VB4-00790

RPD File No. / No de dossier de SPR : VB4-00790 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 XXXX Personne(s) protégée(s) Date(s) of Hearing June 23, 2015 Date(s) de l'audience September 10, 2015 Place of Hearing Vancouver, BC Lieu de l'audience Date of Decision December 3, 2015 Date de la décision Panel Jesse Davidson Tribunal Counsel for the Conseil(s) de la (des) Protected Person N/A personnes protégée(s) Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Keith Dubick Conseil du ministre REASONS FOR DECISION [1] These are the reasons for the decision in an application made by the Minister of Citizenship and Immigration ("the Minister") for the cessation of the refugee protection status of XXXX XXXX XXXX XXXX XXXX XXXX XXXX ("the respondent"), made pursuant to section 108(2) of the Immigration and Refugee Protection Act (the "Act").1 Hearings were conducted on June 23, 2015 and September 10, 2015 to determine if the Minister's application should be allowed and the respondent's refugee protection be ceased. [2] The Minister alleges the respondent's refugee protection should be determined to be ceased pursuant to sections 108(1)(a) (re-availment) and 108(1)(d) (re-establishment) of the Act. [3] The Minister has also applied under the provisions of Rule 40(1) of the Refugee Protection Division Rules (the "Rules")2 to be excused from providing the respondent with the Minister's application to remove the respondent's refugee protection status and supporting documents, on the basis that they have made reasonable efforts to provide these documents to the respondent. The hearings of June 23, 2015 and September 10, 2015 were conducted with the respondent in absentia. The panel advised the Minister at the hearing of September 10 that the Rule 40 application would be considered in conjunction with the Minister's cessation application. DETERMINATION [4] The Panel finds the Minister has not made reasonable efforts to provide the respondent with the cessation application. Accordingly, the Minister's application to cease the respondent's refugee protection status is denied. Case history [5] The manner in which the Minister's application has been brought to the Board is significant to the panel's determination, and will be discussed in detail within these reasons. The respondent is a national of Libya who came to Canada in August 2004. She applied for refugee protection, and was found by this Board to be a Convention refugee on May 25, 2006. She obtained her permanent resident status in Canada on April 28, 2008. The respondent's claim to refugee protection was essentially based on the fact that her brother and her mother were attempting to force the respondent into marrying an individual she did not wish to marry. [6] The Minister alleges that the respondent renewed her Libyan passport on XXXX XXXX, 2008, XXXX XXXX, 2010 and XXXX XXXX, 2012. These events pre-date the coming into force of the Protecting Canada's Immigration System Act, which amended the Act to provide for the automatic loss of permanent resident status of protected persons who have had their refugee status determined to be ceased by way of paragraphs (a) to (d) of section 108(2) of the Act. The Minister further alleges the respondent used this passport to travel internationally on more than one occasion. [7] The event that initiated the Minister's application occurred on May 8, 2013 when the respondent sought entry to Canada at the Vancouver International Airport. At the airport, the respondent was interviewed by an officer of the Canada Border Services Agency (the "port-of-entry officer") regarding her travel back to Libya, and presumably her passport was photocopied. The information obtained during this event constitutes the majority of the evidence provided by the Minister in support of their cessation application. [8] On January 6, 2014 a Canada Border Services Agency (CBSA) Officer with the Pacific Region Enforcement Centre (the "enforcement officer") attended an address described by the enforcement officer as the respondent's last known address. The manner in which the CBSA obtained this address for the respondent is unknown. The enforcement officer questioned an unnamed "homeowner" at the residence, who informed the enforcement officer the respondent had returned to Libya. This individual provided the enforcement officer with a phone number in Libya for the respondent. [9] The Minister made their cessation application on March 7, 2014. The respondent did not appear at the initial hearing of the application on June 23, 2015, and it became apparent that while the Minister had forwarded a copy of the application to what they believed to have been the respondent's last known address, the copy of the application may not have been received by respondent. It also became apparent the Minister had not made any efforts to contact or locate the respondent beyond the attendance at the address by the CBSA on January 6, 2014 noted above. The hearing was adjourned to allow the Minister an opportunity to comply with the Rules3 and serve the application on the respondent. [10] Prior to the second hearing of this application on September 10, 2014 the Minister made an application under Rule 40(1) to be excused from serving the cessation application on the Respondent, based on the fact they had made reasonable efforts to contact the Respondent. The respondent did not appear at the September 10, 2015 hearing. ANALYSIS Rule 40 Application to be Excused from Providing a Document: [11] The leading case law governing the application of section 108(1)(a) of the Act is the Federal Court decision of Nsende,4 in which Justice Legacé states as follows: [12] In order to determine what is meant by "reavail[ment]" in paragraph 108(1)(a) of the Act, it may be useful to examine the interpretation that has been given to its source article in the 1951 Convention relating to the Status of Refugees (the Convention). Article 1C(1) of the Convention reads: "This Convention shall cease to apply to any person falling under the terms of section A if: (1) He has voluntarily re-availed himself of the protection of the country of his nationality [...]". Paragraphs 118 to 125 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees of the United Nations High Commissioner for Refugees (the UNHCR Handbook) provide some interpretative guidance as to the meaning of reavailment. [13] As a starting point, paragraph 119 indicates that there are three requirements for reavailment under the Convention: "(a) voluntariness: the refugee must act voluntarily; (b) intention: the refugee must intend by his action to reavail himself of the protection of the country of his nationality; (c) reavailment: the refugee must actually obtain such protection." [14] Further, the UNHRC Handbook highlights the distinction between "actual reavailment of protection and occasional and incidental contacts with the national authorities" (paragraph 21). Instructively, it states that "[i]f 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." [15] Accordingly, the UNHCR Handbook suggests that while a passport application creates a presumption of intention to reavail, proof to the contrary may refute that presumption. [12] The Nsende decision has been relied upon by the Minister to base cessation applications to the Board on the mere fact the refugee has obtained and / or renewed a national passport. However, recent decisions from the Federal Court have expanded the considerations that must be taken prior to a decision being made to remove refugee protection due to reavailment. For example, the Cerna decision5 establishes that the panel must take into account the effect a Convention refugee's permanent resident status has on whether the refugee intended to reavail themselves of protection in their country of nationality. The decision of al Obeidi6 allows the panel to allow an application for the cessation of refugee protection under the provisions of 108(1)(e) as opposed to 108(1)(a), if it determines the facts of the case support such a finding. Allowing the application under section 108(1)(e) as opposed to 108(1)(a) would result in the refugee not losing their permanent resident status in Canada. [13] The only evidence provided to the panel from the CBSA examination that occurred at the Vancouver International Airport is the photocopy of the passport used by the respondent to return to Canada, and a copy of the notes made by the port-of-entry officer who examined the respondent upon her entry. In terms of establishing what transpired during her examination of the claimant, the notes of the port-of-entry officer constitutes poor evidence upon which to persuade the Board to remove an individual's refugee protection status.7 There is no indication that an interpreter was used during the interview, despite indications elsewhere on the Board's file the respondent requires an interpreter to communicate in English.8 The notes are dated May 9, 20139 but are prefaced with the remark, "as recalled from exam 08May2013," indicating to the panel the notes were made a full day after the actual examination and on the basis of the examining officer's memory of the examination, as opposed to being recorded when the examination actually occurred. When asked by the panel, Minister's Counsel acknowledged the notes "could only be a portion" of the interview conducted by the officer with the person concerned, as opposed to a fulsome accounting of everything that was said during this encounter by the Minister's employee and the respondent. From the panel's review of these notes, that certainly appears to be the case. While the panel appreciates the port-of-entry officer identified herself as the author of the notes and affirmed the information contained in the notes to be true in a Solemn Declaration dated two years subsequent to her interview,10 this Declaration falls well short of repairing the problems that exist within this evidence. [14] The impact of this poor evidence directly affects the panel's ability to assess the Minister's application to cease the respondent's refugee protection. It appears the respondent was asked by the port-of-entry officer why she returned to Libya, to which the respondent appears to have replied, "brother died." It bears noting that the basis of the respondent's original refugee claim was that she feared persecution from her brother. However, from the panel's review of the respondent's original Personal Information Form,11 it appears the claimant has three brothers. Whether the claimant returned to Libya because her agent of persecution died, or because a compelling family tragedy required her to return, is unknown to the panel. The significance of the respondent having permanent resident status on her decision to return to Libya has similarly not been assessed. No direction was provided to the respondent to keep the Minister appraised of her address, and there is no indication she was told that she was ever informed of the possibility of cessation proceedings being brought against her. [15] In essence, the Minister is asking the Board to declare the claimant's refugee status to be ceased based primarily on evidence they acquired during the respondent's port-of-entry examination that occurred on May 8, 2013. The Minister photocopied the respondent's passport at this time, and interviewed the respondent. Information was provided to the Minister during this interview that would indicate that the conditions in her country may have changed, but this information was not followed up on by the Minister during this interview. The Minister is relying on the Nsende decision and the mere facts the respondent applied for and used a Libyan passport to return to Libya to create a presumption the respondent has re-availed herself of Libya's diplomatic protection, yet has not provided to the panel evidence that may have been readily available to the Minister at the time the passport was copied that could have rebutted the presumption. [16] Given these circumstances, and in the interests of adhering to the principles of natural justice by giving the respondent an opportunity to defend herself against the Minister's attempts to remove her refugee protection status, the panel considered the Minister's burden in establishing they have made reasonable efforts to serve the respondent with the cessation application to be high. The consequences of a finding of reavailment are severe, and the quality of the Minister's evidence detailing the circumstances of the alleged reavailment is poor. In view of these circumstances, it would be the panel's expectation the Minister would make every effort to appraise the respondent of the allegations she was facing, and ensure she had an opportunity to defend herself against these allegations. However, the panel finds the Minister's efforts in this regard were deficient, and they did not meet the burden of establishing that their efforts in providing the respondent with the cessation application have been reasonable. [17] The Minister waited for more than half a year subsequent to the May 8, 2013 examination of the respondent to attempt to follow up on their concerns the respondent had re-availed herself of Libya's protection. On December 2, 2013 a letter12 was sent by courier to the address that was believed to belong to the respondent advising her of the Minister's concerns regarding her potential re-availment and requiring her to present herself for an interview on December 18, 2015. On January 6, 2014 a CBSA Officer with the Pacific Region Enforcement Centre (the enforcement officer) attended an address identified in a Solemn Declaration dated two months later (February 28, 2014)13 as the respondent's "last known address." How the address noted in the Declaration was believed to be the respondent's "last known address" is not noted in the Declaration. Evidentiary issues noted with respect to the evidence obtained at the port-of-entry are also apparent in this Declaration. The enforcement officer speaks with someone the officer identified as "the homeowner". The actual identity of "the homeowner", or the nature of "the homeowner's" association with the respondent is not noted in the declaration. "The homeowner" apparently told the enforcement officer the respondent never actually resided at the address, but "had" used it for receiving mail. Whether the respondent used the address for receiving mail in the past, or was continuing to use the address for receiving mail is not noted in the Declaration. The Declaration is very brief; however, the enforcement officer did obtain a phone number that was believed to belong to the respondent for where she was staying in Libya. [18] The Minister did not attempt to contact the respondent by using this phone number until after the first sitting of the hearing of their application, when it was suggested to Minister's Counsel by the presiding member that calling a phone number that may belong to the respondent would be a prudent step in ensuring reasonable efforts had been made to serve the cessation application on the respondent. A representative of the Minister, Hearings Advisor Sunil Sahota (the hearings advisor) did make contact with the respondent on June 23, 2015. A Solemn Declaration detailing the communication between the hearings advisor and the respondent is provided in Exhibit 14. This Declaration does not suffer from the evidentiary issues noted in the evidence of the other two CBSA Officers; it is well written and the panel is satisfied that it is an accurate account of what transpired between the hearings advisor and the respondent. However, it is apparent to the panel the hearings advisor was not able to tell the respondent that she faced a cessation proceeding in Canada. When the hearings advisor first spoke with the respondent, there was no interpreter present. When the hearings advisor called the respondent back with an interpreter, the phone line connection between the parties was lost. Subsequent attempts by the hearings advisor to contact the respondent were unsuccessful. [19] The panel realizes there may be nothing further the Minister can do to serve the respondent with a copy of the cessation application; however, the issue before the panel is whether their efforts to date have been reasonable. When the panel considers the delays between when the Minister was first alerted to the possibility of the respondent may have re-availed herself of Libya's protection and their attempts to notify her of such, the panel finds the Minister has been negligent in this regard. The panel does not believe the Minister has intentionally acted in bad faith in this manner. However, the appearance that is created by the Minister's conduct in this case is that they acquired only that evidence which would serve to create a presumption of reavailment while ignoring the evidence that was readily before them that could rebut this presumption, and are now benefiting from the passage of time to prevent the respondent a meaningful opportunity to address their allegations. When the panel considers the grave consequences of a finding of re-availment, the panel believes rendering a decision on the merits of the application in this matter without the respondent having an ability to respond to the Minister's allegations would be contrary to the interests of natural justice. [20] The panel finds that due to the absence of the Respondent from these proceedings, the panel simply has insufficient information to allow the Minister's application. Too many alternative explanations exist as to why the respondent may have returned to Libya with a Libyan passport that would indicate that she did not have the necessary intention to reavail herself of Libya's protection. Her agent of persecution may have died, which would point more towards a change of circumstances as opposed to an intention to re-avail. She may currently be required to be in Libya for pressing family considerations, and she may be able to remain in Libya temporarily due to the safeguard presented by her having valid permanent resident status in Canada. Absent answers to these issues, the panel finds that it cannot declare the respondent's refugee protection to be ceased based merely on the rebuttable presumption created by the Nsende decision, due to the limited opportunity the respondent has been provided to rebut this presumption. [21] There is nothing preventing the Minister from re-addressing their concerns with the respondent should she re-enter Canada. The panel is dismissing the application on the basis of the procedural defect of lack of service on the respondent, which cannot be saved by excusing service pursuant to RPD Rule 40 in this case. The panel sees no impacts to Canadian society or national security that are affected by the panel's refusal to render a decision on the Minister's application at this time. No submissions were received from the Minister as to any urgency that exists to cease the respondent's refugee protection status (and by default, her permanent resident status) when the respondent is not currently in Canada that would override the due process and natural justice concerns that have been raised with this application. CONCLUSION [22] The panel finds the Minister has not made reasonable efforts to provide the respondent with a copy of the cessation application. The respondent has not had a meaningful opportunity to defend herself against the Minister's allegations, and therefore it would be contrary to the principles of natural justice to render a decision on the merits of the application with such grave consequences as a finding that she has re-availed herself of Libya's protection. Accordingly, the Minister's application is denied as proceeding would result in a breach of natural justice due to the Minister's inability to effect service, and the lack of reasonable efforts to do so in the circumstances of this case. (signed) "Jesse Davidson" Jesse Davidson December 3, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Protection Division Rules, SOR/2012-256. 3 Refugee Protection Division Rules 4 Nsende v. Canada (Minister of Citizenship and Immigration) 2008 FC 531 5 Cerna, Davis v. M.C.I., 2015 FC 1074. 6 M.C.I. v. Al-Obeidi, 2015 FC 1041. 7 Exhibit 11, "EE". 8 Exhibit 14. 9 Exhibit 14. 10 Exhibit 15. 11 Exhibit 2. 12 Exhibit 18. 13 Exhibit 11, "FF". --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : RPD File No. / N° de dossier de la SPR :VB4-00790 RPD File No. / N° de dossier de la SPR : VB4-00790