Date: 20080623
Docket: IMM-4401-07
Citation: 2008
FC 785
Ottawa, Ontario,
June 23, 2008
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MAYELLI
KAMARA and MICHAELLA FINOH
and ALIMAMY KAMARA and FUDIA KAMARA
(by their litigation guardian, MAYELLI
KAMARA)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mayelli Kamara and her
children are citizens of Sierra
Leone. They
fled the civil war in Sierra
Leone in 1999
and ultimately arrived in Guinea. They applied for permanent
residence in Canada pursuant to the Convention
refugees abroad class and the humanitarian-protected persons abroad class. As
required, their application was submitted in conjunction with an undertaking to
sponsor by a sponsorship agreement holder. Following an interview, a visa
officer refused the applications.
[2] The
applicants assert, for a variety of reasons, that the decision was
unreasonable. The primary ground is that the visa officer failed to properly
consider the applicable definitions. Although I am sympathetic to the
applicants’ plight, I can detect no error on the part of the visa officer.
Consequently, the application for judicial review must be dismissed.
Background
[3] The
factual background is not in dispute and can be briefly stated. Ms. Kamara was
born in 1974 in Sierra
Leone. Her son
Alimamy was born there in 1998. Her daughter Fudia was born in Guinea in 2005. Her alleged adopted
daughter (Michaella), born in 1994 in Sierra Leone, is the daughter of a cousin who was killed in the war.
[4] In
1999, rebels entered Tombo Town where the applicants
were living. Ms. Kamara’s husband was out of town at the time. Fighting
erupted. Ms. Kamara and her children fled and walked approximately 20-25 miles
through the bush to Waterloo. Their home and belongings
were lost. After staying two days in an aunt’s home in Waterloo, fighting broke out there
between the rebels and soldiers. Ms. Kamara’s aunt’s husband was killed when a
shell hit the house. Again, Ms. Kamara managed to escape with her children.
[5] When
they arrived in Freetown, they found the Junta forces
everywhere - looting, killing, and destroying properties. The family boarded a
boat to Rokupr, hoping to find other family members there. Because of
bombings, the boat could not dock and it proceeded to Conakry, Guinea. There, UNHCR officials assisted and
took them to a refugee camp nearby in Famoriah. After a short time, because of
the deplorable conditions in Famoriah, they moved on to Conakry.
[6] During
this time Ms. Kamara learned, through word of mouth, that her husband was
dead. According to one report, while returning to Tombo Town, his canoe had capsized leaving no
survivors. Another report indicated that the canoe had been attacked by
rebels. Irrespective of cause, she believes that her husband is dead.
[7] Ms.
Kamara maintains that she has nothing to go back to in Sierra Leone because she lost her husband, her home,
and other members of her family during the war. She does not believe Sierra Leone can protect her or her
children. In Guinea, she experiences abusive
conduct and harassment which she attributes to her family’s political
affiliations. Specifically, she states in her Personal Information Form (PIF)
that her father was killed in 1982 by members of the Sierra Leone People’s
Party (SLPP) because he was a supporter of the All People’s Congress. She
claims that as a refugee in Guinea she has no government
protection and has been arrested several times for not having a proper Guinean
identity card.
[8] Seven
of Ms. Kamara’s ten siblings have been granted refugee status and are living in
Edmonton, Alberta. Because she does not see any durable
solution for her or her children in Guinea, she wishes to be reunited with her
family members and begin a new life in Canada. Accordingly, on August 11, 2004, she
submitted an application for permanent residence in Canada.
[9] On
October 13, 2006, a visa officer interviewed Ms. Kamara in Conakry with the assistance of an
interpreter. In addition to the above-stated facts, Ms. Kamara claimed that
she could not return to Sierra
Leone because
she feared being attacked by the same individuals who sought to kill her
husband after he refused to sell a plot of land. Since her husband was not
present when the rebels came, she fears that she would be killed in his stead.
In broad terms, Ms. Kamara indicated that, having fled the fighting in the
civil war in 1999, she does not feel that she could return. Nor does she feel
that she is in a secure situation in Guinea.
The Decision
[10] The
visa officer concluded that Ms. Kamara did not have a well-founded fear of
persecution based on her husband’s ownership of land or on any of the
Convention grounds. He determined that the events, as described, were
generalized attacks that occurred in the context of widespread civil conflict
in Sierra Leone rather than targeted
persecution. Consequently, he was not satisfied that she was a member of the
Convention refugees abroad class.
[11] Further,
the visa officer determined that Ms. Kamara was not a member of the country of
asylum class because her narrative did not demonstrate that she continues to be
seriously and personally affected by armed conflict and civil war in her country.
In the officer’s view, Ms. Kamara could repatriate to Sierra Leone, without fear of consequences, because
the circumstances that led to her departure no longer exist. The armed
conflict ended in 2002 and disarmament and rehabilitation operations were
completed in 2004. Ms. Kamara provided no information to demonstrate that she
would be treated differently than other Sierra Leoneans whose families and
homes were destroyed as a result of the war. The visa officer concluded that
Ms. Kamara’s unwillingness to return to Sierra Leone was because of a “lack of economic
prospects” rather than a fear of persecution or the continuing effects of civil
war.
[12] In
examining the country conditions documents, the visa officer noted several
factors:
• free and multiparty
elections were held in 2002 and 2004 in a peaceful context;
• a reconciliation
commission and a war crimes tribunal are in place;
• NGOs
and Human Rights Watch groups on the ground have not reported secret
disappearances or retaliatory assassinations;
• people who
supported different sides are now cohabitating peacefully;
• large
numbers of people repatriated during the last few years (according to documents
such as the U.S. DOS Report and other sources);
[13] Because
the officer found that the conditions of subsection 139(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) were
not met, he could not issue a visa to the applicants under section 11 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
The Relevant Statutory Provisions
[14] The
text of the applicable statutory provisions is attached to these reasons as
Schedule “A”. In general terms, pursuant to subsection 139(1) of the
Regulations, a permanent resident visa shall be issued to a foreign national in
need of protection if it is established, among other things, that the foreign
national is a member of a class under Part 8, Division 1 of the Regulations and
there is no reasonable prospect, within a reasonable period, of a durable solution
for the foreign national in a country other than Canada.
[15] The
classes prescribed by the Division include “Convention refugees abroad”
(sections 144, 145) and “humanitarian-protected persons abroad” (section 146).
By virtue of paragraph 146(1)(a), the “country of asylum class” is a
humanitarian-protected persons abroad designated class. Foreign nationals will
be members of the country of asylum class if they are in need of resettlement
because they are outside their country of nationality and “have been and
continue to be, seriously and personally affected by civil war, armed conflict
or massive violation of human rights” (section 147).
[16] Therefore,
in order to succeed in their applications, the applicants had to establish that
they are members of the Convention refugees abroad class or the country of
asylum class and that they have no durable solution in a country other than Canada. The “durable solutions”
contemplated by the Regulations are (i) voluntary repatriation or resettlement
in their country of nationality, or (ii) resettlement in another country (s. 139(1)(d)).
Allegations of Error
[17] In
their written submissions, the applicants allege a variety of errors with
respect to the visa officer’s decision. During oral argument, these
allegations were consolidated and subsumed under the following question:
“whether the officer properly considered the relevant definitions within
subsection 139(1) namely, Convention refugees abroad class, country of asylum
class, and durable solution”.
[18] In
advancing her argument with respect to the allegations of error, Ms. Kamara
asserts that the visa officer erred in law in failing to address significant
elements of the applicants’ claim. The written submissions also claim that
portions of the Immigration Manual OP-5 “Overseas Selection and Processing of
Convention Refugees Abroad Class and Members of the Humanitarian-protected
Persons Abroad Classes” (the OP-5 Manual) gave rise to the legitimate
expectation that a process would be followed to reunite the applicants with
their family members in Canada. This alleged breach of procedural fairness,
premised on legitimate expectation, was not pursued at the hearing.
Standard of Review
[19] Where
the applicable standard of review can be ascertained from existing
jurisprudence, there is no need to engage in a standard of review analysis: Dunsmuir
v. New
Brunswick,
2008 SCC 9. Whether an applicant comes within the Convention refugees abroad
class or country of asylum class is a question of mixed fact and law and is
reviewable for reasonableness: Nasir v. Canada (Minister of Citizenship and
Immigration), 2008 FC 504; Krishnapillai v. Canada (Minister of
Citizenship and Immigration), 2005 FC 244. A breach of procedural fairness
generally, but not always, vitiates a decision.
[20] Before
turning to the merits, a preliminary comment is in order. At the outset of the
hearing, the applicants’ counsel suggested that visa officers, when dealing
with self-represented litigants, bear a higher onus to ensure that proper
procedures are followed and that all relevant circumstances are taken into
account. This standpoint is troubling for a number of reasons.
[21] First,
this “submission” was not contained in the memorandum of fact and law. Therefore,
it is not open to the applicants to advance it for the first time during the
oral argument. Second, I consider it beyond doubt that visa officers must, in
all cases, consider the relevant circumstances of the applicants before them
and make their determinations only after thorough and thoughtful assessment of
those circumstances. Third, the duty in relation to such considerations is not
heightened in the case of self-represented litigants. Mr. Justice Harrington
commented in Jacobs v. Canada (Minister of Citizenship and Immigration), 2007 FC 646, at para. 7,
that immigration claimants before the Refugee Division have the right to
represent themselves and they “can be in no better position because they did
not have a lawyer”. I am in general agreement with that observation. Further,
I am of the opinion that a visa officer’s task is to be approached with care
and attention in all cases, irrespective of whether a claimant is
self-represented or represented by counsel.
Specific Grounds
Convention refugees abroad class
[22] A
person will be a member of the Convention refugees abroad class upon being
determined by a visa officer to be a Convention refugee as defined by section
96 of the IRPA. The applicants allege that the officer “made no assessment” as
to whether they met this definition and, more specifically, whether they met
the Convention grounds of political opinion, membership in a particular social
group, and/or gender-related persecution.
[23] With
respect to membership in a particular group, Ms. Kamara claims that she will be
targeted because of her former husband’s ownership of a specific plot of land.
The visa officer’s CAIPS notes, where they delineate Ms. Kamara’s reasons for
not wanting to return to Sierra Leone, expressly acknowledge this evidence:
“her husband is missing, her house destroyed and because her husband owned land
that members of the local society wanted.” After considering this evidence,
the visa officer concluded that the applicants had not suffered any targeted
persecution. Rather, the evidence reflected “generalized attacks which
occurred in the context of widespread civil conflict in Sierra Leone.”
[24] Based
on this finding, it was reasonable to reject Ms. Kamara’s claim of persecution
premised on her husband’s ownership of land. I am satisfied that the
applicants’ specific circumstances were taken into account by the visa officer
in arriving at this determination. The decisions in Velautham v. Canada (Minister of Citizenship and
Immigration, 2005
FC 1113 and Puventhirarasa v. Canada (Minister of Citizenship and
Immigration),
2004 FC 947 do not assist the applicants’ position. The decision-maker’s
reasons in Velautham were comprised of a single sentence. Not
surprisingly, Mr. Justice O’Reilly concluded that the reasons did not address
the particular circumstances. In Puventhirarasa, because the applicant
was found to be not credible, risk was not assessed. Neither of these
authorities are analogous to this matter.
[25] Regarding
the visa officer’s alleged failure to consider other Convention grounds, apart
from a statement in Ms. Kamara’s PIF that her father’s death (in 1982) was
politically motivated, there was no evidence indicating that the applicants
fled Sierra Leone due to political
affiliations. Moreover, Ms. Kamara did not advance a gender-related claim nor
was there any evidence which ought to have triggered consideration of such a
claim. The fact that the country documentation with respect to Sierra Leone identifies violence against
women as a serious problem is not a sufficient basis, on its own, to grant
refugee protection. The visa officer is not obliged to address issues that
were not raised and which are not grounded in the evidence. The same reasoning
applies with respect to mistreatment suffered in Guinea, although Guinea is not the country at issue.
[26] Finally,
there is no basis upon which to find that the officer failed to apply the
proper test in assessing the applicants’ alleged fear of persecution. Ms.
Kamara broadly asserts, without more, that the wrong test was applied. The
visa officer’s decision, when taken as a whole, clearly demonstrates that this
is not the case.
Country of asylum class
[27] As
previously noted, section 147 of the Regulations defines members of the country
of asylum class as individuals who are outside their countries of nationality
and habitual residence and who have been, and continue to be, seriously and
personally affected by civil war, armed conflict or massive violation of human
rights in each of those countries.
[28] Ms.
Kamara’s submission that the officer failed to conduct a determination as to
whether the applicants met the requirements of section 147 is not sustainable.
The officer determined that the applicants were victims of “widespread civil
conflict” and that such conflict ended in 2002. Although I agree that the end
of the civil war (and armed conflict) in Sierra Leone is not determinative of membership in
this class, I am satisfied that the officer also considered whether the applicants
continue to be affected by a massive violation of human rights.
[29] In
determining whether a claimant will be affected by a “massive” violation of
human rights, section 13.4 of the OP-5 Manual instructs officers to look to
human rights reports including those prepared by DFAIT, the UNHCR, and Amnesty
International. It is evident from the visa officer’s analysis of the country
documentation that he turned his mind to the question of the human rights
situation in Sierra
Leone in the
manner contemplated by section 147. The reasons specify that disarmament and
rehabilitation operations have been completed and that free and multiparty
elections were held in 2002 and 2004 in a tolerant and peaceful context.
Additionally, the visa officer notes that NGO and human rights watch groups on
the ground have not reported any cases of secret killings or disappearances, or
retaliatory assassinations.
[30] Unquestionably,
problems continue to exist in Sierra
Leone. Yet, in
view of the evidence provided to him, the visa officer did not err in failing
to mention these portions of the documentary evidence. The problems cited in
the country conditions documentation (excessive force with detainees,
restrictions on freedom of the press, poor conditions in jails, etc.) are not
related to the applicants’ claims. The visa officer was entitled to review and
weigh the documentary evidence. Indeed, it was his obligation to do so. It
was, on the evidence, reasonably open to him to come to the conclusion that the
elements of section 147 had not been met.
[31] It
bears noting that the OP-5 Manual enumerates the steps to follow in determining
whether an applicant falls within the Convention refugees abroad class or the
country of asylum class. Ms. Kamara faults the officer for failing to
reference the Manual in his reasons and for not following the required steps in
making his determinations. Although the visa officer does not expressly cite
the Manual, in my view, he need not have done so. The substance of his
decision demonstrates that the identified steps were generally followed in the
course of his determinations with respect to both the Convention refugees
abroad class and the country of asylum class.
Durable Solution
[32] According
to Ms. Kamara, the visa officer’s finding that the applicants could repatriate
to Sierra Leone is a “general statement about
repatriation that did not consider the particular circumstances.” I
disagree. The officer expressly acknowledged the applicants’ reasons for not
wanting to go back to Sierra
Leone and he
related his opinion regarding the applicants’ ability to repatriate directly to
the specific circumstances that caused them to leave initially.
[33] Ms.
Kamara also contends that the visa officer failed to consider the OP-5 Manual’s
statement that there will be circumstances where some refugees can safely
repatriate while others cannot. Regrettably for the applicants, the evidence
before the visa officer did not invite the applicability of the statement
because he found that they were victims of generalized conflict and that they
would not be treated differently than other Sierra Leoneans who fled during the
war. The visa officer also noted that “large numbers of people successfully
repatriated to Sierra
Leone during the
last few years.” This information emanated from the UNHCR (specifically noted
by the OP-5 Manual to be an excellent source with respect to the validity of
repatriation as a durable solution). The applicants failed to differentiate
their situation from others who have repatriated. Consequently, the conclusion
regarding the existence of a durable solution was reasonable.
Legitimate Expectation
[34] As
stated at the outset, the applicants’ written submissions state that the
officer failed to provide them with the requisite procedural fairness.
Specifically, they assert that portions of the OP-5 Manual give rise to a
legitimate expectation that certain “procedures” with respect to family
reunification will be followed. Given that this argument was not pursued at
the hearing, I will address it only briefly.
[35] The
fact that Ms. Kamara has seven of ten siblings living in Canada is relevant to the
applicants’ claim for refugee protection generally, and to their ability to
resettle in Canada specifically. However, the
presence of family members in Canada is by no means determinative
of the applicants’ eligibility as refugees.
[36] As I
understand it, Ms. Kamara maintains that the fact her family members were
previously granted refugee protection “generally applies to other family
members, even if indirectly.” The excerpts from the Manual relied upon in
support of this proposition, when read in context, indicate that the statements
are directed at situations where related applicants make claims for refugee
protection at the same time. The Manual, in this respect, focuses on concurrent
processing of related family members’ claims and cautions that, to the
greatest extent possible, officers should avoid splitting or separating refugee
families at the time of selection. In other words, it would contravene
the family unity objectives set out in the Manual to conclude that the
principal applicant is a refugee, but her son, who claimed protection
simultaneously, is not. There can be no expectation that a claim will be
accepted merely because an applicant has family members living in Canada.
[37] In the
reply submission, Ms. Kamara claims that the visa officer should have
considered any “compelling reasons” that warranted the granting of protection,
including the fact that there were family members in Canada.
[38] Subsection
108(4) of the IRPA provides that, notwithstanding the fact that the reasons for
which the person sought refugee protection have ceased to exist, a claim for
refugee protection shall not be rejected if the person 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”.
[39] The
Minister submits, and I agree, that the threshold for applying subsection
108(4) has not been met in this case. The visa officer made no finding of past
persecution. Moreover, he directed his mind to the current situation in the
country and determined that the conflict had ended. In this regard, see Decka
v. Canada (Minister of Citizenship and
Immigration), 2005
FC 822.
[40] In Martinez
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 343, Mr. Justice Noël noted that a compelling reasons assessment need not
be undertaken in every case. At paragraph 19, he stated: “It is only when
para. 108(1)(e) is invoked by the RPD that a “compelling reasons” assessment
should be made, i.e. when the refugee claimant was found to be a refugee but
nevertheless had been denied refugee status given the change of circumstances
in the country of origin.” Here, the applicants were found not to be
Convention refugees. Therefore, no “compelling reasons” assessment was
necessary.
[41] Finally,
Ms. Kamara points to the delay between the interview (October 2006) and the
communication of the reasons (August 2007). The delay is undeniable. However,
as the respondent correctly notes, the applicants have not alleged that the
circumstances were different at the time the reasons were released. The delay
does not give rise to an “error”. As for the visa officer's statement that Ms.
Kamara’s unwillingness to return to Sierra Leone was due to a “lack of economic
prospects”, in my view, it was open to the visa officer to draw that inference
from the evidence that was before him. Even if that is not so, the comment can
fairly be characterized as gratuitous. I am satisfied that it has no impact on
the visa officer's analysis of the grounds for the applicants’ claims.
[42] Counsel
did not suggest a question for certification and none arises.
[43] A
request was made to amend the style of cause to accurately reflect the names of
all individuals included in the application. The request is granted and the
style of cause has been so amended.
JUDGMENT
The application for judicial
review is dismissed.
“Carolyn
Layden-Stevenson”
SCHEDULE “A”
to the
Reasons for Judgment dated June 23, 2008
in
MAYELLI KAMARA ET AL.
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
IMM-4401-07
|
Immigration
and Refugee Protection Act,
S.C.
2001, c. 27
11.
(1) A foreign national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document shall be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
(2)
The officer may not issue a visa or other document to a foreign national
whose sponsor does not meet the sponsorship requirements of this Act.
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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.
(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.
Immigration
and Refugee Protection Regulations, SOR/2002-227
139.
(1) A permanent resident visa shall be issued to a foreign national in need
of refugee protection, and their accompanying family members, if following an
examination it is established that
(a)
the foreign national is outside Canada;
(b)
the foreign national has submitted an application in accordance with section
150;
(c)
the foreign national is seeking to come to Canada to establish permanent residence;
(d)
the foreign national is a person in respect of whom there is no reasonable
prospect, within a reasonable period, of a durable solution in a country
other than Canada, namely
(i)
voluntary repatriation or resettlement in their country of nationality or
habitual residence, or
(ii)
resettlement or an offer of resettlement in another country;
(e)
the foreign national is a member of one of the classes prescribed by this
Division;
(f)
one of the following is the case, namely
(i)
the sponsor's sponsorship application for the foreign national and their
family members included in the application for protection has been approved
under these Regulations,
(ii)
in the case of a member of the Convention refugee abroad or source country
class, financial assistance in the form of funds from a governmental
resettlement assistance program is available in Canada for the foreign
national and their family members included in the application for protection,
or
(iii)
the foreign national has sufficient financial resources to provide for the
lodging, care and maintenance, and for the resettlement in Canada, of themself and their
family members included in the application for protection;
144. The
Convention refugees abroad class is prescribed as a class of persons who may
be issued a permanent resident visa on the basis of the requirements of this
Division.
145. A foreign
national is a Convention refugee abroad and a member of the Convention
refugees abroad class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee.
146. (1) For
the purposes of subsection 12(3) of the Act, a person in similar
circumstances to those of a Convention refugee is a member of one of the
following humanitarian-protected persons abroad classes:
(a) the
country of asylum class; or
(b) the source
country class.
(2) The
country of asylum class and the source country class are prescribed as
classes of persons who may be issued permanent resident visas on the basis of
the requirements of this Division
147. A foreign
national is a member of the country of asylum class if they have been
determined by an officer to be in need of resettlement because
(a) they are
outside all of their countries of nationality and habitual residence; and
(b) they have
been, and continue to be, seriously and personally affected by civil war,
armed conflict or massive violation of human rights in each of those
countries.
|
Loi
sur l’immigration et la protection des réfugiés, LC. 2001, ch. 27
11. (1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement, lesquels sont délivrés sur preuve, à la suite
d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la
présente loi.
(2)
Ils ne peuvent être délivrés à l’étranger dont le répondant ne se conforme
pas aux exigences applicables au parrainage.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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
(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.
(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.
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
139.
(1) Un visa de résident permanent est délivré à l’étranger qui a besoin de
protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un
contrôle, les éléments suivants sont établis :
a)
l’étranger se trouve hors du Canada;
b)
il a présenté une demande conformément à l’article 150;
c)
il cherche à entrer au Canada pour s’y établir en permanence;
d)
aucune possibilité raisonnable de solution durable n’est, à son égard, réalisable
dans un délai raisonnable dans un pays autre que le Canada, à savoir :
(i)
soit le rapatriement volontaire ou la réinstallation dans le pays dont il a
la nationalité ou dans lequel il avait sa résidence habituelle,
(ii)
soit la réinstallation ou une offre de réinstallation dans un autre pays;
e)
il fait partie d’une catégorie établie dans la présente section;
f)
selon le cas :
(i)
la demande de parrainage du répondant à l’égard de l’étranger et des membres
de sa famille visés par la demande de protection a été accueillie au titre du
présent règlement,
(ii)
s’agissant de l’étranger qui appartient à la catégorie des réfugiés au sens
de la Convention outre-frontières ou à la catégorie de personnes de pays
source, une aide financière publique est disponible au Canada, au titre d’un
programme d’aide, pour la réinstallation de l’étranger et des membres de sa
famille visés par la demande de protection,
(iii)
il possède les ressources financières nécessaires pour subvenir à ses besoins
et à ceux des membres de sa famille visés par la demande de protection, y
compris leur logement et leur réinstallation au Canada;
144.
La catégorie des réfugiés au sens de la Convention outre-frontières est une
catégorie réglementaire de personnes qui peuvent obtenir un visa de résident
permanent sur le fondement des exigences prévues à la présente section.
145.
Est un réfugié au sens de la Convention outre-frontières et appartient à la
catégorie des réfugiés au sens de cette convention l’étranger à qui un agent
a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
146. (1) Pour l’application du
paragraphe 12(3) de la Loi, la personne dans une situation semblable à celle
d’un réfugié au sens de la Convention appartient à l’une des catégories de personnes
protégées à titre humanitaire outre-frontières suivantes :
a)
la catégorie de personnes de pays d’accueil;
b)
la catégorie de personnes de pays source.
(2)
Les catégories de personnes de pays d’accueil et de personnes de pays source
sont des catégories réglementaires de personnes qui peuvent obtenir un visa
de résident permanent sur le fondement des exigences prévues à la présente
section.
147.
Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré
par un agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a)
il se trouve hors de tout pays dont il a la nationalité ou dans lequel il
avait sa résidence habituelle;
b)
une guerre civile, un conflit armé ou une violation massive des droits de la
personne dans chacun des pays en cause ont eu et continuent d’avoir des
conséquences graves et personnelles pour lui.
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