VB5-01339

RPD File No. / N° de dossier de la SPR : VB5-01339/01340 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Applicant The Minister of Public Safety and Emergency Preparedness Demandeur(e) Respondent(s) XXXX XXXX XXXX XXXX XXXX XXXX Intimé(e) Date(s) of Hearing June 7, 2018 Date(s) de l'audience Place of Hearing Heard by videoconference in Calgary, Alberta and Edmonton, Alberta Lieu de l'audience Date of Decision June 19, 2018 Date de la décision Panel Preeti Adhopia Tribunal Counsel for the Respondent(s) Sammy Binder Barrister and Solicitor Conseil(s) du (de la/des) Intimé(e) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Barry Curtis Conseil du (de la) ministre REASONS FOR DECISION [1] The respondents, XXXX XXXX XXXX (principal respondent), and his wife, XXXX XXXX (associated respondent), are citizens of Turkey who came to Canada and made claims for refugee protection. They were determined to be Convention refugees by the Refugee Protection Division (RPD). This is the decision of the RPD on the Minister's application to cease the respondents' refugee protection pursuant to section 108(2) of the Immigration and Refugee Protection Act (the "Act").1 BACKGROUND Refugee Claim [2] The respondents entered Canada on May XXXX, 2008 and made their claims for protection in July 2008. They feared persecution from the associated respondent's family who opposed of their relationship given the principal respondent is an Alevi Arab, and the associated respondent is a Sunni Kurd. When they disclosed their relationship to their families in 2003, the principal respondent's family advised that they would disown him. The associated respondent's family threatened to kill her. The couple fled their hometown of XXXX back to XXXX, where they had originally met at university, and began living together in the principal respondent's apartment. [3] In May 2004, the associated respondent's family found the couple's apartment in XXXX, beat the principal respondent and forcibly took the associated respondent back to XXXX. When the principal respondent complained to police, they suggested that given he was living with a woman outside of wedlock, police would have beaten him too. [4] The associated respondent's family confined her to the house and started to arrange her marriage with someone of their choosing. She attempted suicide. The couple secretly made plans to run away together. In February 2005, the associated respondent escaped and the couple fled to Istanbul. The associated respondent discovered from her sister, who was supportive, that their family had vowed to kill her. Her family reported her disappearance as an abduction and police in Istanbul summoned the principal respondent. The police concluded that there was no kidnapping and advised the associated respondent's family as such. Since the family is rich and powerful, they discovered the respondents' address in Istanbul through their connections. The associated respondent's sister advised that the family was coming to Istanbul, so the couple moved to another apartment. They learned that the family had arrived to the empty apartment armed. When the respondents complained to the authorities, they were not assisted since a crime had not taken place. [5] The associated respondent's family continued to search for the couple. They instigated a fight with the principal respondent's family that resulted in one of his family members being shot in the foot. [6] In November 2007, the principal respondent received his call up notice for mandatory military service. He considers himself a conscientious objector, but his claim was denied. This made the respondents' situation more urgent. They made plans to leave the country. By February 2008, they had both obtained visas to come to Canada. At this time, the associated respondent recognized her family's car and a relative in the passenger seat while she was shopping. The couple immediately moved out of their apartment and found a new home. In May 2008, they collected enough money and came to Canada. They made their claims for protection in July 2008. [7] In July 2010, the respondents were determined to be Convention refugees by the RPD. In September 2011, the respondents became permanent residents of Canada. Minister's Application for Cessation [8] On May 14, 2015, the RPD received applications from the Minister,2 pursuant to section 108(2) of the Act, for cessation of the respondents' status as Convention refugees. The Minister alleges that the respondents acquired passports from the Turkish embassy in November 2011 and each travelled to Turkey on at least two occasions using these passports. Their passports suggest that, in the principal respondent's case, he went to Turkey from XXXX XXXX, 2012 to XXXX XXXX, 2012, from XXXX XXXX, 2012 to XXXX XXXX, 2012 and for a period until October XXXX, 2014. In the associated respondent's case, her passport suggests she travelled to Turkey from XXXX XXXX, 2012 to XXXX XXXX, 2012, from XXXX XXXX, 2012 to XXXX XXXX, 2013 and for a period until October XXXX, 2014. The Minister argues that acquisition of the passports and the repeated travel for lengthy periods amounts to reavailment of Turkey's protection on the part of the respondents. According to the United Nations High Commissioner for Refugees (UNHCR) Handbook, only in exceptional circumstances would travel by a refugee to his or her country of nationality on a passport issued by that country not constitute termination of his or her refugee status.3 Therefore, the Minister submits that the respondents have ceased to be refugees pursuant to section 108(1)(a) of the Act. DETERMINATION [9] The Minister's applications for cessation of the respondents' status as Convention refugees, pursuant to section 108(2) of the Act, are allowed and their claims are deemed to be "rejected" in accordance with section 108(3) of the Act. ANALYSIS [10] The respondents acknowledge that they requested and received Turkish passports in November 2011 because the Canadian travel document issued to protected persons would not enable them to return to Turkey. They agree that they travelled to Turkey three times for the purpose of fertility treatment. Fertility treatment they had received in Canada had failed, which is documented in the evidence.4 The respondents explained that they could not afford the expense of additional treatment in Canada and therefore pursued it abroad. Although they researched treatment offered in Mexico, Thailand and Germany, treatment at this private hospital in Turkey was affordable, in a language they understand and fast. The respondents submitted an invoice for the in vitro fertilization (IVF) services they received in Istanbul.5 [11] Before travelling, the principal respondent had received confirmation from the Turkish embassy that, as a result of his Canadian permanent residence, his military service requirement had been deferred. The respondents provided evidence that this would generally be the case for a man in his position.6 The respondents had no issues with the authorities during their trips. [12] On each of their three trips to Turkey, the associated respondent travelled ahead of time and her husband joined her several weeks later. This was a function of the different medical requirements for each of the respondents and the need for the principal respondent to continue to earn money. The associated respondent went to Turkey from XXXX 2012 to XXXX 2012 for testing, from XXXX 2012 to XXXX 2013 for the procedure that resulted in her pregnancy (which yielded a child), and from XXXX 2014 to October or November 2014 to attempt another pregnancy, which failed. [13] While the respondents were in Istanbul they stayed at the hotel arranged by the hospital and did not go out beyond a few kilometers for essential needs, though most were fulfilled by the hotel and hospital. The respondents acknowledge that there was risk involved since the associated respondent's family continue to be interested in harming the couple and seek information about the couple's return to the country. However, they believed that since they were not residing in the country, and were therefore not registered with authorities, they would be safe by remaining at the hotel and private hospital. XXXX is more than 1,000 kilometres away from Istanbul, making an encounter with the associated respondent's family unlikely. Furthermore, since her family knows the couple is in Canada, they would not be expecting them. [14] Section 108(1) of the Act reads, in part, 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; [15] The United Nations High Commissioner for Refugees Handbook indicates that the cessation clause implies three requirements: voluntariness, intention and reavailment.7 There is, of course, overlap among these requirements. Voluntariness [16] The respondents obtained their passports and returned to Turkey voluntarily, by choice, and under no duress. It is the case that they planned to obtain passports and deliberately chose Turkey as the location for fertility treatment among other places in the world. There is no evidence that they were constrained by or required, out of some legal necessity or otherwise, to acquire a passport or return to Turkey. They were not deported, extradited or kidnapped. No person or government forced or pressured them to acquire passports and return. The couple freely decided to obtain Turkish passports and travel there three times. I therefore find that this was voluntary. Intention [17] I find that obtaining Turkish passports and travelling to Turkey on them demonstrates an intention to rely on the diplomatic protection of that country as nationals. The respondents argue that they had no intention of revailing themselves of the protection of Turkey; they expected nothing whatsoever from the authorities given the failure in state protection in their past experience. In my view, the respondents asserted their citizenship merely by obtaining their passports. Travelling to Turkey as nationals also implies an intention to have her interests defended and rights protected by the Turkish state. The fact that they displayed their permanent resident cards in addition to their passports at borders does not alter this finding. The UNHCR Handbook supports this conclusion: In determining whether refugee status is lost in these circumstances, a distinction should be drawn between actual re-availment of protection and occasional and incidental contacts with the national authorities. 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. On the other hand, the acquisition of documents from the national authorities, for which non-nationals would likewise have to apply - such as a birth or marriage certificate - or similar services, cannot be regarded as a re-availment of protection. . . . obtaining an entry permit or a national passport for the purposes of returning will, in the absence of proof to the contrary, be considered as terminating refugee status. . . . with the receipt of such a document [passport] he normally ceases to be a refugee. [emphasis added].8 While it was submitted that the respondents' actions were an example of occasional or incidental contacts with the Turkish authorities, as contemplated by the UNHCR, I disagree. The respondents went beyond making inquiries with the Turkish embassy or contacting the government for proof of marriage or birth. Canadian jurisprudence establishes that obtaining a passport from the country of nationality leads to a presumption of reavailment.9 The case at hand is not only one of an application for a passport; the respondents' applications were approved and they actually went back to Turkey three times for weeks and months at a time. The UNHCR Handbook confirms that even where a refugee returns to his or her country of origin, not with a corresponding passport, as in the respondents' case, but with a travel document issued by the refugee-granting country, the refugee is still considered to have reavailed himself of the protection of his former home country and to have lost refugee status under this cessation clause.10 Reavailment [18] The respondents argue that their reasons for returning to Turkey were reasonable and sufficient to rebut the presumption of reavailment. The principal respondent had settled the issue of conscription by demonstrating to Turkish authorities that he was a permanent resident of another country. The respondents also have the right to have children, but continued IVF in Canada was cost prohibitive for them. Turkey was the cheapest option where they also spoke the language of the medical professionals and trusted the timely treatment. They testified that they had no option other than to pursue the treatment in Turkey and reavail in order to have a child. It was argued that the desire to conceive a child is akin to visiting a sick parent in terms of rebutting the presumption of reavailment by reason of family. [19] I accept that the principal respondent's fear of conscription was resolved by the deferral achieved through his permanent residency. I acknowledge that the UNHCR Handbook suggests that visiting old or sick parents, for example, is unlike holidays or business trips back to the home country where persecution occurred.11 I also note that attending a family member's funeral may rebut the presumption of reavailment.12 To be clear, there is no question that it is reasonable for the respondents to pursue their goal of starting a family. They are also entitled to pursue fertility treatment elsewhere if they cannot afford it in Canada. However, the respondents' circumstance are distinguished from the exception of visiting sick or old parents or attending a funeral of a family member. In circumstances of reavailment, an ailing parent or a funeral is strictly located in the country of origin. However, fertility treatment is not exclusively located in Turkey. The respondents failed to establish with sufficient evidence that Turkey was the only option in the world. The respondents dismissed treatment in three other countries because of expense, language and the quality of treatment offered. Turkey also offered faster treatment. In the absence of adequate evidence, I find it unlikely that there was nowhere else in the world where they could get the service they trusted in a timely manner. Cost and language do not justify the risk of reavailment. These are issues of preference. It is probable that other countries are also affordable. There are reasonable solutions to the respondents' language concerns including improving their English or hiring an interpreter. I note that the respondents had treatment in Canada where it is unlikely that medical professionals spoke Turkish. In any case, a preference for cheaper prices and language facility does not rebut the presumption of reavailment. [20] I considered the respondents' testimony that the associated respondent's family lives over 1,000 kilometres away in XXXX and that they remained at the Istanbul hotel and hospital and tried to keep to a five kilometre radius by taxi. I acknowledge that as visitors, the respondents were not registered with the government as residents. However, the respondents passed through border security six times, registered and stayed at a hotel and sought treatment at medical facility, albeit a private one, over the course of many months. The evidence is that the associated respondent's family are wealthy and powerful and used their connections to locate the respondents in two other cities three times in the past; twice in Istanbul where this hospital is located. This level of exposure, in view of the family's influence and demonstrated capability, is not indicative of subjective fear. Indeed, the associated respondent asserted to Canadian border security officials that they did not have fear in this section of Turkey.13 [21] I do not find that the respondent's reasons for returning to Turkey overcome the rebuttable presumption of revailment in view of the respondents obtaining Turkish passports and actually returning to Turkey with them repeatedly for lengthy periods. CONCLUSION [22] Section 108(1)(a) of the Act applies to the case of the respondents. As such, the Minister's applications for cessation of the respondents' status as Convention refugees, pursuant to section 108(2) of the Act, are allowed and their claims are deemed to be rejected in accordance with section 108(3) of the Act. (signed) "Preeti Adhopia" Preeti Adhopia June 19, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibits 2.1 and 2.2. 3 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, December 2011, para 124. 4 Exhibit 3, pp. 9-26. 5 Exhibit 3, pp. 6-8. 6 Exhibit 3, pp. 27-44. 7 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, December 2011, para 119. 8 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, December 2011, paras 121-123. 9 Nsende, Jean Claude v. M.C.I. (F.C., no. IMM-3635-07), Lagacé, April 23, 2008; 2008 FC 531 and M.P.S.E.P. v. Bashir, Najeeb (F.C., no. IMM-4732-14), Bédard, January 15, 2015, 2015 FC 51 10 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, December 2011, para 125. 11 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, December 2011, para 125. 12 Yuan, Xin v. M.C.I. (F.C., no. IMM-5365-14), Boswell, July 28, 2015; 2015 FC 923. 13 Exhibit 2.2, p. 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : VB5-01339/01340 8 RPD 29.1 (2014/02/18)