VB4-01306

RPD File No. / No de dossier de SPR : VB4-01306 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 Immigration, Refugees and Citizenship Canada Demandeur(e) Respondent(s) XXXX XXXX XXXX Personne(s) protégée(s) Date(s) of Hearing February 9, 2018 Date(s) de l'audience Place of Hearing Lieu de l'audience Date of Decision February 27, 2018 Date de la décision Panel Becky Chan Tribunal Counsel for the Alexander Ning Conseil(s) de la (des) Protected Person personnes protégée(s) Designated Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Alannah Hatch Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is the decision of the Refugee Protection Division (the "RPD") in the application of the Minister of Immigration, Refugees, and Citizenship (the "Minister") for the cessation of the refugee protection status of XXXX XXXX XXXX (the "respondent") pursuant to section 108 of the Immigration and Refugee Protection Act ("the Act").1 DETERMINATION [2] The panel finds that the respondent has shown a voluntary intent to re-avail herself of the protection of her country of nationality and the reasons for which she sought refugee protection have ceased to exist. The Minister's application is allowed. Case History [3] The respondent entered Canada on XXXX XXXX, 2001 and made a refugee claim. She claimed to have a well-founded fear of persecution by the Chinese government because she was a Falun Gong practitioner. The RPD determined that she was a Convention refugee on October 31, 2002. She became a permanent resident of Canada on XXXX XXXX, 2004. [4] The respondent applied for and obtained a Chinese passport which was issued on XXXX XXXX, 2004. When this passport expired, the respondent applied for and obtained another Chinese passport which was issued on XXXX XXXX, 2009. The respondent travelled to China on XXXX occasions since she arrived in Canada. [5] The Minister submitted a cessation application on April 24, 2014. The hearing of the cessation application was heard on July 18, 2014. The RPD allowed the cessation application on August 26, 2014. The Federal Court allowed the respondent's judicial review on the RPD's decision on November 20, 2015 on the basis that the RPD unreasonably denied the respondent's adjournment application. ANALYSIS Law on Cessation [6] Section 108(1) of the Act 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 themself 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. Re-availment [7] Subsection 108(1) (a) provides that a claim for refugee protection shall be rejected and a person is not a Convention refugee or a person in need of protection when that person has voluntarily re-availed themselves of the protection of their country of nationality. The Minister has the burden of proving re-availment on a balance of probabilities.2 [8] The UNHCR Handbook and subsequent jurisprudence indicates that there are three requirements for re-availment: a) voluntariness: the refugee must act voluntarily; b) intention: the refugee must intend by his actions to re-avail himself of the protection of the country of his nationality; and c) re-availment: the refugee must actually obtain such protection.3 a) Voluntariness [9] There is no evidence to demonstrate that the respondent's application for Chinese passports and her 12 trips to China were not voluntary. She was not under duress or constrained by circumstances beyond her control. It is not disputed that she applied for and obtained Chinese passports in order to return to China. The respondent may have had personal justifications for returning to China such as caring for her ill mother and assisting her imprisoned husband, but her actions were voluntary. b) Intention [10] Applying for and obtaining a passport from the country of nationality leads to the presumption of re-availment. Obtaining an entry permit or a national passport for the purposes of returning will, in absence of proof to the contrary, be considered as terminating refugee status: UNHCR Handbook, para 122.4 The respondent has the onus to adduce sufficient evidence to rebut the presumption.5 [11] It is not disputed that the respondent applied for and obtained Chinese passports for the purpose of travelling to China on 12 occasions after she was conferred refugee protection in Canada. The determinative issue is whether she has rebutted the presumption that she intended re-avail herself of China's protection. [12] The respondent initially fled China because the Chinese authorities became aware of her practice of Falun Gong.6 The authorities served the respondent's family with a notice for her to appear at the police station relating to their investigation into Falun Gong. The police appeared at her family's home after she fled to inquire as to her whereabouts on a number of occasions. [13] The respondent testified at the cessation hearing of July 18, 2014 that between 2004 and 2010 she returned to China on six occasions to help care for her mother who suffered from a XXXX in early 2004. She returned every year with the exception of 2005 for periods of one to two months.7 She stayed at her mother's home which was located within XXXX metres of her former home in Guangzhou. [14] The respondent testified that her older brother and his family lived within XXXX metres of his mother and they were able to care for her mother. Her brother's family took her mother to medical appointments and helped her fill her prescriptions, even when the respondent was in China. She testified that she helped her mother around the home and prepared meals for her. Further, the respondent testified that her father lived with her mother, and his health was fine when her mother suffered from the XXXX. He was elderly but he tried to care for her mother. [15] There is no evidence with respect to the medical condition of the respondent's mother. In any case, there appears to have been a number of family members who were willing and able to assist the respondent's mother. The respondent has not provided a reasonable explanation as to why her presence in China was necessary given the involvement of other family members in caring for her mother. [16] During the years of 2012, 2013 and 2014, the respondent testified that she returned to China twice each year for several months at a time. She testified that she spent half of her time in China and half of her time in Canada during those years.8 She returned to China to assist her husband who had been incarcerated pursuant to criminal charges. [17] The respondent has submitted a number of documents relating to her husband's arrest and detention with respect to an alleged theft offence.9 She testified that she had to be in China to sign a document to retain counsel on his behalf, pay for his food in prison, and bring him clothes. She has submitted a number of receipts of her payment to the detention centre care funds for her husband.10 She testified that she delivered "care funds" to the detention centre about once a month while she was in China. She stated that her husband's nephew delivered clothes and paid for the detention care fund on her behalf when she was not in China. The respondent testified that her husband's nephew paid for the care fund with money from her. [18] The respondent has not provided a reasonable explanation as to why her presence in China was necessary with respect to her husband's imprisonment. Her husband's nephew has been willing and able to perform these tasks on her behalf in her absence. [19] The respondent interacted with the Chinese authorities on her numerous trips to China. She testified that she travelled with a passport in her own identity. She cleared the border security officials at the airport when entering and exiting China. The respondent did not attract any adverse attention from the authorities. She also testified that she interacted with Chinese authorities at the detention centre where her husband has been imprisoned. To pay for her husband's detention care fund and to bring him clothing and personal items, she dealt with Chinese prison officials. The respondent testified that the authorities never questioned her about her prior Falun Gong involvement. [20] The respondent testified at the cessation hearing on July 18, 2014 that she stopped practising Falun Gong after she arrived in Canada.11 She initially practiced with a group of people in an organization when she arrived in Canada but she stopped when she was required to pay a $XXXX fee. She is no longer a Falun Gong practitioner. [21] The respondent's counsel cited Kaissi v. Canada (MCI), 2011 FC 1234 as authority that re-availment requires an intention to permanently reside in the country of nationality. Citing Camargo v. Canada (MCI), 2003 FC 1434, [2003] FCJ No. 1830, the Federal Court in Kaissi stated "re-availment is not a temporary visit but requires an intention to permanently reside in that country before physical presence will negate refugee status." With respect, the Federal Court confused the concepts of re-availment and re-establishment in these decisions. At paragraph 35 of Camargo, the Federal Court stated as follows: According to the Office of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1988), "re-establishment" and "re-availment" both require an element of intent on the part of a claimant before physical presence in a country will negate refugee status. Paragraph 134 of the UNHCR Handbook states that a temporary visit by a refugee to the country where persecution was feared without an intention to permanently reside there should not result in the loss of refugee status.12 [22] It is clear that paragraph 134 of the UNHCR Handbook is discussing the meaning of re-establishment.13 The quote cited in both Camargo and Kaissi about the requirement of intention to permanently reside in the country of nationality appears under the heading in the UNCHR Handbook "(4) voluntary re-establishment in the country where persecution was feared." Paragraph 134 in its totality reads as follows: 134. The clause refers to "voluntary re-establishment". This is to be understood as return to the country of nationality or former habitual residence with a view to permanently residing there. A temporary visit by a refugee to his former home country, not with a national passport but, for example, with a travel document issued by his country of residence, does not constitute "re-establishment" and will not involve loss of refugee status under the present clause.14 [23] There is no requirement for the respondent to have the intention to permanently reside in China to establish that she falls within subsection 108(1)(a) of the Act. The Minister is required to establish, on a balance of probabilities, that she had the intention to re-avail herself of the protection of China. When I consider the respondent's actions of applying for and obtaining two Chinese passports, her use of these passports for travelling to China, the number and the length of her trips to China, her whereabouts and activities in China, including regular interaction with Chinese authorities at her husband's detention facility, and her abandonment of Falun Gong practice, I find that she has not rebutted the presumption that she has re-availed herself of the protection of China. c) Re-availment [24] Furthermore, I find that the respondent obtained the protection of the Chinese authorities for the purposes of subsection 108(1)(a) of the Act. She applied for and obtained two Chinese passports, and entered China on 12 occasions. [25] I find that the Minister has established that the respondent has re-availed herself of the protection of her country of nationality. Change in Circumstances [26] Subsection 108(1)(e) of the Act provides that refugee protection will cease if the reasons for which the person sought refugee protection have ceased to exist. [27] The respondent alleged to fear the Chinese government because she was a Falun Gong practitioner. She has testified that she stopped practicing Falun Gong after she arrived in Canada to make her refugee claim because the organization that she had been practicing with required her to pay a fee of $XXXX. She has not practiced Falun Gong during any of her visits to China. [28] The respondent testified that she fears returning to China because there may be a record of her previous affiliation to Falun Gong. She was issued a notice to appear at the police station before she left China with respect to an investigation on Falun Gong practitioners. [29] Although the respondent may have come to the attention of Chinese authorities in 2001, there is no serious possibility15 that they will persecute her now with respect to her prior Falun Gong association. She no longer practises Falun Gong. She has returned to China 12 times for lengthy visits and there is no indication that she came to the attention of the authorities. The respondent returned to her home town of Guangzhou and stayed at her parents' home and her own home. She was not living in hiding, but rather, she was bringing herself before the local authorities on numerous occasions at her husband's detention facility. [30] The panel finds that the reasons for which she sought refugee protection have ceased to exist as she is no longer a Falun Gong practitioner. [31] The panel does not find that there are compelling reasons pursuant to section 108(4) to except her from the application of subsection 108(1)(e) of the Act. The threshold to qualify for compelling reasons is very high. The past persecution must be "truly exceptional or extraordinary" relative to other cases, and would only apply to a tiny minority of claimants.16 The respondent received a notice to appear for an investigation into her Falun Gong activities. She has not been arrested, detained, or suffered from any physical harm in China. In the present case, there is no evidence of past persecution that would be considered as truly exceptional or extraordinary. The compelling reasons exception does not apply in this application. [32] The Minister has argued that when two or more cessation clauses may apply, the panel should apply the clauses temporally, depending on when the events underlying each cessation clause arose first. In the present case, the Minister has submitted that it is possible that the respondent stopped practising Falun Gong prior to her return to China. Therefore, her circumstances changed before she re-availed herself of China's protection. [33] Upon the panel's review of the record, it is not entirely clear exactly when the respondent stopped practising Falun Gong. She applied for and obtained a Chinese passport in 2004. It has not been established whether she quit her Falun Gong practice prior to her application for a Chinese passport in 2004. The respondent has testified that she had practiced Falun Gong in Canada, but stopped at some point because she was required to pay $XXXX. Without knowing whether this occurred before or after her application for a Chinese passport and return to China in 2004, the Minister cannot establish that her "change in circumstances" preceded re-availment. [34] In any case, the panel can consider any ground set out in section 108(1) of the Act in a cessation application.17 The panel finds that the respondent's refugee status has ceased under both subsections 108(1)(a) and 108(1)(e) of the Act. CONCLUSION [35] The respondent has voluntarily re-availed herself of the protection of her country of nationality and the reasons for which she sought protection have ceased to exist. (signed) "Becky Chan" Becky Chan February 27, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Li v. Canada (Citizenship and Immigration), 2015 FC 459. 3 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, para. 119; Nsende v. Canada (MCI), [2009] 1 FCR 49, 2008 FC 531; Canada (Public Safety and Emergency Preparedness) v. Bashir, [2015] 4 FCR 336, 2015 FC 51. 4 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, paras. 121 -122 5 Nilam v. Canada (MCI), 2015 FC 1154. 6 Exhibit 1.1, Personal Information Form (PIF). 7 Exhibit 13.2. 8 Exhibit 13.2. 9 Exhibit 14. 10 Exhibit 14. 11 Exhibit 13.2, p. 59. 12 Camargo v. Canada (Minister of Citizenship and Immigration), 2003 FC 1434. 13 Exhibit 7, p. 67. 14 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention. 15 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 7 Imm. L.R. (2d) 169 (C.A). 16 Moya v. Canada (MCI), 2016 FC 315 (paras 121-129) 17 Canada (Citizenship and Immigration) v. Al-Obeidi, 2015 FC 1041. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 9 RPD File No. / N° de dossier de la SPR : VB4-01306 RPD File No. / N° de dossier de la SPR : VB4-01306 1