Citation: 2024 FC 1958
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Ottawa, Ontario, December 4, 2024
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PRESENT: The Honourable Mr. Justice Southcott
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BETWEEN:
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DAVID GALAMB
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Applicant |
and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
Overview
[1] This is an application for judicial review of a decision by the Refugee Protection Division [RPD] dated June 9, 2023 [the Decision]. In the Decision, the RPD granted the application of the Minister of Public Safety and Emergency Preparedness [the Minister] for the cessation of the Applicant’s refugee protection, pursuant to subsection 108(2) of the Immigration Refugee Protection Act, SC 2001, c 27 [IRPA], based on the Applicant having voluntarily re-availed himself of the protection of his country of nationality.
[2] As explained in further detail below, this application is dismissed, because the Applicant’s arguments do not undermine the reasonableness of the Decision.
II. Background
[3] The Applicant is a citizen of Hungary. In June 2015, the RPD found him and his father to be Convention refugees, based on fear of persecution in Hungary due to their Roma ethnicity. The following year, in June 2016, the Applicant and his father presented themselves at a Canada Border Services Agency [CBSA] office and advised that they wished to have their Hungarian passports returned to them to facilitate their return to Hungary. The Applicant and his father signed statutory declarations expressing their desire to voluntarily return to Hungary and cease refugee protection in Canada. In August 2016, the Applicant and his father departed Canada for Hungary.
[4] In February 2017, the Applicant returned to Canada. In November 2019, the Minister made an application to the RPD pursuant to subsection 108(2) of IRPA for the cessation of the grant of refugee protection to the Applicant and his father. In September 2022, the RPD allowed the Minister’s application. The Applicant did not appear at the RPD hearing and learned of the Minister’s application and the RPD’s subsequent decision only after retrieving mail from an old address.
[5] In January 2023, the Applicant applied to reopen the Minister’s application for reconsideration, to ensure that he was afforded a fair hearing under the principles of natural justice. The RPD allowed that application and set a date for a new hearing, which occurred in June 2023. Following that hearing, the RPD made the Decision that is under review in this application, finding that the Applicant voluntarily re-availed himself of the protection of his country of nationality, as contemplated by paragraph 108(1)(a) of IRPA, and therefore granting the Minister’s cessation application under subsection 108(2).
Decision under Review
[6] The RPD reviewed principles governing the adjudication of a cessation application, including the relevant provisions of IRPA, interpretive principles set out in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status [UNHCR Handbook], and applicable jurisprudence including the recent decision of the Federal Court of Appeal in Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 [Galindo Camayo]. The RPD noted the applicable three-part test to establish re-availment to involve the following requirements:
- voluntariness: the refugee must act voluntarily;
- intention: the refugee must intend by their action to re-avail themselves of the protection of their country of nationality; and
- re-availment: the refugee must actually obtain such protection.
[7] The RPD noted that, at the hearing, the Applicant testified that he did not want to return to Hungary but that he was under the influence of his father, who lied to him about the implications for his immigration status in Canada if he were to return to Hungary, and who would not allow him to remain in Canada without his family, referring to cultural expectations forbidding this.
[8] The RPD considered the Applicant’s testimony, including surrounding the influence of his father, but noted that the Applicant was present for the meetings with CBSA regarding his father’s request to have their Hungarian passports returned and wish to abandon their refugee protection in Canada. The RPD noted that a Hungarian interpreter was present and interpreted the statutory declaration that the Applicant signed. In this declaration, the Applicant stated that he was voluntarily giving up his refugee status in Canada; that he was aware that the Minister may make an application to cessate his refugee status; and that he consented to the RPD issuing a decision that he had ceased to be a refugee and making a decision that he is not a refugee.
[9] Although noting the Applicant’s testimony that he was immature and felt influenced and lied to by his father, the RPD found that these reasons did not alter the voluntariness of the Applicant’s actions. He did not raise any objections in the presence of CBSA officials, he signed the declaration after it was interpreted for him, and he was over 18 years of age at the time. The RPD found no indication that the Applicant returned to Hungary for any compelling administrative purpose, that he was forced or pressured to return by national authority, or that he was constrained by circumstances beyond his control. The RPD therefore found that the voluntariness requirement was met.
[10] Turning to intention, the RPD noted that the Applicant faced a rebuttable presumption of re-availment. The RPD again referred to the Applicant, being an adult at the time, having signed a statutory declaration specifically relating to the implications of having his Hungarian passport returned for the sole purpose of returning to his country of persecution. The RPD found that the Applicant was well aware of the consequences of requesting his passport and signing the statutory declaration.
[11] The RPD also considered the Applicant’s testimony that he and his father went their separate ways hours after landing in Hungary, never to speak again, noting the Minister’s submission that he was at that stage clearly not acting under the influence of his father. The RPD concluded that the Applicant had travelled freely to Hungary and that the reason for his travel did not come within the ambit of exceptional circumstances sufficient to rebut the factual presumption of his intent to re-avail.
[12] The RPD observed that Galindo Camayo identified the potential consequences of a cessation decision as a relevant factor for consideration. The RPD considered the Applicant’s personal circumstances, including one of his three children being autistic, but noted that his wife has permanent resident status in Canada and that the child has medical and social supports available. The RPD also observed that humanitarian and compassionate [H&C] considerations are not to be considered in the context of a cessation application and therefore found that the potential consequences in the Applicant’s personal situation were not dispositive.
[13] The RPD also noted the guidance in Galindo Camayo that, while not determinative of subjective intent, it was required to consider whether the Applicant subjectively understood the consequences of re-availment for his protected status. It considered his alleged lack of subjective knowledge of the immigration consequences but found that, having reached the age of majority and having signed a statutory declaration indicating he was willingly abandoning his refugee status in Canada, those factors must be afforded greater weight. The RPD therefore found that the intention component of the applicable test had been established.
[14] In relation to actual re-availment, the RPD referred to jurisprudence to the effect that the focus of the cessation analysis was on the individual’s actions and not on the identity of the agent of persecution. The RPD also noted that a central issue in a cessation case is whether the individual continues to have a subjective fear of persecution in their country of nationality, which may be demonstrated by the steps taken to ensure safety upon returning to that country. However, the RPD referred to the Applicant’s testimony as making it clear that he was not in hiding during his six months in Hungary. While he testified that he would not dare leave the house, he also stated that he walked around his town, approached people to ask for work, went to an employment centre, and made regular trips to the grocery store. The RPD found that the Applicant was not fearful of returning to his country of persecution when he returned and resided there for six months.
[15] In conclusion, the RPD found that the Applicant had failed to rebut the presumption of voluntary return, intent, and re-availment. The RPD therefore allowed the Minister’s application.
IV. Issue and Standard of Review
[16] The sole issue for the Court’s determination is whether the Decision is reasonable. As is implicit in that articulation, the standard of reasonableness applies to the Court’s consideration of the merits of the Decision (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 16-17).
V. Analysis
[17] The Applicant raises several arguments in support of his position that the Decision is unreasonable.
[18] The Applicant argues that, although the RPD mentioned Galindo Camayo in the Decision, it erred by conducting elements of its analysis in a manner inconsistent with the guidance from the Federal Court of Appeal in that authority. In its general explanation of the operation of section 108 of the IRPA and principles to be derived from applicable jurisprudence, the RPD stated that it is not required to undertake a forward-looking risk analysis or to consider H&C factors in performing a cessation analysis. The Applicant submits that these conclusions are contrary to principles expressed in Galindo Camayo.
[19] In my view, the Applicant misunderstands the aspects of Galindo Camayo upon which he relies. The Federal Court of Appeal identified the need to consider the severity of the consequences that a decision to cease refugee protection will have for the affected individual. The Applicant suggests that this guidance represents an indication that H&C factors are to be taken into account. I disagree, as Galindo Camayo provided this guidance, not in relation to the potential to afford H&C relief, but rather in the context of a number of factors to be considered in assessing whether the refugee had rebutted the presumption of re-availment (at para 84). The RPD does not have discretion to consider H&C factors in determining whether a cessation of refugee status should ensue once the applicable criteria are established (Aydemir v Canada (Citizenship and Immigration), 2022 FC 987 at para 76).
[20] Similarly, in relation to forward-looking risk, the Applicant suggests that the factors identified in paragraph 84 of Galindo Camayo are all essentially part of a forward-looking risk analysis. Again, the Applicant misunderstands this authority. These factors relate to assessment of whether a refugee has rebutted the presumption of re-availment, particularly in the context of a refugee’s intention to re-avail (Galindo Camayo at para 83). As the Respondent submits, the recent decision in Ahmed v Canada (Citizenship and Immigration), 2022 FC 884 [Ahmed], has confirmed at paragraph 59 that Galindo Camayo did not alter the principle that whether an individual would be at risk in their country of nationality is not a relevant consideration in a cessation hearing.
[21] The Applicant also submits that the RPD erred by relying excessively upon the UNHCR Handbook that, as explained in Galindo Camayo at paragraph 19, is not domestic Canadian law binding on the RPD. However, as the Respondent argues, the RPD expressly noted that the UNHCR Handbook was not binding upon it. The RPD relied on the UNHCR Handbook in identifying the three part test for assessment of a cessation application, but it also noted that this test has been endorsed by Canadian jurisprudence including Galindo Camayo.
[22] When asked at the hearing of this application to explain which principles derived from the UNHCR Handbook the Applicant considered the RPD to have unreasonably applied, his counsel referred to the RPD noting that the UNHCR Handbook provided examples of a lack of voluntariness, including if a refugee is instructed by an authority of his country of residence to perform against his will an act that could be interpreted as re-availment, such as applying to his consulate for a national passport. The Applicant also argues more generally that the RPD erred by failing to consider the specific facts of his case.
[23] I find no merit to these submissions. While the RPD’s reasoning included there being no indication that the Applicant was forced to return to Hungary by a national authority (which could perhaps be read as a reference to the example from the UNHCR Handbook referenced above), the RPD also found no indication that he was constrained by circumstances beyond his control, after canvassing the Applicant’s testimony as to his immaturity and that he felt that he was influenced and lied to by his father. The RPD clearly took into account the particular facts of this matter, as framed by the Applicant’s evidence.
[24] Similarly, the Applicant argues that the RPD erred by failing to conclude that the requisite voluntariness and intention was lacking because, in making the decision to obtain his Hungarian passport and return to Hungary, the Applicant was influenced by his father (who initiated the request for return of the passports) in a manner that amounted to duress. The Applicant submits that the RPD fixated on the fact that the Applicant was over 18 at the time and that the decision is not transparent and intelligible, as required by Vavilov, because it does not adequately engage with the evidence and arguments surrounding the effect of his father’s influence.
[25] I agree with the Respondent that this argument asks the Court to reweigh the evidence, which is not the Court’s role in judicial review. It is clear from the Decision that the RPD understood the Applicant’s evidence and arguments related to the influence of his father but did not accept that such influence negated the requisite voluntariness or intention. These aspects of the Decision withstand reasonableness review.
[26] Also in relation to the Applicant’s intention, he argues that the RPD erred by stating that it is only in exceptional circumstances that a refugee can rebut the presumption of re-availment after travelling to their country of nationality using a passport issued by that country. He submits that this statement is unsupported by applicable jurisprudence and inconsistent with Galindo Camayo. However, as the Respondent argues, there is ample authority for this statement (see, e.g., Zhou v Canada (Citizenship and Immigration), 2024 FC 895 at para 28; Chokheli v Canada (Citizenship and Immigration), 2020 FC 800 at para 56), and I do not read Galindo Camayo as having overruled such jurisprudence.
[27] In relation to actual re-availment, i.e., whether a refugee has actually obtained the protection of their country of nationality, the Applicant submits that the RPD erred by failing to conduct a state protection analysis. He relies on the conclusion in Din v Canada (Citizenship and Immigration), 2019 FC 425 [Din], that the RPD erred in that case for failing to consider whether the applicant actually obtained the protection of his country of nationality. The Court concluded that the RPD had indeed erred by conflating intention with actual protection (at para 40).
[28] However, after considering a similar argument by an applicant that Din required the RPD to consider his risk, Ahmed explained that this argument conflated state protection at the refugee claim stage with the protection at issue in the re-availment context (at para 59). Okojie v Canada (Citizenship and Immigration), 2019 FC 1287, further canvases this distinction, noting that it is not state protection but rather diplomatic protection that is relevant for purposes of actual re-availment in a cessation assessment (at para 30). Again, the Applicant has identified no reviewable error by the RPD.
[29] While not emphasized by the Applicant at the hearing of this application, his written submissions also advanced an argument that the RPD had erred in concluding that the focus of the cessation analysis is on the Applicant’s actions, not upon the identity of the agent of persecution. He submits that this conclusion is inconsistent with the Federal Court of Appeal’s identification of the agent of persecution as a factor to be considered in assessing whether the presumption of re-availment has been rebutted (Galindo Camayo at para 84).
[30] Galindo Camayo explains the manner in which the identity of the agent of persecution may be relevant to the re-availment analysis. Applying for a passport will not necessarily expose a refugee to the risk of persecution in a circumstance where the agent is a non-state actor (at para 84). However, as the Respondent submits, this reasoning does not displace past jurisprudence (see, e.g., Caballero v Canada (Citizenship and Immigration), 2022 FC 1143 at paras 29-30), to the effect that, because the re-availment analysis relates to diplomatic protection, its focus is upon the refugee’s actions, not upon the nature of the agent of persecution.
[31] Regardless, in the case at hand, the Applicant not only obtained access to his Hungarian passport but also used that passport to travel to Hungary and resided there for approximately six months. The RPD therefore reasonably focused upon his actions while in Hungary. Although acknowledging the Applicant’s evidence that he would not dare leave the house, the RPD noted the Applicant’s testimony that he walked around his town, approached people to ask for work, went to an employment centre, and made regular trips to the grocery store.
[32] The Applicant submits that this analysis is inadequate in a case involving discrimination amounting to persecution, where there is no clear agent of persecution. However, as the Respondent submits, the Applicant has cited no authority for this proposition. Rather, the Decision demonstrates that the RPD engaged with the evidence, concluded that the Applicant’s actions did not establish that he was in hiding, and concluded that the evidence favoured a finding of re-availment. This aspect of the Decision withstands reasonableness review.
[33] Having considered the Applicant’s arguments, I find the Decision intelligible and transparent and therefore reasonable. As such, this application for judicial review must be dismissed. Neither party proposed any question for certification for appeal, and none is stated.