Docket: IMM-3456-11
Citation: 2012 FC 67
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, January
19, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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SANDRA LUZ CABRERA CADENA
and
MIGUEL ANGEL CAMACHO CABRERA
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Applicants
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and
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MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The
Refugee Protection Division (RPD) placed weight on the fact that the principal
applicant and her son (applicants) deliberately chose to return to Mexico for a
four-year period a few weeks after obtaining refugee status. The reason provided
to justify this action does not alter the voluntariness of the act. Regarding
“intention”, the second condition, the Court cannot accept the female applicant’s
claim. Furthermore, it is not the intention to re-establish themselves in
Mexico that is described in paragraph 108(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), contrary to what the
applicants claim, but rather the intention to reavail themselves of the protection
of the authorities that issued the passport that was the subject of an analysis
by the RPD. The RPD therefore did not commit an error by rejecting the
applicant’s justification that she had returned to Mexico only in the hopes of
bringing her husband to Canada (UNHCR Handbook, paragraph 119(b) of the
IRPA).
II. Judicial procedure
[2]
This is an
application for judicial review of a decision by the RPD dated May 10, 2011,
that the refugee protection granted to the applicants has ceased pursuant to
section 108 of the IRPA.
III. Facts
[3]
Sandra Luz
Cabrera Cadena and her minor son, Miguel Angel Camacho Cabrera, are citizens of
Mexico and obtained refugee status on September 6, 2002.
[4]
On October
24, 2002, Ms. Cabrera Cadena and her son Miguel Angel returned to Mexico with
their Mexican passports, which were obtained subsequent to a request to the
Canadian authorities.
[5]
Four years
later, on October 26, 2006, Ms. Cabrera Cadena and her son Miguel Angel returned
to Canada with new passports obtained from the Mexican authorities.
[6]
On January
3, 2008, Ms. Cabrera Cadena and her son Miguel Angel travelled to Canada again.
At the point of entry, Ms. Cabrera Cadena allegedly acknowledged having obtained
refugee status and stated that she no longer needed protection in Canada.
[7]
In
accordance with paragraphs 108(1)(a) and (d) of the IRPA, the
Minister of Public Safety and Emergency Preparedness filed an application with
the RPD to cease refugee protection because the applicants had voluntarily
reavailed themselves of the protection of Mexico, the country in respect of
which they had sought protection in Canada.
IV. Decision under review
[8]
The RPD
found that the applicants had voluntarily reavailed themselves of the protection
of Mexico, their country of nationality, and that they had voluntarily returned
to live in Mexico, the country in respect of which they had sought protection
in Canada. The RPD conducted an analysis of paragraph 108(1)(a) of
the IRPA only.
[9]
The RPD
used paragraphs 118 to 125 of the Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees, HCR/1P/4/Eng/REV.1, Geneva, January
1992 (UNHCR Handbook), to interpret section 108 of the IRPA. The RPD
relied on the fact that the applicants had used their Mexican passports to
travel. It strongly emphasized, by this very fact, that, in 2006, the applicant
had obtained new passports for herself and for her minor son at the time of
their first return trip to Canada. In paragraph 14 of its decision, the RPD was
of the opinion that these “ . . . actions have created a presumption that they
intended to reavail themselves of the protection of Mexico”.
[10]
The RPD found
that the principal applicant had not rebutted the presumption with explanations
that she had returned to Mexico to bring her husband to Canada and,
subsequently, had had a difficult relationship with her husband, who had prevented
her from returning to Canada.
[11]
Regarding
the minor child, the RPD stated the following at paragraph 15 of its decision: “In
my opinion, an 11-year-old boy does not have the capacity to form an intent
that is different from that of his mother or father with regard to the decision
to reavail himself of the protection of the country of his nationality”. To arrive
at this finding, the RPD relied on the fact that the applicant had made the
decision on behalf of her minor child to return to Mexico and to use Mexican
passports, elements that had emerged from her testimony.
V. Issue
[12]
Is the
RPD’s decision reasonable?
VI. Relevant statutory provisions
[13]
The
following provisions are relevant:
Cessation of Refugee Protection
Rejection
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;
(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.
Cessation of refugee protection
(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).
Effect of decision
(3) If the application is allowed,
the claim of the person is deemed to be rejected.
Exception
(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 they left,
or outside of which they remained, due to such previous persecution, torture,
treatment or punishment.
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Perte de l’asile
Rejet
108. (1) Est rejetée la demande d’asile et le demandeur
n’a pas qualité de réfugié ou de personne à protéger dans tel des cas
suivants :
a) il se réclame de nouveau et
volontairement de la protection du pays dont il a la nationalité;
b) il recouvre volontairement sa
nationalité;
c) il acquiert une nouvelle
nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) il retourne volontairement
s’établir dans le pays qu’il a quitté ou hors duquel il est demeuré et en
raison duquel il a demandé l’asile au Canada;
e) les raisons qui lui ont fait
demander l’asile n’existent plus.
Perte de l’asile
(2) L’asile visé au
paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la
Section de protection des réfugiés, de tels des faits mentionnés au
paragraphe (1).
Effet de la décision
(3) Le constat est assimilé au rejet
de la demande d’asile.
Exception
(4) L’alinéa (1)e) ne
s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses,
tenant à des persécutions, à la torture ou à des traitements ou peines
antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté
ou hors duquel il est demeuré.
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VII. Position of the parties
[14]
The
applicants, relying on paragraphs 133 and 134 of the UNHCR Handbook, allege
that the RPD erred by failing to place sufficient weight on the fact that the female
applicant had had no intention of re-establishing herself in Mexico and that
she had stayed in Mexico under her husband’s duress. Her husband had threatened
the female applicant’s family and had threatened to keep the minor child if the
female applicant were to return to Canada. Concerning the fact that they obtained
Mexican passports in 2006, the applicants argue that this was with the intention
of returning to Canada and demonstrates that the female applicant had never
intended to re-establish herself in Mexico, a fact the RPD failed to consider.
[15]
Regarding
the minor child, the applicants maintain that the RPD erred by refusing to exclude
him from the decision.
[16]
The respondent
contends that the RPD properly interpreted the principles in the UNHCR Handbook
to find that the applicants had voluntarily reavailed themselves of the protection
of their country of origin. He claims that it was open to the RPD to not accept
the female applicant’s explanations regarding her return to Mexico. Furthermore,
this finding is supported by the respondent’s statement at the point of entry
admitting that he no longer required the protection of Canada.
[17]
The
applicants also submit that the facts support the RPD’s finding with respect to
the minor child in that the female applicant made decisions on behalf of her
son and has sole custody of him.
VIII. Analysis
[18]
The
Court must show great deference when interpreting inferences of fact drawn by a
decision-maker at first instance (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190).
[19]
Concerning
the interpretation to be given to paragraph 108(1)(a), the
reasoning of the Court in Nsende v Canada (Minister of Citizenship and Immigration),
2008 FC 531, [2009] 1 FCR 49, applies:
[12] In order to
determine what is meant by “reavailment” paragraph 108(1)(a) of the Act,
it may be useful to examine the interpretation that has been given to its
source article in the 1951 Convention relating to the Status of Refugees
(the Convention). Article 1C(1) of the Convention reads: “This
Convention shall cease to apply to any person falling under the terms of
section A if: (1) He has voluntarily reavailed himself of the protection of the
country of his nationality […].” Paragraphs 118 to 125 of the Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees of the
United Nations High Commission for Refugees (the UNHCR Handbook) provide
some interpretative guidance as to the meaning of reavailment.
[13] As a starting
point, paragraph 119 indicates that there are three requirements for
reavailment under the Convention: (a) voluntariness: the refugee must act
voluntarily; (b) intention: the refugee must intend by his action to reavail
himself of the protection of the country of his nationality; and (c)
reavailment: the refugee must actually obtain such protection.
[14] Further, the UNHRC
Handbook highlights the distinction between “actual reavailment of protection
and occasional and incidental contacts with the national authorities” (paragraph
21). Instructively, it states that “[i]f 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.”
[15] Accordingly, the
UNHCR Handbook suggests that while a passport application creates a presumption
of intention to reavail, proof to the contrary may refute that presumption.
[20]
Upon
reading the RPD’s decision, it is clear that it gave the female applicant the
opportunity to rebut the presumption that they had reavailed themselves of the
protection of Mexico by returning with their Mexican passports obtained from
the Canadian authorities, which had been in possession of them further to the
refugee claim in 2002.
[21]
The RPD
considered the female applicant’s explanations, contrary to her claim. However,
it found, as it was entitled to do, that her testimony did not rebut the
presumption. At paragraph 14 of the decision, it specified the following:
. . . having heard and considered all of
the principal respondent’s testimony, I must say that I do not see anything in
that testimony that would allow me to conclude that the principal respondent
has refuted the presumption that she intended to reavail herself of the
protection of Mexico. Her testimony dealt mainly with her living conditions in
Mexico and the fact that she had a difficult relationship with her husband.
Even when she told us that she had returned to Mexico because she intended to
bring her husband back to Canada with her, nothing was presented to me that
could have led me to conclude that she had not, at that time, reavailed herself
of the protection of Mexico by using a valid passport. . . .
[22]
The RPD
placed weight on the fact that the female applicant deliberately chose to
return to Mexico a few weeks after obtaining refugee status. The reason provided
to justify this action does not alter the voluntariness of the act. Regarding
intention, the second condition, the Court cannot accept the female applicant’s
claim. Furthermore, it is not the intention to re-establish themselves in
Mexico that is described in paragraph 108(1)(a) of the IRPA, contrary
to what the applicants claim, but rather the intention to reavail themselves of
the protection of the authorities that issued the passport that was the subject
of an analysis by the RPD. The RPD therefore did not commit an error by
rejecting the female applicant’s justification that she had returned to Mexico
only in the hopes of bringing her husband to Canada (UNHCR
Handbook, paragraph 119(b) of the IRPA).
[23]
Furthermore,
the act of requesting protection was granted, according to the UNHCR Handbook:
122. 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. . . .
[24]
However,
it must be noted that the new passport application to which the RPD referred
and which was filed while the female applicant was in Mexico does not support
the RPD’s finding under paragraph 108(1)(a) of the IRPA because the
presumption:
. . . applies to a refugee who is still outside
his country. It will be noted that the fourth cessation clause provides
that any refugee will cease to be a refugee when he has voluntarily
"re-established" himself in his country of nationality or former
habitual residence. [Emphasis added.]
(UNHCR Handbook, footnote at page 16).
[25]
Given the
weight the RPD put on the female applicant’s Mexican passport application filed
in Mexico in 2006, it should have further elaborated its reasoning and analyzed
the potential re‑establishment of the female applicant under paragraph 108(1)(d)
of the IRPA. However, the fact remains that it was not obliged to analyze all
of the paragraphs in subsection 108(1) of the IRPA to establish the cessation
of the protection. Having chosen to not do so, the RPD was not required to examine
the intention to return to Canada, as the applicants would have liked.
[26]
Under the
circumstances, the RPD’s findings regarding the fact that the female applicant
had reavailed herself of the protection of the country were reasonable and there
is no basis to intervene.
[27]
The issue
of the minor child, who was 11 years old at the time of the hearing, is a more
delicate matter. The RPD supported its finding by merely making a distinction
between its reasoning and that advanced in Neves v Canada (Minister of
Employment and Immigration), [1987] IADD No 75 (QL/Lexis).
[28]
The RPD’s
finding on this point, at paragraph 15, was as follows:
. . . So, I make a distinction between
the decision that I am rendering today and the decision that was rendered by
the Immigration Appeal Division (IAD). In any case, I am not bound by the IAD’s
decisions . . . . In my opinion, an 11-year-old boy does not have the capacity
to form an intent that is different from that of his mother or father with
regard to the decision to reavail himself of the protection of the country of
his nationality.
[29]
The RPD did
not further justify its decision regarding what differentiates an 11-year-old
child from a 14-year-old child when analyzing a child’s intent. Furthermore,
upon reading the hearing transcript, there was no mention of the intent of the
child, who was not present in the hearing room. Rather, there was mention of
the steps taken by the female applicant, who is the designated representative
of her minor son:
BY THE PANEL MEMBER (to the person in
question)
[translation]
. . .
-
Ms.
Cabrera Cadena, you are the mother of Miguel Angel and you are designated to
act as his representative. Are you willing and able to act in the interest of
your minor child?
A: Yes.
Q: OK. So I designate you
the representative of your minor child Miguel Angel in the context of this application
to cease refugee protection. Miguel Angel does not need to stay in the room but
he can stay if he wishes.
. . .
Q: How old is your son Miguel Angel on
this day?
A: Eleven years old.
Q: And it is you who has custody? Do
you have legal custody of your son?
A: Yes.
. . .
Q: And decisions concerning your son,
who makes them?
A: Me.
Q: So in October 2002, it
was you who made the decision on behalf of your son that he would return to
Mexico with you? Is that right?
A: Yes.
Q: And in . . . In August
2006, it was you who made the decision on behalf of your son to obtain, to
apply for and obtain a second Mexican passport?
A: Yes.
Q: OK. I have no more questions.
(Tribunal
Record (TR) at pages 165, 195 and 196).
[30]
Ample case
law from the Immigration Appeal Division in the 1980s was directly concerned
with a child’s intent in a context where a child’s parents had abandoned
permanent residence. Although these decisions are not binding on the Court (Bath
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1207
(QL/Lexis) at paragraph 14), they emphasize the importance of considering the
intention of minors when they reach the age to form it, on the basis that they
could not form it upon the departure of their parents because of their young
age.
[31]
The male applicant
was three years old at the time of the initial departure to Mexico and was therefore
not able not form an intention to reavail himself of the protection of Mexico.
This could have been different at eleven years of age, his age at the time of
the hearing. At that point, there should have been further analysis in order to
find that an 11-year-old child cannot form an intention that differs from that
of his parents.
[32]
However,
nothing in the evidence or in the submissions made by the parties makes it
possible to determine whether the intention of the child could have been
different from that of his mother.
IX. Conclusion
[33]
In the
circumstances of this case and in light of the foregoing, the Court cannot
intervene because the decision does not go beyond the range of reasonableness.
JUDGMENT
THE COURT
ORDERS that the application for judicial
review be dismissed.
No question of general importance arises for certification.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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