TB7-02071

RPD File / Dossier de la SPR: TB7-02071 UCI / IUC: XXXX Private Proceeding/ Huis clos Reasons and Decision ? Motifs et décision Application to cease -Demandes de constat de perte Applicant(s) The Minister of Public Safety and Emergency Preparedness / Le Ministre de la Sécurité publique et de la Protection civile Demandeur(e)(s) Respondent(s) XXXX XXXX XXXX XXXX Intimé(e)(s) Date(s) of hearing March 11, 2019 Date(s) de l'audience Place of hearing Toronto, ON Lieu de l'audience Date of decision and reasons March 15, 2019 Date de la décision et des motifs Panel Jaclyn Wasserman Tribunal Counsel for the respondent Justo Vega Castro Conseil(s) de l'intimé(e) / des intimé(e)(s) Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Patrick Klauss Conseil du (de la) ministre REASONS FOR DECISION [1] These are the reasons for the decision in the application made by the Minister of Public Safety and Emergency Preparedness ("the Minister") to the Refugee Protection Division for the cessation of the refugee protection status made to XXXX XXXX XXXX XXXX ("the Respondent"), pursuant to section 108(2) of the Immigration and Refugee Protection Act ("the Act") and in accordance with Rule 64 of the Refugee Protection Division Rules ("RPD Rules"). DETERMINATION [2] The Minister's application for cessation of the Respondent's status as a Convention refugee, pursuant to section 108(2) of the Act, is allowed and her claim is deemed to be rejected in accordance with section 108(3) of the Act. MINISTER'S APPLICATION FOR CESSATION [3] On January 27, 2017, the Minister made an application pursuant to section 108(2) of the Act for cessation of the Respondent's status as a protected person.1 [4] According to the Minister's submissions the Respondent voluntarily re-availed herself of the protection of her country of nationality, Colombia, by twice renewing her Colombian passport after being accepted as a Convention refugee and using the passports to travel on numerous occasions to Colombia and other locations. The Minister requests that the panel find that the Respondent has met the test for re-availment in that she acted voluntarily, with the intention to re-avail herself to the protection of her country of nationality, and that she actually re-availed herself of such protection. [5] Specifically, the Minister submits that after the Respondent was afforded refugee status on XXXX XXXX, 2010, she was issued a Colombian passport (number XXXX) by Colombian authorities in Toronto on XXXX XXXX, 2011. The Respondent was issued another passport (number XXXX) by Colombian authorities on XXXX XXXX, 2013, while the Respondent was in Colombia.2 [6] At the hearing, the Respondent conceded that she travelled to Colombia on numerous occasions after she received status as a protected person in Canada. Specifically, she travelled to Colombia during the following periods of time: i. XXXX XXXX, 2012 - XXXX XXXX XXXX 2012 ii. XXXX XXXX, 2013 - XXXX XXXX, 2013 iii. XXXX XXXX, 2014 - XXXX XXXX, 2014 iv. XXXX XXXX, 2014 - XXXX XXXX, 2015 v. XXXX XXXX, 2016 - XXXX XXXX, 2017 [7] The Minister submitted that the Respondent used her Colombian passport to travel to other locations including to Cuba in 2012, the United States in 2014, and on three occasions to Mexico in 2015 and 2016. [8] The Minister presented further evidence by way of an Integrated Customs Enforcement System ("ICES") Traveller History report for the Respondent and her father.3 The report demonstrates that the Respondent's father holds a Permanent Residence Card for Canada (he used it to travel to Canada). At the hearing, the Minister identified key times when the Respondent's father was listed as entering Canada: i. XXXX XXXX, 2012 ii. XXXX XXXX, 2013 iii. XXXX XXXX, 2014 iv. XXXX XXXX, 2014 v. XXXX XXXX, 2016 [9] The Minister submits that the travel history for the Respondent's father is relevant and probative because it indicates that he held permanent residence status in Canada during the periods of time in which the Respondent travelled to Colombia to visit him. Some of the dates provided by way of the ICES report are also in line and coincide with when the Respondent entered Canada (and therefore indicates that the Respondent and her father travelled to Canada together on numerous occasions). Furthermore, the Minister notes that the Respondent indicates in her evidence that she travelled to Colombia to see her ill father on XXXX XXXX, 2013, but according to her father's travel history, he entered Canada on XXXX XXXX, 2013, and therefore it did not make sense that the Respondent went to visit him while he was sick in Colombia when he came to Canada two days after her arrival. [10] The Minister submits that the Respondent voluntarily re-availed herself of the protection of Colombia by virtue of obtaining a passport on two occasions and using that passport to travel to Colombia and other countries. Furthermore, the Respondent had the intention of re-availing as she used the passports for purposes of vacationing and for a humanitarian mission. Finally, by her actions of returning to Colombia on multiple occasions and then utilizing the passports for personal travel she did in fact actually seek the protection of the authorities in Colombia. The Respondent's Position [11] The Respondent submits that she did not voluntarily acquire her Colombian passports on either occasion. She submits that when she first applied for the passport on XXXX XXXX, 2011, she was a minor and the Colombian government requests that parents are present and authorize the passport to be issued. In other words, as a minor, she did not voluntarily apply for the passport but her parents did it on her behalf. [12] The Respondent also submits that while she was in Colombia, she applied for another passport in XXXX 2013, even though her first passport was still valid, because she was no longer a minor and therefore required a new passport in order to leave Colombia. According to her, the Colombian authorities would not allow her to leave Colombia in absence of an adult passport, now that she was an adult who was travelling in and out of the country. Therefore, she submits that she did not act voluntarily when acquiring her second Colombian passport. [13] The Respondent also submits that her first four trips to Colombia were to visit her father who was had various serious medical conditions including cancer (and was undergoing treatment) as well as severe depression. She testified that she did not go to Colombia the first four times for the purposes of vacationing, but in order to assist her sick, ailing father. The Respondent provided evidence of her father's medical conditions.4 [14] The Respondent explained that her last trip to Colombia from XXXX 2016 to XXXX 2017 was for a humanitarian mission. She explained that she went to help a community of poor children. She testified that she feels sad when she thinks about children who have nothing to eat or nowhere to study so she decided to go to Colombia to help. The Respondent provided evidence of her humanitarian trip.5 [15] The Respondent explained that she came to Canada as a minor when her family made their asylum claims. She testified that her mother never explained to her the issues that they had in Colombia or the reasons why they came to Canada and only explained that her parents wanted her to learn English. She explained that she already had family in Canada so she never thought too much about why they came to Canada. The Respondent also testified that when she returned to Colombia on all five occasions, she hired private security to be with her at all times because her parents warned her it was very dangerous. The Respondent provided evidence from the security company that she was accompanied during her five trips to Colombia.6 [16] The Respondent submitted that she was a minor when she came to Canada and was not aware of why her family made the decision to flee Colombia. Furthermore, she testified that she did not have an understanding of the potential consequences to her status in Canada with respect to the use of her Colombian passports to travel to Colombia and other countries. In his submissions, counsel noted that once the Respondent understood the potential implications of using her Colombian passport to travel, she obtained a travel document for her most recent travels in 2019 to the Dominican Republic. ANALYSIS [17] The Minister's Application is made pursuant to Section 108 of the Act, and Rule 64 of the RPD Rules. Section 108 of the Act indicates: 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 them self 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 she left, or outside of which she remained, due to such previous persecution, torture, treatment or punishment. [18] The Minister requests the panel to find that the Respondent's actions fall within the ambit of Article 108(1)(a). The panel has also reviewed the United Nations High Commissioner for Refugees ("UNHCR") Handbook.7 Specifically, Article 1C(1) of the 1951 Convention, which states what must be considered when assessing re-availment, at paragraph 119. This cessation clause implies three requirements: * (a) voluntariness: the refugee must act voluntarily; * (b) intention: the refugee must intend by his action to re-avail himself of the protection of the country of his nationality; * (c) re-availment: the refugee must actually obtain such protection. [19] While the panel is not bound by these guidelines, they are useful and relevant in the assessment with respect to the application at hand. Did the Respondent Act Voluntarily When Seeking and Using the Colombian Passports? [20] The panel has reviewed the UNHCR Handbook which indicates: If the refugee does not act voluntarily, he will not cease to be a refugee. If he is instructed by an authority, e.g. of his country of residence, to perform against his will an act that could be interpreted as a re-availment of the protection of the country of his nationality, such as applying to his Consulate for a national passport, he will not cease to be a refugee merely because he obeys such an instruction. 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 reavailment of protection" and will not deprive a person of refugee status.8 [21] The panel finds that in the facts before it, the Respondent's submission has merit with respect to her obtainment of the two Colombian passports. With respect to the first passport obtained, the Respondent was a minor and therefore the decision and action in obtaining the passport was made by her parents. The panel accepts that this was outside of the Respondent's control at the time, as she was a minor. With respect to the second issuance of a Colombian passport, the panel finds the Respondent's argument does have merit in that she was told by officials that in order to leave Colombia, she must obtain an adult passport. In that circumstance, it was a requirement outside of her control, in order to leave Colombia. [22] However, the panel notes that the act of acquiring a passport is not the only factor to review when assessing the voluntariness of the Respondent's actions. The act of obtaining the passports puts the Respondent in the realm of the assessment; however, the act of the use of her passports puts her over the realm, in the panel's view. While she may not have voluntarily acquired the passports, the evidence indicates that she acted voluntarily in that she used the Colombian passports between 2012 and 2016, when she travelled to Colombia, the United States, Cuba and Mexico (on three occasions). There is insufficient evidence before the panel to find that the Respondent was compelled to use her Colombian passport in order to make any of these trips. As such, the panel finds that the use of the Colombian passports on numerous occasions to enter various countries including Colombia, indicates to the panel that the Respondent did act in a voluntary manner. What was the Respondent's intention in using the passports to travel and in re-availing to Colombia? [23] The panel has reviewed the UNHCR Handbook which indicates: 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.9 [24] The panel finds that the Respondent did willingly and voluntarily use her Colombian passports for travel to Colombia and other countries, not solely for family and humanitarian reasons but for personal pleasure as well. [25] With respect to the trips to Colombia specifically, the panel puts more weight on the Minister's evidence than on the Respondent's testimony and evidence. The Respondent indicated that her father was extremely ill (both physically and mentally) and that he required a lot of support from family members. The Respondent testified that she returned to Colombia on XXXX XXXX, 2013 to be with her father and help him in his time of need. She testified that she stayed with him during this visit for two months. However, the Minister's evidence clearly indicates that her father entered Canada on XXXX XXXX, 2013 - two days after the Respondent arrived in Colombia to allegedly look after him.10 The Respondent explained that she did not know of her father's plan to travel to Canada when she booked her ticket to visit him in Colombia and her father returned to Colombia shortly after his visit to Canada. [26] The panel notes that the Respondent's father entered Canada three times in the first half of 2014, on XXXX XXXX, 2014, XXXX XXXX, 2014 and XXXX XXXX, 2014. The Respondent indicated that she went to Colombia on XXXX XXXX, 2014 (ten days after her father's most recent visit) to be with her sick father. When asked why her father did not get medical care in Canada given that he was a permanent resident and had family support in Canada and was in Canada on multiple occasions, the Respondent replied that her father felt that if he was going to die, he would prefer to die in Colombia and he did not want to be a burden on the family due to his medical issues. [27] The panel can understand why the Respondent would want to assist her sick parent; however, refugee protection does not have a provision that allows one to return to a country from where one seeks protection simply because they have a need to visit and assist their sick parent. Unfortunately, parents can become ill and while the Respondent claims not to have known about the exact persecution and dangers faced by her family with respect to her asylum claim, she knew enough to get private security to accompany her upon her return to Colombia, which indicates that she recognized the dangers associated with travelling to Colombia. [28] Furthermore, the Respondent's father had the ability to come to Canada to seek medical assistance and familial support as he had lawful permanent residence status, and in fact he did come on numerous occasions. The Respondent's testimony that her father did not want to be a burden on the family and therefore he remained in Colombia for medical treatment is undermined by her testimony regarding her having to repeatedly go to Colombia, a country in which the family faced persecution, in order to support him during his illnesses. Her travel to Colombia during these visits inherently put her in a potentially dangerous situation and in essence, did make her father a burden by putting her in that precarious position. The panel does not find it reasonable that her father was able to travel to Canada on multiple occasions in 2014 and yet the Respondent claims she was compelled to travel to Colombia to visit her sick father ten days after his most recent visit to Canada. [29] Furthermore, while it is very honourable that the Respondent wanted to travel to Colombia in order to give to children in need, the Respondent did not need to travel to Colombia for these reasons but she chose to do so on her own goodwill and volition. Refugee protection as noted by the High Commission lasts only as long as the reasons for fearing persecution in the country of origin persist.11 The Respondent is not a Canadian citizen and as such, travelling on her Colombian passport to Colombia and other countries is an indication that she accepted the protection that passport entailed. [30] The panel notes that a passport is an official document issued by a government certifying the holder's identity and citizenship, and also entitling the holders of such document to travel under the protection of its government to and from foreign countries. [31] The Respondent admitted that she used her Colombian passports to travel to Colombia and other locations in the world. By virtue of travelling on these Colombian passports, not just to Colombia but elsewhere, this does show intent to travel under the protection of the Colombian government. While the action of obtaining the Colombian passport may not be evidence of her intent for the use of the passport, her travel and use of the passport on so many occasions demonstrates her intent to re-avail herself of protection from the Colombian government. [32] The panel has considered the Respondent's submissions with respect to her lack of knowledge regarding the potential consequences of using her Colombian passport to travel to Colombia and other countries, however, the panel finds that ignorance of the law is not a valid argument. The Respondent is an educated, sophisticated adult who could have sought information regarding the requirements she must uphold in order to secure her status in Canada. Did the Respondent actually re-avail? [33] The panel has reviewed the UNHCR Handbook which indicates: A refugee requesting protection from the authorities of the country of his nationality has only "re-availed" himself of that protection when his request has actually been granted. The most frequent case of "re-availment of protection" will be where the refugee wishes to return to his country of nationality. He will not cease to be a refugee merely by applying for repatriation. On the other hand, 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...12 [34] The panel finds that the years of travel to Colombia, Cuba, Mexico and the United States, using Colombian passports shows the Respondent did in fact re-avail. The panel finds that the Respondent's actions in returning to Colombia on numerous occasions for purposes that were not sufficiently shown to be necessary or compelling, demonstrate the Respondent's intentions to re-avail. The panel also finds the intention to re-avail applies to when the Respondent travelled to other countries as the use of a Colombian passport to travel internationally grants her the protection of the Colombian government in these foreign lands if something goes amiss. It is a protection for an individual to travel abroad, knowing he or she can contact the government if a need arises and that the country will aid them if need be. [35] Therefore, the culmination of the travel to Colombia on numerous occasions to visit her sick father and for a humanitarian mission, as well as her use of her Colombian passport to travel for vacation purposes to other countries, demonstrates the voluntariness, intent, and actual re-availment for this Respondent. [36] Counsel for the Respondent requested that the panel consider humanitarian grounds with respect to the Respondent's brother's medical issues in Canada and his need to have his sister (the Respondent) here to assist in his care. The panel notes that section 108 is silent on this topic and the panel does not have the jurisdiction to consider humanitarian and compassionate grounds. CONCLUSION [37] The panel finds that XXXX XXXX XXXX XXXX has voluntarily re-availed herself of the protection of her country of nationality as described in section 108(1) (a) of the Act. [38] The Minister's application for cessation of XXXX XXXX XXXX XXXX status as a Convention refugee, pursuant to section 108(2) of the Act, is allowed and her claim is deemed to be rejected in accordance with section 108(3) of the Act. (signed) "J. Wasserman" J. Wasserman March 15, 2019 date 1 Exhibit 1. 2 Ibid. 3 Exhibit 3. 4 Exhibit 2. 5 Ibid. 6 Ibid. 7 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. 8 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraph 120. 9 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraph 121. 10 Exhibit 3. 11 Counsel's Book Authorities Office of the United Nations High Commission for Refugees. 12 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraph 122. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.25.11 (September 17, 2018) Disponible en français Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD.25.11 (September 17, 2018) Disponible en français RPD File No. / N° de dossier de la SPR : TB7-02071