MB0-03268

RPD File No. / N° de dossier de la SPR : MB0-03268 MB0-03270 MB0-03273 MB0-03274 MB0-03275 Client ID No. / No ID client : XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 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 Public Safety and Emergency Preparedness Demandeur(e)(s) Protected person(s) XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personne(s) protégée(s) Date(s) of hearing June 27, 2013 January 21, 2014 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons September 26, 2014 Date de la décision et des motifs Panel Nicolas Nolin Tribunal Counsel for the protected person(s) Me Stéphanie Valois Conseil(s) de la (des) personne(s) protégée(s) Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Gabriele Spina Conseil du (de la) ministre REASONS FOR DECISION [1] The respondents, XXXX XXXX XXXX XXXX, his wife, XXXX XXXX XXXX, their daughter, XXXX XXXX XXXX, his brother, XXXX XXXX, and the latter's wife, XXXX XXXX, are from Hungary. They were granted refugee status in Canada on September 6, 2002. The Minister of Public Safety and Emergency Preparedness (hereinafter referred to as the Minister) is applying to have the panel determine that their refugee protection has ceased. MINISTER'S ALLEGATIONS [2] The respondents, all citizens of Hungary, claimed refugee status on October 16, 2001, using a Personal Information Form (PIF). On September 6, 2002, the Immigration and Refugee Board (IRB) granted them refugee protection, determining that they were "Convention refugees." [3] The respondents subsequently returned to Hungary in June 2003 with one-way airline tickets. From the time of the granting of their refugee status to when they left for Budapest in June 2003, none of the respondents applied for permanent residence. [4] The respondents all came back to Canada, within a few days of one another, in March 2008. [5] The respondents all stated upon their return that they had left Canada in June 2003 to go to Hungary to see Ms. XXXX, the mother of XXXX XXXX. and his brother XXXX, who was gravely ill at the time. The respondents stayed in Hungary until March 2008 because they were unable to obtain the required visas from Canadian authorities to return to Canada. [6] During their stay in Hungary of roughly five years, all the respondents were issued new Hungarian passports, which they used to return to Canada. They also had return airline tickets when they arrived in Canada in March 2008. [7] On August 7, 2008, all the respondents applied for permanent residence with Citizenship and Immigration Canada (CIC) on humanitarian and compassionate grounds. [8] On May 19, 2010, the Minister applied to have this panel determine that the respondents' refugee protection had ceased on the following grounds: first, because they voluntarily reavailed themselves of the protection of their country of nationality, namely, Hungary; second, they voluntarily became re-established in Hungary, the country that they left and in respect of which they claimed and were granted refugee protection in Canada. DETERMINATION [9] Considering all the evidence on the record, the panel determines that the respondents' refugee protection has ceased, since they voluntarily became re-established in the country that they left and for which they obtained refugee status, namely, Hungary, and because they voluntarily reavailed themselves of the protection of their country of nationality, also Hungary. [10] Since two grounds were raised in the application to cease refugee protection, the panel will analyze each separately. In addition, some credibility issues arose during the hearing. They will be addressed more specifically in the panel's analysis. It should be noted as well that XXXX XXXX XXXX XXXX acted as the designated representative for his minor daughter, XXXX XXXX, during the proceeding. ANALYSIS BASED ON PARAGRAPH 108(1)(d) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT (IRPA) [11] The respondents returned to Hungary with the passports that they used to come to Canada in fall 2001. These passports were allegedly returned to them by CIC just before they left in June 2003. The respondents were supposedly unaware that Canada could have issued them a travel document allowing them to travel to any country except their country of origin. [12] The respondents allegedly returned to Hungary to see the mother of XXXX XXXX. and XXXX XXXX XXXX She apparently had serious health problems and wanted to see all her family members because of her poor health. [13] First, the panel is of the opinion that the fact that the respondents travelled to Hungary in June 2003 with [translation] "one-way" airline tickets only and to Canada in March 2008 with [translation] "return" tickets cannot be held against them. The panel is of the view that it is impossible to draw specific conclusions with regard to the prices of airline tickets, which can vary during certain periods. They cannot be imputed to have specific intentions based on the use or purchase of one airline ticket over another. [14] Second, the panel concludes that the respondents cannot be imputed to have intended to return to Hungary after coming back to Canada in March 2008, as one of the Minister's allegations suggests. In fact, even though XXXX XXXX XXXX XXXX, and perhaps other respondents, allegedly stated in March 2008 that he was coming to Canada for three weeks, it appears from reading the evidence on the record that Mr. XXXX's intention was not to go back to Hungary at the end of three weeks, as he reportedly stated at the start of his interview with an immigration officer and as indicated in a letter of invitation from his father. [15] If the interview conducted at the port of entry is considered in its entirety, it instead indicates that XXXX XXXX XXXX XXXX wanted to settle in Canada in March 2008. This was also the intention of the other respondents. The panel does not have in evidence the letter of invitation from the father of XXXX XXXX and XXXX XXXX referred to by the Minister and does not know exactly how the interviews with the respondents were conducted upon their arrival in Canada in March 2008. However, a number of the respondents stated that they wanted to stay in Canada and that they considered themselves as belonging to this country. [16] Here are the factors that were considered by the panel in arriving at the conclusion that paragraph 108(1)(d) applies to the respondents, that is, that they voluntarily became re-established in Hungary. [17] First, the panel notes that the claimants, before leaving for Hungary in June 2003, did not establish solid ties in Canada or tangibly demonstrate their intention to settle permanently. The respondents did not work and lived off social assistance. They did not try to obtain a Canadian travel document or inquire about this possibility. Most importantly, the respondents did not apply for permanent residence before going back to Hungary in June 2003. [18] Numerous reasons were given for this situation. The XXXX brothers testified that they were going to start working soon in one of their father's businesses before they left for Hungary. They also testified that the Canadian authorities had not told them that they could encounter serious problems returning to Canada if they decided to travel to Hungary. Lastly, they stated that the fees for their permanent residence application were high, which had prevented them from filing it. [19] The panel finds that the claimants lacked credibility in explaining the reasons provided on the above issues. First, the claimants were unable to provide many details about the business or businesses of their father, who would ultimately be hiring them. They then stated that they were not properly informed by Immigration Canada about the problems they could have returning should they travel to Hungary. The respondents should have inquired about these potential problems before going back to their country of origin. Returning to a country of persecution for which refugee status was granted should reasonably have prompted the respondents to inquire about the difficulties that this could pose. Moreover, it was clear at the time they went back to Hungary in June 2003 that a Canadian visitor's visa was required to return to Canada. Claiming ignorance, when no efforts were made to obtain information about this, is simply not reasonable. [20] On this point, the panel finds it implausible that the respondents were not aware that Canadian visitor visas were now required for Hungarian nationals to travel to Canada, given that the information was public and available at that time. [21] Finally, the panel is of the opinion that the respondents did not provide a reasonable explanation for why they did not apply for permanent residence. The father of XXXX XXXX. and XXXX filed his own application in May 2003. The reason given by the respondents for why they did not apply for permanent residence was not satisfactory since their father paid for their airline tickets to return to Hungary, airline tickets that were more expensive that the costs of the application. With regard to the administrative fees for a permanent residence application, the XXXX family was not very clear about the conversations they allegedly had about this with their father, who had supposedly told them that he was going to help them financially to apply for permanent residence once they returned from Hungary. [22] Second, the claimants spent five years in Hungary. According to the respondents, this was because they were not aware that visas were now required for Hungarian citizens to come to Canada. Not having a written document specifying the exact effective date of the visa, the parties on record agreed that it was in December 2001 and that the visa was in effect until early 2008. As indicated previously, the respondents allege that they were not aware of this. [23] As noted above, the fact that the respondents plead ignorance on this matter and state that they were not informed of the potential difficulties of returning to Canada is not reasonable in the panel's view. Returning to the country where they stated that they feared being persecuted and for which they obtained refugee protection should normally raise questions. In this case, the panel finds it implausible that no questions were asked to seek information from Canadian authorities or members of their community, whether in regard to difficulties returning to Canada or the visa requirement and its consequences. Not only were the claimants negligent, but the panel is of the opinion that they were deliberately so. [24] Third, the reason given for returning to Hungary was the health of the XXXX brothers' mother. She was allegedly seriously ill and wanted to see all her family members because of the serious medical issues she was facing. [25] The respondents were asked about Ms. XXXX's state of health. The panel finds that they did not demonstrate that they were credible in this regard. Indeed, the respondents' testimony was vague and contradictory. XXXX XXXX XXXX XXXX was unable to state anything about his mother's medical treatments other than that she was taking tranquilizers, and did not remember whether or not she had been hospitalized in 2003. As for Ms. XXXX and Ms. XXXX, the former did not mention that her mother-in-law had been operated on when she was questioned about her mother-in-law's stae of health, and the latter stated that she was not operated on. However, it was precisely Ms. XXXX's state of health that prompted the return from the trip, and the evidence on the record indicates that she was operated on. In addition, Ms. XXXX stated that her mother-in-law had already been operated on in 2001 or 2002, information which XXXX XXXX XXXX XXXX did not appear to know. [26] The panel, with regard to this confusing, vague and contradictory testimony, is of the opinion that Ms. XXXX's medical situation was not the reason the respondents returned to Hungary. [27] Fourth, the respondents testified that they tried to take steps to return to Canada after spending only a few weeks in Hungary. These efforts allegedly started in late June 2003 or early July of the same year at the Canadian embassy in Budapest, where the respondents allegedly went and were told to go to the Canadian embassy in Vienna to sort out their problems. The respondents stated that they did not know why they were sent to the Canadian embassy in Vienna. They further testified that they went to this embassy one or two weeks after their attempt at the Canadian embassy in Budapest. [28] The respondents stated that the Canadian authorities did not want to issue them a visitor's visa following the decision determining that they were refugees and told them that it was the office, which sold airline tickets, that required the visa. The wives of XXXX XXXX XXXX XXXX and XXXX XXXX allegedly made a second attempt at the Canadian embassy in Vienna one or two weeks after their first attempt to try to obtain visas, and they reportedly received a similar response to that previously given to the respondents. They allegedly went there alone because of the travel costs. [29] The panel notes three things about this situation: no subsequent efforts were made by the respondents to obtain a Canadian visitor visa or to facilitate a return to Canada after the second visit to the Canadian embassy in Vienna in late July 2003; second, no evidence was presented that the respondents made those attempts at the embassies in Budapest and Vienna; and finally, the testimony of XXXX XXXX that it was the Hungarian travel agency, which sold the airline tickets, that required the respondents to have a Canadian visitor visa in order to be able to sell them tickets contradicts his statement made to an immigration officer in March 2008 that it was the airline company that denied them boarding because the respondents did not have the required documents,1 as the Minister indicates in his submissions. [30] Fifth, the respondents established significant ties in their country of origin between 2003 and 2008. Although this is not an exhaustive list, here are some examples: a) XXXX XXXX. and XXXX XXXX worked in Hungary in casual jobs, and Ms. XXXX worked part-time at a printing company; b) The Canadian son of XXXX XXXX, born in Canada in 2001, was registered in Hungary on XXXX XXXX, 2003, so that he could go to daycare; c) Ms. XXXX received financial assistance from the government for her child born while she was in Hungary and held casual jobs during that time; d) All the respondents obtained new passports while in Hungary and were allegedly issued new national identity cards; e) The respondents allegedly registered residency with the Hungarian authorities. [31] The issue is therefore to determine whether the respondents voluntarily became re-established in Hungary. The panel is of the opinion that they did. [32] In arriving at this conclusion, the panel also took into consideration the following facts: [33] First, the claimants returned to Hungary voluntarily. [34] Second, they stayed in Hungary for nearly five years and established strong ties in their country of origin, although the panel is sensitive to the fact that they were in a special situation following the imposition of a visa and that they had to take measures to live in Hungary during the long period of time before returning to Canada. [35] Third, they did not make further efforts there after the attempt made by Ms. XXXX and Ms. XXXX at the embassy in Vienna around the end of July 2003, neither with Canadian authorities nor by retaining the services of a lawyer who could have initiated legal proceedings to help them return to Canada. [36] The respondents stayed in Hungary for five years and took the usual administrative actions, actions that would have been taken by many Hungarian citizens to obtain certain services, in order to facilitate their life in their country of origin. [37] Fourth, since Hungary was the country in respect of which they obtained refugee protection, the panel finds it inconsistent for them to stay in this country instead of trying to become re-established in another country while waiting for a positive development in their situation to return to Canada. [38] The panel understands that their fear of persecution stemmed from a number of hardships as a result of their Roma ethnicity. Nonetheless, staying five years in a country for which they were granted refugee status and not attempting to leave that country while in possession of valid travel documents indicates to the panel that the respondents were in fact voluntarily established in Hungary from 2003 to 2008. [39] For these reasons, the panel concludes that the respondents became voluntarily re-established in Hungary, the country that they left and in respect of which they claimed refugee protection in Canada. APPLICATION OF PARAGRAPH 108(1)(a) OF THE IRPA [40] The issue is whether the respondents voluntarily reavailed themselves of the protection of their country of nationality. [41] The respondents left Canada in June 2003 to go to Hungary. They did so with the passports that they used to come to Canada in 2001. For the panel, going to get their passports from Immigration Canada, receiving them and then travelling with them again to their country of origin is an indication that the claimants appeared to want to reavail themselves of the protection of their country of nationality. [42] In Hungary, the respondents asked for and received new passports during their stay. The panel will not dwell too much on the situation that would have justified this renewal. It will simply state that nothing in the evidence indicates that this passport renewal was not voluntary or that obtaining these passports on Hungarian soil was not a result of their intention to reavail themselves of the protection of their country of nationality. For the panel, the presumption referred to at paragraph 121 of the UNHCR Handbook2 and applied in Canadian jurisprudence, which states that a refugee who obtains a national passport or its renewal is presumed, in the absence of proof to the contrary, to avail himself of the protection of the country of his nationality, is already manifested in this case by the fact that the respondents obtained Hungarian passports on their national soil. [43] The panel is aware that the UNHCR Handbook makes a distinction between obtaining a passport outside the country of nationality and obtaining it within the country of nationality.3 From its reading of the UNHCR Handbook, the panel's understanding is that if such a request is made within the country of nationality, the clause in paragraph 108(1)(d) would apply, as if the two clauses, that in paragraph 108(1)(a) and that in paragraph 108(1)(d), were mutually exclusive. The panel is of the opinion that there are a number of particular situations in which more than one clause for the cessation or loss of refugee status could apply simultaneously. [44] However, even though the panel views this request for a new passport within the country of nationality as a presumption of someone who wants to reavail themselves of the protection of their country of nationality, the panel may be wrong. Moreover, the panel is aware that the passport requests made by the respondents while they were in Hungary were not all made at the same time. Two of the five respondents obtained their passports just before returning to Canada, while the other three obtained theirs in 2006, roughly a year and a half before the requirement to have a Canadian visa was lifted. [45] As indicated, according to the interpretation of the UNHCR Handbook, it may be that the presumption does not apply in this particular situation involving passports obtained within the country of nationality after having obtained refugee status. Nonetheless, all of the respondents obtaining new Hungarian passports on Canadian soil, whether in 2012 or 2013, does not leave room for interpretation. In the case of these new passports, which the panel only became aware of at the hearing, the panel is of the opinion that the presumption of reavailment is clear and that the respondents have not refuted this. [46] To refute this presumption, the respondents testified that they needed a passport to be able to obtain certain services in Canada. Questioned in more detail about this need to have or present a passport, their testimony fell far short of corroborating this statement. The respondents testified that that they did not need it to enrol at school or to obtain bank services, reasons that had been mentioned previously during the hearing. [47] In short, no argument was made to justify obtaining the passports. Moreover, the respondents stated that they needed them because it was the only photo document that they could present. However, the respondents tried to hide the fact that they had national identity cards that they left in Hungary; these national identity cards, judging by the one presented as evidence at the hearing,4 have a photograph. Consequently, if they needed a photo identity document, their national identity card would have sufficed. [48] Finally, the panel cannot understand how the respondents did not think that obtaining their most recent passports could be perceived as an intention to reavail themselves of the protection of their country of nationality and could create problems for them with regard to the potential loss of their refugee status. The respondents have been aware since 2010 of the Minister's application citing paragraph 108(1)(a) of the IRPA. [49] For all these reasons, the panel concludes that the respondents have not rebutted the presumption that they reavailed themselves of the protection of their country of nationality, since no evidence was presented that this was not voluntarily and that it was not their intention to do so. This voluntary element and this intention are further solidified by the issuing of new Hungarian passports for the respondents in 2012 and 2013. [50] For these reasons, the panel concludes that the respondents voluntarily reavailed themselves of the protection of their country of nationality, namely, Hungary. CONCLUSION [51] Having analyzed all the evidence, the panel allows the applications by the Minister of Public Safety and Emergency Preparedness to cease refugee protection. The panel determines that the refugee protection of XXXX XXXX XXXX XXXX, his wife, XXXX XXXX XXXX, their daughter, XXXX XXXX XXXX, his brother, XXXX XXXX and the latter's wife, XXXX XXXX, has ceased under paragraphs 108(1)(a) and (d) of the IRPA. Nicolas Nolin Nicolas Nolin September 26, 2014 Date IRB translation Original language: French 1 Exhibit M-29: FOSS output - non-computer-based entry - xxxxxxxxxxxxxx. 2 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook). 3 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook), footnote 16 of paragraph 122. 4 Exhibit M-19: National identity card of Ms. xxx issued on xxx, 2004. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 6 RPD.26.18 (March 31, 2014) Disponible en français RPD File No. / N° de dossier de la SPR : MB0-03268 MB0-03270 MB0-03273 MB0-03274 MB0-03275