Docket: IMM-21616-24
Citation: 2025 FC 1915
Toronto, Ontario, December 1, 2025
PRESENT: Madam Justice Go
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BETWEEN: |
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STANLEY OMORAGBON OGBEMUDIA
EHIOSU BEAUTY OGBEMUDIA STANLEY |
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Applicants |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Stanley Omoragbon Ogbemudia [Principal Applicant or “PA”
] and his spouse, Ehiosu Beauty Ogbemudia Stanley [Associate Applicant or “AA”
] [together “Applicants”
], are citizens of Nigeria. The Applicants seek refugee protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA]. The PA alleges fear to be killed by his father and members of the Black Axe confraternity. The AA, who is bisexual, alleges fear of persecution in Nigeria and in Italy due to her sexual orientation, in addition to fear of her former partner’s husband and her own family who blame her for the death of her father.
[2] The Applicants seek judicial review of a decision dated October 25, 2024 [Decision] of the Refugee Appeal Division [RAD] confirming the Refugee Protection Division’s [RPD] finding that the Applicants were excluded under the provisions of Article 1E of the United Nations Convention relating to the Status of Refugees [Convention]. The RAD found that, at the time of the hearing, the Applicants held status in Italy substantially similar to citizens, and that the Applicants had not shown that such status had been revoked. Additionally, the RAD determined that the Applicants would not be at risk in Italy.
[3] The Applicants submit that the RAD erred in its analysis of the Article 1E exclusion and in its assessment of the Applicants’ risk of harm in Italy and Nigeria. The Applicants argue that the recent jurisprudential development in Freeman v Canada (Citizenship and Immigration), 2024 FC 1839 [Freeman] renders the RAD’s assessment unreasonable because it improperly placed onus on the Applicants to show their status in Italy is not revoked.
[4] For the reasons set out below, I dismiss the application.
II. Issues and Standard of Review
[5] The Applicants raise four issues:
[6] The parties agree that the appropriate standard of review in this case is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Reasonableness is a deferential, but robust, standard of review: Vavilov at paras 12-13. The reviewing court must determine whether the decision under review, considering both its rationale and outcome, is transparent, intelligible, and justified: Vavilov at para 15. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker: Vavilov at para 85.
A. Did the RAD err by failing to conduct an independent analysis of the Applicants’ claim?
[7] Noting the different font sizes within the Decision and pointing to paragraphs 8 through 10 of the Decision, the Applicants submit that the RAD directly copied and pasted a portion of the RPD decision and parroted points made by the RPD. As such, the Applicants argue that the RAD failed to conduct an independent assessment of the evidence, citing Belay v Canada (Citizenship and Immigration), 2023 FC 1154 at para 25 and Saalim v Canada (Citizenship and Immigration), 2015 FC 841 at para 14.
[8] I find the Applicants’ submissions unconvincing.
[9] As the Respondent submits, and I agree, copying-and-pasting in reasons for judgment is insufficient, in and of itself, to warrant setting aside the Decision. Applying the Supreme Court of Canada’s rationale in Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 [Cojocaru], the Court will intervene only if the RAD’s incorporation of the RPD’s material would lead a reasonable person apprised of all the relevant facts to conclude that the RAD has not put its mind to the issues and made an independent decision based on the evidence and the law: Cojocaru at para 49.
[10] Having reviewed the impugned paragraphs in the Decision, I agree with the Respondent that they serve to identify the issue, set out how the issue is relevant to a refugee determination, and describe the test for assessing exclusion. The RAD then devoted the next seven paragraphs, over two and a half page, to analyze and engage with the appropriate test and the Applicants’ arguments. In view of the RAD’s detailed analysis, I find the Applicants fail to demonstrate that the RAD’s copying and pasting of the statements of applicable principles, on its own, indicates that the RAD failed to conduct an independent assessment of the Applicants’ claim.
B. Should the Decision be remanded because of an intervening change in the law?
[11] Before the RPD hearing, the Minister of Immigration, Refugees and Citizenship Canada [Minister] raised the issue that neither Applicant qualifies as a Convention refugee or a person in need of protection because they are excluded under Article 1E of the Convention.
[12] The Principal Applicant stated in his Narrative that he moved to Italy on January 7, 2012, and went back to Nigeria for his marriage between August 2015 and March 2016. The Associate Applicant received a visa to travel to Italy and joined the Principal Applicant in Italy on December 9, 2016. The Applicants initiated their refugee claim in Canada on February 21, 2018.
[13] The Minister references the copies of the Applicants’ Italian Permesso Di Soggiorno [permanent residence] cards which show that the expiry date on these cards is “
illimitata,”
i.e. “unlimited.”
The Minister submitted that the Applicants are permanent residents of Italy, and they could avail themselves to the Italian authorities in the face of the alleged persecution. The Minister further contends that even though the Applicants included Italy as a country where they believed they are at risk, they submitted no evidence of seeking state protection.
[14] The RPD followed the three-part test to assess exclusion under Articled 1E laid out in Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118 [Zeng]:
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.
[15] First, the RPD determined that considering all relevant factors to the date of the hearing, the Applicants had status substantially similar to that of Italian nationals. The Principal Applicant lived in Rome from 2012 to 2018. The RPD referred to the National Documentation Package [NDP] of Italy which states that the PA’s permesso di soggiorno card is a permanent document that does not expire based on its “
illimitata”
stamp. The AA’s permesso di soggiorno card is dependent on her husband’s status, but otherwise has the same permanent status as his. The RPD agrees with the Minister that their status affords them the same rights as the citizens of Italy. The Applicants submitted statements on the Italian government website to show that the Italian authorities may revoke the permit if the bearer is absent from Italy more than six years or outside the European Union [EU] for more than 12 months. The RPD found the term “may”
suggests that the loss of status is not automatic, and even if the Applicants lose their permits, they can still reacquire the permits according to the NPD. This ability to reacquire status distinguishes them from Khan v Canada (Citizenship and Immigration), 2024 FC 860. Furthermore, even though the Applicants submitted they have left Italy for more than six years, the RPD noted that nothing suggests that the revocation has occurred.
[16] On appeal to the RAD, the Applicants argued the RPD erroneously concluded they have permanent status in Italy. The RAD conducted its own analysis based on NDP items 3.7 and 3.8 and found that the RPD did not err in its analysis.
[17] Before the Court, the Applicants submit that Freeman constitutes an intervening change to the law that requires the RAD’s decision to be quashed. Freeman was released on November 18, 2024, after the Decision was released. The Applicants submit that the Court in Freeman shifted the onus that was applied to Applicants to prove they do not hold status in a third country to the Minister. If the principle in Freeman was applied, the Applicants contend, the RAD would have erred by placing the burden on the Applicants.
[18] At the hearing before me, while acknowledging Freeman may not be directly applicable to the Applicants’ case, their counsel nevertheless urged the Court to consider the principle outlined in Freeman that cautions against requiring claimants to prove a negative.
[19] I agree with the Respondent that Freeman has no bearing on this case.
[20] In Freeman, the Court addressed the onus in establishing the third stage of the test in Zeng, namely, after a claimant is determined to have lost their status in the third country, who bears the onus of demonstrating the claimant’s inability to reacquire their status in that country. As the Court in Freeman noted at paras 21-22:
[21] This Court has taken different approaches in placing a burden on claimants in the application of Article 1E. One approach places an onus on a claimant to establish that they cannot re-acquire lost status in a third country. Another approach places an onus on the Minister to demonstrate that current status exists for a claimant that is substantially similar to nationals of a third country and allows the claimant an opportunity to demonstrate that such status does not exist.
[22] For the reasons that follow, the first approach is not a reasonable interpretation and application of Article 1E given the text, context, and purpose of the provision. Article 1E does not place an onus on a claimant to prove an inability to re-acquire lost status.
[21] After a through review of the case law and the Convention, the Court in Freeman found the RAD misplaced the onus on the applicant to prove an inability to reacquire status. Citing Vavilov, Mason v Canada (Citizenship and Immigration), 2023 SCC 21 and international law, the Court concluded in Freeman that: (1) there is no onus on a claimant to prove an inability to reacquire status to avoid the application of Article 1E; (2) the onus remains exclusively on the Minister to establish status similar to nationals of a third country in order to engage Article 1E; and (3) Zeng does not support an onus on claimants to prove an inability to reacquire lost status.
[22] Unlike the applicant in Freeman, where both the RPD and RAD accepted that the applicant already lost their permanent residence status in Italy, the tribunals in this case concluded that the Applicants have status substantially similar to that of its nationals in the third country, thus satisfying the first stage of the Zeng test. Neither the RPD and the RAD found the Applicants to have lost their status, and as such, neither saw the need to engage with the third-stage analysis that the Court focused on in Freeman.
[23] The Respondent argues that the Court in Freeman at para 43 endorsed the approach described in Obumuneme v Canada (Citizenship and Immigration), 2019 FC 59 [Obumuneme] where there is evidence suggesting on a prima facie basis that a claimant has status in another country that would engage Article 1E, the onus then shifts to the claimant to establish that he or she does not have such status in the third country. In the herein matter, the RAD followed this approach to analyze whether Article 1E is engaged for the Applicants. At the hearing before me, the Respondent added that while the onus remains with the Minister, the claimant has a “tactical onus”
to demonstrate that they have lost their status under the first stage of the Zeng test.
[24] While I may not fully endorse the concept of “tactical onus,”
I find the Respondent’s argument persuasive overall.
[25] As the RAD noted at paragraph 12 of the Decision, it found the Applicants, as permanent residents of Italy, enjoyed substantially similar basic rights to those of Italian citizens. The RAD continued to find that “the PA has not established that his absence from Italy since 2018, has resulted in a revocation of his
Permesso and status as a permanent resident it gave him in 2012. As the [Applicants] disclosed their
Permesso, they have the burden of establishing that they no longer hold the status of a long-term resident.”
After considering the RPD’s findings, the RAD found the situation in this case similar to that in Obumuneme, where the applicant failed to adduce evidence that they had actually lost their status, leaving it open for the RPD to conclude they still held permanent resident status in Italy.
[26] As the Court explained in Lakhi v Canada (Minister of Citizenship and Immigration), 2024 FC 2077 [Lakhi], Obumuneme emphasized the distinction between speculative evidence suggesting status “could have”
been lost and concrete evidence that it “actually happened:”
Lakhi at para 16. The Court explained in Lakhi that Obumuneme held that “a failure to attempt status verification can be fatal”
to a claim of loss of status: Lakhi at para 17. Further, the “actually happened”
standard did not require certainty beyond a reasonable doubt, but instead sought objective evidence beyond subjective assumptions, an approach that the Court determined to be “in line with the burden-shifting framework established under Article 1E jurisprudence. By failing to provide any evidence of status loss or to pursue verification beyond theoretical possibilities, the Applicants have left the presumption of valid status intact:”
Lakhi at para 18.
[27] While Lakhi was decided after Freeman was released, the Court in Lakhi did not refer to Freeman. However, I do not find Lakhi to be inconsistent with Freeman. Moreover, the Court’s analysis is particularly apt in assessing the first stage of the Zeng test.
[28] The jurisprudence to date thus confirms, under the first stage of the Zeng test, that while the Minister carries the burden to establish an exclusion under Article IE, the Applicants still need to do more than simply asserting that they have lost their status. Otherwise, they run the risk of leaving the presumption of valid status intact.
[29] Further, requiring a claimant to verify if their status has been lost, in my view, is not the same as asking them to prove a negative. I note, for instance, in Gurusamy v Canada (Citizenship and Immigration), 2024 FC 1868 [Gurusamy], also a case dealing with a claimant’s status in Italy, the Court found the RAD decision unreasonable because it relied solely on general country conditions documents and failed to consider an email that the Italian Consulate provided to the applicant’s counsel in specific response to the counsel’s inquiry about the applicant’s status in Italy. While I do not suggest that claimants must always make inquiries to the relevant consulate about their status, I point to Gurusamy as one instance of how one may go about establishing what “actually happened”
to their status beyond mere speculation.
[30] At one point in the Decision, the RAD appeared to have conflated its analysis by referring to Osazuwa v Canada (Citizenship and Immigration), 2016 FC 155, a case decided under the third stage of Zeng. However, the RAD ultimately concluded that the Applicants were excluded by Article 1E under the first step of the Zeng test, because “the [Applicants] have not established or disclosed sufficient credible evidence to show that Italy had terminated their status and that they had lost permanent residence status in Italy at the time of the RPD hearing:”
Decision at para 17.
[31] In conclusion, while I agree with the Applicants that Freeman calls for a different approach than what the jurisprudence has previously required by replacing the onus on the Minister under the third stage of the Zeng test, the new approach adopted by Freeman has no bearing on the RAD’s findings and analysis in view of the issue and the evidence before it.
C. Did the RAD err in confirming the RPD’s finding that the Applicants are excluded under Article 1E?
[32] The Applicants submit that even if the Court does not adopt the intervening change in law, the RAD still erred in confirming the RPD’s exclusion finding. They state that they did not have status substantially similar to that of Italian nationals at the time of the hearing, and the information in the NDP dictates that the restoration of status is not automatic. The Applicants argue that the RAD failed to properly account for the status acquisition requirements, specifically regarding income, living in Italy for over three years, and whether the Applicants could satisfy these requirements.
[33] I am not persuaded by the Applicants’ submissions.
[34] The Applicants’ arguments mirror those that they submitted to the RAD about the RDP’s analysis. In response, the RAD reviewed the Principal Applicant’s permesso di soggiorno card and the Associate Applicant’s permesso familiari card as well as NDP item 3.7 and 3.8. The RAD examined the nature of the Applicants’ status and noted that item 3.8 indicates that long-term residency may be revoked if the permit-holder is outside the EU for a period greater than 12 months. However, the RAD also found, based on this item, that this revocation does not take place automatically and the permit-holder is an active participant in the revocation. In addition, this NDP item indicates that although status may be revoked, there is a procedure by which such revocation may be appealed and a separate procedure whereby status that has been revoked may be reinstated. Most crucially, the RAD concluded that the Applicants have not disclosed evidence that any revocation has taken place by the date of the RPD hearing.
[35] The Applicants’ submissions, which focused on the requirements to reacquire permit, do not undermine the core finding of the RAD, namely, that they have not disclosed evidence that their status has been revoked in the first place. The RAD’s findings were reasonable in light of the evidentiary record.
[36] At the hearing before me, the Applicants made a new argument, pointing to the English translation of the Italy’s Consolidated Immigration Act Legislative Decree No. 286 of 1998 [Legislative Decree 286], in which Article 9(7) states that “[t]he residence permit as mentioned under paragraph 1 is revoked”
if, among other things:
d. in case of absence from the territory of the [European] Union for a period of twelve consecutive months;
e. in case of issuing of long-term residence permit by another Member State of the European Union, upon communication by the latter, and however in case of absence from the State’s territory for more than six years. (Italy 1998)
[37] The Applicants argued that the use of the verb “is,”
as opposed to “may be”
in Article 9(7) indicates a degree of certainty of the revocation. This undermines the RAD’s finding that the revocation does not happen automatically.
[38] I note the Applicants never raised this argument with the RAD. Putting that concern aside, I am not convinced that the Applicant’s new argument undermined the reasonableness of the RAD’s findings. The text of Article 9(7) was included in Item 3.8 of the NDP that the RAD referred to in the Decision. The rest of item 3.8 indicates that EU long-term residence permit “may be”
revoked in certain circumstances that mirror the wording under Article 9(7).
[39] Read as a whole, it was not unreasonable for the RAD rely on item 3.8 to conclude that revocation was not automatic.
D. Did the RAD err in its assessment of the AA’s risk in Italy and Nigeria?
[40] The RAD accepted the AA’s testimony about the harassment she endured in Italy but found that this harassment did not rise to the level of persecution.
[41] The Applicants submit that the RAD erred in its analysis of the AA’s risk in Italy on the following basis. First, the RAD unreasonably expected her to mitigate her situation by applying to female-owned businesses and did not explicitly consider her risk of harm from racism, sexism and anti-LGBTQ bias. Second, the RAD did not consider whether Italy can provide effective state protection to non-citizens within its orders, and instead found that in order to rebut the presumption of state protection, the Applicants must provide clear and convincing evidence of the state’s inability to protect its citizens. The Applicants cite objective documentary evidence to submit that Italy is increasingly xenophobic and individuals such as the Applicants are experiencing discrimination based on factors including their race and perceived ethnicity or immigration status.
[42] I reject the Applicants’ submissions for the following reasons.
[43] First, I agree with the Respondent that the RAD did not endorse the RPD’s finding about the AA’s ability to seek work in women-owned businesses to mitigate her risks. I also agree with Respondent that the Applicants are asking the Court to improperly reweigh evidence on what amounts to persecution: Abdourahman v Canada (Citizenship and Immigration), 2023 FC 273 at paras 22-24.
[44] Second, the RAD concluded that the Applicants have substantially similar basic rights to those of Italian citizens, and the Applicants fail to demonstrate that this conclusion is unreasonable. It was therefore not unreasonable for the RAD to require the Applicants to rebut the presumption of state protection for citizens.
[45] The Applicants also argue that they would not be safe in Nigeria. The RAD did not consider the Applicants’ risks in their country of birth because they found the Applicants have status in Italy. As I find the RAD’s conclusion on Article 1E to be reasonable, I find it reasonable for the RAD not to consider the Applicants’ risks in Nigeria.
[46] The application for judicial review is dismissed.
[47] There is no question for certification.
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