Docket: IMM-1235-24
Citation: 2024 FC 1839
Toronto, Ontario, November 18, 2024
PRESENT: The Honourable Justice Battista
BETWEEN: |
JAMES MUNA FREEMAN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] This application presents an opportunity to clarify the test for exclusion under Article 1E of the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 [Refugee Convention], codified by Parliament in section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The Refugee Appeal Division (RAD) determined that the Applicant was excluded from refugee protection because he had not proved that he would be unable to re-acquire Italian permanent residence that he lost over a decade ago. For the reasons that follow, the RAD’s decision is unreasonable for its improper treatment of documentary evidence and its unreasonable application of the test for exclusion under Article 1E.
II. Background
[3] The Applicant is a Ghanaian citizen who acquired Italian permanent residence then moved to the United States (U.S.) in 2009 to join his wife. In 2015, he and his wife lost status in the U.S. and in 2017 they came to Canada where they made claims for refugee protection.
[4] The claim made by the Applicant’s wife was eventually accepted, but the Minister intervened to exclude the Applicant under Article 1E of the Refugee Convention. Article 1E states:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
[5] The RAD and the Refugee Protection Division (RPD) agreed that the Applicant’s Italian permanent residence status had lapsed in approximately 2012 due to his absence from Italy. However, they focused on the steps that the Applicant took to re-acquire his Italian status and found those steps to be insufficient.
[6] In applying the third stage of the test in Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118 [Zeng], and in particular considering whether the Applicant could return to Italy, the RAD placed an onus on the Applicant to prove that he could not reacquire status. The focus of the RPD’s examination was the steps that the Applicant could have taken but did not take. The RAD then relied upon the RPD’s finding that the Applicant “has not established that he would be unable to acquire an entry visa or residence permit”
(RAD Decision at para 15). It also stated:
The Appellant did not have legal documents declaring that he does not have legal status or permanent residence in Italy… I find that the Appellant did not take steps to reacquire or confirm that he could not reacquire status.
(RAD Decision at para 20)
[7] Despite the fact that Article 1E requires evidence of a claimant’s existing status in a third country that corresponds to the rights and obligations attached to nationality, the RAD applied the provision to the Applicant fully recognizing his lack of status in Italy. The RAD excluded the Applicant in the absence of evidence ensuring the future acquisition of status in Italy. Rather, the RAD excluded the Applicant because he had not taken “sufficient steps”
to re-acquire his lost status, without describing what steps would be sufficient. As a result, the RAD excluded him from protection pursuant to Article 1E.
III. Issue
[8] The sole issue is whether the RAD’s decision is reasonable. The reasonableness standard requires that decisions are intelligible and transparent, as well as justified in light of their legal and factual constraints (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], affirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason]).
IV. Analysis
[9] The RAD’s decision is unreasonable due to its mistreatment of the documentary evidence and its unreasonable application of the test for exclusion.
[10] The RAD set out to apply the test for exclusion under Article 1E as provided by the Federal Court of Appeal (FCA):
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.
(Zeng at para 28)
[11] The RAD focused on the third stage of the test in Zeng, which involves the balancing of factors.
A. Unreasonable treatment of documentary evidence
[12] The RAD stated that the Applicant “presented no evidence that he has tested the clear mechanism”
to re-acquire his status in Italy. However, it made an unreasonable finding when it determined that there was a “clear mechanism.”
[13] The documentary evidence relied upon by the RAD indicated that the process for former Italian permanent residents to re-acquire that status involves a series of steps and two tests. The steps involve acquiring an entry visa at an Italian embassy, then entering Italy and applying for a residence permit, then applying for a European Union (EU) “long-term residence permit”
after living in Italy for three years. The issuance of the EU permit involves tests related to income and knowledge of the Italian language.
[14] Based on this evidence, the RAD agreed with the RPD’s conclusion that the Applicant could re-acquire Italian status. However, the RAD ignored evidence regarding the income and language tests, which would inject uncertainty into his ability to return. This evidentiary oversight was unreasonable (Vavilov at para 126).
[15] The Applicant also argued that there was no certainty that he would acquire the Italian entry permit. The RAD rejected this concern based on the lack of reference to refused applications in the documentary evidence.
[16] While it is true that the evidence did not refer to refusals, the evidence also revealed that the re-acquisition process was uncertain. It described that it was “possible”
to re-acquire the long-term permit and the fact that foreigners were “given the opportunity”
to reacquire the permit “always subject to the requirements.”
[17] Article 1E of the Refugee Convention excludes a person who “is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”
The UNHCR states that “due to their nature and the serious consequences of their application to a person in fear of persecution, the exclusion clauses should be applied in a restrictive manner”
(Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1 February 2019, HCR/1P/4/Eng/REV.2 [UNHCR Handbook] at para 180).
[18] The RAD unreasonably found that the Applicant had a clear path for return to Italy, ignoring documentary evidence that revealed uncertainty about his ability to do so. The RAD applied Article 1E in a broad, rather than restrictive, manner. For these reasons, the decision is not justified in light of its legal and factual constraints (Vavilov at para 101).
B. Misplaced onus on the Applicant to prove an inability to re-acquire status
[19] The RAD found that the Applicant “faces some risk”
in Ghana but excluded him from a full examination of this risk by unreasonably placing an onus on him to establish that he could not re-acquire status in Italy.
[20] The onus rests with the person asserting exclusion, which is usually the Minister, to establish that Article 1E applies (Shahpari v Canada (Minister of Citizenship and Immigration), 1998 CanLII 7678 (FC), 146 FTR 102 at para 6 [Shahpari], citing Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306 (FCA) [Ramirez] at 314; Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 [Ezokola] at para 29, in the context of Article 1Fa, citing Ramirez at 314; UNHCR Standing Committee, Note on the Exclusion Clauses, 30 May 1997, EC/47/SC/CRP 29 [UNHCR Standing Committee Note] at para 4: “Under the 1951 Convention, responsibility for establishing exclusion lies with States”
).
[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.
[23] To the extent that the analysis below departs from jurisprudence of this Court regarding the application of Article 1E, I am mindful of the principles behind the concepts of stare decisis and comity described by Justice Janet Fuhrer in Bentaher v Canada (Citizenship and Immigration), 2024 FC 1187 [Bentaher] at paragraphs 19–21. I am also mindful of the sentiment attributed to Lord Denning that “[t]he doctrine of precedent does not compel [us] to follow the wrong path until [we] fall over the edge of a cliff”
(Bentaher at para 23, citing Tan v Canada (Attorney General), 2018 FCA 186 at para 27).
[24] In my view, the interpretation and application of Article 1E in Canadian law should not follow its current path. There is a widening chasm between the text, context, and purpose of Article 1E and its current application, vividly illustrated by the RAD’s decision under review.
[25] The decisions from this Court establishing an onus upon a claimant to prove they could not re-acquire lost status in applying Article 1E were decided prior to Vavilov and Mason’s clarification of the importance of statutory interpretation, international law, and the severity of consequences as legal constraints on administrative decision-making. In my view, these constraints attenuate prior jurisprudence on the application of Article 1E and justify a departure from the rigidity of stare decisis and comity.
[26] In particular, when a provision such as Article 1E emanates from international law and is incorporated without amendment into the IRPA, Vavilov and Mason require that its interpretation and application are consistent with international law (Vavilov at para 114; Mason at paras 105–106). The FCA has required that the provision be interpreted and applied consistently with international instruments to which Canada is signatory, “unless, on the modern approach to statutory interpretation, this is impossible”
(de Guzman v Canada (Minister of Citizenship and Immigration) (FCA), 2005 FCA 436 [de Guzman] at para 83). Canada is a signatory to the Refugee Convention. The use of international law in interpreting and applying Article 1E is therefore not an option, it is an imperative.
[27] Despite this, the jurisprudence regarding Article 1E has interpreted and applied the provision in the absence of the necessary consideration of international law. This approach is not consistent with the requirements of Vavilov, Mason, and de Guzman.
[28] As a result, I am of the view that the rationale of these earlier decisions from this Court, discussed below, is no longer consistent with decisions from binding appellate authority (R v Sullivan, 2022 SCC 19 [Sullivan] at paras 75-76). As held by the Supreme Court, “[i]t is better to revisit precedent than to allow it to perpetuate an injustice”
(Sullivan at para 66 [citation omitted]).
(1) There is no onus on a claimant to prove an inability to re-acquire status to avoid the application of Article 1E
[29] Decisions imposing a burden on a claimant to prove they could not re-acquire lost status in order to avoid the application of Article 1E appear to have their origin in Shahpari. However, Shahpari did not involve a claimant who lost status reflecting the rights and obligations of nationals in third countries. It therefore cannot provide authority for an obligation on claimants to prove they could not re-acquire lost status.
[30] Shahpari involved Iranian refugee claimants who had French permanent residence and were issued a French “carte de resident”
reflecting that status (at para 2). They were also issued “exit/re-entry”
visas, which allowed them to travel to and from France (at para 2).
[31] At the time of the refugee hearing, the principal applicant in Shahpari had destroyed the “carte de resident”
and the “exit/re-entry”
visas had expired (at para 3). The claimants asserted that they had lost status that enabled them to return to France (at para 3). However, the Court agreed with the refugee determination panel that the claimants had not lost full “carte de resident”
or permanent residence status and found that they could renew their exit/re-entry visas to return to France (at paras 8–9).
[32] The Court in Shahpari determined that “once the respondent put forward
prima facie evidence that Article 1(E) applies, the onus shifted to the applicant to demonstrate why, having destroyed her carte, she could not apply and obtain a new one”
(at para 11). This statement did not impose an onus on the claimant to demonstrate that she could re-acquire status because the Court found that she had existing permanent residence status at the time of her hearing. Rather, the Court placed an onus on her to demonstrate that she could not re-acquire a document reflecting her existing permanent resident status in order to return to France to enjoy that status.
[33] In Canada (Minister of Citizenship and Immigration) v Choovak, 2002 FCT 573 [Choovak], the Court appeared to extend the onus in Shahpari by placing an onus on claimants to demonstrate that lost status in a third country cannot be restored. However, this is not entirely clear from the decision. The Court described the Minister’s argument as follows:
The applicant quotes from the decision of this Court in Shahpari v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 429 (QL) (F.C.T.D.) where it was stated at para. 9 that “It does not assist the applicant that she allowed her exit visa to expire. The evidence before the panel reasonably allowed it to conclude that the visa could be renewed. The necessary inference is that an exit/re-entry visa to which a full carte holder is entitled may also be renewed or a new one obtained”. Similarly, the applicant argues that in the case at bar, there was ample evidence before the CRDD in the form of German legislation (the Aliens Act) indicating that status could be re-obtained or re-acquired.
(At para 16 [emphasis added])
[34] The Court in the above passage cites the finding from Shahpari that a visa could be renewed and uses this finding to establish an onus on a claimant to prove they could not re-acquire lost status. However, as seen above, Shahpari does not place an onus on claimants to re-acquire lost status; it simply placed an onus on claimants to re-acquire the document demonstrating existing status.
[35] The Court in Choovak then appeared to agree with the Minister’s extension of this onus, stating: “I am satisfied that the Minister put forward
prima facie evidence that Article 1E applies to the present case, and the onus shifted to respondent to demonstrate why, having caused her permanent resident status to expire, she could not have reapplied and obtained a new visa”
(at para 41). Choovak is unclear in failing to distinguish between “return”
in the sense of returning to rights similar to third country nationals, and “return”
in the sense of physically returning through the use of a visa.
[36] However, it is clear that Choovak adopted an expansive approach to the application of Article 1E. For example, it determined that the appropriate time for determining whether a claimant has rights similar to third country nationals is at the time that a claim is made. The Court made this finding in order to expand the scope of Article 1E to capture claimants with status that expired during the refugee determination process and to place on them an onus of showing they could not re-acquire status (at para 37). The FCA has subsequently found this to be incorrect, holding that the assessment of exclusion is made at the time of the RPD hearing (Majebi v Canada (Citizenship and Immigration), 2016 FCA 274 at para 9). As previously discussed, such an expansive approach is also not consistent with interpretive authority from the UNHCR requiring a restrictive application of Article 1E.
[37] The combination of Shahpari and Choovak has led to several decisions that affirmed the placement of an onus on claimants to demonstrate that they cannot re-acquire lost status in order to avoid the application of Article 1E: Hassanzadeh v Canada (Minister of Citizenship and Immigration), 2003 FC 1494 [Hassanzadeh] at paras 27–28, citing Shahpari at para 12 and Choovak at para 41; Murcia Romero v Canada (Minister of Citizenship and Immigration), 2006 FC 506 [Murcia Romero] at para 8, citing Hassanzadeh, Choovak, and Shahpari; Osazuwa v Canada (Citizenship and Immigration), 2016 FC 155 [Osazuwa] at para 45, citing Hassanzadeh, Shahpari, Choovak at para 42, Mai v Canada (Citizenship and Immigration), 2010 FC 192, and Tota v Canada (Citizenship and Immigration), 2015 FC 890 at para 27; Chen v Canada (Citizenship and Immigration), 2018 FC 756 [Chen] at paras 7, 11–12, citing Shahpari at para 11; Desir v Canada (Citizenship and Immigration), 2019 FC 1164 at paras 15–16, citing Choovak at paras 15, 17 and Zeng at para 39; Tshiendela v Canada (Citizenship and Immigration), 2019 FC 344 [Tshiendela] at para 35, citing Choovak at para 41 and Hassanzadeh at para 27; Su v Canada (Citizenship and Immigration), 2019 FC 1052 [Su] at para 28, citing Hassanzadeh at paras 22–24, Mojahed v Canada (Citizenship and Immigration), 2015 FC 690 at paras 15–17, and Noel v Canada (Citizenship and Immigration), 2018 FC 1062 at para 27; Canada (Citizenship and Immigration) v Sivarasa, 2020 FC 176 [Sivarasa] at para 41, citing Chen at paras 7–8, Osazuwa at para 45, Tshiendela at paras 34–35, and Choovak at paras 40–41; Gondal v Canada (Citizenship and Immigration), 2023 FC 1226 at para 26, citing Choovak at para 41 and Osazuwa at para 29).
[38] Some of these cases use Shahpari and Choovak to raise the onus on claimants to demonstrate impossibility or near impossibility of return to a country in which they once held status. For example,
in Hassanzadeh, the Court states: “once the Minister has established a
prima facie case that the claimant can return to a country where he or she enjoys the rights of the nationals of that country, the onus shifts to the claimant to show why this is not possible”
(at para 27). This results in a burden on claimants to demonstrate an impossibility of return;
in Osazuwa, the Court states: “The problem is that the Applicant failed to discharge the onus he bears to show that he will not be able to re-enter Italy”
(at para 45). The burden applied to claimants here is an inability to physically enter the third country, regardless of status acquired in the third country after entry;
In Tshiendela, the Court imposes both an onus to establish why the claimant could not have reapplied and obtained a new visa and an onus to demonstrate why the applicant could not return to a third country (at para 35).
[39] In the present case, the RAD accepted that the Applicant lost status in Italy more than five years before arriving in Canada and more than a decade before the RAD’s decision. The RAD’s expectation that the Italian government would provide a “clear mechanism”
for the Applicant’s reinstatement of status after its loss more than a decade ago and despite evidence of a lengthy, uncertain process also illustrates how onerous the burden has become for claimants facing exclusion under Article 1E.
[40] In summary, Article 1E is being applied to require claimants who at any time held status in a third country to exhaust avenues to return and/or re-acquire that status, regardless of the uncertainty or difficulty of the re-acquisition/return process, and regardless of whether that process results in status corresponding to nationals of the third country. This method of applying Article 1E is not reasonably connected to the meaning and purpose of the provision.
[41] These decisions have gradually raised the onus on claimants under Article 1E without consideration of the provision’s interpretation in international law. The starting point for most decisions is Choovak’s inaccurate interpretation of Shahpari as placing an onus on claimants to prove they could not re-acquire status. As we have seen, Shahpari did not place such an onus on claimants.
[42] As explained below, the text, context, and purpose of Article 1E do not support imposing an onus on a claimant to demonstrate that they cannot re-acquire lost status. To the extent that decision makers impose such an onus, they apply the provision unreasonably.
(2) The onus remains exclusively on the Minister to establish status similar to nationals of a third country in order to engage Article 1E
[43] Another approach from this Court appropriately places the burden on the Minister to establish that a claimant has rights and obligations similar to nationals of third countries prior to the application of Article 1E. This process is described in the following manner: “this Court has held that when there is evidence suggesting on a
prima facie basis that a claimant has status in another country that would engage Article 1E, the onus shifts to the claimant to establish that he or she does not have such status in the third country”
(Obumuneme v Canada (Citizenship and Immigration), 2019 FC 59 at para 41, citing Murcia Romero at para 8). This description has been endorsed in a number of decisions, despite the fact that some decisions do place an onus on a claimant to establish they could not re-acquire status (see Hoxhaj v Canada (Citizenship and Immigration), 2023 FC 1271 at paras 9, 13; Ahmad v Canada (Citizenship and Immigration), 2021 FC 214 [Ahmad] at paras 20, 32; Sivarasa at paras 37–41; Andreus v Canada (Citizenship and Immigration), 2020 FC 131 at paras 39, 45, 51; Tresalus v Canada (Citizenship and Immigration), 2019 FC 173 at para 6).
[44] As will be seen below, the Minister’s onus involves establishing the current—not future—status of a claimant that is similar to the rights and obligations of nationals of a third country.
[45] Placing the onus exclusively on the Minister avoids the placement of an onerous burden on a claimant to prove a negative, namely, that they could not reacquire status (Ramirez at 314). As recognized by the Supreme Court: “The evidentiary burden falls on the Minister as the party seeking the applicant’s exclusion”
(Ezokola at para 29, citing Ramirez at 314). The Supreme Court did not identify this as a shared or shifting burden.
[46] There are also practical reasons for the Minister’s exclusive onus to establish the application of Article 1E. A claimant who was formerly resident in a country can easily be ignored when seeking assistance from a government to establish the parameters of the claimant’s former status. The Minister, by contrast, has access to administrative and diplomatic mechanisms to obtain such information. In the current age of proliferating information-sharing agreements among states, the Minister has the greater capacity to obtain information regarding a claimant’s third country status. This provides further justification for the placement of the onus on the Minister.
[47] Once the Minister has presented evidence establishing status of a claimant in a third country that corresponds to nationals of that country, the claimant has an opportunity to refute the Minister’s evidence. As seen above, this opportunity to challenge the Minister’s evidence is described in some cases as shifting the onus onto the claimant, but in my view, language referring to an onus shift is best avoided because it risks obscuring the fact that the Minister bears the onus throughout the exclusion process.
[48] References to the shifting onus in the above cases are more accurately described as tactical burdens. They are opportunities for a claimant to challenge the Minister’s evidence. Justice David M. Paciocco of the Court of Appeal for Ontario and Professors Palma Paciocco and Lee Stuesser describe the tactical burden in their text The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) as follows:
Tactical burdens are not assigned by rules of law but arise simply because of the strength or nature of the opposing litigant’s case. An accused person may, for example, feel that they bear a tactical burden to adduce exculpatory evidence, even if they are not required to do so by law, because they realize they are otherwise likely to be convicted, given the nature and strength of the Crown’s case.
(At 690)
[49] A claimant could choose to do nothing and ultimately prevail if the Minister’s case for the application of Article 1E has not been established. In this sense, it is not accurate to identify an “onus”
on the claimant and such language is wisely avoided in the application of Article 1E.
(3) The text, context and purpose of Article 1E do not impose an onus on a claimant to re-acquire lost status
[50] Article 1E has been incorporated into legislation through section 98 of the IRPA. It is an incorporation of an international treaty—the Refugee Convention (Febles v Canada (Citizenship and Immigration), 2014 SCC 68 at para 11)—and the principles of statutory interpretation operate as a legal constraint on its application. As noted by the Supreme Court, paragraph 3(3)(f) of the IRPA “instructs courts and administrative decision makers to construe and apply the
IRPA in a manner that ‘complies with international human rights instruments to which Canada is signatory’”
and the Refugee Convention is “determinative of how the
IRPA must be interpreted and applied, in the absence of a contrary legislative intention”
(Mason at para 106 [citations omitted]).
[51] Thus, the interpretation and application of Article 1E by decision makers is reasonable if it is consistent with the text, context, and purpose of the provision. The Refugee Convention’s exclusion clauses have been specifically mentioned by the Supreme Court as requiring an interpretation consistent with Canada’s obligations under the Convention (Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 [Pushpanathan] at para 51, in the context of Article 1Fc).
[52] Applying this analysis to Article 1E reveals no support for the placement of an onus on a claimant to re-acquire lost status.
[53] To begin, the wording of Article 1E must be considered in applying it in domestic law (Pushpanathan at para 51). To repeat, the text of Article 1E states:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
[54] The immediately striking feature from the provision’s text is its temporal nature. It refers to existing, not future status. It applies to a person who is recognized by a country as having rights and obligations, which are attached to nationals of a third country.
[55] The UNHCR describes the temporal feature of Article 1E as applying only to those who have taken up residence and currently have rights and obligations (UNHCR Note on the Interpretation of Article 1E of the 1951 Convention relating to the Status of Refugees [UNHCR Note], March 2009, at paras 7, 9). Specifically, the UNHCR states that: “A central issue is that Article 1E applies only to cases where the person is currently recognized by the country concerned as having these ‘rights and obligations’. If the competent authorities of the country concerned recognized the person as having such rights in the past but no longer endorse this recognition, Article 1E is inapplicable”
(at para 7 [emphasis in original]).
[56] For the proper application of Article 1E, temporary or short-term status will not suffice; an individual must have the rights of a national “in practice”
(UNHCR Note at para 10; see also UNHCR Handbook at para 146). As James C. Hathaway and Michelle Foster have noted, “the tense in which the clause is framed (‘has taken residence’) makes clear that a right to go to, or even reside in, some other state is not the basis for exclusion”
(The Law of Refugee Status, 2nd ed (Cambridge: Cambridge University Press, 2019) at 503 [The Law of Refugee Status]).
[57] The UNHCR Note is not only useful in providing interpretive assistance with the text of Article 1E, it is a guideline related to international law with which Canadian law is presumed to apply (Vavilov at para 114; de Guzman at paras 78–80).
[58] The context of Article 1E, as stated above, involves an exclusion clause with the impact of preventing the assessment of a claimant’s risk of persecution. As stated by the UNHCR, “[d]enying protection against return to the country of origin to someone with a well-founded fear of persecution can result in their continued persecution, or even worse. Use of these exclusion clauses is, therefore, an extreme measure”
(UNHCR Standing Committee Note at para 5). The severe consequences of this provision warrant a correspondingly high level of justification for its application, including justification in light of Parliament’s intention in directly incorporating Article 1E of the Refugee Convention into the IRPA (Vavilov at paras 133–135).
[59] Far from being used as an extreme measure, the decisions cited above reveal that Article 1E has been applied reflexively and increasingly broadly in the context of claimants who have held previous immigration status in a third country.
[60] Article 1E’s clear words are a strong indication of its purpose, which does not place an onus on claimants to prove that they cannot re-acquire status. Moreover, the purpose and object of Article 1E is described by the UNHCR as follows:
The object and purpose of this Article is to exclude from refugee status those persons who do not require refugee protection because they already enjoy a status which, possibly with limited exceptions, corresponds to that of nationals. A strict test is, therefore, called for in order to be excludable under Article 1E.
(UNHCR Note at para 2)
[61] Article 1E was drafted with the intention of excluding refugees of German extraction who possessed rights similar to German nationals (UNHCR Note at para 3). It was subsequently applied to refugees of Turkish origin from Bulgaria whose status had already been largely assimilated to that of Turkish nationals. These communities consisted of people who were not in need of international protection.
[62] Hathaway and Foster describe Article 1E in the following terms:
In sum, Art. 1(E) excludes from refugee status all persons who may truly be said to be de facto nationals of a safe country in which they have previously taken residence. This intentionally high standard requires not simply the ability to enter the putative state of de facto nationality and to be protected against the risk of being persecuted there, but rather the possession of rights, including economic rights, that are broadly analogous to those of citizens.
As such, Art. 1(E) does not validate the exclusion of persons simply because someone… is deemed to have received an offer of some form of admission or status from another country. To the contrary, exclusion under Art 1(E) is lawful only in the case of persons who have, in fact, already resided elsewhere and who, whatever their formal status in that country of prior residence, enjoy in practice a subsisting right to enter and remain in that other country permanently and with clear guarantees of rights and obligations that bespeak true assimilation to the nationals of that state.
(The Law of Refugee Status at 509 [emphasis in original])
By contrast, the Respondent in this case and several Federal Court decisions have described the purpose of Article 1E as the control of “asylum shopping”
(see Su at para 22; Ahmad at para 18; Riboul v Canada (Citizenship and Immigration), 2020 FC 263 at paras 56–57). “Asylum shopping”
is not a legal concept and there is no definition of it in international law. Zeng did not provide the source of its definition of “asylum shopping”
(Zeng at para 1). In practice the phenomenon, to the extent that it exists, rarely involves a choice between competing asylum systems but consists of an attempt by a person fearing serious harm to select the least uncertain among uncertain options.
[63] In any case, there is little evidence in international authority that the concept of “asylum shopping”
existed or was a consideration behind the development of Article 1E. There is no indication that the German and Turkish communities who motivated the development of Article 1E engaged in behaviour identified as “asylum shopping”
(Wassiq v Canada (Minister of Citizenship and Immigration), 1996 CarswellNat 461 (FC), 112 FTR 143 at para 10); they were simply people who were not in need of international protection owing to existing status. Finally, there is no indication that Parliament was concerned about “asylum shopping”
when it incorporated the provision into legislation in section 98 of the IRPA.
[64] As such, I respectfully disagree that Article 1E’s purpose is to discourage “asylum shopping.”
This statement of purpose is unsupported by Canadian appellate and international sources, there is no indication that it was a purpose behind Parliament’s incorporation of the provision, and it contradicts the provision’s text, context, and purpose, including the purpose identified by the UNHCR based on the history of the provision.
[65] The Supreme Court’s description of refugee protection as “surrogate protection”
has been used to support the purpose of “asylum shopping”
in Article 1E (Su at para 22; Celestin v Canada (Citizenship and Immigration), 2020 FC 97 at para 91, citing Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward]). However, Ward did not deal with Article 1E. The Supreme Court’s description of “surrogate protection”
was made in the context of a discussion regarding the standards of state protection offered to claimants who hold multiple nationalities. In Ward, the Appellant was a national of Ireland and Britain at that time of refugee determination (at 751). If anything, Ward highlights the requirement of currently existing nationality rights prior to the denial of an assessment of refugee protection.
[66] The inaccurate identification of “asylum shopping”
as a purpose behind Article 1E may have been a contributing factor to the drift of the law regarding its application. This approach has facilitated the inappropriate placement of an onus on claimants to justify their past behaviour, resulting in an onus on them to disprove the ability to re-acquire future status.
(4) Zeng does not support an onus on claimants to prove an inability to re-acquire lost status
[67] Zeng is the leading Canadian appellate authority on Article 1E. However, Zeng does not reference international law in the interpretation of Article 1E, despite this requirement from de Guzman, subsequently reinforced as a requirement of reasonable decision making in Vavilov and Mason. The use of Zeng in interpreting and applying Article 1E must bear these considerations in mind.
[68] Nevertheless, Zeng does not place an onus on a claimant to prove an inability to re-acquire lost status. Furthermore, despite a reference to the incompatibility between “asylum shopping”
and the concept of surrogate protection (at para 19), Zeng did not explicitly endorse or suggest that the purpose of Article 1E is to discourage “asylum shopping.”
Rather, it explicitly endorsed the purpose of Article 1E as excluding those “who do not need protection”
(at para 19).
[69] Zeng authorized the consideration of an Applicant’s behaviour in voluntarily eliminating permanent resident status in another country when applying Article 1E (at paras 28, 39). The FCA appeared to do this in response to the Minister’s concern that claimants would deliberately forsake the certainty of their stable permanent status in another country for the opportunity to enter the Canadian refugee determination system (at para 20).
[70] Under the third stage of the test for the application of Article 1E, the FCA identified the following factors to address the Minister’s concern:
the reason for the claimant’s loss of status in another country (voluntary or involuntary);
whether the claimant could return to the third country;
the risk that the claimant would face in the home country;
Canada’s international obligations; and
any other relevant facts.
[71] The FCA did not provide further guidance regarding how these factors were to be used to address the Minister’s concern. For example, it is not clear whether the factor related to the claimant’s return refers to physical return through the use of travel documents or return to status corresponding to nationals of a third country. It is not clear whether factors other than immigration status that block a claimant’s return would qualify for consideration under this factor.
[72] Moreover, the goal of the balancing process is unclear. A claimant who deliberately forsakes status and as a result cannot return to a third country but nevertheless faces persecution in their home country should not be subject to Article 1E as a punitive measure. Nor should Article 1E be used to foster deterrence in the interest of protecting a domestic refugee protection regime. Such uses of Article 1E would be unrelated to its purpose and could expose the claimant to refoulement. This would be contrary to an objective of the IRPA, which Parliament has dictated “is in the first instance about saving lives and offering protection to the displaced and persecuted”
(IRPA, s 3(2)(a) [emphasis added]). It would also be contrary to the Supreme Court’s holding that the IRPA must be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory, including the Refugee Convention, and in a manner that complies with the principle of non-refoulement (Mason at paras 106, 117).
[73] As illustrated in this case, the lack of guidance in the application of the factors in the third stage of the Zeng test has led to an unreasonable preoccupation with a claimant’s role in losing immigration status and ability to re-acquire lost status in another country. It has led to the inflation of Article 1E to cover the possible acquisition of future status through an application process characterized and “complex and discretionary”
(Ahmad at para 34, citing Osazuwa at para 41). This expansive approach to Article 1E contradicts its text, context, and purpose as well as the requirement for its restrictive application.
[74] In the present case, for example, while the Applicant’s loss of status was voluntary in the sense that no one forced him to leave Italy and remain outside Italy long enough to lose status, his intention in leaving Italy was to join his wife who was studying in the U.S. The couple remained in the U.S. for several years, hoping to eventually regularize their status before leaving for Canada after their options were eliminated due to the tightening of the U.S. immigration system. It would distort the evidence beyond recognition to conclude that the Applicant’s behaviour was calculated to pose the type of concern that led to the formulation of the third step in Zeng.
[75] Regardless of the manner in which the factors within the third stage of Zeng are balanced, such balancing cannot establish an onus on a claimant to prove an inability to re-acquire lost status and cannot apply Article 1E in circumstances where the Minister has failed to establish that a claimant has status corresponding to nationals of third countries. Such an application of Article 1E would be unreasonable because it ignores the text, context, and purpose of the provision and applies the provision expansively rather than restrictively.
[76] I am sympathetic to a decision maker who is faced with a claimant who deliberately forsakes secure status in a third country then enters the Canadian refugee protection system - to the extent that the practice actually occurs. Such behaviour tempts the imposition of a consequence.
[77] However, Article 1E is not that consequence. Otherwise, a decision is made to exclude the claimant, then, when the decision maker is placed in the awkward position of sending the claimant to an alleged but incompletely assessed risk of persecution, the decision maker turns to the evidence and strains or distorts it to find a tenuous ability for the claimant to return to a third country. That is what appears to have happened in the present case. Such a method of analysis lacks justification and should be discouraged.
[78] It may be that the more appropriate stage to consider behaviour in forsaking secure status in a third country is the stage of considering the existence of a claimant’s subjective fear or credibility. This was suggested in by the Court in Shahpari (at para 14) and by the respondents in Zeng (at para 23). However, the resolution of that issue is more appropriate in a future case.
V. Conclusion
[79] For the above reasons, the following principles apply to the application of Article 1E:
1)The purpose of Article 1E is to exclude people who have status corresponding to nationals of third countries from the benefits of the Refugee Convention. There is no justification for an additional purpose.
2)The onus is exclusively on the Minister to establish exclusion under Article 1E.
3)It is not justified or reasonable to place an independent onus on claimants to establish that exclusion does not apply to them, although they have an opportunity to challenge the Minister’s evidence. To place this burden on claimants is to require proof of a negative, which is inappropriate according to the FCA, and runs contrary to guidance from the Supreme Court.
4)It is not reasonable to place an onus on claimants to prove an inability to re-acquire lost status in a third country in order to avoid the application of Article 1E. Such an approach contradicts the text, context, and purpose of Article 1E, as well as international guidelines requiring that the provision be applied restrictively.
[80] The RAD’s decision illustrates the danger in an expansive approach to Article 1E when the provision was meant to be applied restrictively and “asylum shopping,”
however defined, does not play a role in the text, context, or purpose of the provision. The RAD’s decision is not justified in accordance with the facts and the law and is therefore unreasonable.
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