VB3-02497

RPD File No. / N° de dossier de la SPR : VB3-02497 VB3-02498/VB3-02499 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Applicant(s) The Minister of Public Safety and Emergency Preparedness Demandeur(e)(s) Respondent XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Intimé(e) Date(s) of Hearing March 13, 2014 Date(s) de l'audience Place of Hearing Heard by videoconference in Vancouver, BC and Calgary, AB Lieu de l'audience Date of Decision March 24, 2014 Date de la décision Panel Kerry Cundal Tribunal Counsel for the respondent(s) Roger Bhatti Barrister and Solicitor Conseil(s) de l'Intimé (e) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du 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 pursuant to section 108 of the Immigration and Refugee Protection Act (the "Act")1 to have the Immigration and Refugee Board determine that the refugee protection of ("the respondents") has ceased. An oral hearing of this application was conducted by the Division on March 13, 2014. [2] Minister's Counsel and the respondents' Counsel were present at the hearing. The respondents applied for refugee status on May 11, 2009 and received a positive determination on July 28, 2010. DETERMINATION [3] The Panel finds that the respondents in their particular circumstances have not re-availed themselves of the protection of their country of nationality, and therefore the Minister's application is rejected. ANALYSIS [4] First, Minister's Counsel conceded during the hearing that the Minister had not established a prima facie case regarding the application for cessation of the respondent, XXXX XXXX XXXX, as the evidence indicates that she did not act voluntarily or with intent regarding the renewal of her Sri Lankan passport or her travel to Sri Lanka in July 2013. The respondent, Mrs. XXXX is an elderly woman who is dependent on her daughter, the respondent, XXXX XXXX XXXX XXXX for her care, including managing multiple prescription medications. The respondent XXXX testified that she had made the passport application for her mother and arrangements for travel. The respondents' testimony was corroborated by medical evidence regarding the respondent, Mrs. XXXX medical condition and dependency on her daughter.2 The panel agrees with Minister's Counsel and accordingly finds that the Mrs. XXXX has not demonstrated the required voluntariness and intent required to establish re-availment. [5] The basis of the Minister's application regarding the other two respondents is that the respondents have re-availed themselves of the protection of Sri Lanka due to the fact that they returned to Sri Lanka for a two month visit in July 2013 and traveled on their Sri Lankan passports, which they obtained prior to their refugee claim in Canada. The Minister submits that in accordance with RPD Rule 64(2)(e) and pursuant to section 108(2) of the Act that the respondent's refugee protection has ceased for the reasons set out in section 108(1)(a). [6] The main facts of this application are clear and not in dispute. The Minister bases his application on the following facts that the respondents admitted to during sworn testimony: a. The respondents were granted refugee protection on July 28, 2010; b. The respondents are in possession of valid Sri Lankan passports; c. The respondents returned to Sri Lanka in July 2013 and returned to Canada on September 17, 2013. [7] The respondents were granted refugee protection on the basis of extortion and threats, including threats to kidnap their children, made against them by the Karuna Faction in Sri Lanka. [8] The respondents testified in a straightforward and consistent manner. Therefore the panel finds that the respondents are credible witnesses. The respondents' testimony was consistent with other documents including the interview notes taken by the Canadian Border Services Agency (CBSA) officer. For example, when the respondent XXXX was asked by the CBSA officer why the family had gone back to Sri Lanka, she replied, "My husband's mother is very sick and very old."3 Further, the respondents submitted medical evidence regarding their parent's medical condition, including abdominal surgery she underwent in 2010 and the deterioration of her health and the fact that she is now bedridden.4 [9] The respondent, XXXX testified that he made the decision to take the risk of return to Sri Lanka to see his mother one last time after he received the call from his mother's doctor in Sri Lanka. He testified that his brother and sister in Sri Lanka have been looking after his mother. The respondent's mother's doctor also indicates in his letter that he called the respondent XXXX "several times around 2013 January over the phone."5 As Minister's Counsel pointed out, the trip to Sri Lanka was booked in February 2013.6 The respondent, XXXX testified that they planned their trip according to the availability of the immigration officer his brother had paid a bribe to regarding assisting them to pass through immigration without difficulty when they landed and left the Airport in Sri Lanka. The respondent, XXXX testified that he only told his brother, sister and mother that they were coming to Sri Lanka and stayed in the Dharga town, Welipenne, which is about 80 km to 90 km away from Horana where the respondents had lived in Sri Lanka and had been targeted by the Karuna Faction in 2007. The CBSA officer interview notes are also consistent with the respondent's testimony on where they stayed in Sri Lanka.7 The respondent, XXXX also testified that he did not engage in any business while in Sri Lanka and did not visit anyone outside of his immediate family, namely his brother, sister and mother in Dharga town. [10] The respondent, XXXX testified that his mother will ask the same questions on the phone and has memory problems. He testified that she has been asking him and his family to visit for a number of years given that they left Sri Lanka in 2007 and she wanted to see them before she dies. He testified that he told his mother that it was not safe for them to come to Sri Lanka to see her. The respondent, XXXX also testified that her husband's mother and grandmother to their children had frequently requested to see her grandchildren before she was no longer able to, one of whom was born in Canada and she had never met. The respondents testified that they continue to fear living in Sri Lanka because of the Karuna Faction threats against them and have no intention of returning to Sri Lanka again as this was a one-time visit to see the respondent's mother before she dies. Legal Considerations: [11] Counsel for the Minister provided the panel with excerpts from the UNHCR "Handbook on Procedures and Criteria for Determining Refugee Status" ("the UNHCR Handbook", circa. 1979)8 to support the position that the facts of this case are sufficient for the panel to remove the respondent's refugee protection. [12] 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 states that this is when the refugee will have demonstrated that they are no longer "unable or unwilling to avail himself of the protection of the country of his nationality." 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 (emphasis added). 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,"9 thus creating a rebuttable presumption. This is further supported by UNHCR Handbook submitted by Minister's Counsel at Exhibit 10, page 1, para. 48, which states, "Possession of a passport cannot therefore always be considered as evidence of loyalty on the part of the holder, or as an indication of the absence of fear." [13] 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.10 [14] 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. [15] 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." [16] Minister's Counsel relied on four Federal Court decisions, two dealing specifically with cessation and two dealing with re-availment in the context of a refugee claim discussed below. [17] The Federal Court decision, Nsende v. Canada (Minister of Citizenship and Immigration), [2009] 1 F.C.R. 49 (F.C.) deals with the issue of what constitutes "voluntary re-availment" under paragraph 108(1)(a) of the Act.11 This decision involves the Federal Court review of a decision of the Refugee Protection Division finding the refugee protection of a Congolese national had ceased due to this person having received a passport; the appeal was allowed and the Federal Court overturned the decision of the Division. In this decision, Justice Lagacé referred extensively to the UNHCR handbook and the other legal authorities pertaining to the Act's cessation clause. At the conclusion of his decision, Justice Lagacé writes: True, the burden was on the applicant to rebut this presumption, and he tried. But his explanations as a whole were not discarded by the Board because they were not credible; on the contrary the decision seems to imply that, the simple fact of possessing a Congolese passport that the applicant refused for a very specific reason to return to the Congolese authorities when requested by them to do so, constitutes proof of his intention to reavail himself of the protection of his country of nationality. The Court cannot accept such implied finding in the present affair in view of the inexistence of any credibility finding in the decision with respect to the applicant's explanations. 12 [18] It is clear from the panel's review of this decision that the panel is required to assess the respondents' explanation for using their Sri Lankan passports to transit through China and return to Sri Lanka in July 2013 in determining whether they have re-availed within the meaning of section 108(1)(a) of the Act. The case at hand is different from the Nsende, supra in that the respondents in the case at hand did not obtain passports after they received refugee protection in July 2010, but rather had valid passports that were issued in 2007 and 2004. Nonetheless, the parties agree that the respondents used their Sri Lankan passports to return to Sri Lanka in July 2013. The issue in dispute is whether they have rebutted the presumption that their return to Sri Lanka on their Sri Lankan passports constitutes re-availment for the purposes of cessation in their circumstances. [19] The Federal Court decision Cadena v. Canada (Minister of Public Safety and Emergency Preparedness), [2012] FC 67 involved a cessation application of a woman and her minor son who had made successful refugee claims against Mexico, then chose to return to Mexico for a four-year period a few weeks after obtaining refugee status. Further, Cadena also acknowledged at the port of entry that she no longer needed protection in Canada.13 The facts of the case at hand are distinguished from Cadena, supra as the case at hand involves respondents who made a one-time visit to an elderly and ill mother for two months, mitigated their risks, continue to demonstrate an on-going fear of return to Sri Lanka, left Sri Lanka after threats in 2007, about seven years ago and no documentary evidence was submitted by either party regarding any changes to the origin of the respondent's fears, namely the risk of threats including, extortion and kidnapping by the Karuna Faction against the respondents. [20] The Federal Court decision Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), [2011] FC 1346 involves judicial review of a refuge claim denied by the Refugee Protection Division. Minister's Counsel highlighted the Federal Court's observations at paragraph 8: Re-availment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal safety is in jeopardy. The panel finds that Garcia, supra is distinguished from the case at hand for two reasons. First, it is a review of a decision wherein re-availment was considered within the context of a refugee claim, not cessation. Second, the Federal Court in Garcia, supra reviewed the Board's adverse credibility finding regarding the claimant's return to Colombia in light of other credibility issues including "inconsistencies in behavior and between the narrative and testimony"14 and with particular reference to "a lack of subjective fear."15 In any event, the Federal Court in Garcia, supra does not indicate that there are not circumstances where re-availment may be rebutted and leaves open extenuating circumstances wherein one might take risks to their own safety and re-avail. [21] The Federal Court decision Kabengele v.Canada (Minister of Citizenship and Immigration), 2000 CanLII 16629 (FC) is distinguished from the case at hand on two points. First similar to Garcia, supra, it involves a review of re-availment within the context of a refugee claim, not a cessation application, two very different processes. Second, it is clear in Kabengele, supra that the Federal Court reviewed the Board's finding regarding re-availment in light of several other credibility issues and found at paragraph 37 of its decision: "The plaintiff's credibility had already been undermined by other contradictions." Further, the Federal Court concludes at paragraph 49: Fundamentally, the Refugee Division arrived at its decision by finding that (1) the plaintiff lacked credibility, and (2) the political situation in the plaintiff's country of origin had changed. [22] Accordingly, given the positive credibility findings in the case at hand, the panel finds that it is distinguished from the Kabengele, supra and the discussion on re-availment under the context of establishing the required subjective fear in a refugee claim is different than assessing the voluntariness, intent and actual receipt of protection from one's country of origin in responding to a cessation application. Voluntariness, Intention to Re-avail and Actually Obtaining Protection from the State Authorities [23] It is clear the respondents returned to Sri Lanka only once for a short visit of two months to see the respondent XXXX mother who is ill and elderly. At issue is whether the respondents have provided proof rebutting the presumption that using their existing Sri Lankan passports to return to Sri Lanka is evidence of their intention to avail themselves of the protection of Sri Lanka and evidence that they actually obtained that protection. [24] Minister's Counsel submitted that there is a difference between voluntariness and justification for the respondents' rationales for returning to Sri Lanka and submitted that the respondents acted voluntarily, there was no coercion, they returned for personal reasons and that the mother's deteriorating health is not exceptional for her age. Although the deteriorating health of an elderly woman may not be exceptional as a general occurrence, the panel finds that within the context of the respondents' decision to risk their own safety by returning to Sri Lanka for a one-time relatively short last visit, it is an extenuating circumstance and a persuasive reason as to why the respondents would risk their own safety. Given the conjunctive nature of the three requirements outlined in the Federal Court's decision in Nsende, supra imported from the UNHCR Handbook and the restrictive and well-balanced approach indicated by the UNHCR Guidelines and academic specialists in refugee law such as Goodwin-Gill, the panel finds that the respondents' explanation for their brief one-time return to Sri Lanka is reasonably envisaged by these authorities as an extenuating circumstance, which provides a rebuttal to the presumption of re-availment in their circumstances. [25] The panel has assessed the respondent's explanation for using their Sri Lankan passports and returning to Sri Lanka and finds that they voluntarily took the risk of harm to themselves to see their elderly and sick parent one last time before she dies. In doing so, however the panel finds that the respondents did not intend to re-avail themselves of protection from Sri Lankan authorities. The respondents' credibility and consistency with the CBSA officer's interview notes at the airport indicate that they did not seek to re-avail themselves of Sri Lanka's protection. The respondents in the CBSA interview and in testimony indicated that they visited the respondent's mother in Dharga Town, Welipenne and did not go back to Horana where they were targeted by the Karuna. The fact that the trip was booked in February 2013 for the summer break of 2013 does not indicate any credibility issues. The respondent's mother has been in poor health and physical condition for some time as supported by the previously mentioned medical note and this situation is ongoing and her heath continues to deteriorate. [26] The respondents avoided the place where they had been targeted in 2007 during their visit in 2013 and visited only immediate family in a confined location. Further, they mitigated their risk by arranging a bribe of an immigration officer through their brother to facilitate entry into Sri Lanka and avoid further contact with Sri Lankan authorities. When the extenuating circumstance of visiting an elderly and ill parent before she dies as the reason for their trip to Sri Lanka is factored into this analysis, it becomes clear to the panel that the respondents' actions are not indicative of an intent to re-avail themselves of the protection of the Sri Lankan state. Rather, they were calculated risks taken in order to visit an important ill and elderly family member before she is gone from their lives. Based on all of the circumstances, the panel finds that a one-time relatively short visit to see an elderly ill parent does not amount to an intent to re-avail themselves of protection from the Sri Lankan authorities. [27] The UNHCR Guidelines on the Cessation Clauses at Exhibit 12, states: Refugee status as conceived in international law, is, in principle, a transitory phenomenon which lasts only as long as the reasons for fearing persecution in the country of origin persist...The cessation clauses set out the only situations in which refugee status properly and legitimately granted comes to an end...This strict approach is important since refugees should not be subjected to constant review of their refugee status. The UNHCR Guidelines also state that a restrictive and well-balanced approach should be adopted in the interpretation of the cessation clauses. [28] Minister's Counsel also submitted excerpts from a work by Guy S. Goodwin-Gill, The Refugee in International Law, at Exhibit 10, pages 2-7 which supports the notion of a rebuttable presumption regarding obtaining a passport from the country of persecution, although strengthened when the passport is actually used to return to that country. Goodwin-Gill goes on to state that it is the "normalization of the relationship between the State and individual which matters" and further indicates that all the circumstances of the contact between the individual and the authorities of the country of origin must be taken into account; this is also consistent with the well-balanced and restrictive approach indicated by the UNHCR Guidelines previously noted. Minister's Counsel indicated during the hearing that Goodwin-Gill wrote his book prior to the UNHCR Guidelines becoming available. [29] Goodwin-Gill also notes that it is relevant to consider the age of the refugee, the object to be attained by the contact, whether contact was successful, whether it was repeated and what advantages were actually obtained. Although Goodwin-Gill work was written on his on cessation prior to the UNHCR Guidelines, the panel finds the factors he suggests are helpful and consistent with the UNHCR Guidelines. Based on the aforementioned factors set out by Goodwin-Gill, the panel finds that the object of using the Sri Lankan passports to enter Sri Lanka was to see an ill and elderly mother before she dies; it was a one-time visit, not repeated and the only advantage gained was this last visit with an important relative. The respondents did not obtain any actual diplomatic or consular protection from the Sri Lankan authorities either through their transit and contact with Chinese immigration authorities or through the Sri Lankan immigration authorities, one of whom was bribed to facilitate entry into Sri Lankan and avoid any further contact with authorities. Their contact with Sri Lankan authorities was minimal and not normalized. [30] Further Goodwin-Gill also suggests that there is less scope for extenuating circumstances and explanation when nationality is reacquired, but does not suggest that these are not important factors to consider. The panel finds that a one-time visit to an elderly and ill parent fits within the scope of the UNHCR Guidelines and constitutes an extenuating circumstance, which rebuts the presumption that they intended to re-avail themselves of the state's protection. CONCLUSION [31] Although the respondents voluntarily took the risk in returning to Sri Lanka to see their ill and elderly parent one last time, their actions do not demonstrate an intention to re-avail themselves of their country's protection given that they avoided the authorities and bribed an immigration official to facilitate their entry into the country and minimize their contact with state authorities. Further, they did not actually obtain such protection in light of their ongoing fears of extortion and kidnapping threats by the Karuna Faction, but rather mitigated their risk by confining their movement within Sri Lanka to the Dharga town area and not informing anyone beyond their immediate family of their presence in Sri Lanka. The panel finds that the respondents have rebutted the presumption of re-availment created by using their Sri Lankan passports to return to Sri Lanka through the provision of credible, reasonable explanations and supporting documentation. The Minister's application to have the respondents' refugee protection cease is therefore denied. (signed) "Kerry Kundal" March 24, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2Exhibit 13, page 2. 3Exhibit 9, page 13. 4Exhibit 13, page 3. 5Ibid, page 3. 6Exhibit 9, page 3. 7Exhibit 9, page 13. 8 Exhibit 1, p.16. 9 Exhibit 1, pp. 17 - 18. 10 Exhibit 1, p.18. 11 Nsende v. Canada (Minister of Citizenship and Immigration), [2009] 1 F.C.R. 49 (F.C.), para.10. 12 Nsende v. Canada (Minister of Citizenship & Immigration) 2008 FC 531. 13 Cadena v. Canada (Minister of Public Safety and Emergency Preparedness), [2012] FC 67, para.6. 14 Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), [2011] FC 1346, para.6. 15 Ibid, para.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : VB3-02497 VB3-02498/VB3-02499