(s)) Designated Representative(s) N/A Représentant(e) désigné(e) REASONS FOR DECISION [1] This is the decision with respect to an application brought by the Minister of Public Safety and Emergency Preparedness (the Minister) represented by M. Clarke, of the Interventions and Security Hearings Unit of the Canada Border Services Agency (CBSA). An Application to Cessate was filed with the Refugee Protection Division on June 9, 2017,1 that requested the Refugee Protection Division to reject the claim for refugee protection of XXXX XXXX XXXX (the Respondent) born in Mexico on XXXX XXXX XXXX 1978, pursuant to section 108 of the Immigration and Refugee Protection Act (IRPA)2 and Rule 64 of the Refugee Protection Division Rules.3 APPLICATION [2] The Minister, in the Application, alleged that the Respondent was granted Convention refugee status on February 1, 2005 by the Refugee Protection Division. The Minister submits that the Respondent was granted permanent resident status in Canada on November 29, 2005. [3] The Minister submits that the Respondent applied for and obtained a passport from the Mexican authorities on or about XXXX XXXX XXXX 2006. Specifically passport no. XXXX, which was issued to him in Toronto. Utilizing this passport the Respondent did travel to and from Mexico. * He entered Canada on XXXX XXXX, 2006 from Mexico * He entered Canada on XXXX XXXX, 2006 * He entered Mexico on XXXX XXXX, 2007 and returned to Canada XXXX XXXX, 2007 * He entered Mexico on XXXX XXXX, 2007 and returned to Canada on XXXX XXXX, 2008 * He entered Mexico on XXXX XXXX XXXX 2008 and returned to Canada on XXXX XXXX, 2008 * He entered Mexico on XXXX XXXX, 2009 and returned to Canada on XXXX XXXX, 2009 * He entered Mexico on XXXX XXXX, 2009 and returned to Canada on XXXX XXXX, 2010 * He entered Mexico on XXXX XXXX, 2010 and returned to Canada on XXXX XXXX, 2010 * In addition, the Respondent did utilize the same passport to travel elsewhere: * He entered France XXXX XXXX on XXXX XXXX, 2008 and exited France on XXXX XXXX XXXX 2008 * He entered Canada on XXXX XXXX, 2008 * He entered Germany on XXXX XXXX, 2009 and exited Germany on XXXX XXXX, 2009 * He travelled to XXXX, XXXX and the XXXX XXXX returning to Canada on XXXX XXXX XXXX 2009 * He entered Cuba on or about XXXX XXXX XXXX 2010 and returned to Canada on XXXX XXXX, 2010. [4] The Respondent applied for and obtained a new Mexican passport XXXX on or about XXXX XXXX, 2010. He utilized this passport to travel * He entered Mexico on XXXX XXXX, 2011 and returned to Canada on XXXX XXXX, 2011 * He entered Mexico on XXXX XXXX, 2011 and returned to Canada on XXXX XXXX XXXX 2011 * He entered Mexico on XXXX XXXX, 2012 and returned to Canada on XXXX XXXX XXXX 2012 * He entered Mexico on XXXX XXXX XXXX 2012 and returned to Canada on XXXX XXXX, 2012. * This passport was utilized to travel elsewhere, * He entered Cuba on XXXX XXXX, 2011 and returned to Canada on XXXX XXXX, 2011 * He entered Poland on XXXX XXXX, 2012 and exited Poland on XXXX XXXX, 2013, in addition he travelled to XXXX, XXXX, XXXX and the XXXX, and he entered Canada on XXXX XXXX XXXX 2013. [5] The Respondent sought and obtained a Mexican passport XXXX on XXXX XXXX XXXX 2013. He utilized this passport to travel to Mexico * He entered Mexico on XXXX XXXX, 2013 and returned to Canada on XXXX XXXX XXXX 2013 * He entered Mexico on XXXX XXXX XXXX 2014, * He entered Mexico on XXXX XXXX, 2014 * He entered Mexico on XXXX XXXX XXXX 2014 * He entered Mexico on XXXX XXXX, 2014 * He entered Mexico on XXXX XXXX XXXX 2014 * He entered Mexico on XXXX XXXX, 2015 * He entered Mexico on XXXX XXXX XXXX 2015 * He entered Mexico on XXXX XXXX XXXX 2015 * He entered Mexico on or about XXXX XXXX, 2015 * He entered Mexico on or about XXXX XXXX, 2015 * He entered Mexico on XXXX XXXX, 2015 * He entered Mexico on XXXX XXXX, 2016 * He entered Mexico on XXXX XXXX, 2016 * The Respondent utilized this passport to travel elsewhere * He entered Belgium on XXXX XXXX, 2013 * He entered France on XXXX XXXX, 2013 * He entered Argentina on XXXX XXXX, 2013 * He entered Japan on XXXX XXXX XXXX 2014 * He entered Sweden on or about XXXX XXXX, 2014 * He entered the United Kingdom on XXXX XXXX, 2014 * He entered Italy on or about XXXX XXXX XXXX 2014 * He entered Spain on or about XXXX XXXX, 2014. [6] The Respondent sought and obtained a Mexican passport XXXX on or about XXXX XXXX, 2015. * He again used this passport to travel to Mexico * He entered Mexico on XXXX XXXX, 2015 * He entered Mexico on XXXX XXXX, 2015 * The Respondent utilized this passport to travel elsewhere * He entered France on or about XXXX XXXX, 2015 [7] The Respondent was employed with XXXX XXXX XXXX from XXXX XXXX XXXX 2013 until XXXX XXXX, 2015. He began to work at XXXX XXXX on XXXX XXXX, 2015. [8] The Respondent identified he was aware he could not return to Mexico but returned due to his mother's illness. [9] The Minister submits that the Respondent did voluntarily re-avail himself of the protection of Mexico by virtue of obtaining a passport. Further, He had the intention of re-availing as he willingly sought the passport for purposes of employment and pleasure. Finally, by his actions of returning multiple times to Mexico and then utilizing the passports for personal travel he did in fact seek the protection of the authorities in Mexico. Respondent's position [10] To paraphrase the testimony and the submission of the Respondent, the Respondent's position is that he did not willing re-avail himself of the protection of Mexico and he travelled to Mexico for personal reasons, but he did not openly identify himself as a homosexual. He utilized the passports to travel for work purposes. [11] Further, he did not have the intention to re-avail but he misunderstood the notification given when he was granted permanent resident status, that if he did not have a passport he would have to apply for a refugee travel document but as he was given back his Mexican passport he believed he could travel on such a document and not put his Convention refugee status in peril. [12] The Respondent never intended to permanently return to Mexico or seek the protection of the state. While in Mexico he kept a low profile and hid his sexual orientation. The Respondent's family in Mexico suffered health issues. ANALYSIS [13] The Minister's Application is made pursuant to Section 108 of the IRPA, and Rule 64 of the RPD Rules. Section 108 of the IRPA reads 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 them self 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. (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). (3) If the application is allowed, the claim of the person is deemed to be rejected (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which she left, or outside of which she remained, due to such previous persecution, torture, treatment or punishment. [14] I find that in assessing whether the Respondent's actions fall within the ambit of Article 108(1)(a), I am guided by the UNHCR (United Nations High Commissioner for Refugees) Handbook.4 I refer to the United Nations handbook at Article 1 C (1) of the 1951 Convention, which states what must be considered assessing re-availment, 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 the country of his nationality; * (c) re-availment: the refugee must actually obtain such protection. [15] I accept that I am not bound by these guidelines but in this determination I find the guidance useful. Did the Respondent Act Voluntarily When Seeking the Passport? [16] In this case, I find the response to this question to be yes. Regarding voluntariness, the UNHCR Handbook stipulates: If the refugee does not act voluntarily, he will not cease to be a refugee. If he is instructed by an authority, e.g. of his country of residence, to perform against his will an act that could be interpreted as a re-availment of the protection of the country of his nationality, such as applying to his Consulate for a national passport, he will not cease to be a refugee merely because he obeys such an instruction. He may also be constrained, by circumstances beyond his control, to have recourse to a measure of protection from his country of nationality. He may, for instance, need to apply for a divorce in his home country because no other divorce may have the necessary international recognition. Such an act cannot be considered to be a "voluntary reavailment of protection" and will not deprive a person of refugee status.5 [17] The Respondent testified he approached the Mexican Consulate seek a new passport. There was no instruction given by any authority in Canada for him to have sought this passport. The Respondent's testimony that he needed it for employment, first for XXXX then as a XXXX XXXX, was considered; however, nothing presented indicates any official in Canada compelled him to seek, obtain and utilized the various passports. Did the Respondent have the Intention to Reavail? [18] I find the response to be yes. I find the Respondent did have the intentions to reavail himself of Mexico's protection. The UNHCR Handbook provides that 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. The most frequent case of "re-availment of protection" will be where the refugee wishes to return to his country of nationality. He will not cease to be a refugee merely by applying for repatriation. On the other hand, 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...6 [19] The Respondent did willingly seek the passports and utilize the passports for travel to and from Mexico, not solely for employment purposes but also for family reasons and personal pleasure. I find the Minister's evidence and the Respondent's testimony evidence that he obtained the passports to travel, specifically to Mexico and elsewhere. [20] I recognize a desire to care for one's parents but refugee protection does not have a provision that allows one to return to a country from where one seeks protection simply as one has to visit their aged parents or the sick or for other reasons. The fact that the Respondent returned multiple times, to care or visit with family does show reavailment. [21] Refugee protection as noted by the High Commission lasts only as long as the reasons for fearing persecution in the country of origin persist.7 Sadly, parents become ill and in ordinary circumstances family can attend but when one alleges persecution or a fear of returning, to return endangers their status, particularly when one is not a citizen of the country from which he received protection, as is the case here. Further, his desire to share his family with his former partner is commendable but again to return to introduce his former partner to his parents does endanger his status in Canada. Further the Respondent is not a Canadian citizen and as such travelling on the Mexican passport is an indication that he accepted the protection that passport entailed. [22] I have considered his testimony to a lack of knowledge of obtaining the necessary refugee travel documents; however, I find ignorance of the law is not an excuse. He was in Canada, he could have sought information; instead he did not and instead obtained multiple Mexican passports. I finds the years of travel between Canada and Mexico, Canada and elsewhere on these passports shows the Respondent did in fact reavail. What was the Respondent's Intention? [23] In determining the intention of the Respondent's actions, I am, once again, guided by the UNHCR: In determining whether refugee status is lost in these circumstances, a distinction should be drawn between actual re-availment of protection and occasional and incidental contacts with the 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. On the other hand, the acquisition of documents from the national authorities, for which non-nationals would likewise have to apply--such as a birth or marriage certificate--or similar services, cannot be regarded as a re-availment of protection.8 [24] I considered the ordinary meaning of the ordinary word passport. The dictionary meaning is that passports are official documents issued by a government certifying the holder's identity and citizenship, entitling the holders to travel under its protection to and from foreign countries.9 [25] The Respondent testified to traveling on vacation to Mexico and elsewhere in the world. I find by virtue of travelling on this passport not just to Mexico but elsewhere does show intent to travel under the protection of the Mexican government. Solely obtaining the passport may not be evidence of intent the use of this passport, on so many occasions shows the intent to reavail. [26] I find these actions demonstrate the Respondent's intentions to re-avail, and of course by leaving and travelling on multiple occasions, the culmination of his intention to reavail. I also find the intention to reavail can to apply when the Respondent travelled to other countries; the use of a Mexican passport to travel internationally grants them the protection of the Mexican government in these foreign lands if something goes amiss. It is a protection for individuals to travel abroad, knowing he can contact his government if a need arises and that that country will aid them if need be; this shows reavailment in practical terms. So the culmination of the travel to for vacation shows the voluntariness, intent, and reavailment for this Respondent. [27] I have considered the submissions that the Respondent did hide his identity when he travelled to Mexico. The Minister's submissions that nothing was provided to support he was able to avoid the original agent of persecution. The Minister submits that while the Respondent was in Mexico he accessed services such as health care and XXXX XXXX XXXX, and he continued to live and visit Mexico despite not knowing where the agent of persecution lived. The Minister submits that the Respondent did have contact with the state authorities while in Mexico; further, he obtained a renewal of his passport while in Mexico. There was nothing presented to support he was compelled to obtain this passport. I find I am in agreement with the Minister as it relates to his fear in Mexico, that Permanent resident status does not usually protect someone from an agent of harm. This alleged fear did not prevent the Respondent from returning multiple times, while the Respondent alleges he went and stayed solely on a vacation property with his partner, this is not supported by his testimony that he was working with XXXX to XXXX XXXX XXXX. Further, the Respondent testified his concern for his parents outweighed his alleged fear of the agent of harm. [28] I have read section 108 carefully, and I find that this section is silent as it relates to forward looking risk. I find that there is no requirement to consider the Respondent's personal risk, in that he nullified this risk by returning on multiple occasions. The Federal Court of Canada has held that I do not have to undertake a forward looking risk assessment in the analysis of an application under section 108.10 CONCLUSION [29] I find that XXXX XXXX XXXX has voluntarily re-availed himself of the protection of his country of nationality as described in section 108(1) (a) of the IRPA. [30] The Minister's application for cessation of Mr. XXXX XXXXXXXX status as a Convention refugee, pursuant to section 108(2) of the Act, is allowed and his claim is deemed to be rejected in accordance with section 108(3) of the IRPA. (signed) "B. Lloyd" B. Lloyd February 5, 2019 Date 1 Exhibit 1. 2 As enacted by S.C. 2001, c. 27 (the "Act" or "IRPA") and amended by S.C. 2010, c.8 and S.C. 2012, c.17. 3 Can.Reg. 2002-228, made under the Act, SOR/2002-228, as amended by SOR/2012/256. 4 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. 5 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraph 120. 6 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraph 122. 7 Counsel's Book Authorities Office of the United Nations High Commission for Refugees. 8 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraph 121. 9 Dictionary.com 10 Balouch v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 765. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 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 : TB7-11289