Docket: IMM-7267-14
Citation:
2015 FC 1074
Toronto, Ontario, September 15, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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DAVIS WILLIAM
LEZAMA CERNA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
In 2008, Mr Davis William Lezama Cerna acquired
refugee protection in Canada based on his fear of persecution in Peru due to
his sexual orientation. He became a permanent resident of Canada the following
year.
[2]
When Mr Cerna applied for Canadian citizenship
in 2012, officials asked him about his several trips back to Peru and his use
of a Peruvian passport, which he had renewed twice. Subsequently, the Minister
filed an application to cease Mr Cerna’s refugee protection on the basis that
he had reavailed himself of Peru’s protection (relying on s 108(1)(a) of
the Immigration and Refugee Protection Act, SC 2001, c 27, [IRPA] – see
Annex for provisions cited. A panel of the Immigration and Refugee Board
granted the Minister’s application.
[3]
Mr Cerna argues that the Board applied the wrong
test for reavailment, and rendered an unreasonable decision on the evidence.
Further, he maintains that the Board failed to consider the impact of its
approach on his rights under s 7 of the Canadian Charter of Rights and
Freedoms. He asks me to quash the Board’s decision and order another panel
to reconsider the Minister’s application.
[4]
In my view, the Board applied the correct test
but arrived at an unreasonable conclusion based on the evidence before it. I
must, therefore, allow this application for judicial review. It is unnecessary to
consider Mr Cerna’s Charter arguments.
[5]
There are two issues:
1.
Did the Board apply the wrong test?
2.
Was the Board’s conclusion unreasonable?
II.
The Board’s Decision
[6]
The Board found that Mr Cerna had reavailed
himself of the protection of Peru. The fact that Mr Cerna had renewed his
Peruvian passport created a presumption of reavailment that Mr Cerna failed to
rebut.
[7]
Mr Cerna explained to the Board that he renewed
his Peruvian passport in order to be able to continue to use his United States
visa. However, he only used that passport to travel to Peru. The reasons for
his trips varied – to visit his parents, to obtain educational documents, and
to undergo cosmetic surgery. The trips varied in length from two to seven
weeks.
[8]
The Board observed that Mr Cerna’s parents were
not dependent on him for their care and that he could have tried to obtain the
educational documents he sought from within Canada. The Board also noted that
Mr Cerna obtained refugee protection on the basis of his fear of street gangs
operating near his parents’ home, yet that is the place to which he returned on
his various visits to Peru.
[9]
Based on this evidence, the Board found that Mr
Cerna had reavailed himself of Peru’s protection and, accordingly, that his
refugee protection had ceased.
III.
Issue One – Did the Board apply the wrong test?
[10]
Mr Cerna argues that the Board wrongly imposed
on him a burden to rebut a presumption of reavailment based on his having
renewed his Peruvian passport. He suggests that the presumption applies only to
one element of the test for reavailment.
[11]
I can see no error in the Board’s approach.
[12]
Reavailment comprises three elements: (1) the
refugee must have acted voluntarily; (2) the refugee must have intended to
reavail himself or herself of the protection of the country of nationality; and
(3) the refugee must actually have obtained protection (Nsende v Canada (Minister
of Citizenship and Immigration), 2008 FC 531 at paras 12-15; Cabrera
Cadena v Canada (Minister of Public Safety and Emergency Preparedness),
2012 FC 67 at para 22).
[13]
The fact that a refugee has obtained or renewed
a passport issued by the country of nationality creates a rebuttable presumption
that the refugee intended to reavail himself or herself of that country’s
protection (Li v Canada (Minister of Citizenship and Immigration), 2015
FC 459 at para 39). If the refugee acquires the passport in order to return to
his or her country of origin, as Mr Cerna did, then the refugee has also obtained
actual protection from that state. In these circumstances, unless the refugee
has rebutted the presumption of intention, the only remaining question is
whether he or she voluntarily acquired his or her passport.
[14]
The Board found that Mr Cerna had not rebutted
the presumption of intention. He made several trips to Peru that were not
strictly necessary and, while there, actually availed himself of Peru’s
protection. Further, Mr Cerna had clearly acquired his Peruvian passport
voluntarily. The main issue was whether Mr Cerna had intended to reavail
himself of Peru’s protection and the Board concluded that he did.
[15]
In my view, the Board applied the presumption of
intention correctly and also addressed the other branches of the test for
reavailment. I cannot conclude that the Board applied the wrong test.
IV.
Issue Two – Was the Board’s conclusion
unreasonable?
[16]
The Minister contends that the Board’s decision
was reasonable on the evidence.
[17]
I disagree.
[18]
The Board failed to take account of Mr Cerna’s
testimony that he travelled to Peru only on the strength of his belief that he
enjoyed the security of having permanent residence in Canada, and the
corresponding protection that his status carried with it. Further, he had no
idea that he put his status at risk by travelling back to Peru. As the law
stood at the time of his travels, cessation of refugee status did not affect
permanent residence (for a discussion of the current consequences of cessation
of refugee status, see Yuan v Canada (Minister of Citizenship and
Immigration), 2015 FC 923, at paras 6-11).
[19]
Many Canadian permanent residents will assume
that their status would allow them to turn to Canada for protection even when
travelling to their countries of origin. Permanent resident status “attracts much greater stability, longevity and associated
rights’ than that of a foreign national” (Bermudez v Canada (Minister
of Citizenship and Immigration), 2015 FC 639 at para 30 citing Hernandez
v Canada (Minister of Citizenship and Immigration), 2005 FC 429). In these
circumstances, the Board must take account of the refugees’ subjective
intentions before concluding that they have availed themselves of the
protection of their countries of origin.
[20]
In my view, the Board should have considered
whether the evidence relating to Mr Cerna’s subjective understanding of the
benefits of his permanent resident status rebutted the presumption that he had
intended to obtain Peru’s protection by acquiring a Peruvian passport. Without
that analysis, the Board’s conclusion on reavailment does not represent a
defensible outcome based on the facts and the law.
V.
Conclusion and Disposition
[21]
The Board failed to take account of important
evidence relating to the test for reavailment. Absent an analysis of that
evidence, the Board’s conclusion that Mr Cerna had reavailed himself of the
protection of the state of Peru was unreasonable. I must, therefore, allow this
application for judicial review and order another panel of the Board to
reconsider the Minister’s cessation application. No question of general
importance arises.
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