Docket: IMM-4174-14
Citation:
2015 FC 765
Toronto, Ontario, June 17, 2015
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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LIDA BANDARIAN
BALOUCH
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
Ms. Lida Balouch (the “Applicant”)
seeks judicial review of the decision dated May 7, 2014, of the Immigration and
Refugee Board, Refugee Protection Division (the “Board”),
granting the application of the Minister of Public Safety and Emergency
Preparedness (the “Minister”) to cease her
status as a refugee, pursuant to subsection 108(2) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
The Applicant, a citizen of Iran, was granted
refugee status in 2008 on the basis of her status as a Christian. She arrived
in Canada as a permanent resident in December 2008.
[3]
In 2010, the Applicant applied for an Iranian
passport which was issued to her on April 12, 2010. She travelled in Iran in
April 2010 to visit her grandmother. She underwent foot surgery during her
visit, which lasted approximately six months.
[4]
The Applicant returned to Iran in July 2013 and
stayed there for 34 days. She said that the primary reason for this visit was
to see an uncle who was being treated with chemotherapy for colon cancer.
[5]
During this visit, the Applicant underwent
surgery on her nose. She also had major work done on her teeth. When questioned
by the Canada Border Services Agency upon her return to Canada, the Applicant
disclosed that she went to Iran for plastic surgery.
[6]
The Board determined that the Minister had
established grounds for cessation of the Applicant’s refugee status on the
ground that she had reavailed herself of the protection of her country of
nationality. It noted the criteria set out in the United Nations High
Commission for Refugees Handbook on Procedures and Criteria for Determining
Refugee Status (“UNHCR Handbook”).
[7]
Three requirements must be shown in determining
if refugee protection ceases to apply on the ground of reavailment: that the
refugee has acted voluntarily; that the refugee has shown an intention to
reavail; and, that the refugee has actually obtained the protection of his or
her country of nationality.
[8]
The Board ultimately found that the Applicant
had failed to rebut the presumption of reavailment because she had the
intention to voluntarily reavail herself of the protection of Iran by applying
for a passport and then using that document to travel to Iran as a national of
that country.
[9]
The Board’s decision required it to assess facts
against legal criteria. This is a question of mixed fact and law, reviewable on
the standard of reasonableness; see the decisions in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 and Nsende v. Canada
(Minister of Citizenship and Immigration), [2009] 1 F.C.R. 49 at paragraph
9 (F.C.).
[10]
The Applicant argues that the Board committed a
reviewable error by misinterpreting Article 1C(1) of the United Nations
Convention Relating to the Status of Refugees, July 28, 1951, Can. T.S.
1969 No. 6 (the “Convention”), as implemented in paragraph 108(1)(a) of the Act
by failing to consider whether forward-looking current risk of persecution is a
relevant consideration, when a cessation application is made pursuant to
section 108.
[11]
The Applicant submits that although the Board
purported to conduct a reavailment analysis, it in fact conducted a
re-establishment analysis.
[12]
Further, she argues that the Board failed to
properly address the third element of the reavailment test, that is, whether
she had actually received protection from Iran.
[13]
The Applicant notes that the Minister concedes
that the Applicant is a Christian and that Christians continue to face
persecution in Iran. She submits that the Board erred in failing to consider if
Iran could or would offer her protection, relative to the specific persecution
she would face in that country.
[14]
For his part, the Minister argues that no fresh
assessment of risk is necessary. He submits that the Board’s interpretation of
paragraph 108(1)(a) is reasonable and consistent with the UNHCR Guidelines.
[15]
The Minister further submits that pursuant to
the decisions in Nsende, supra and El Kaissi v. Canada
(Minister of Citizenship and Immigration), 2011 FC 1234, the Board may draw
a negative inference from a claimant’s return to the country of nationality or
may rely on the presumption of reavailment unless a compelling explanation is
provided.
[16]
The sole question for determination in this
application is whether the Board’s decision is reasonable. In judicial review
proceedings, the reasonableness standard requires that a decision be
justifiable, intelligible and transparent, and fall within a range of possible,
acceptable outcomes; see the decision in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 at paragraph 47.
[17]
In my opinion, the decision here meets that
standard. The Board considered all the evidence and reasonably concluded that
the Applicant had met the three factors for reavailment, and that she had
failed to give a compelling explanation for her return to her country of
nationality.
[18]
In the result, this application for judicial
review is dismissed.
[19]
Although the Applicant submits that the Board
erred in not considering the issue of a continuing risk at the time of the
cessation hearing, no authority was cited to support this argument. While I
acknowledge that the existence of risk is a primary concern when protection is
sought, I am not persuaded that the issue of risk is relevant in a cessation
hearing.
[20]
Pursuant to section 96 of the Act, Convention
refugee status is conferred on individuals who, by reason of a well-founded
fear of persecution, are unwilling or unable to avail themselves of the
protection of their country of nationality. A refugee claimant’s voluntary
reavailment indicates that the individual is no longer either unable or
unwilling to avail himself or herself of the protection of their country of
nationality.
[21]
In any event, the issue of risk will be assessed
if the Applicant seeks a Pre-Removal Risk Assessment (“PRRA”) pursuant to
section 112 of the Act. The fact that a PRRA is subject to certain temporal
limits does not mean that a PRRA is unavailable.
[22]
The Applicant submitted the following question
for certification:
When deciding whether to allow an
application by the Minister for cessation of refugee status pursuant to s.
108(1)(a) of the Immigration and Refugee Protection Act based on past
actions, can the Board allow the Minister’s application without addressing
whether the person is at risk of persecution upon return to their country of nationality
at the time of the cessation hearing?
[23]
In Lai v. Canada (Minister of Citizenship and
Immigration), 2015 FCA 21 at paragraph 4, the Federal Court of Appeal
recently restated the factors to be considered by the trial court in certifying
a question, that is, it must be a serious question of general importance that
would be dispositive of an appeal. It cannot be a reference question, and it
must have been raised and dealt with in the Federal Court.
[24]
I am satisfied that the proposed question meets
the requirements. The issue of whether a current risk assessment is required in
a cessation hearing transcends the interests of the immediate parties in this
proceeding. It is a question that would be dispositive of an appeal if the
Court were to find that such an assessment is required at the time of the
cessation hearing, and it is an issue that I have addressed in disposing of
this application. The question will be certified.
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