Date: 20241209
Docket: IMM-9715-23
Citation: 2024 FC 1992
Vancouver, British Columbia, December 9, 2024
PRESENT: Justice Andrew D. Little
BETWEEN: |
MAHENDRA KUMAR PREM LATA |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicants ask the Court to set aside a decision of the Refugee Protection Division (the “RPD”
) dated July 6, 2023. The RPD granted an application by the Minister of Public Safety and Emergency Preparedness to cease the applicants’ refugee status on the basis of voluntary reavailment under paragraph 108(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”
).
[2] The applicants contend that the RPD’s decision was unreasonable under the principles in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563.
[3] For the reasons that follow, I conclude that the application must be dismissed. The applicants have not demonstrated that the RPD’s decision was unreasonable.
I. Facts and Events Leading to this Application
[4] The applicants are citizens of Fiji. In 2006, they made an application for protection under the IRPA against Fiji and were found to be Convention refugees. In November 2007, they became permanent residents of Canada.
[5] After becoming permanent residents of Canada, they obtained new Fijian passports through the Fijian government. Between April 2008 and May 2016, they made four trips to Fiji using their Fijian passports. These trips totalled 116 days and occurred as follows:
April 13 to May 1, 2008 (19 days);
August 4, 2009 to September 8, 2009 (37 days);
June 24, 2013 to July 21, 2013 (28 days); and
April 12, 2016 to May 13, 2016 (32 days).
[6] In 2018, the Minister applied to the RPD to cease the applicants’ status on the basis that they voluntarily reavailed themselves of the protection of Fiji.
[7] The RPD heard the matter on January 16 and February 21, 2023.
[8] In its decision dated July 6, 2023, the RPD applied three criteria to assess cessation by reavailment under paragraph 108(1)(a):
(1) Voluntariness: The refugee must have acted voluntarily;
(2) Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and
(3) Reavailment: The refugee must actually obtain state protection.
[9] These criteria were described with approval in Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, [2022] 4 FCR 220, at paragraphs 18, 20, 79.
[10] The RPD found that the Minister’s application met these three criteria for voluntary reavailment. On voluntariness, the RPD found that the applicants made three trips to Fiji on their original passports and one trip on their new passports. It concluded that in making these trips, they acted voluntarily. The RPD recognized the applicants’ explanation that they had to visit their ill son, but was not persuaded that their trips were necessary as there were others in Fiji to care for him including his wife and their other son.
[11] On the second criterion of intention to reavail, the RPD referred to the presumption that a protected person intends to reavail when the person applies for and obtains or renews a national passport from their country of origin. The RPD also noted that there is strong presumption of intention if the person obtains a passport from their country of origin and uses it to return there. The RPD recognized the role of a person’s actual knowledge (or lack of knowledge) of the consequences of their actions in determining intent. The RPD quoted the factors listed in Galindo Camayo, at paragraph 84, to assess whether a person has rebutted the presumption of reavailment. The RPD’s assessment of the applicants’ circumstances included length of time they spent in Fiji during their four trips, the advice they received from a lawyer before their first trip to Fiji, their knowledge of the consequences of returning to Fiji and the purpose of their travel to and activities in Fiji. The RPD concluded that they intended to re-avail themselves of the protection of Fiji.
[12] On the third criterion, the RPD found that the applicants had actually received the protection of Fiji when they travelled to and from Fiji using their Fijian passports four times between 2008 and 2016.
[13] The applicants now challenge the RPD’s decision in this Court.
II. Standard of Review
[14] I agree with the parties that the standard of review is reasonableness as described in Vavilov. See Canada (Citizenship and Immigration) v Galindo Camayo, paras 46-57.
[15] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 63; Vavilov, at paras 12-13 and 15. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Mason, at paras 8, 59-61, 66; Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194.
[16] It is not the role of the Court to re-assess or re-weigh the evidence, or to provide its own view of the merits: Galindo Camayo, at paras 53-54; Vavilov, at paras 125-126. Thus, it is not permissible for the Court to come to its own view of the merits of the application and then measure the impugned decision against the Court’s own assessment: Mason, at para 62; Vavilov, at para 83; Galindo Camayo, at para 32.
[17] To intervene, the reviewing court must be satisfied that there are “sufficiently serious shortcomings”
in the decision such that it does not exhibit sufficient justification, intelligibility and transparency. Flaws or shortcomings must be more than a “minor misstep”
; the problem must be sufficiently central or significant to the outcome to render the decision unreasonable: Vavilov, at para 100.
III. Analysis
[18] The applicants did not challenge the legal principles concerning voluntary reavailment that were used by the RPD in its decision. The applicants also did not disagree with the applicability of the factors relied upon by the RPD related to rebutting the presumption of reavailment: Galindo Camayo, at para 84.
[19] Some of the positions advanced by the applicants constituted re-argument of the merits of the cessation application. On this application for judicial review, the Court’s role is to examine the legality and, therefore, reasonableness of the decision, not its correctness on the merits. Accordingly, I cannot determine whether there were exceptional circumstances or compelling reasons for the applicants’ return to Fiji to visit their son. It was the RPD’s role to make that determination. The Court’s task is to determine whether the decision was reasonable – transparent, intelligible and justified in relation to the law and evidence that constrained it.
[20] I have grouped the applicants’ arguments under three headings and will address their submissions in turn.
A. The RPD’s alleged failure to engage with the evidence before it
[21] The applicants submitted that the RPD did not engage sufficiently with several parts of the evidence, including the nature of their son’s condition, that they provided emotional support for him and that they were hiding while in Fiji.
[22] The RPD considered the evidence about the nature of the applicants’ son’s condition as it related to the voluntariness of their initial trip to Fiji in 2008 and their intention to reavail. The RPD found that the applicants’ travel to Fiji could not be viewed as an emergency outside their control nor was their presence necessary for their son’s care and well-being. The RPD also found that medical circumstances of their son were not “urgent or exceptional”
. Their reasons for returning to Fiji were “not frivolous but were also not highly compelling”
as their son had support in Fiji prior to their four visits. In addition, the support they provided to him was not unique or different from the support that their son’s wife was providing him or that their other son could have provided at the time.
[23] The applicants submitted that the RPD did not engage with multiple letters from their family, including their son, and a letter from a justice of the peace in Fiji. It is true that the RPD did not make express reference to them. However, I find that the RPD adequately accounted for their contents in its reasons and made findings that were open to it on the evidence. It did not make a reviewable error by fundamentally misapprehending or ignoring material evidence: Vavilov, at paras 125-126.
[24] To elaborate, the applicants argued that their son’s illness related to his heart and its seriousness, was not recognized by the RPD. In my view, the evidence is not as stark as the applicant’s submission implies, at least as it concerns the reasons why the applicants returned to Fiji in 2008. The son’s signed statement advised that the problem was related to his heart and that doctors told him that the problem “could cause potential death”
. Mr Kumar’s testimony at the hearing was more detailed: the medical problem on their first visit to Fiji in 2008 was a nerve problem in their son’s legs, that “that nerve is connected to his heart”
(Transcript of RPD hearing on January 16, 2023, p. 10) and that there was no machine to treat the issue in Fiji. Mr Kumar’s testimony was that he and Ms Lata went to Fiji in 2008 because their son was “so unwell and life is so unreliable. Just wanted to see our son. That’s all.”
(Transcript, p. 24) The applicants both needed to go to Fiji because they travel together and Ms Lata was scared to travel on her own due to past experiences (Transcript, p. 11). In light of this testimony, I find that the RPD’s findings and conclusions on voluntariness and intention of the applicants were open to the RPD based on the record. The son’s statement about the nature of his condition, taken with the other evidence before the RPD and in particular the testimony at the RPD hearing, did not constrain the RPD to conclude otherwise in relation to the voluntariness of the applicants return to Fiji in 2008 or their intent to reavail. The RPD also reasonably accounted for the nature of the applicants’ support for their son.
[25] On the issue of the applicants allegedly hiding while in Fiji, the RPD stated that while the applicants (respondents in the RPD hearing) testified that they only undertook necessary trips, “the totality of the respondents’ evidence is insufficient to show they lived in hiding or took significant precautionary measures the four times they went back to Fiji”
. The RPD recognized that they lived in their son’s home and that they testified that during their visits, they left home for the son’s medical appointments and when grocery shopping.
[26] On this application, the applicants did not identify evidence that the RPD ignored. While the applicants disagree with the RPD’s findings, the Court is not permitted on judicial review to make its own factual findings; that was the RPD’s role. There is no basis to conclude that the RPD fundamentally misapprehended or ignored any material evidence on this issue.
B. The RPD’s alleged misinterpretation of evidence of legal advice
[27] The applicants submitted that the RPD misinterpreted the evidence about advice they received from their lawyer prior to their first visit to Fiji in 2008.
[28] The RPD considered their evidence about the interactions with their lawyer in its assessment of intention to reavail. It stated:
[42] In this case, the respondents testified that they asked their lawyer in 2008 if they could travel back to Fiji. They testified that the lawyer told them he could not advise them, and he told them that they would have to take responsibility for travelling to Fiji. When asked why they believe it was okay to go back given what their lawyer told them, the respondents stated they went because they wanted to see their son.
[43] The respondents not only went back to Fiji four times after the caution from their lawyer about doing so, as already noted, they further extended and renewed their Fiji passports from the Fijian immigration authorities and travelled on the passports to Fiji to see their son.
[…]
[45] In making the finding of reavailment, the panel took into consideration the respondents’ disregard for the cautionary note given by their lawyer in 2008, their extension and renewal of their Fijian passports, and their presentation of their Fijian passports to government officials when they entered and exited Fiji.
[…]
[48] As already noted above, the respondents testified that they made enquiries from their lawyer in 2008 about going back to Fiji. In spite of their lawyer’s indirect caution, the respondents provided no testimony or evidence that they sought further information, clarification or advise on the consequences of returning to Fiji. Not only did they return to Fiji after their lawyer told them they would have to take responsibility for doing so, they went back three times after that.
[29] The applicants took issue with the RPD’s characterization of the lawyer’s advice as an “indirect caution”
, arguing that if they had known that they were risking their refugee status in Canada by returning to Fiji they would not have travelled there. They referred to the fact that once they learned of the risks, they ceased going back to Fiji.
[30] I have read the testimony during the RPD hearing concerning the lawyer’s advice. I find no reviewable error in the RPD’s characterization of the circumstances. Mr Kumar did testify that if the lawyer had advised them not to go to Fiji, they would not have gone. However, that was not the lawyer’s advice. Mr Kumar’s described the advice in two answers during the RPD hearing:
He [the lawyer] said if you want to go you have to go at your own -- your own responsibility. You are responsible for your actions and you can go at your own responsibility, but from [our] side it's like this.
(Transcript of RPD hearing on February 21, 2023, p. 4)
He [the lawyer] said that, "If you want to go back, you can go back at your own -- at your own responsibility, but from my side we cannot give you any advice."
(February 21, 2023 Transcript, p. 10)
[31] Asked later at the hearing to clarify what he meant when he said “from [our] side it's like this”
(on page 4, above), Mr Kumar testified: “I went on my own responsibility”
. The lawyer did not advise him of any risk or danger.
[32] The RPD properly concluded that the applicants’ evidence was that “the lawyer told them he could not advise them, and he told them that they would have to take responsibility for travelling to Fiji”
. In my view, it was open to the RPD to find that this advice was an indirect caution – that the applicants would be responsible for their actions if they returned to Fiji as Mr Kumar testified. There is no basis for the Court to interfere with this finding: Vavilov, at paras 125-126.
C. The RPD’s alleged error related to rebuttal of the presumption of intention to reavail
[33] The applicants submitted that the RPD did not engage in an analysis of whether they had rebutted the presumption of intention, noting that the RPD did not make an express determination on the issue.
[34] I do not agree and find no reviewable error in the RPD’s decision. Looking at the RPD’s reasons, there is no doubt that the RPD was aware about the nature of the presumption of reavailment, that it could be rebutted and what the factors were to consider in determining rebuttal as listed by the Federal Court of Appeal in Galindo Camayo. The RPD said so expressly in its reasons. It also said that it had considered those factors, as well as two others not in the Federal Court of Appeal’s list (the age and education of the applicants, and the significant consequences to the respondents of a finding of cessation including the loss of permanent resident status that they had held for 15 years). The RPD’s reasoning also expressly assessed the applicants’ knowledge of the consequences of returning to Fiji, whether their activities in Fiji showed a lack of intention to re-avail, and the applicants’ purpose of travel to Fiji. In short, the RPD’s numerous findings on intention were expressly and substantively an assessment of the evidence related to rebuttal of the presumption. The applicants did not identify any evidence (apart from what has already been analyzed in these Reasons) that the RPD allegedly misapprehended or ignored when conducting that assessment.
[35] While it may have been preferable for the RPD to make an express finding at some point that the applicants had not rebutted the presumption of intention, it did not make a reviewable error in this case by failing to do so.
IV. Conclusion
[36] For these reasons, I conclude that the applicants have not demonstrated that the RPD made a reviewable error in its decision. Accordingly, the application must be dismissed.
[37] The respondent advised that the style of cause should amended to state that the respondent is the Minister of Citizenship and Immigration. That will be done.
[38] No question was proposed for certification for appeal, and none will be stated.
JUDGMENT in IMM-9715-23
THIS COURT’S JUDGMENT is that:
The style of cause is amended to state that the respondent is the Minister of Citizenship and Immigration.
The application is dismissed.
No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.
"Andrew D. Little"
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