MB4-02418

RPD File No. / N° de dossier de la SPR : MB4-02418 MB4-02421 MB4-02422 Client ID No. / No ID client : XXXX XXXX XXXX XXX XXXXX XXXX XXX Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX XXXX XX XX XXXXXXXX XXXXXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of hearing September 30, 2014 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons October 17, 2014 Date de la decision et des motifs Panel Michelle Langelier Tribunal Counsel for the claimant(s) Me William Aguilar Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Salvatore D'Aloia (CBSA) Conseil du (de la) ministre Reasons for Decision [1] The Minister of Public Safety and Emergency Preparedness,1 hereinafter referred to as the Minister, is applying, under subsection 108(2) of the Immigration and Refugee Protection Act (IRPA), to cease the refugee protection granted on May 22, 2008, to XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, hereinafter referred to as the respondents. [2] Respondent XXXX XXXX XXXX was appointed the designated representative of his minor child, XXXX XXXX XXXX XXXX. He confirmed that he understood his role and responsibilities in that capacity. THE FACTS [3] The respondents are originally from Colombia. They made a refugee protection claim in Canada on May 7, 2006, and their claim was allowed on May 22, 2008. They became permanent residents on February 19, 2009. On XXXX XXXX XXXX 2013, they were intercepted at the St-Bernard-de-Lacolle port of entry upon their return from the United States; they had in their possession Colombian passports issued on XXXX XXXX, 2008, which were valid until 2018. Two stamps in their passports indicated entries into Colombia. [4] On June 23, 2014, the Minister requested that the panel determine that the refugee protection granted to the respondents had ceased, alleging that they had voluntarily reavailed themselves of the protection of the authorities in their country, Colombia. ANALYSIS [5] The Minister argues that the respondents' situation is described in paragraph 108(1)(a) of the IRPA. He is basing himself on two important factors: the fact that the respondents applied for and obtained Colombian passports after being recognized as refugees against Colombia, and the fact that they returned to that country, where they had alleged a reasonable fear of persecution. These facts, according to the Minister, demonstrate that the respondents voluntarily reavailed themselves of Colombia's protection. [6] According to Canadian case law, the three following conditions must be met for the panel to be able to conclude from an action taken by the respondents that they have ceased to be refugees:2 1. the refugee must act voluntarily; 2. the refugee must intend by his action to reavail himself of the protection of the country of his nationality; 3. the refugee must actually obtain such protection. [7] In this case, the respondents' actions are the following: applying for passports and travelling to Colombia on three occasions. Obtaining Colombian passports [8] The Federal Court has incorporated in Canadian law3 the presumption of the Handbook on Procedures and Criteria for Determining Refugee Status according to which the act of applying for a passport from one's country of nationality creates the presumption of intention to reavail oneself of the protection of that country. Therefore, in the case of the respondents, there is a presumption that they reavailed themselves of the protection of the Colombian authorities by applying for and obtaining passports from that country. [9] The respondents' burden was therefore to rebut that presumption. According to their testimony at the hearing, in XXXX 2008, the respondents were planning a trip for the 2008 Christmas holidays. They applied to the Colombian authorities for a passport to travel to the United States (to Disneyland); at that time, they had not intended to return to Colombia. They testified that they could not use the valid passports with which they had arrived in Canada, as they had been seized by Canadian immigration authorities. When questioned about whether they had informed Immigration Canada authorities that they wanted to travel to the United States and whether they had asked how they could do so, the respondents answered that no, they had not made such enquiries. [10] At the hearing, the respondents testified that when they reported to Immigration Canada offices in February 2009 to obtain their permanent residence, they noticed that their passports were not included in the documents they were given; they asked if they could be returned to them, but an officer allegedly told them that it was impossible. When questioned about whether they had asked an immigration officer or their counsel why their passports were being held back, they answered that no, they had not thought to do so. [11] The panel is of the opinion that the fact of wanting to get their passports back casts some doubt on the fear the respondents still claim to have regarding their country of origin. The Handbook states the following: If, on the other hand, an applicant, without good reason, insists on retaining a valid passport of a country of whose protection he is allegedly unwilling to avail himself, this may cast doubt on the validity of his claim to have "well-founded fear". Once recognized, a refugee should not normally retain his national passport.4 [12] In addition, the panel does not believe the respondents' allegation that they had to apply for new passports because their passports had been seized and they had intended to travel to the United States for the 2008 Christmas holidays, since they had obtained their new passports in XXXX 2008, long before their February 2009 meeting with an immigration officer to obtain their residency. Consequently, their explanation is not credible. [13] When asked what they had declared to Colombian authorities to justify their passport application while their passports were still valid, the respondents answered that they said they had lost their passports (indeed, the respondents' new passports indicate that they were issued as replacements to the old passports which had been lost5). When confronted with the fact that their passports had not been lost and that, consequently, they had provided Colombian authorities with false information, the respondents answered that the fact that their passports had been seized is the same as them being lost. The panel rejects this explanation, as the two realities are very different as opposed to what the respondents argue: a seized passport is not lost. [14] The panel draws a negative inference regarding the respondents' credibility from the fact that they lied to Colombian authorities in order to obtain passports, as well as from the fact that they had neglected to enquire about other possibilities they had to travel without having to use Colombian passports. [15] When asked if, in the end, they had travelled to Disneyland for the 2008 Christmas holidays, the respondents answered no because the male respondent had tendinitis. Given the above-mentioned credibility problems, the panel doubts that the respondents' real intention when they obtained their new passports was to go to Disneyland. [16] Other factors cast doubt on the respondents' real intentions: - the fact that they had not thought of asking either their counsel or Immigration Canada authorities why there was a refusal to give them back their passports or of enquiring about the consequences of obtaining new passports; - the fact that the respondents had lied to the Colombian authorities, claiming to have lost their passports; plausibly, they could not have obtained them, had they told the truth, that is, that their passports had been seized upon submission of their refugee protection claim. [17] When they issue a passport to one of their nationals, the authorities of a country provide that person with de facto protection; in fact, the note in the respondents' passports is telling: [Translation] The Government of Colombia requests all national and foreign authorities to allow the bearer of this passport to move freely and in case of need to afford such help and assistance as may be necessary.6 [18] To that effect, the panel finds that the act of applying for a national passport is a step that, when taken voluntarily, is equivalent to putting oneself under the protection of the authorities of the country in question. [19] For these reasons, the panel is of the opinion that the respondents failed to rebut the presumption that they voluntarily reavailed themselves of the protection of the Colombian authorities by applying for and obtaining passports from that country. Trips to Colombia [20] The respondents travelled three times to the country where they allege their lives are in danger: in XXXX 2009, XXXX 2011, and XXXX 2012. They stated that each trip was taken for medical reasons. XXXX 2009 [21] According to the respondents' contentions, the sole purpose of that trip was to seek treatment for the male respondent's tendinitis; he explained that he had tried to get a medical appointment here in Montréal, but that he was only given an appointment for a much later date and that he could not wait, as he was suffering a lot and, since his work is very physically demanding, he needed to be treated quickly. [22] When asked why he had not simply gone to the emergency room of a hospital, the male respondent answered that he was not familiar with the emergency system. When asked if he had enquired about possible alternatives for treatment, rather than having to return to his country, for example, by speaking with his counsel, the male respondent answered no, since a lawyer has nothing to do with health issues. The panel then pointed out to the respondents that it is not the health issue that they could have discussed with their counsel, but the consequences of a possible return to the country from which Canada had agreed to protect them. The respondents answered that they had not thought of this. [23] When asked whether he did not think that it was dangerous to return to a country where their lives are in danger, to XXXX, the very city where all their problems took place, the male respondent answered that he absolutely had to treat his tendinitis because he had to be functional for his job, which is very physical. [24] Lastly, when asked why the three of them left for Colombia when only the male respondent needed medical treatment, the respondents answered that they are a close-knit family, that they are always together. Moreover, during that stay, the female respondent and her child took the opportunity to undergo general medical exams to check their state of health (a check up, to use her words). [25] The panel rejects these explanations for a number of reasons: first, the panel is of the opinion that tendinitis is a medical condition that could have been treated easily and quickly in Quebec, as opposed to the respondents' arguments; it was simply a matter of showing up at the emergency room of any hospital. The panel does not believe that the respondents were unaware that there was an emergency system in hospitals; this statement is frivolous and implausible in the context of this case. The respondents are educated people who have adapted to Quebec society, as they pointed out at the end of the hearing. [26] In addition, the male respondent contends that he had to go to Colombia since his doctor gave him an appointment at a much later date and his hand caused him so much suffering to the point that he could not wait any longer; yet, according to his testimony, it seems that he had been suffering from tendinitis since XXXX 2008, as he had had to cancel the trip to Disneyland for that reason. He cannot, therefore, credibly allege that the purpose of the XXXX 2009 trip, almost one year later, was to urgently treat his tendinitis. Lastly, the respondents' explanation that they travelled all together because they are a close-knit family contradicts their claims that their lives are still in danger in Colombia. XXXX 2011 [27] The respondents testified that they had to take this trip because their son, respondent XXXX, needed surgery in connection with his orthodontic treatment, and that this operation is much less expensive in Colombia than in Canada; they allege that the operation was urgent, he had two molars that were not growing and, over time, his jaw would be [translation] "misaligned" if he did not have surgery. [28] When asked if they had tried to find ways of receiving these orthodontic treatments in countries other than Colombia, given that every time they returned to Colombia, according to their allegations, their lives were in danger, the respondents answered that no, they had not thought about this and that they were not familiar with any other country. Once again, they went all together because they are a close-knit family. They also took the opportunity to introduce their newborn child to the family. [29] The panel is of the opinion that orthodontic treatment is not an urgent and essential medical condition and also that this treatment could have been provided in any country. Consequently, the panel finds that for the respondents to return once again to the country where they allege that their lives are in danger, not to mention to the city where they had their problems, and also to bring a newborn child there, demonstrates a willingness to place themselves under the protection of the authorities of their country. XXXX 2012 [30] According to the respondents' allegations, the only reason for that trip was for the female respondent to undergo routine exams, which she called check-ups; she had a sore hip. They left as a family and stayed in XXXX for three weeks. Respondent XXXX XXXX testified that she now realizes that she should not have taken that trip, but that in Quebec, the wait for receiving medical treatment is very long. [31] The panel rejects this explanation for the same reasons mentioned previously: the respondents failed to demonstrate that the state of their health could not be treated here in Quebec and that they absolutely needed to be treated in XXXX, Colombia, and nowhere else, especially considering that the female respondent claims that she went there for simple routine exams. [32] In view of the above, the panel is of the opinion that by returning to Colombia in XXXX 2009, XXXX 2011, and XXXX 2012, the respondents voluntarily reavailed themselves of the protection of the authorities of that country. [33] The respondents' counsel argued that the panel must consider the best interests of the minor child in this case, and that in view of this interest, the child must remain in Canada where he has been living for eight years, that the respondents are established here and that they even bought a house. The panel rejects these arguments. With respect to the establishment of the respondents in Canada, this consideration is not relevant to the determination that I must make under section 108 of the IRPA; with respect to the best interests of the child, I must consider them strictly within the context of the proceedings before this panel, which has been done. In the words of the Federal Court of Appeal in Varga:7 Neither the Charter nor the Convention on the Rights of the Child requires that the interests of affected children be considered under every provision of IRPA: de Guzman v. Canada... at para. 105. If a statutory scheme provides an effective opportunity for considering the interests of any affected children, including those born Canada, such as is provided by subsection 25(1), they do not also have to be considered before the making of every decision which may adversely affect them. [34] Finally, the respondents' counsel argues that, according to the recent decision in Romero,8 the cessation of refugee protection provided for in section 108 of the IRPA violates section 7 of the Charter. I reject this argument, since the Federal Court has clearly found that it was not valid, in paragraphs 120 to 137 of the above decision: first, the respondents have failed to demonstrate a cause-and-effect relationship between a determination of cessation of refugee protection and a violation of their right to life, liberty and security of the person, and that such violation is contrary to the principles of fundamental justice. Moreover, the panel finds that there are other recourse options following this decision in order to avoid deportation, such as, for example, applying for permanent residence on the basis of humanitarian and compassionate considerations, which does not fall under this panel's jurisdiction. CONCLUSION [35] For the reasons mentioned above, the panel allows the Minister's application, and I determine that the refugee protection granted to XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX on May 22, 2008, has ceased. Michelle Langelier Michelle Langelier October 17, 2014 Date IRB translation Original language: French 1 This department has since changed its name, but its designation in the IRPA has not changed, hence the term chosen by the panel in this decision. 2 See Nsende v. MCI, 2008 FC 531, at paragraph 13. 3 Nsende v. MCI, 2008 FC 531, at paragraphs 14 and 15; also see Yada v. Canada, [1998] FCJ No. 37 (QL); Chandrakumar v. Canadapiouoiuo, [1997] FCJ No. 615 (QL). 4 See the Handbook on Procedures and Criteria for Determining Refugee Status, paragraph 49. 5 See stamps in the passports of the male respondent, in M-8, page 26, the female respondent, in M-16, page 75, and the minor respondent, in M-24, page 117. 6 See the third cover page of the three passports, on pages 24, 73 and 115 of the Minister's evidence. 7 Varga v. Canada, 2006 FCA 394, at paragraph 13. 8 Romero v. Canada, 2014 FC 671. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 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.29.01 (December 15, 2012) RPD File No. / No de dossier de la SPR : MB4-02418 MB4-02421 MB4-02422