Shah v. Canada (MCI) 2024 FC 923
In Shah v. Canada (MCI) Justice Tsimberis examined the Applicant’s Refugee Protection Division (RPD) cessation decision. The Applicant was a Pakistani citizen who successfully claimed asylum in 2019 and secured Canadian permanent residence in 2021. Subsequently, the Applicant applied and secured a Pakistani passport, and used it to travel back to Pakistan in October 2021, remaining there until March 2022. While in Pakistan, the Applicant got married and resided at his family home. Upon returning to Canada, the Applicant was interviewed by an Immigration Officer. Based on the Applicant’s answers, the Minister filed a cessation application and the RPD granted the application on reavailment grounds.
On judicial review, the determinative issue was the Applicant’s intent to reavail. Due to the Applicant returning back to Pakistan on a Pakistani passport, a strong presumption of reavailment was established. Justice Tsimberis found that it was not the RPD’s place to establish intent, but rather up to the Applicant to refute the presumption of intent. The RPD had accepted the Applicant’s testimony that he remained within the confines of his family’s estate as well as the neighbouring home of his father-in-law for predominantly the entirety of his visit. When weighing this evidence, the RPD reasonably noted that the Applicant’s actions did not align with the actions of a person who took reasonable precautions to minimize risk of persecution. In particular, the Applicant stayed at the same residence where the agents of persecution had previously attacked and threatened him. Furthermore, he held a wedding at his family home with 30-35 guests, raising a serious concern that news of the Applicant’s return would spread throughout the community as well as reach the agents of persecution. Lastly, the Applicant remained in this location for a period of four and a half months after the wedding, continuing to expose himself to risk. Justice Tsimberis found that the RPD did not overlook any precautionary measures and provided clear and rational reasoning for its determination. The application for leave was dismissed.
Zhou v. Canada (MCI) 2024 FC 895
In Zhou v. Canada (MCI) Justice Zinn reviewed the Applicant’s Refugee Protection Division (RPD) cessation decision. The Applicant was a Chinese citizen who successfully claimed asylum in 2015 and secured Canadian permanent residence in 2018. A year later, the Applicant proceeded to secure a Chinese passport, travelling to Thailand, Hong Kong, and China, returning to Canada in 2020. Upon his return, the Applicant was questioned by Canada Border Services Agency (CBSA), with the Applicant telling the Officer that he had been in China for just over two months due to his grandmother being ill and he remained to make funeral arrangements. The Applicant also confirmed that China remained unsafe, and he was taking a chance returning there. The Minister proceeded to file a cessation application and the RPD granted the application on reavailment grounds. The Applicant challenged the cessation decision, contesting the RPD’s determination at each stage of the reavailment test.
On judicial review, when it came to voluntariness, Justice Zinn found that the RPD did not err by concluding that the Applicant voluntarily reavailed himself to China. “An Applicant is deemed to have acted voluntarily wherein the actions are free from compulsion.” (par. 23). While the Applicant argued that he was compelled to visit China to aid his ailing grandmother, Justice Zinn found that “feeling compelled” is different from actual coercion, and it was reasonable for the RPD to consider whether the Applicant was his grandmother’s primary caretaker (as this could indicate necessity of travel). The Applicant did not dispute the RPD’s finding that he was not his grandmother’s primary caretaker. Justice Zinn found that the RPD had reasonably determined that while sympathetic, the Applicant’s visit was not involuntary. Moreover, Justice Zinn found that the RPD’s determination when it came to intention and actual reavailment was also reasonable. While the fact that the RPD did not explicitly cite Galindo Camayo, 2022 FCA 50, was surprising, Justice Zinn argued that this in itself, was not a reviewable error (at para. 31). Overall, Justice Zinn predominantly agreed with the Respondent that the Galindo Camayo factors were an combination of factors referenced in the previous case law (at para. 32). It was clear that consideration for all of the factors is not mandatory. In any event, Justice Zinn was satisfied that most, if not all, the listed factors were considered in the decision under review. The application for leave was dismissed.
Kandil v. Canada (MCI) 2024 FC 890
In Kandil v. Canada (MCI) Justice Azmudeh assessed the Applicant’s Refugee Protection Division (RPD) cessation decision. The Applicant was an Egyptian citizen who successfully claimed asylum in 2011 and secured Canadian permanent residence in 2014. The Applicant obtained an Egyptian passport in 2014, and a second one in 2021. Despite the Applicant’s continued fear of the Egyptian authorities (due to his membership with the Muslim Brotherhood), the Applicant returned back to Egypt a total of 10 times between 2014-2021. The Applicant argued that the sole purpose of all the trips was to care for his ill sister, who had no other family members to help look after her. During each trip, the Applicant entered and exited the country by paying bribes to officials. The Applicant also did not reside at his sister’s house and changed residences every three to five days. Despite taking such precautions, the Applicant alleged that on October 22, 2022, he was sentenced by the Egyptian authorities a “life sentence of 20 years” as a result of his membership with the Muslim Brotherhood. The Minister proceeded to file a cessation application and the RPD granted the application on reavailment grounds.
On judicial review, when it came to voluntariness, Justice Azmudeh found that the Member’s interpretation of case law was that visiting a sick family member would amount to exceptional circumstances only when there are no other relatives to care for the person. However, due to this arbitrary fact-finding on availability of family members, Justice Azmudeh could not make a rational connection with the Member’s conclusion. When it came to intention, the Member implied that the Applicant had the requisite intention as he lacked fear of the Egyptian authorities. The Member argued that there was no evidence to show that the Applicant had concealed his presence, but at the same time accepted that the Applicant used bribery to hide his entry and exits. In addition, the Member seemed to accept the evidence regarding the “life sentence of 20 years” but did not find it necessary to address it as corroboration of his alleged fear. Justice Azmudeh found the RPD’s decision containing no credibility assessment, and a record that contained contradictory evidence on material facts, preventing the Court from following a logical chain of reasoning. Lastly, when it came to the reavailment itself, the RPD’s reasoning largely centered around the Applicant’s use of his Egyptian passport. However, the Applicant did present evidence to the contrary in coming to the attention of the authorities, but the RPD failed to engage. It was unclear, in Justice Azmudeh’ s opinion, on whether the RPD accepted or rejected that the Egyptian authorities had become interested in the Applicant, and whether this would undermine or support his claim that he always feared them and had tried to evade their notice by keeping a low profile. This confusion, when it came to fact finding on material evidence, further made the decision unintelligible. Justice Azmudeh argued that cessation decisions are heavily fact specific, and in this situation, the RPD failed to make clear findings when it came to relevant facts and material issues on all three prongs of the test. The application for leave was allowed.
Khan v. Canada (MCI) 2024 FC 860
In Khan v. Canada (MCI) Justice Battista reviewed the Applicants’ exclusion order. The Applicants were Pakistani citizens who feared persecution due to their religious identity (members of the Ahmadi Muslim faith). They had been sponsored by one of their daughters to come to the United States (US) and secured permanent resident status in the US in 2016. Their US permanent residence cards were valid until 2026. However, the Applicants left the US in 2021 due to the deterioration of their family situation (in-laws threatened them with criminal charges and deportation). The Applicants entered Canada and sought asylum. The Refugee Protection Division (RPD) found them to be excluded due to Article 1E of the Refugee Convention. On appeal, the Refugee Appeal Division’s (RAD) record included a letter from a US attorney which enclosed important evidence regarding the Applicants status in the US. The letter had stated that: 1) as the Applicants had been outside the US for more than 1 year, their US permanent residence cards were no longer valid, and upon re-entry they would be considered aliens seeking admission; 2) the Applicants may be paroled into US removal proceedings before a US Court to see if they abandoned their permanent residency; and 3) the Applicants would have difficulty establishing that they had not relinquished their residency and that they were likely ordered to be removed to Pakistan. Like the RPD, the RAD also found the Applicants to be excluded under Article 1E and dismissed the appeal.
On judicial review, Justice Battista found that the RAD has misapplied the Zeng test. The first step of the test required the decision maker to determine whether the claimants had status substantially similar to nationals of a third country. The RAD had found that the exitance of the Applicants’ US permanent resident status, at the time of the hearing, satisfied this requirement. In Justice Battista’s view, the test of substantially similar status necessarily involves a consideration of the vulnerability of a claimant’s status in a third country to removal or revocation (at par. 15). While their US permanent resident status may have existed during the time of the hearing (in the sense that it had not been revoked), the Article 1E exclusion test is not solely based on whether permanent resident status exists. The test is whether the claimants enjoy status substantially similar to nationals of a third country. As per par. 145 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, this must include” being fully protected against deportation or exclusion.”
The RAD accepted that the Applicants would need to apply for Returning Resident Visas as they had been away from the US for more than 1 year, and the RAD did not dismiss the expert evidence from the American attorney that found that the Applicants would “most certainly” be deemed to have lost status and be order removed from the US to Pakistan. Given the risks, Justice Battista argued that the RAD should have assessed whether the Applicants’ US status equated to status substantially similar to US national. The Application for leave was allowed.