Date: 20241209

Docket: IMM-16100-23

Citation: 2024 FC 1991

Calgary, Alberta, December 9, 2024

PRESENT: Justice Andrew D. Little

JUDGMENT AND REASONS

[1] The applicant filed this application for judicial review to request that the Court set aside a decision of the Refugee Protection Division (the “RPD”) dated November 23, 2023. The RPD granted an application by the Minister of Public Safety and Emergency Preparedness to cease the applicant’s 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 applicant contended 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, the application must be dismissed. The applicant has not demonstrated that the RPD’s decision was unreasonable.

I. Facts and Events Leading to this Application

[4] The applicant is a citizen of Uganda. At the material times, he held Ugandan passports, the first valid from April 2007 to April 2017.

[5] In 2012, the applicant was granted refugee protection in Canada. Since 2013, he has been a permanent resident of Canada. He held a Canada Travel Document valid from September 2012 to July 2014.

[6] In 2017, the applicant obtained a new Ugandan passport, valid for the period from March 2017 to March 2027. It was issued at Uganda’s embassy in Washington DC.

[7] In 2018, the applicant applied for Canadian citizenship. In his application, he disclosed that in 2016 and 2017, he had travelled from Canada to a third country, Rwanda, before going to Uganda on three occasions:

• a)from January to February 2016, the applicant stayed in Uganda for approximately a month, on the death of his brother;

• b)from August to September 2017, the applicant again stayed in Uganda for approximately a month, on the death of his nephew; and

• c)from March to June 2017, the applicant stayed in Uganda for approximately two months after another brother died and to support his mother who had health concerns.

[8] Each time, the applicant used his Ugandan passport for travel.

[9] In February 2023, the Minister of Public Safety and Emergency Preparedness applied to cease the applicant’s refugee protection.

[10] By order with reasons dated November 23, 2023, the RPD granted the Minister’s application. The RPD acknowledged that the Minister conceded that the applicant attending the funerals of his brother and his nephew constituted compelling reasons to return to Uganda. However, the RPD also found that these two visits and the third trip were voluntary in the circumstances because the length of his stays. The RPD concluded that the applicant intended to reavail himself of the protection of Uganda from the persecution he feared based on his refugee claim, and he had not rebutted the presumption that he intended to reavail when he obtained and used his Ugandan passport to return to Uganda. The RPD also found that the applicant had actually obtained the protection of Uganda and had therefore actually reavailed.

[11] The applicant now challenges the RPD’s decision in this Court.

II. Standard of Review

[12] I agree with the parties that the standard of review is reasonableness as described in Vavilov. See Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, [2022] 4 FCR 220, at paras 46-57.

[13] 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.

[14] 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: Vavilov, at paras 125-126; Galindo Camayo, at paras 53-54. 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.

[15] 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

[16] The applicant did not challenge the legal principles on which the RPD’s cessation decision rested. The RPD recognized and applied three established criteria in determining whether cessation had occurred:

(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.

[17] These criteria were described with approval in Galindo Camayo at paragraphs 18, 20, 79. The applicant did not challenge the applicability of these criteria.

[18] The RPD expressly recognized the burden on the Minister to prove reavailment on a balance of probabilities and that in doing so, the Minister was “entitled to rely on the presumption of re-availment by proving that the refugee obtained or renewed a passport from his or her country of origin”. The RPD stated that once that has been proved, “the refugee has the burden of showing that that he or she did not actually seek re-availment”. The applicant did not doubt these statements.

[19] The RPD also quoted and applied the factors listed in Galindo Camayo, at paragraph 84, to assess whether the applicant had rebutted the presumption of reavailment. The applicant did not question these factors.

[20] The applicant’s position concerned the application of the legal principles to the facts and evidence in the record before the RPD. The applicant focused on the duration of his trips to Uganda of “a few weeks” due to the deaths of his family members and his mother’s health. He argued that his visits were not voluntary.

[21] I am unable to accept these arguments as a basis to find the RPD’s decision was unreasonable. The RPD considered this position and found that initially the reasons for the applicant’s returns to Uganda were compelling, but that their duration rendered them voluntary. The RPD reviewed the evidence and found that the applicant had not explained why he needed to stay for a month in each of the first two trips, and for two months on the third trip. On this judicial review application, this Court is not permitted to come to its own view of the facts and set aside the RPD’s decision if it disagrees. To do so would constitute impermissible correctness review, rather than reasonableness review.

[22] The applicant’s explanation for the duration of the first two stays in Uganda concerned his role as a “second parent” and to attend post-funeral rituals. The RPD stated that the applicant:

… did not explain what these post-funeral rituals were, nor why he needed to stay for the month. He did not explain why, in his role as a support person, that he needed to remain for approximately one month. [He] did not provide enough reliable information to justify his lengthy stay in Uganda.

[23] With respect to his third visit, the RPD stated:

Regarding the visit to support his mother, the [applicant] provided no reliable information on why he needed to stay in Uganda for approximately two months to support his mother. He testified that he did not provide her with medical care. For instance, it was his aunt who drove his mother to doctor’s appointments. He did not testify why other family members were not able to provide the emotional support, especially when his mother was being cared for with her medical treatments by other family members. Since the [applicant] did not provide sufficient, reliable evidence as to why he needed to stay in Uganda for two months, this makes his reavailment voluntarily.

[24] In this Court, the applicant submitted that the length of time he spent in Uganda on each trip was not long, and that the RPD did not properly account for the applicant staying for post-funeral rituals. However, the applicant’s written submissions did not point to any evidence in the record to explain the rituals he relied on or how long they took. Although there were factual assertions in his written submissions on this application about the rituals and his role in them, the applicant acknowledged at the hearing that there was no such evidence in the record before the RPD. The Court is unable to intervene on this basis, as the applicant has not shown that the RPD ignored or fundamentally misapprehended any material evidence that was in the record before it: Vavilov, at paras 125-126.

[25] The applicant also referred to his mother’s health as a reason why he stayed as long as he did in Uganda, arguing that she needed his support both physically and emotionally during the times he was there. I am sympathetic to his mother’s circumstances, particularly after losing two sons. However, the RPD was aware of the evidence and arguments in this area, including that his mother desperately pleaded with him to return to see her, his evidence that he had to convince her not to take her own life after losing two of her sons and that he had to arrange for medical care for her (he could only provide emotional support). As is evident from the quotations from its reasons, above, the RPD found that other members of the family drove his mother to medical appointments and provided her with medical treatment. The RPD also noted that the applicant did not testify that the other family members could not provide her with emotional support. The applicant has not shown that the RPD’s factual findings were not supported by the record or were contradicted by any evidence.

[26] The applicant advanced a number of other brief points during oral argument in this Court, including that the RPD did not sufficiently explain its reasoning and that the applicant was not aware of the consequences of returning to Uganda. On these issues, I am unable to find a basis for the Court to intervene. In my view, the RPD adequately explained its reasons, including a separate assessment for each of the three criteria for voluntary reavailment (voluntariness, intention and actual reavailment). I am not persuaded that the RPD did not deal with the central issues and concerns he raised: Galindo Camayo, at paras 48-51; Vavilov, at paras 127-128, 133. In addition, in its assessment of intention in the reavailment criteria, the RPD analyzed the evidence of the applicant’s lack of knowledge of the consequences of returning to Uganda, together with his travel on his Ugandan passport, his deliberate travel from Canada to Rwanda and then to Uganda through Uganda’s international airport, the renewal of his Ugandan passport, his sophistication and his lack of subjective fear of persecution (including that he took no particular or extraordinary measures to protect himself in Uganda): Galindo Camayo, at paras 64, 66, 84. The RPD also weighed the evidence and concluded that if he had known the consequences of returning to Uganda, the applicant still would have travelled. In the end, the RPD found that applicant had not rebutted the presumption that he intended to reavail himself of Uganda’s protection. That conclusion was open to the RPD on the evidence before it.

[27] In sum, I find that the RPD respected the factual constraints in the record. Applying the legal principles in Galindo Camayo, Mason, and Vavilov, the applicant has not demonstrated that the RPD made a reviewable error in its decision.

IV. Conclusion

[28] The application is dismissed.

[29] Neither party raised a question to certify for appeal and none will be stated.

JUDGMENT in IMM-16100-23

THIS COURT’S JUDGMENT is that:

1. The application is dismissed.

2. No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.

"Andrew D. Little"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: