Date: 20260604

Docket: IMM-2167-25

Citation: 2026 FC 737

Toronto, Ontario, June 4, 2026

PRESENT: Madam Justice Pallotta

REASONS AND JUDGMENT

I. Introduction

[1] The applicants, Halil Ibrahim Akincik and his wife Turkan Akincik, are citizens of Türkiye. They made a refugee claim at the Canada-USA border in May 2023, alleging a fear of persecution in Türkiye for their political beliefs. The Immigration and Refugee Board’s Refugee Protection Division (RPD) refused the refugee claim on the basis that the applicants have access to permanent residency in South Africa, and they are excluded from refugee protection in Canada by the combined effect of section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and article 1E of the United Nations Convention Relating to the Status of Refugees [Convention]. The applicants allege that the RPD’s decision^[1] was unreasonable and they ask the Court to set it aside on judicial review.

[2] For the reasons below, I am dismissing this application. The applicants have not established that the RPD’s decision was unreasonable.

II. Background

[3] After leaving Türkiye in 2017, the applicants lived in South Africa for more than four years. They left South Africa for the United States in December 2022 and lived there until they made their claim for refugee protection in Canada.

[4] Article 1E of the Convention states, in essence, that the Convention does not apply to a person who has taken residency in a country and would be recognized as having substantially the same rights as a national of that country. IRPA section 98 incorporates this principle into Canadian law by excluding a person described in article 1E from refugee protection.

[5] To decide whether the applicants are excluded from refugee protection, the RPD applied the test set out by the Federal Court of Appeal in Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118:

[28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.

[6] The applicants’ immigration status in South Africa stemmed from Mr. Akincik’s status. Mr. Akincik held a retired person visa that was valid for four years and Ms. Akincik held a visitor visa as his spouse. In 2022, Mr. Akincik applied to extend his retired person visa. Mr. Akincik was granted interim rights to live, work, and travel while his extension application was being processed. However, the interim permit was not in evidence, so the RPD made its decision based on an assumption that Mr. Akincik’s retired person visa had expired. As part of its analysis, the RPD considered whether Mr. Akincik could obtain a retired person visa that would grant the applicants access to permanent residency in South Africa, and whether permanent residency grants a status that is substantially similar to that of South African nationals.

[7] The applicants urged the RPD, in applying the test in Zeng, to follow Justice Battista’s holding in Freeman v Canada (Citizenship and Immigration), 2024 FC 1839 on the question of who bears the onus to prove that a lost status can be reacquired. Justice Battista held in Freeman that it is a reviewable error to require a claimant to prove that they cannot reacquire a lost status—the onus to establish an exclusion under article 1E is exclusively on the Minister and it is not reasonable to place an onus on claimants to prove an inability to reacquire lost status in a third country in order to avoid the application of article 1E: Freeman at para 79. The RPD declined to follow this holding from Freeman. In the RPD’s view, the “dominant tide of jurisprudence” provides that once the Minister raises a prima facie exclusion case by showing that a claimant has a status similar to nationals of the third country, the onus shifts to the claimant to rebut it by showing that the status was lost or cannot be reacquired. As the jurisprudence was divided and the Federal Court of Appeal had not clearly resolved the question, the RPD chose to follow the “vast majority” of cases that allow for the onus to shift, a principle that it found to be “well recognized and accepted over the years.”

[8] Applying the test in Zeng and considering all the evidence, the RPD concluded that the applicants are excluded from refugee protection.

[9] The RPD examined South Africa’s immigration legislation and noted the financial and documentary requirements for a retired person visa: (i) a minimum retirement income or net worth; (ii) a police clearance certificate; and (iii) a passport with at least 3 years before expiry. It was not disputed that Mr. Akincik was granted a retired person visa before, and that he had applied for an extension.

[10] The RPD found, on a balance of probabilities, that Mr. Akincik can obtain a retired person visa in South Africa: (i) Mr. Akincik was drawing a pension from the Turkish government, there was insufficient evidence to establish that the amount he was drawing would not meet the income requirement for a retired person visa, and there was no evidence showing how much he was drawing when he was granted a retired person visa before and whether the amount had changed since then; (ii) Mr. Akincik admitted that he would be able to obtain a police clearance certificate, from Türkiye and from South Africa; and (iii) the applicants had not established that Mr. Akincik would be unable to renew his passport because of a fear of interacting with Turkish authorities—the applicants had obtained Turkish passports and travelled on them, there was no evidence the passports had been revoked, and the applicants had not explained why they could interact with the Turkish state to draw a pension and obtain a police clearance certificate but not to renew a passport. It followed that the applicants had not established, on a balance of probabilities, that Mr. Akincik could not obtain a retired person visa.

[11] The RPD then considered whether the applicants have access to permanent residency in South Africa (Mr. Akincik through a retired person visa and Ms. Akincik as his spouse). The RPD found that they do. The RPD found that the requirements for permanent residency through this avenue are almost the same as the requirements for the visa. In addressing the additional requirements, the RPD noted that the applicants raised no obstacle to passing a medical examination or to proving that Ms. Akincik has been legally married to Mr. Akincik for five years. The RPD rejected the applicants’ argument that they never intended to stay in South Africa and reside there, finding that the applicants had established themselves in South Africa and made no attempt to leave for years.

[12] The RPD also considered whether permanent residency grants sufficient rights, privileges, duties, and obligations of a citizen to qualify as a status that is substantially similar to that of a South African national and found that it does.

[13] The applicants had alleged that they would face harm in South Africa as targets of Turkish government operatives or as targets of xenophobic violence. However, the RPD was not satisfied that the applicants would face the alleged harm, and it also found that the applicants had not rebutted the presumption that they would receive operationally adequate state protection in South Africa. The RPD found that the applicants can return to South Africa where they would have access to permanent residency.

[14] After considering and balancing factors that included why the applicants had not acquired permanent resident status in South Africa (whether the reason was voluntary or involuntary), whether they could return to South Africa, the risk they would face in Türkiye, and Canada’s international obligations, the RPD concluded that the applicants are excluded from refugee protection under section 98 of IRPA and article 1E of the Convention.

[15] The applicants contend that the RPD’s decision was unreasonable for two main reasons.

[16] First, the applicants submit that the RPD acknowledged but chose to disregard Freeman, and the failure to follow established precedent is contrary to the principle of stare decisis. The applicants say the RPD wrongly considered Freeman to be a “line” of case law when this Court has consistently followed Freeman since its issuance, pointing to Olascuaga Ramos v Canada (Citizenship and Immigration), 2025 FC 66 and Gurusamy v Canada (Citizenship and Immigration), 2024 FC 1868. The applicants contend that the RPD’s failure to follow Freeman contravened the purpose of article 1E of the Convention, which is to exclude those who do not need refugee protection, and the RPD erred in placing the burden on them to prove that they do not have access to permanent residency in South Africa. At the hearing of this application, the applicants added that the RPD erred by failing to adequately justify its decision not to follow the holding in Freeman.

[17] Second, regardless of where the burden lies, the applicants submit that the RPD ignored critical evidence and relied on speculative uncertainties:

• the RPD focused unreasonably on Mr. Akincik’s ability to obtain a retired person visa in the past, despite the evidence that Mr. Akincik would not meet the pension requirement; the prior visa may have been granted on embellished or fabricated financial information;

• the RPD speculated that the applicants would be able to renew their passports without any issues when the objective country evidence shows that there are risks of passport confiscation and denial of consular services; the applicants’ son cannot leave Türkiye because his passport was confiscated, showing that the family is under scrutiny;

• the RPD ignored the uncertainty in the permanent residency process and the discretion the legislation affords to South African authorities by the use of “may” (Lakhi v Canada (Citizenship and Immigration), 2024 FC 2077 at para 15), which leaves room to refuse permanent residency even if the legislative requirements are met; and

• the RPD’s unreasonable findings extend to Ms. Akincik, whose status depends on Mr. Akincik’s status.

[18] The applicants submit that the purpose of IRPA section 98 and article 1E of the Convention is to exclude claimants who have a durable solution in another country. The applicants say they do not have a durable solution in South Africa, and they left because their status was insecure. The applicants add that they would not be returned to South Africa if removal proceedings are initiated. They would be returned to Türkiye because they are citizens of that country alone and they do not have status in any other country.

[19] The Minister submits that the only question the RPD was tasked to decide was whether the applicants are entitled to refugee protection. In this regard, the applicants have not established a reviewable error with the RPD’s reasons or its conclusion that they are excluded from protection under IRPA section 98. The applicants have not shown that the Court consistently followed Freeman after it was decided. The Court should not entertain the applicants’ new argument that challenges the adequacy of RPD’s reasons, but in any event, the Minister contends that the RPD addressed the applicants’ arguments and adequately explained why it was not following Freeman.

[20] The Minister further submits that the RPD did not place the onus solely on the applicants. Rather, the RPD assessed the applicants’ path to permanent residency according to the objective evidence, and it assessed the reasons why the applicants believe they could not access permanent residency and found those reasons to be insufficient. The Minister contends that the RPD properly analyzed the requirements for a retired person visa, considered all the evidence, did not speculate, and reached a conclusion that was based on the evidence:

• Mr. Akincik was granted a retired person visa before, and the RPD reasonably found there was insufficient evidence that he would no longer meet the minimum income requirement—the applicants filed very limited evidence of their financial circumstances (a one-page screenshot of part of a bank statement showing four pension deposits with fluctuating amounts) and did not explain why they filed no other evidence;

• the RPD reasonably concluded there was insufficient evidence to show that Mr. Akincik could not renew his passport—the applicants had obtained Turkish passports before and used them to travel, Mr. Akincik was interacting with the Turkish government by drawing a pension, and he stated he would be able to get a police clearance certificate; the applicants did not raise an issue of passport confiscation or denial of consular services, and the RPD was not obliged to comb through the objective country evidence to find support for the applicants’ position (Simolia v Canada (Citizenship and Immigration), 2019 FC 1336 at para 22; Jean-Baptiste v Canada (Citizenship and Immigration), 2018 FC 285 at paras 19‑20);

• the applicants did not rely on uncertainty in the process for obtaining permanent residency in South Africa and they should not be permitted to challenge the RPD’s decision based on an argument they did not raise; and

• the applicants have not challenged the RPD’s other findings, including the findings about the applicants’ allegations of harm in South Africa and state protection.

III. Analysis

[21] To determine whether the RPD’s decision was unreasonable, the Court looks to whether the decision bears the hallmarks of reasonableness—justification, transparency, and intelligibility: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 99. A reasonable decision is based on an internally coherent and rational chain of analysis, and it is justified in relation to the facts and law that constrain the decision maker: Vavilov at para 85.

[22] In this case, I am not persuaded that the RPD’s decision that the applicants are excluded from refugee protection in Canada was unreasonable.

[23] The applicants do not challenge the RPD’s findings that they intended to reside in South Africa and that they could safely return. They challenge the RPD’s treatment of Freeman and the RPD’s findings that the applicants would have access to permanent residency in South Africa through a retired person visa.

[24] I am not persuaded that the RPD was required to follow Freeman, or that the RPD contravened stare decisis when it chose not to follow it. The applicants have not shown that this Court has consistently followed Freeman since that decision issued. Olascuaga is a subsequent decision by the judge who decided Freeman, Justice Battista. Gurusamy is a decision of a different judge who cited Freeman but not for the principle the applicants rely on (that it is a reviewable error to require a claimant to prove they cannot reacquire a lost status). The Minister points to Kumuena v Canada (Citizenship and Immigration), 2025 FC 277, an article 1E case that did not cite Freeman. Consistent with earlier decisions, the judge in Kumuena held (at paragraph 9) that once the Minister establishes a prima facie case of exclusion, the onus shifts to the applicant to establish that they are no longer subject to the exclusion. The applicants say that Kumuena, which was decided only a few months after Freeman, should not be counted as a case where the Court chose not to follow Freeman. That may be so, but the argument does not assist the applicants because they have not shown that this Court has consistently followed Freeman.

[25] While I accept that the applicants should not be raising new challenges to the RPD’s decision at the hearing before me, I will address their argument that the RPD did not do enough to justify why it declined to follow the holding in Freeman. In my view, the RPD provided sufficient justification that allows the applicants to understand why it did not accept their submissions on Freeman. The RPD observed that Freeman represents a departure from the majority of cases that impose a burden on a claimant once the Minister has established a prima facie exclusion case, and it chose to follow the “dominant tide of jurisprudence.” It noted an unresolved divide and chose to follow a principle it considered to be “well recognized and accepted over the years.” Justice Battista himself acknowledged that there are “several decisions” affirming that claimants have an onus to demonstrate that they cannot reacquire a lost status: Freeman at para 37.

[26] More importantly, I am not persuaded that the RPD erred in its application of the Zeng test and how it applied the onus in this case.

[27] The RPD did not require the applicants to prove that they could not obtain permanent resident status in South Africa, and the Minister is correct that the RPD did not put the onus solely on them. The RPD assessed the objective evidence, found that the applicants have a path to permanent residency, and considered the applicants’ arguments why that path is not, or is no longer, available to them. I agree with the Minister that the RPD properly analyzed the requirements for a retired person visa in South Africa, considered all the evidence, did not speculate, and reached a conclusion that was based on the evidence.

[28] The applicants had status in South Africa and left the country while their applications to extend that status were pending. In assessing whether the applicants could return to South Africa and whether they would have a path to permanent residency through a retired person visa, the RPD considered the applicants’ submissions that they would not be able to access permanent residency but found there was insufficient evidence to support their position. The applicants’ main submission was that Mr. Akincik would not meet the income requirements. The evidence to support this position was within their control and the RPD did not place “an onerous burden on a claimant to prove a negative”: Freeman at para 45. The RPD made its findings and reached its conclusions based on the evidence that was before it.

[29] Turning to the findings themselves, the RPD reasonably found that the applicants failed to establish that Mr. Akincik would not meet the minimum pension for a retired person visa in South Africa. He had been granted a retired person visa before and filed an application to extend it, but the applicants did not provide the initial application or the extension application to the RPD and they did not file evidence to show that either application contained embellished or fraudulent financial information, as they asserted. After the RPD hearing, the applicants filed a one-page screenshot of a recent bank statement. The RPD considered the screenshot and noted that it showed different amounts for the monthly pension. Given that Mr. Akincik met the income requirement before, and in the absence of evidence showing that the fluctuating amounts represented a decrease in his pension, the RPD concluded that the bank statement did not establish that he would not meet the income requirement again.

[30] The RPD did not speculate about passport renewal. It found, reasonably in my view, that the applicants had not established a fear of interacting with Turkish authorities that would prevent them from renewing their passports. The applicants now argue that their passports would be confiscated or that they would be denied consular services, but they did not make these arguments to the RPD.

[31] The RPD reasonably found that Ms. Akincik could obtain permanent residency in South Africa through Mr. Akincik, as his spouse.

[32] As the Minister points out, the applicants did not rely on the discretion afforded to the South African authorities as a reason why they would be denied permanent resident status. In any event, the RPD did not ignore uncertainty in the permanent residency process. As I stated above, the applicants were not held to an onerous standard and the RPD did not expect them to prove it would not be possible to obtain permanent resident status in South Africa. The RPD applied the civil standard of proof on a balance of probabilities.

[33] The RPD’s decision was not inconsistent with the purpose of IRPA section 98 and article 1E of the Convention. As the Minister correctly points out, the RPD’s task was to decide whether the applicants are entitled to refugee protection. In fulfilling that task, the RPD applied the well-established Zeng framework to decide whether the applicants are excluded from Canada’s protection. After considering and weighing the relevant factors, the RPD reasonably concluded that the applicants are excluded from refugee protection under section 98 of IRPA and article 1E of the Convention.

IV. Conclusion

[34] In summary, I am not persuaded of a reviewable error in the RPD’s reasoning process or its findings that the applicants would have access to permanent residency in South Africa through a retired person visa, and that permanent residency grants sufficient rights, privileges, duties, and obligations of a citizen to qualify as a status that is substantially similar to that of a South African national. The applicants have not shown that the RPD’s decision that they are excluded from refugee protection pursuant to IRPA section 98 and article 1E of the Convention was unreasonable. Accordingly, I must dismiss this application.

[35] Neither party proposed a question for certification. I find there is no question to certify.

JUDGMENT IN IMM-2167-25

THIS COURT’S JUDGMENT is that:

1. This application for judicial review is dismissed.

2. There is no question of general importance to certify.

"Christine M. Pallotta"

FEDERAL COURT

SOLICITORS OF RECORD

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