VB5-01930

RPD File No. / N° de dossier de la SPR : VB5-01930 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 Intimé(e) Date(s) of Hearing February 1, 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 February 15, 2018 Date de la décision Panel Preeti Adhopia Tribunal Counsel for the Respondent(s) N/A Conseil(s) du (de la/des) Intimé(e) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Katherine Burnham Conseil du (de la) ministre REASONS FOR DECISION [1] The respondent, XXXX XXXX XXXX XXXX, is a citizen of Cuba who came to Canada in October 2005 and made a claim for refugee protection. On March 16, 2006, he was determined to be a Convention refugee by the Refugee Protection Division (RPD). The respondent became a permanent resident of Canada on January 30, 2007. [2] This is the decision of the Refugee Protection Division (RPD) concerning the Minister's application to cease the respondent's refugee protection pursuant to section 108(2) of the Immigration and Refugee Protection Act (the "Act").1 MINISTER'S APPLICATION FOR CESSATION [3] On May 7, 2015, the RPD received an application from the Minister for cessation of the respondent's status as a Convention refugee. The Minister alleges that the respondent was issued a Cuban passport in XXXX 2009. Following this, he returned to Cuba in XXXX 2011, XXXX 2013 and XXXX 2015. As a result of these actions, it is alleged that the respondent voluntarily reavailed himself of the protection of Cuba and therefore has ceased to be a refugee pursuant to section 108(1)(a) of the Act. DETERMINATION [4] 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 his claim is deemed to be "rejected" in accordance with section 108(3) of the Act. ANALYSIS Hearing in Absentia [5] The hearing for this matter was set for February 1, 2018, but the respondent failed to appear. This was not unexpected given that the respondent's Notice to Appear, dated November 28, 2017, was returned to the RPD on December 13, 2017 with an indication that the respondent had moved. It was determined that the hearing would proceed in his absence based on a few factors. [6] The Minister provided a statement that the cessation application and documents were sent to the respondent by regular mail on May 5, 2015 at his last known address on XXXX XXXX XXXX XXXX. On May 25, 2015, the RPD sent an acknowledgement of its receipt of the Minister's application along with a Notification of Client Contact Information form and other materials to the same address. The respondent received the information because on June 16, 2015, the RPD received from him a request to change the venue of his proceeding from XXXX to XXXX. Furthermore, the respondent attached the contact information form and provided his same address on XXXX XXXX inXXXX XXXX. This form reminds respondents of their duty to inform both the Minister and the RPD of any changes in address without delay. The respondent's request for a change of venue was granted. [7] From the information above, it is clear that the respondent was aware that he is the subject of a cessation application by the Minister. He was also aware of his duty to notify the parties of his contact information because he submitted a form confirming his address. He did not remain diligent in this regard. When the RPD received the returned Notice to Appear, it made documented efforts to locate the respondent by searching for a new address and calling the respondent's last known telephone number without results. [8] Rule 12 establishes a positive duty on the respondent to notify the parties of changes to his contact information: 12 If an application to vacate or to cease refugee protection is made, the protected person must without delay notify the Division and the Minister in writing of (a) any change in their contact information; and (b) their counsel's contact information and any limitations on the counsel's retainer, if represented by counsel, and any changes to that information [emphasis added].2 The respondent knowingly failed to be diligent in carrying out his duty under Rule 12. Therefore, it was determined that to proceed with the hearing does not amount to a breach of procedural fairness. Voluntary Reavailment of the Protection of the Country of Nationality [9] Section 108 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; [10] The Minister argues that the respondent acquired a new passport from the Cuban embassy after he had been determined to be a Convention refugee and he returned to Cuba in 2011, 2013 and 2015. The passport containing the related travel stamps is in evidence.3 In March 2015, the respondent confirmed these facts in a sworn statement provided to the Minister.4 [11] The respondent explains in his sworn statement that he went to Cuba in 2011 because his father was sick with cancer and he returned in 2013 for the funeral. He states that "on both of these occasions I provided documents to support my father's condition from the doctor and documents from the funeral. These were provided to the officer upon my return to Canada at the port of entry." He further states that he returned to Cuba in 2015 because his mother was in the hospital. The Minister has not provided contradictory evidence, so I accept these explanations as credible. [12] The United Nations High Commissioner for Refugees (UNHCR) Handbook indicates that the cessation clause implies three requirements: voluntariness, intention and reavailment.5 There is, of course, overlap among these requirements. I agree with the Minister that the respondent obtained his passport and returned to Cuba voluntarily, by choice, and under no duress. There is no evidence that he was constrained by or required, out of some legal necessity or otherwise, to acquire a passport or return to Cuba. He was not deported, extradited or kidnapped. No person or government forced or pressured him to acquire a passport and return. He did so freely. What is very significant in this case is that he obtained his passport before any evidence of the necessity to travel to Cuba arose. The respondent acquired a Cuban passport in XXXX 2009; more than two years before his father apparently fell ill. This implies an intention to have his interests defended by the Cuban state before even returning. I have no evidence about his motivation for doing so. [13] The UNHCR Handbook 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 avail himself of the protection of the country of his nationality. . . . . . 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.6 [14] Canadian jurisprudence establishes that obtaining a passport from the country of nationality leads to a presumption of reavailment.7 The case at hand is not only one of an application for and receipt of a passport; the respondent went back to Cuba three times. 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 respondent's 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.8 [15] I have taken into account the respondent's reasons for returning to Cuba; the illness and death of his father and illness of his mother. 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.9 Attending a family member's funeral may rebut the presumption of reavailment.10 But, there is no evidence that the respondent made efforts to find out how to obtain permission or a Canadian travel document that could allow him to travel abroad, including to Cuba. Article 28 of the Convention binds signatories to issue travel documents to refugees lawfully in the country. It is reasonable to expect that a successful refugee claimant, presumably with a well-founded fear of persecution in their home country, would approach immigration authorities to seek permission to leave, or discuss the implications of returning to the country against which a refugee claim is made. There is no evidence that this was done. Rather, the respondent provided justifications for his trips to Cuba to Canadian authorities after his return. Thus, despite the respondent's fear of Cuban authorities, he reacquired a passport from the same authorities and then travelled with it three times, thereby creating six more interactions with those authorities as a national on their soil. [16] I do not find that the respondent's reason for returning to Cuba overcomes application of section 108(1)(a) of the Act in view of the respondent maintaining a Cuban passport without reasonable explanation long before his parents fell ill, and actually returning to Cuba with it, as opposed to getting permission from Canadian authorities or obtaining a Canadian travel document. CONCLUSION [17] Section 108(1)(a) applies to the case of the respondent. As such, 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 his claim is deemed to be rejected in accordance with section 108(3) of the Act. (signed) "Preeti Adhopia" Preeti Adhopia February 15, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Protection Division Rules (the "Rules"), SOR/2002-228. 3 Exhibit 1, pp. 15-32. 4 Exhibit 1, p. 33. 5 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, paragraph 119. 6 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, paragraph 121-123. 7 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 8 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, paragraph 125. 9 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, paragraph 125. 10 Yuan, Xin v. M.C.I. (F.C., no. IMM-5365-14), Boswell, July 28, 2015; 2015 FC 923. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : VB5-01930 5 RPD 29.1 (2014/02/18)