VB4-00719

RPD File No. / No de dossier de SPR : VB4-00719 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 Personne(s) protégée(s) a.k.a. XXXX XXXX XXXX Date(s) of Hearing November 5, 2014 Date(s) de l'audience Place of Hearing Vancouver, BC Lieu de l'audience Date of Decision February 20, 2015 Date de la décision Panel Daniel Tucci Tribunal Counsel for the Craig Costantino Conseil(s) de la (des) Protected Person Barrister and Solicitor personnes protégée(s) Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Jane S. Connell Conseil du ministre RPD File No. / N° de dossier de la SPR : VB4-00719 REASONS FOR DECISION [1] This is the decision in the application from the Minister of Citizenship and Immigration Canada (CIC) pursuant to Section 108 of the Immigration and Refugee Protection Act (the "Act").1 The application from CIC is to cessate the refugee status of XXXX XXXX, a citizen of Egypt. The hearing into this application was heard on November 5, 2014. [2] The Respondent was present at the hearing with his Counsel. The Minister's representative was also present at the hearing. PRELIMINARY MATTERS [3] The Minister filed the application for cessation with the Refugee Protection Division ("RPD") on March 3, 2014. In the application, the Minister alleged that the Respondent's refugee protection status should cease based on Sections 108(1)(a) and 108(1)(c) of the Act. Specifically the Minister alleged that the Respondent voluntarily re-availed himself of the protection of his country of nationality, and also that the Respondent has acquired a new nationality and that he enjoys the protection of that new nationality. [4] The RPD received significant correspondence from the parties prior to the hearing on November 5, 2014. The Minister submitted a letter dated July 21, 2014. In the letter, the Minister noted that the Respondent had filed an application for leave with the Federal Court of Canada Trial Division ("FCTD") to commence an application for judicial review of the Hearings Officer's decision to submit the cessation application in this case. The Minister attached a recent decision2 and argued that in light of that decision, the RPD should schedule the hearing for the cessation application despite the Leave Application to the FCTD. [5] Counsel for the Respondent filed a response letter with the RPD dated July 30, 2014. Counsel attached an order from the FCTD granting leave of the Respondent's application filed on March 6, 2014. Counsel asked that the cessation hearing before the RPD be held in abeyance pending the outcome of the judicial review which was scheduled to be heard on October 20, 2014. [6] Counsel for the Minister responded to application for a Change of Date and Time ("CDT") by way of letter dated July 31, 2014. In the letter, the Minister argued against a CDT and asked that the cessation hearing be scheduled as soon as practicable. [7] The Assistant Deputy Chair (ADC) of the RPD responded to the application for a CDT by way of letter to the parties dated August 7, 2014. In that letter, the ADC indicated that the hearing should be scheduled as soon practicable. Counsel for the Respondent by way of letter dated August 13, 2014 indicated that he was not applying for a CDT in his letter dated July 30, 2014. Counsel stated that he expected the matter to be scheduled in the normal course of business for the RPD. Counsel then asked for clarification with respect to whether cessation applications were scheduled in priority over other cases before the RPD. [8] The ADC Chair responded on August 22, 2014 to the Respondent's letter of August 13, 2014 by confirming to the parties that this case was not being scheduled on a priority basis and that it would follow the normal course of business for the RPD. The RPD ultimately scheduled the case for November 5, 2014. [9] Counsel for the Respondent by way of letter dated October 20, 2014 applied for a CDT. The application stated that the Minister was engaging in an abuse of process because the Minister refused to meet its statutory obligations to make a decision on the Respondent's citizenship application. Counsel for the Respondent informed the RPD that the Respondent had filed with the FCTD an application for an order of mandamus to compel the Minister to make a decision on the pending citizenship application. Counsel for the Respondent provided the factual background behind the Respondent's application for the mandamus application and stated that a prima facie case had been made out that the Minister was in fact engaging in an abuse of process. [10] The Applicant responded to the Application for a CDT by way of letter dated October 27, 2014. In that letter to the RPD, the Applicant opposed the CDT application. The Applicant noted that the Judicial Review filed by the Respondent with respect to the Hearings Officer filing the cessation application was dismissed by the FCTD on October 20, 2014. The Minister further argued that there was no abuse of process in this case given the fact that a date had not been scheduled yet for the mandamus, the Applicant argued that the hearing should proceed as scheduled on November 5, 2014. [11] The Acting ADC by way of decision dated November 4, 2014 denied the application for a CDT from the Respondent. The Acting ADC noted that the Judicial review filed by the Respondent had been dismissed by the FCTD. He further noted that the panel must deal with matters expeditiously and that Guideline 63 states that others proceedings that are in progress are not generally sufficient to allow a CDT application. Finally, he noted that the Stanizai case referred to by the Respondent was distinguishable to the case at hand. [12] The hearing into the cessation application proceeded as scheduled on November 5, 2014. The panel heard all the evidence on that day. The panel afforded the parties the opportunity to provide written submissions. The Applicant provided written submissions to the panel on November 12, 2014. The Respondent provided a response to the Applicant's written submissions on November 27, 2014. The Applicant provided a final reply on December 10, 2014. ABUSE OF PROCESS [13] The Respondent argues that the Minister is engaging in an abuse of process in this case. The argument is based on the Respondent's application for citizenship not being processed by the officials at the Citizenship office. The Respondent has filed a citizenship application and he has passed the required citizenship exam. The Respondent was scheduled to meet with a citizenship judge in August 2014 but that meeting was cancelled. The Respondent states that he was told that the meeting was cancelled because they were awaiting a clearance for him. Counsel for the Respondent argues that Citizenship did not have any legislative authority to delay awarding citizenship to the Respondent and that this cessation application is part of the government's abuse of process. The panel has jurisdiction to deal with the cessation application before it. If officials at Citizenship have acted without statutory authority or they failed to act by processing the Respondent's citizenship application, the panel cannot provide a remedy to the Respondent. The Respondent has filed an application for a writ of mandamus before the FCTD to compel officials at citizenship to grant the Respondent his Canadian citizenship. The panel finds that this is the appropriate venue for the Respondent to deal with the Citizenship issue. The panel therefore finds that for the purpose of the application for cessation, the Applicant has not engaged in an abuse of process by filing this application before the RPD. THE LEGISLATION [14] The legislation on cessation of refugee protection is found at Section 108 of the Act. Section 108 reads as follows:4 SECTION 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. (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). 3) If the application is allowed, the claim of the person is deemed to be rejected. 4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. THE FACTUAL BACKGROUND [15] There are a number of facts that are not in dispute in this case. The parties agree that the Respondent was determined to be a Convention Refugee on November 9, 2004 and that he became a Permanent Resident of Canada on October 26, 2006.5 The parties agree that the Respondent became a United States citizen in XXXX 2012 and that he has remained a citizen to this date. There is also no dispute that the Respondent applied for Canadian citizenship on December 31, 2010 and that he passed his citizenship test in June or July 2012. The Respondent was scheduled to meet a citizenship judge on August 12, 2014 but that meeting was cancelled. There is also no dispute that the Respondent returned to Egypt on seven occasions between XXXX 2008 and XXXX 2010.6 THE APPLICANT'S POSTION [16] The Applicant asks that the panel grant the cessation on two grounds. The Applicant alleges that the Respondent voluntarily re-availed the protection of his country of nationality and that his refugee status should cease under Section 108(1)(a) of the Act. The Applicant also alleges that the Respondent acquired a new nationality and that he enjoys the protection of the country of his new nationality and that his refugee status should cease under Section 108(1)(c) of the Act. THE RESPONDENT'S POSITION [17] The Respondent argues that the Minister is engaging in an abuse of process by refusing to grant the Respondent Canadian citizenship and by pursuing the cessation application. The Respondent does not concede that he voluntarily re-availed the protection of his country of nationality but he does concede that he has acquired the nationality of a new country from which he enjoys protection. In the case at hand, he has acquired citizenship of the United States. The Respondent further argues that the panel should consider Section 108(1)(e) of the Act in this case. The Respondent states that the basis of his refugee claim against Egypt was based on his fear of the regime led by Hosni Mubarak. The Respondent states that he did return to Egypt prior to the regime change that ousted Mubarak from power, but that he did so while traveling on a United States government issued travel document. The Respondent did use his Egyptian passport in his most recent trip to Egypt but he argues that the Mubarak regime was no longer in place and therefore was no longer fear of anyone in Egypt. The Respondent's position is that Section 108(1)(e) applies to him as the reasons for which he sought refugee protection no longer exist. He further argues that the panel should consider Section 108(1)(e) first and that if the panel is satisfied that the Section applies to him, then there is no need to consider the other Sections alleged by the Applicant under Section 108(1). DETERMINATION [18] The panel allows the Applicant's application for cessation pursuant to Section 108(1)(c) and pursuant to Section 108(1)(e). The Applicant argued at the hearing that the panel can only consider the grounds for cessation alleged by the Applicant. The Respondent disagreed with Applicant and argued that the panel can consider other grounds that are not alleged by the Applicant. The Respondent points to the fact that only the Applicant can bring an application for cessation. As a result, the Respondent argues that all grounds under Section 108 can and should be considered by the panel. In essence, the Respondent has no mechanism to cessate himself under the legislation, so once an application is filed by the Applicant, it is the Respondent's only opportunity to argue against the cessation or to argue that the cessation should be granted but on a ground other than the one alleged by the Applicant. [19] The panel finds that it has jurisdiction to consider all grounds for cessation once an application under Section 108 is filed by the Applicant. A plain reading of Section 108(2) makes it clear that the Refugee Protection Division may on application from the Minister determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons (emphasis added) described in Section 108(1). The panel can therefore make a decision on the grounds alleged by the Applicant in the case at hand being 108(1)(a) and 108(1)(c) as well as the ground alleged by the Respondent at Section 108(1)(e). [20] The panel disagrees with the Respondent's position that only Section 108(1)(e) should be considered in this case. The Respondent notes that the regime in Egypt changed in 2010 and that the change is durable and permanent. Therefore, the reasons for the Respondent's refugee protection have ceased. The panel agrees that the reason for the Respondent's refugee protection against Egypt have ceased. There has been regime change in Egypt. The evidence before the panel is that the change is durable and permanent. The panel therefore grants the Application under Section 108(1)(e). Having found that the Respondent's refugee protection has ceased under Section 108(1)(e), the panel must now consider whether the exception at Section 108(4) applies to him. The panel finds that the Respondent has not provided any evidence to establish that there are compelling reasons arising out of his previous persecution, torture, treatment or punishment for refusing to avail himself of the protection of country which he left due to such previous treatment. [21] The panel disagrees that once it has granted the application under Section 108(1)(e) there is no need to assess the application on any other grounds. In the case at hand, the Respondent has become a citizen of the United States in 2012. This is not in dispute. The panel has not been presented with any evidence to suggest that the Respondent does not enjoy the protection provided by his new nationality. The panel believes that even if the reasons for the claimant seeking protection in Canada have ceased, the panel cannot ignore the undisputed fact that he enjoys the protection of a new nationality. The assessment by the panel under Section 108(1)(e) and 108(1)(c) can be assessed individually. The panel acknowledges that there is a certain link between Section 108(1)(a) and 108(1)(e). There could be circumstances where the application of Section 108(1)(e) could result in the panel not ruling on the application of Section 108(1)(a) when a person re-avails their country of nationality after the reasons for their need to seek protection has ceased. The situation is different when looking at Section 108(1)(e) and 108(1)(c). The panel finds that there is no connection between the sections. Even if the Respondent's status ceased under 108(1)(e), the panel must still assess whether Section 108(1)(c) applies. Making a determination on one ground does not preclude the panel from making a determination on the ground. The panel therefore finds that it must make a decision in this case on both Section 108(1)(e) and 108(1)(c). As the parties do not dispute that the Respondent obtained a new nationality in 2012, namely U.S. citizenship and that he continues to benefit from the protection of that new nationality, the panel therefore grants the application under Section 108(1)(c) of the Act as well. [22] Having found that the application has been made out under Section 108(1)(e) and 108(1)(c), there is no need for the panel to assess the application under Section 108(1)(a) of the Act. CONCLUSION [23] The panel therefore allows the Minister's application for cessation under both Section 108(1)(c) and Section 108(1)(e) of the Act. The panel therefore rejects the claim for protection of the Respondent as he has acquired a new nationality and he enjoys the protection of the country of his new nationality and also rejects his claim because the reasons for which he sought protection have ceased to exist. [24] As the panel has allowed the Minister's application, the claim of XXXX XXXX is rejected pursuant to Section 108(3) of the Act. [25] The panel therefore concludes that the claim of XXXX XXXX is rejected. (signed) "Daniel Tucci" Daniel Tucci February 20, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Olvera Romero v. Canada (Citizenship and Immigration), 2014 FC 671. 3 Immigration and Refugee Board of Canada (IRB), Guideline 6: Scheduling and Changing the Date or Time of a Proceeding, April, 2010, amended December 2012. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 5 Exhibit 1. 6 Exhibit 3, p. 26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 9 RPD.29.1 (August 2014) RPD File No. / N° de dossier de la SPR : VB4-00719 1