MA6-02300

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No. de dossier de la SPR : MA6-02300 Private Proceeding Huis clos VACATION OF STATUS Applicant Demandeur The Minister of Citizenship and Immigration Respondent Intimé XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience July 20, 2006 Place of Hearing Lieu de l'audience Montreal, Quebec Date of Decision Date de la decision September 27, 2006 Panel Tribunal Me Michel Jobin Claimant's Counsel Conseil du demandeur d'asile Me Annick Legault Refugee Protection Officer Agent de la protection des réfugiés (Filing of documents) Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre Stéphane Morin You can obtain the translation of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB at the following address: 344 Slater Street, 14th Floor, Ottawa, Ontario K1A 0K1, by e-mail at translation@irb.gc.ca or by facsimile at (613) 947-3213. La Direction des services de révision et de traduction de la CISR peut vous procurer les présents motifs de decision dans l'autre langue officielle. Vous n'avez qu'à en faire la demande par écrit à l'adresse suivante : 344, rue Slater, 14e étage, Ottawa (Ontario) K1A 0K1, par courriel à traduction@cisr.gc.ca ou par télécopie au (613) 947-3213. VACATION OF STATUS INTRODUCTION Pursuant to section 1091 of the Immigration and Refugee Protection Act (the IRPA) and section 572 of the Refugee Protection Division Rules (the RPD Rules), on April 11, 2006, the Minister (the applicant) made an application to the RPD in order to vacate the RPD's April 25, 2003 decision to confer "Convention refugee" status3 on Ms. XXXXX XXXXX XXXXX XXXXX (the respondent). Persecution alleged by the respondent on her Personal Information Form (PIF) According to the documents,4 the respondent claimed Canada's protection on the ground of her sexual orientation. She claimed to be a lesbian, adding that during her adolescence she was attracted to women and that she went to live with an aunt in Lisbon. In 1993, the respondent began to see a woman in secret because, she said, homosexuality is not accepted in Portuguese society. While she was working in a XXXXX XXXXX, her employer made advances to her. She told her employer that she is a lesbian; he slapped her and dismissed her. She then began to receive anonymous insulting telephone calls. Some time later, the respondent's parents allegedly learned that she is a lesbian. The respondent added that in early XXXXX 1999, without her consent, her father forced her to undergo closed treatment at the psychiatric hospital. When she was released from hospital, she returned home and her father assigned a brother to accompany her. In mid- XXXXX 1999, she went for help to the home of her former girlfriend, who advised her to leave the country. The respondent decided to go to Angola, believing that she would be safe there. She left Portugal on XXXXX, 1999, for Luanda. She had difficulties in Angola and decided to leave that country and go to Canada via Portugal. When she arrived at the Lisbon airport, she was taken to the police station because a warrant for her arrest had been issued. Her father allegedly picked her up at the police station and took her back home, where he forbade her to go out or to make telephone calls. While her parents were not at home and her brother was busy, she escaped from the house and went into hiding at the home of a female friend. She contacted an uncle who lives in Canada, telling him that she was leaving the country. Lastly, a hearing was held on October 15, 2002, and she was granted "Convention refugee" status on April 25, 2003. Evidence adduced and allegations made by the Minister The applicant adduced 10 exhibits, M-1 to M-10, with pages numbered from 1 to 62, with regard to the October 15, 2002 decision by the Immigration and Refugee Board (the IRB). As well, the respondent notified the immigration authorities of her new address, XXXXX XXXXX XXXXX in Montreal. According to information obtained by the applicant, this address is that of Mr. XXXXX XXXXX XXXXX; the IRB was informed of this fact in a signed July 31, 2002, document.5 Allegation number 10 by the applicant is that on XXXXX, 2003, the respondent married Mr. XXXXX XXXXX XXXXX. This allegation is confirmed by a marriage certificate adduced as Exhibit M-7. Some months later, on XXXXX, 2003, a child was born. Then, in July 2003, the respondent completed an application for permanent residence form.6 Lastly, on July 26, 2003, the respondent completed and signed a sponsorship application and undertaking on which, in response to question number 8, she stated that her relationship with her spouse began on December 25, 2001.7 Issue The issue before the RPD is whether, on the balance of probabilities, there is sufficient evidence to establish that the respondent based her claim on a fabricated story and made misrepresentations to the RPD panel in order to obtain Canada's protection. If the RPD so finds, that is, if it finds that the decision to allow the claim for refugee protection was obtained as a result of directly or indirectly misrepresenting material facts relating to a relevant matter, then, under subsection 109(2)8 of the IRPA, it must decide whether there is other sufficient evidence considered at the time of the first decision to justify the refugee protection granted to the respondent on April 25, 2003. ANALYSIS The panel points out that the respondent, represented by her counsel, answered all the questions asked by the Minister's counsel, her own counsel and the panel. She stated that starting in XXXXX 2002 she shared a rented apartment with Mr. XXXXX XXXXX XXXXX, adding that she met him in XXXXX 2001 at a supper at the house of friends. She stated that their relationship as fellow tenants changed to a conjugal relationship because her future spouse wanted more than friendship. He expressed his feelings to her, telling her that her condition of being a lesbian could be changed if she had a sustained and lengthy relationship with a man. Notwithstanding this relationship with the fellow tenant who became her spouse, the respondent emphasized that she had three additional, homosexual, relationships since arriving in Canada. She confirmed that she was married in XXXXX 2003 and that a child was born some months later. The panel understands that intimate relations occurred before the wedding date. In July 2003, the respondent submitted applications for permanent residence and for sponsorship. As noted above, a son was born in XXXXX 2003. All these facts were admitted by the respondent. She added that this relationship, which began in XXXXX 2002, continued until XXXXX 2004. However, the Minister's counsel noted that the respondent's spouse was deported in XXXXX 2003. On the sponsorship and undertaking documents, the respondent confirms that she was married on XXXXX, 2003, and that this relationship began on XXXXX, 2001. According to her response to question number 6(a), the person sponsored, that is, her spouse, is now living in the United States. This response confirms that her spouse was deported from Canada. When asked to clarify where things now stand with the sponsorship application, the respondent stated that, although in her view it is important for her son to have a father, the relationship between herself and her spouse has ended. As well, to date she has allegedly received no response to the sponsorship application. In the present case, the panel has before it a story with two sides. There is a claim for refugee protection, allowed by an IRB member, on the ground that the claimant is a lesbian and had difficulties in both Portugal and Angola. After arriving in Canada and going to live with an uncle, the respondent had relationships with women and with a man. The relationship with the man would appear to be more official since she legally married him and, in addition, a child was born of this union. The panel also emphasizes that the respondent signed documents confirming her marriage and submitted a sponsorship application. The claimant acknowledged the veracity of all these documents, both with regard to the sponsorship and with regard to the claim for refugee protection, in which, the panel notes, she filed two PIFs and at no time made reference to a heterosexual relationship. According to the testimony heard, the respondent did not cancel the sponsorship application submitted to the Canadian authorities, she said, in order to ensure that her son would have a father. The panel must point out that the respondent is playing on several different levels. In fact, after arriving in Canada, she filed a PIF, and then amended it, alleging that she was brutalized by family members and the Portuguese authorities because of her sexual orientation. While claiming protection in Canada, she chose to marry a man instead of making a home with another woman, despite her three alleged homosexual relationships in Canada. The panel notes that in the present case the respondent attempted to mislead the Canadian authorities. The panel has not received a satisfactory explanation of why the respondent made a public commitment, before society, to a person of the male gender when her dream and purpose were to live openly in a homosexual relationship. If her only purpose was to have a child, she could long ago have left the fellow tenant who became her spouse and raised her son as she saw fit. Accordingly, on the basis of the evidence heard at the hearing, the panel notes that the respondent lived for a lengthy period with her spouse, who since that time has been deported to the United States. Although the responded testified that she had relationships with three women in Montreal, she saw no reason to adduce affidavits or call witnesses to that effect that might have enlightened the panel. The panel notes that the documents adduced by the applicant are most enlightening with regard to the situation of the respondent, Ms. XXXXX XXXXX XXXXX XXXXX. The panel believes that the respondent misrepresented her interests and the purposes of her claim for refugee protection to the RPD, and the panel considers this point most important with regard to her initial claim. CONCLUSION The panel finds that the respondent directly or indirectly misrepresented material facts relating to a relevant matter. As well, the panel finds that there is no other sufficient evidence to justify the panel's April 25, 2003, decision. DETERMINATION The RPD allows the application by the applicant to vacate the "Convention refugee" status of Ms. XXXXX XXXXX XXXXX XXXXX; pursuant to subsection 109(3)9, her claim is deemed to be rejected, and the first decision to confer refugee protection is nullified. Michel Jobin Me Michel Jobin September 27, 2006 Date 1 Vacation of refugee protection 109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. 2 Applications to vacate or cease refugee protection 57. (1) An Application to Vacate Refugee Protection or an Application to Cease Refugee Protection made by the Minister must be in writing and follow this rule. (2) In the application, the Minister must include (a) the contact information of the protected person and their counsel, if any; (b) the identification number given by the Department of Citizenship and Immigration to the protected person; (c) the date and file number of any Division decision; (d) in the case of a person whose application for protection was allowed abroad, the person's file number, a copy of the decision and the location of the office; (e) what decision the Minister wants the Division to make; and (f) the reasons why the Division should make that decision. (3) The Minister must provide (a) a copy of the Application to the protected person; and (b) the original and one copy of the Application to the registry office that provided the notice of decision in the claim or to the registry office specified by the Division, together with a written statement of how and when a copy was provided to the protected person. 3 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 4 Exhibit M-2: Copy of respondent's December 24, 2001 PIF. Exhibit M-3: Copy of respondent's February 18, 2002 amended PIF. 5 Exhibit M-6: Copy of July 31, 2002 document adding information to PIF, adduced by Mr. XXXXX XXXXX XXXXX and indicating his address, p. 4. 6 Exhibit M-9: Copy of July 25, 2003 Application for Permanent Residence in Canada form signed by respondent. 7 Exhibit M-10: Copy of sponsorship documents. 8 Supra, footnote 1. 9 Supra, footnote 1. REFUGEE PROTECTION DIVISION / VACATION / REFUGEE STATUS / MISREPRESENTATION / SEXUAL ORIENTATION / MARRIAGE / FEMALE / POSITIVE / PORTUGAL / ANGOLA --------------- --------------- --------------- --------------- RPD File No. / No. de dossier de la SPR : MA6-02300 1