VB3-00408

RPD File No. / N° de dossier de la SPR : VB3-00408 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Applicant(s) The Minister of Public Safety and Emergency Preparedness Demandeur(e)(s) and et Respondent XXXX XXXX XXXX (a.k.a. XXXX XXXX XX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) Intimé(e) Date(s) of Hearing December 5, 2013 Date(s) de l'audience Place of Hearing Heard by videoconference in Calgary, AB and Vancouver, BC Lieu de l'audience Date of Decision February 25, 2014 Date de la décision Panel Douglas J. Cryer Tribunal Counsel for the Respondent(s) David Matas Barrister and Solicitor Conseil(s) de l'Intimé (e) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Randal Hyland Conseil du ministre REASONS FOR DECISION [1] These are the reasons of the Refugee Protection Division (RPD) with respect to the application made by the Minister for cessation of refugee status granted to XXXX XXXX XXXX (a.k.a. XXXX XXXX, XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX) (the "respondent") on November 13, 1990, when he was determined to be a Convention Refugee. [2] On February 6, 2013, he Minister made an application to the Immigration and Refugee Board (the "Board") pursuant to section 108 of the Immigration and Refugee Protection Act (the "Act")1 and the RPD Rules 64 to determine that the refugee protection conferred on the respondent has ceased. PROCEDURAL [3] There were a number of procedural matters and three different applications to postpone the hearing, all of which were dealt with in the hearing with interlocutory decisions. [4] There were a number of applications made post-hearing; Minister's counsel made an unsolicited application to produce new documents. In addition to this, counsel for the respondent made a number of submissions on procedural matters in addition to making submissions on the pertinent issues raised in the Minister's application, such as: Res Judicata; matters pertaining to jurisdiction between different divisions of the Board; and issues pertaining to Waiver and Delay. I will address these applications and submissions before considering the substantive matters raised in the Minister's application for cessation. [5] To set the context for the Minister's application and for subsequent submissions. A summary of the evidence indicates that the respondent came to Canada and then he made a refugee claim on XXXX XXXX, 1990 and he was granted Convention refugee status on November 13, 1990. The evidence indicates that the claimant obtained a PRC passport, which was issued on XXXX XXXX, 1992, after the claimant became a permanent resident of Canada. The claimant was issued another PRC passport in Vancouver on XXXX XXXX XXXX 2000 valid until XXXX XXXX XXXX 2005.2 According to the evidence, the claimant made numerous trips to the PRC and to other countries using his PRC passport.3 Certain issues were raised in the course of the hearing, such as the respondent was arrested in 2004 and subsequently imprisoned in Canada on XXXX XXXX XXXX charges. Additionally, prior to this hearing, the respondent had an admissibility hearing before the Immigration Division of the Board in relation to his criminal convictions in Canada. I mention these to put into the context the issues that were raised in the submissions made by both counsel. [6] Minister's counsel made an unsolicited application to produce new documents.4 Minister's counsel submits that the documents are relevant and have probative value because they relate to the respondent's testimony at his cessation hearing on December 5, 2013. The purpose of the documents is to challenge the credibility of the respondent's testimony pertaining to his reasons for returning to the People's Republic of China (PRC) that he returned there for legitimate business purposes, to marry his second wife, and to visit his first wife's ill mother. I rejected the application and I indicated to counsel that an explanation would be provided at a later date. The explanation for the denial of the application is that I cannot import the credibility findings of another decision maker since the credibility findings were made in the context of the particular hearing of which the respondent was part of at the time. As a decision maker, I must make my own credibility findings based on the context of the hearing that is before me now. Had these documents been before me at the time of the hearing, there may have been an opportunity to test the respondent's testimony in comparison to the two documents contained in the Minister's application. The decision made by a different division of the Board and the decision made by the British Colombia Supreme Court that are referred to in the Minister's application were both finalized before the respondent's hearing on December 15, 2013. Counsel for the minister did not provide a reasonable explanation for why these documents were not presented to the Board beforehand, especially prior to the oral hearing. In my view, if counsel for the Minister intended to rely on these documents, they could have reasonably been presented to the Board prior to the respondent's hearing. Minister's counsel is making the application based on new evidence that came up in the hearing and that the documents provided go towards the credibility of the claimant's testimony. In order to make a proper credibility finding, I would need to present the matters raised in the application directly to the respondent by reconvening a hearing for this purpose. In my view, the documents contained within the application do not add or detract significantly from the testimony and the other evidence which was already before me. These are the reasons for the denial of the Minister's application to introduce new documents post-hearing. [7] Counsel for the respondent indicated during the hearing that he would like to have the opportunity to make a number of applications post-hearing. I gave direction to counsel that for the sake of efficiency, I did not want him to make separate applications, but to make submissions instead. I indicated to counsel that I would treat any applications that were contained within the submissions as applications. [8] As a point of clarification before addressing the applications contained in counsel's submissions, for reasons which I will provide further on, I am granting the Minister's application for cessation under section 108 (1)(a) of the Act, which deals with re-availment. Since the reasons for my decision are based on re-availment, I do not have to go further to establish whether or not the respondent reestablished himself in China, according to section 108 (1)(d) of the Act. Therefore, any application that the counsel for the respondent makes concerning 108 (1)(d) of the Act will not be considered as part of the reasons, because they are distinct from the consideration of re-availment under section 108 (1)(a) of the Act. Res Judicata [9] Counsel provided submissions to the Board within the agreed timeline. Hereinafter, whenever I refer to counsel's submissions I am referring to this particular document.5 Counsel for the respondent submits that the Minister cannot contest two previous decisions made by the Minister which were in favor of the respondent. In XXXX 2004, the respondent obtained a travel document to travel from Hong Kong to Canada, because the respondent had established to the satisfaction of the Minister that he had been physically present in Canada the requisite number of days, 730 out over a five-year period, in accordance to section 28 of the Act. In XXXX 2004, in a second proceeding, the respondent received a permanent resident card based on the conclusion that the respondent acquired the necessary days in Canada. Counsel for the respondent submits that there are no new facts and no subsequently discovered facts subsequent to 2004 on which this application for cessation is based and furthermore, since 2004 a number of relevant documents and have since been destroyed. Counsel acknowledges that one might formally be able to draw a distinction between section 28 of the Act on the one hand and sections 108 (1)(a) and (d) of the Act on the other hand, in substance, the respondent through these cessation proceedings, is forced into a relitigation of the very issues he had to address in 2004. I do take note of counsel's observations that similar facts may apply to two different proceedings. However, even if the facts are similar, the facts relate to two entirely different issues of jurisdiction. One issue pertains to residency requirements pertaining to the respondent's immigration proceedings. The other issue pertains to something different entirely; the cessation application of his refugee claim. There may be overlap of factual matters relating to two different determinations, however, a determination made in regards to residency for the purposes of immigration are completely distinct from a determination relating to the cessation of a refugee claim. I agree with Minister's counsel on this point that the legal tests applied and the tribunals, are completely different. Residency, and re-availment and reestablishment, are separate legal terms and used in totally different contexts. Therefore, there is no res judicata in this case. Even so, much of counsel's submissions pertain to the issue of reestablishment under section 108 (1)(d) of the Act (with just some of the application relating to re-availment). The issue of reestablishment is not a determinative factor in these reasons. Criminality and cessation [10] Counsel for the respondent raises the point that the cessation proceedings should not be used for non-cessation purposes. Council submits that the respondent raises the concern that the cessation proceedings are being used for an improper purpose, to attempt to affect removal of a person the Minister perceives as criminal without using the procedures designed to remove criminal refugees from Canada. Counsel submits that cessation proceedings cannot be used to effect removal of the criminal refugee from Canada. The provisions about criminal admissibility and public danger must be used to affect at that end. Counsel submits that there are two possible outcomes to the attempt to remove the respondent because of its criminality. One being that he could be determined to be inadmissible and found a public a danger in which case, he would be removable because of his criminality and danger he posed. The other being that did the respondent is determined not to be admissible by reasons of criminality or because he is not found a public danger. In either case, counsel submits that the cessation proceedings would then be duplicative and superfluous or that these proceedings would violate the intent of the Act to use cessation proceedings to remove someone indirectly for criminality. It seems that counsel is questioning the motive of the Minister by linking potential outcomes within the Immigration Division or in the Immigration Appeal Division (I am not aware as to whether or not the respondent has any current matter before the IAD ) relating to the respondent's criminality in Canada by bringing an application of cessation before the Board. I have no way of determining the motive of the Minister in bringing an application for cessation before the Board. I can only establish the merits of the application based on the facts contained in the application itself and when compared to the respondent's testimony, the evidence that is before me, and the submissions made by counsels. Relating to matters that might potentially be before the Immigration Division, or any other division of the Board, these are beyond the realm of my own jurisdiction. My mandate only extends to matters that come before me in my role as a decision-maker in the Refugee Protection Division. In this present case, the only matter that is before me is whether or not the Minister has established cessation on a balance of probabilities and in this particular case, as it relates to section 108 (1)(a) of the Act. Waiver and Delay [11] Counsel for the respondent makes two applications under "Waiver" and "Delay," which I will consider together. [12] Counsel submits that all of the information on which the current application is based on information which was before the visa office at the time the decision to grant the respondent the permanent residence travel document in XXXX 2004 and before the Minister at the time of the decision to issue a permanent resident card in XXXX 2004. Since legally, the Minister could have commenced cessation proceedings against of the respondent in 2004, the failure to do so then amounts to waiver of the right to do so now. Counsel submits that the respondent has been prejudiced by not maintaining records of documents at he might have otherwise maintained and which could have been relevant to these proceedings, since in his view the matter was settled after he received his permanent residency in Canada. In response to the argument that the respondent would be prejudiced because he did not maintain records of documents, I disagree. During the cessation proceedings, the parties relied on testimony and evidence that was available to all of the parties at the time of the proceedings. I cannot determine which documents the respondent may have retained or destroyed that might have been relevant to the present proceedings. What I do know is that the respondent introduced some documents piecemeal throughout the hearing, documents which were presented to the visa officer in 2004. These documents were presented at the time of the hearing contrary to the Board's rules that documents must be disclosed ten days in advance of the hearing.6 These are documents that were not previously made available to the Board. However, by these two documents, it is evident that the respondent kept at least some documents relating or resulting from decisions that were granted to him in 2004. There was no real dispute concerning the exhibits that were introduced prior to the hearings or during the hearings. Therefore, the respondent cannot be prejudiced because there might be some unspecified documents which are not before me especially since the respondent was able to provided documents that were in his possession at short notice during the hearing. I cannot therefore accept counsel's submission that the respondent has not kept all relevant documents that were available to the Minister in 2004, since I have at least some evidence to the contrary, through the late disclosure of documents made by the respondent. [13] Counsel for the respondent did not dispute the fact that the respondent returned to China in a number of instances. Counsel for the respondent provided information regarding the respondent's numerous trips back to China between XXXX XXXX XXXX 1999 and XXXX XXXX XXXX 2003.7 In all, there were 17 trips made back to China all of which were for business trips except four trips were made to visit relatives. In my view of the evidence that was before me, there was no real dispute regarding the number of times that the claimant returned to China. Essentially, the decision to accept the Minister's application is based on analysis regarding the number of trips the respondent made to China since the determination of his refugee claim in Canada. [14] An earlier application that there was an abuse of process through delay was already dealt with in interlocutory decisions in the hearing August 30, 2013. Counsel raises this matter again in his submissions. Council submits that State-caused delay resulting significant prejudice can amount both to a breach of the duty of fairness and a breach of Charter her rights. Again, counsel submits that the delay and subsequent destruction or loss or misplacement of documents means the respondent is not as fully able as he was in 2004 to answer the case of the Minister. I have already determined that the loss of unspecified documents are not sufficient for determining that the respondent has been prejudiced, because I am making a determination only on the evidence that is before me. Counsel makes reference to Blencoe.8 The court determined in this case that a delay in the processing of an administrative proceeding may affect the duty of fairness and the principles of natural justice if it impairs the ability of the party to answer the case against him. The court also held that there is no constitutional right outside of the criminal context to be tried in a reasonable time. I distinguish this case from the current context, because this is a matter which is before an administrative tribunal and is not in a criminal context. Therefore, counsel's Charter argument fails in this regard. Relating to an abuse of process, the court indicated that it must be satisfied that, "the damage to the public interest in the fairness of the administrative process should the preceding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted." The court gave it further guidance on this matter and indicated that a process tainted to such a degree would have to amount to one of the clearest of cases. In other words, cases of this nature would be extremely rare. Counsel did not indicate in his submissions how the delay in bringing the cessation application forward before the Board would undermine to the public interest of fairness especially in relation to the Board. In the case that is before me, I determine that the respondent was able to answer the questions that were put before him based on the information contained in the Minister's application and in the documents that he and his counsel provided to the Board. I fail to see the damage to the public interest in the fairness of the Immigration and Refugee Board's hearing and deciding the Minister's cessation application. I determine that the harm suffered by the respondent due to the delay has not tainted the proceedings to such an extent as to bring the administrative Immigration and Refugee Board into disrepute. [15] Having dealt with these matters accordingly, I now turn to the substantive matter of the Minister's application for cessation. Legal Considerations Relating to Cessation of Refugee Status: [16] Reference was made to the UNHCR "Handbook on Procedures and Criteria for Determining Refugee Status" ("the UNHCR Handbook", circa. 1979)9 which I am very familiar with. [17] With respect to when refugee protection ceases to apply to a person due to having re-availed of the protection of the country of nationality, the UNHCR Handbook, under the heading, "Cessation Clauses" the cessation of refugee protection occurs when based on the consideration that international protection should not be granted where it is no longer necessary or justified. The UNHCR Handbook provides three requirements as to when it can be considered that this has occurred: the refugee has acted voluntarily, he or she has exhibited an intention to re-avail, and the refugee has actually obtained such protection. The UNHCR Handbook states: "If 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."10 [18] The UNHCR Handbook provides additional interpretative guidance as to what constitutes circumstances as to when a refugee has acted voluntarily, and as to when they have demonstrated intent. With respect to the voluntariness of a refugee's actions, the UNHCR Handbook states at paragraph 120: He may also be constrained, by circumstances beyond his control, to have recourse to a measure of protection from his country of nationality. He may, for instance, need to apply for a divorce in his home country because no other divorce may have the necessary international recognition. Such an act cannot be considered to be a "voluntary re-availment of protection" and will not deprive a person of refugee status.11 [19] Paragraph 124 of the UNHCR Handbook states that a refugee obtaining a national passport may, under certain exceptional circumstances, not involve termination of refugee status, and refers to the previously quoted paragraph 120 for possible examples. [20] Paragraph 125 of the UNHCR Handbook provides that certain States have removed refugee status from refugees who have visited their former home country with a travel document issued by the refugee's country of residence instead of a national passport issued from the former home country. The UNHCR Handbook states that these kinds of cases should be judged on their individual merits, and that "Visiting an old or sick parent will have a different bearing on the refugee's relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations." [21] The Nsende12 decision reaffirms the three requirements relating to reavailment as set out in the UNHCR Handbook, namely: the refugee must act voluntarily; the refugee must intend by his action to reavail himself of the protection of the country of nationality; and the refugee must actually obtain such protection. Regarding the refugee's intent, the Court quotes from Professor Hathaway: Since there is not automatic linkage between the issuance or renewal of a passport and the granting of protection, it is critical that the real reason it is being sought form part of the determination authority's consideration. Unless the refugee's motive is genuinely the entrusting of her interests to the protection of the state of her nationality, the requisite intent is absent.13 [22] In the case, Chandrakumar,14 the Court indicates that the Board must explore the refugee's motivations in applying or renewing the passport of his/her nationality and must engage in an analysis of the "intention behind the renewal of a passport." In other words, it is unreasonable to assume that the simple action of renewing a passport without any indication of the requisite intent is sufficient to establish reavailment. [23] I have reviewed and I have assessed the respondent's explanation for obtaining his Peoples Republic of China (PRC) passport originally, the subsequent renewals of his PRC passport and for his reasons for returning to the PRC. ANALYSIS Basis for the Minister's Application for Cessation [24] The respondent was determined to be a Convention Refugee on November 13, 1990.15 In the interim, the Immigration and Refugee Board (IRB) files that would document the details of the claim have been destroyed in accordance with the IRB's retention policies. The Minister's application states that the 1990 refugee claim was on the basis of an alleged risk to his safety due to his activities in support of the student democracy movement centered in Tiananmen Square in Beijing.16 The particular details of the purported basis of claim are not known from the file itself, but the respondent was able to testify at length during the hearing the basis for which he made his refugee claim in Canada. In view of the respondent's testimony and the other evidence which was before me, I find the summary sentence in the Statutory Declaration in the documents relating to Minister's application summarize sufficiently the reasons for the respondent's refugee claim. Mr. XXXX was born on XXXX XXXX, 1952 in XXXX Province in China. He is presently almost XXXX years old. He was employed in China as a XXXX XXXX XXXX. In 1989, he became involved in activities in support of the student democracy movement centered in XXXX XXXX XXXX Beijing. Because of a risk to his safety, Mr. XXXX fled China and came to Canada in XXXX 1990 and claimed refugee protection.17 [25] The evidence before me is that the respondent came to Canada and then he made an application for refugee on XXXX XXXX, 1990 and he was granted Convention refugee status on November 13, 1990. The evidence indicates that the claimant obtained a PRC passport, which was issued on XXXX XXXX XXXX 1992, after the claimant became a permanent resident of Canada. The claimant was issued another PRC passport in Vancouver on XXXX XXXX, 2000 valid until XXXX XXXX, 2005.18 According to the evidence, the claimant made numerous trips to the PRC and to other countries using his PRC passport.19 The documents for which the Minister relies are summarized in paragraph 6 of the Minister's submissions.20 [26] The Minister presented evidence that the respondent has been residing in Canada since 1990 and he has made numerous trips to the PRC. Previous counsel states that the respondent applied for a PRC passport based on the necessity of family obligation or business.21 The claimant testified that he originally applied for a PRC passport so that he could travel to the United States (US). The claimant testified that he made his first trip to the PRC approximately 5 or six years after he was granted refugee protection in order to visit his mother-in-law who was debilitated from the effects of diabetes. The claimant testified that he subsequently returned to the PRC in order to get married and for business reasons. The claimant testified that between 1995 and 2004 he traveled back and forth to the PRC approximately 3-5 times per year. As referenced earlier, the respondent submitted a document indicating that he had returned to the PRC approximately 17 times between 1997 and 2004.22 [27] On XXXX XXXX and XXXX, 2004, the respondent was interviewed in Hong Kong regarding concerns about his residency in Canada and that he was spending a lot of time in the PRC.23 The purpose of this interview was in response to the respondent's application for a permanent travel card to be used in conjunction with his Permanent Resident status in Canada. On XXXX XXXX, 2004, XXXX XXXX, the respondent's second wife was interviewed in the PRC by a Canadian Immigration official regarding her relationship with the respondent. The Immigration Officer concluded that their relationship was bona fide, in part, because of evidence that the respondent visited the PRC many times before and after their marriage.24 The Minister's evidence indicates that the respondent conducted business in the PRC and that from 2000 - 2004 he resided in XXXX with his wife for significant periods of time.25 Counsel for the respondent provided evidence that the respondent returned to the PRC at least 17 times most of which were for business purposes and four visits for the purpose of visiting relatives.26 [28] The Minister made his application for cessation pursuant to subsections 108(1)(a) and (d) of the Act. As I indicated beforehand I find that the Minister's application is granted pursuant to subsection 108(1)(a) of the Act, which 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. [29] The Minister submits that the respondent acted voluntarily by applying for a PRC passport. The respondent's testimony is that he applied for the PRC passport so that he could travel to the US. The Minister submits that the respondent acted voluntarily by renewing his PRC after the initial passport expired. The Minister submits that the respondent voluntarily returned to the PRC. The claimant testified that the reasons for these travels were to either get married, for business purposes, or to visit relatives. There was no evidence or testimony presented to me to indicate that the respondent returned to the PRC against his will or that he was instructed to re-avail to the PRC. Therefore, I find that the respondent acted voluntarily when he applied for his original PRC passport, when he renewed that passport, and when he traveled frequently to and from the PRC. [30] The Minister submits that to the respondent intended by his actions to re-avail himself of the protection of the country of his nationality, the PRC. The Minister rightly points out that if 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. Of course this is a rebuttable presumption. The Minister submits that the respondent showed intent in that he appeared numerous times before PRC government officials at the Consulate General of the PRC in Vancouver and at the PRC ports of entry (according to the PRC exit stamps in the respondent's passports) and in by doing so, that respondent presented himself as a citizen of the PRC and made applications for passports and entry into the PRC to reside with the rights and protections as a citizen of the PRC. The Minister further submits that the respondent's intention was clear and voluntarily exercised numerous times demonstrated in the fact that the respondent traveled extensively on his PRC passport both to China and to other countries. The respondent's Submissions Pertaining to the Minister's Application for Cessation [31] Council submits that the respondent had a simple explanation why he was not returning to China either to re-avail himself of the protection of China or to re-establish himself there. At all times, he went for short stays and for a temporary purpose. The purpose was either family or business related. Even though he returned to a country from which he had fled, he thought he would be safe for two reasons. One was the short time he was there in each instance. The other was that he thought that his Canadian permanent resident status offered him a measure of protection. Whether objectively the respondent was safer in China or not because of these factors, the fact is that he thought he was safer. Counsel submits that re-availment and reestablishment both consider intention and in neither case was the requisite intention there. Reasons for Granting the Minister's Application for Cessation [32] Despite the respondent's testimony and counsel's submissions, I find that that the respondent intended by his actions to re-avail himself of the protection of the PRC for the reasons which follow. [33] The respondent was interviewed by a visa officer after he landed in Canada on XXXX XXXX XXXX 1992.27 According to the record, the respondent was asked why he was not yet a citizen of Canada. The record indicates that the respondent said that he forgot to apply as he is a very busy businessman. The visa officer stated that the explanation lacked credibility. For my own reasons, I concur that the respondent's explanation lacks credibility. The evidence indicates that the respondent renewed his PRC passport in 2000.28 If I am to follow through with the respondent's explanation that he was too busy to apply for Canadian citizenship in 2002, to me, it is incomprehensible that the respondent would not have been able find the time to make his application for Canadian citizenship in the 10 years between the time he received refugee protection in Canada in 1990 and when he applied for a renewal of his PRC passport in 2000, no matter how busy he was as a businessman. When dealing with the issue of intent, it is very clear to me that the claimant has not demonstrated his intent to rely on Canada's protection granted to him when he became a refugee in that he did not applied for his Canadian citizenship. Yet during that same time, he did apply for and renew his PRC passport and through this action, the respondent maintained his PRC citizenship. The respondent voluntarily traveled back to the PRC at least 17 times, but probably many more times than this. The Board has a record of the respondent's travel of 17 trips to the PRC from 1999 until 2003, but by the respondent's own testimony, he traveled at least 3 to 5 times per year between 1995 and 2003. I find that since the claimant never applied for Canadian citizenship, but instead applied for and renewed his PRC passport thereby maintaining his PRC citizenship, the respondent clearly intended by these actions to avail himself to the protection of his nationality. [34] Regarding the question, "What does intention mean?" let us take a step back. According to the UNHCR Handbook at paragraph 121 it states that "if 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 re-avail himself of the protection of the country of his nationality." The principle here is that by merely obtaining or renewing a passport a refugee is presumed to have re-availed himself to the protection of his country, in the absence of contrary proof. In certain circumstances, this is a rebuttable presumption. For instance, if the refugee is applying for or renewing a passport for the purposes of identification, perhaps for reasons of applying for status in the country that he or she has received protection in, that is proof to the contrary that the refugee has intended to re-avail himself to his country of nationality's protection. Similarly, in this case, the respondent applied for a PRC passport initially so that he could travel to the US. Going one step further, has the refugee presumed to have re-availed himself of the protection of his country if he returns to his former country? The UNHCR Handbook in paragraph 125 provides an example relating to re-availment which is not entirely on point, because the example refers to somebody who is returning to their former country of nationality on a travel document other than a passport, but for the purpose of analyzing intent, I will use the example provided in the Handbook, which indicates: Visiting an old or sick parent will have a different bearing on the refugee's relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations. [35] I see a clear picture arising from this example as it relates to the intention of re-availment to one's former country. First, it can be presumed that one has re-availed himself to the protection of his former country merely by obtaining a passport of that former country (in absence to the proof of the contrary). It is only logical therefore, that it can be presumed that one has re-availed himself to the protection of his former country if he returns to that country with the passport that was issued to him from that country. Proof to the contrary might be, using the Handbooks example, visiting an old or sick parent. However, the Handbook distinguishes between a visit to an old or sick parent when compared to returning to a home country on regular visits or to spend holidays or for the purposes of establishing business relations. The point that I am making is that it might be a rebuttal to the presumption of re-availment to one's former country merely by acquiring a passport or renewing that passport or it might be a rebuttal to the presumption of re-availment by returning for a short period to visit an old or sick parent, but it becomes much harder to rebut the presumption of re-availment when one has made regular visits to their home country or of spend holidays there or have gone for the purposes of establishing business relations. [36] In the case at hand, the respondent has rebutted the intent of re-availing himself to the protection of the PRC in his initial application of his passport, since he originally intended to use that passport for travel to the US. To me, that is a reasonable explanation. When the respondent returned to the PRC five or six years after he received refugee protection in Canada, to visit his ailing mother-in-law that is a reasonable explanation for that return visit. The respondent is able in the instance to rebut the presumption that he has re-availed himself to the protection of the PRC. But at some point, whether it is during the second or third or fourth or fifth visit to back to PRC and certainly some time before the respondent's 17th visit back to the PRC, the presumption that the respondent has re-availed himself to the protection of his country becomes much more difficult to rebut. That the visits were short, that the respondent tried to maintain a low profile, that he tried to avoid government offices, etc., all of these explanations decrease in persuasiveness in light of the overwhelming number of times that the respondent had to voluntarily present himself to PRC authorities in the application or renewal of his passport or at the border entry points on at least seventeen different occasions. Since the respondent returned to the PRC on so many different occasions voluntarily, and since he went there for the purpose of conducting business, or for visiting relatives, or to be married and these are for reasons as stated in the UNHCR Handbook to be considered differently than, for example, visiting an age to her ailing parent, for these reasons, the respondent has not rebutted the presumption that he re-availed himself to the protection of the PRC. [37] The respondent testified that he decided not to return to the PRC after 2004 when he returned to Canada because there were no more major issues to resolve [in the context of the testimony, this relates to the respondent's business activities]. The respondent also indicated that after his interview with a visa officer in Hong Kong in which he was informed that if he came into any difficulty in the PRC, the respondent's Permanent Residence (PR) status in Canada might not be sufficient for Canada to intervene or to provide protection to the respondent. The respondent's explanations for not returning to the PRC are not credible. The most reasonable explanation that the respondent did not return to the PRC after 2004 is because he was arrested by Canadian authorities in XXXX 2004. The respondent was convicted on XXXX XXXX, 2007 for the importation XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The respondent served more than two years in a Canadian prison for these offenses.29 The evidence before me indicates that since the respondent's arrest and including the time of his subsequent release from a Canadian prison, the respondent has been under parole conditions which limit his ability to travel. In light of the substantial evidence of the respondent's arrest and imprisonment in Canada, the respondent's own explanations for not returning to the PRC after 2004 are not credible. [38] The respondent testified during the hearing that his only purpose for travel was for legitimate travel purposes and he provided examples that he wanted to personally inspect the goods that he was purchasing, that he was there to build relationships, and furthermore, through his business, he was responsible for the livelihood of many people. Regarding the legitimacy of the respondent's business travels, the respondent is not credible. The evidence which led to the respondent's conviction was that the respondent and his company were involved with the importation of goods from China, including XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.30 This conviction undermines the respondent's testimony in relation to the reasons he had for returning to the PRC, since it is quite clear that at least some of the reasons for that respondent's business in the PRC were not for legitimate purposes, but for the purposes of the XXXX XXXX XXXX XXXX. Since the claimant is not a credible witness, he is not able to rebut the intent or presumption of reavailment to the PRC by his testimony. [39] Regarding the respondent's frequent travel to other countries on a PRC passport only strengthens the finding that the respondent intended to reveal himself to the protection of the PRC. The respondent traveled to numerous countries such as the United States, Venezuela and Thailand. I agree with the Minister's submissions on this point that if the respondent required consular assistance in third countries, it would have been provided by a PRC diplomatic mission because the respondent was traveling in those countries as a citizen of the PRC.31 [40] Counsel submits that some of the information the Minister the minister relies on is the respondent's entry into Hong Kong. Council submits that Hong Kong is a separate administrative district and therefore, re-availment of the protection of China nor reestablishment in China can be established through entry into Hong Kong. I agree with the Minister's submissions on this point in which the Minister gives judicial notice that Hong Kong has been a part of the PRC since 1997; thus the respondent can be found to have re-availed and re-established himself in the PRC through his travels to Hong Kong since that time and having traveled on his PRC passport.32 [41] I find that there is clear evidence that the respondent made numerous trips to the PRC. These trips were voluntary. The respondent clearly demonstrated his intent to re-avail himself to the protection of the PRC through is numerous travels back to the PRC (at least 17 trips but likely many more than that). The intent to re-avail oneself to the protection of their former country is presumed. This can however, be rebutted with evidence to the contrary. The respondent rebutted this presumption in the initial application of his PRC passport since the testified that the purpose in obtaining the passport was to travel to the US. The respondent rebutted this presumption in his initial trip to the PRC to visit his ailing mother-in-law. The respondent did not rebut the presumption of his intent to re-avail after he renewed his PRC passport in 2000. This is because in the 10 years that he was in Canada, there is no persuasive evidence to indicate that the respondent tried to obtain his Canadian citizenship. There is little evidence before me to indicate the respondent ever intended to rely on the protection of the Canadian government by obtaining a Canadian passport. In the time leading up to the renewal of the respondent's PRC passport, he had already traveled numerous times back and forth to the PRC. This demonstrates a clear intent to re-avail himself to the protection of the PRC since he had to go through diplomatic channels to obtain his passport and he use that passport to interact with officials at the border entry points either in Hong Kong or in the PRC. Furthermore, although 1 or 2 trips to the former country might be an explanation sufficient to rebut the presumption of re-availment, certainly that presumption of re-availment cannot be rebutted having made at minimum 17 trips to the PRC. In relation to this, the respondent's explanations for not returning to the PRC after 2004 and the respondent's explanations for the reasons he traveled to the PRC are not credible, in light of his criminal conviction in Canada. [42] For the reasons above, I allow the Minister's application for cessation of the Convention refugee status of the respondent for he has become voluntarily re-established in his country. CONCLUSION [43] The respondent's actions were taken as a voluntary exercise in re-availing himself of the protection of his former country, and he did show intent to re-avail himself of the PRC's protection pertaining to the number of times he returned and the length of time he stayed and for reasons that the respondent is not credible pertaining to substantial portions of his testimony. The Minister's application under Section 108 (1)(a) of the Act is accepted. The respondent's refugee protection, granted on November 13, 1990 is determined to have ceased. (signed) "Douglas J. Cryer" "Douglas J. Cryer" February 25, 2014 Date 1 Immigration and Refugee Protection Act (the "Act"), S.C. 2001, c. 27. 2 Exhibit 1, Minister's Application. 3 Exhibit 1. 4 Exhibit PH-1. 5 Exhibit PH-7. 6 Exhibit 5 and 6. 7 Exhibit 6. 8 Blencoe v British Colombia (Human Rights Commission), 2000 SCC 44 (CanLII), 2000, SCC, 44, [2000] 2 SCR. 9 Exhibit 1, p.16. 10 Exhibit 1, pp. 17 - 18. 11 Exhibit 1, pg. 18. 12 Nsende 2008 FC 531 13 The Law of Refugee Status, James C. Hathaway, Butterworths: Toronto, 1991. 14 Chandrakumar v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 615 (T.D.) (QL). 15 Exhibit 1, Minister's Application. 16 Exhibit 1, pages 1 - 2, Statutory Declaration, XXXX XXXXXX, Inland Enforcement Officer, CBSA. 17 Exhibit 1, page 1. 18 Exhibit 1, Minister's Application. 19 Exhibit 1. 20 Exhibit PH-3. 21 Exhibit 3, page 2. 22 Exhibit 6. 23 Exhibit 1, pages 25 - 28. 24 Exhibit 1, pages 40 - 41. 25 Exhibit 1, pages 19 - 22 and 40. 26 Exhibit 6. 27 Exhibit 1, page 25. 28 Exhibit 1, page 2. 29 Exhibit 4. 30 Exhibit 4, para. 114 ff. from the Provincial Court of British Columbia decision against the respondent. 31 Exhibit PH-3 para. 14. 32 Exhibit PH-8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : VB3-00408