Docket: IMM-6546-23
Citation: 2025 FC 567
Ottawa, Ontario, March 28, 2025
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
Jamila Adam Hamed Al Balushi
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS AND JUDGMENT
[1] Ms. Al Balushi (the “Applicant”
) seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the “RPD”
), allowing the cessation application of the Minister of Citizenship and Immigration (the “Respondent”
), made pursuant to paragraph 108(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”
).
[2] The Applicant was born in Ibra, Oman on April 23, 1984. In February, 2003, she came to Canada as a student. In January, 2006, she gave birth to a daughter out of wedlock.
[3] In May of 2006, the Applicant applied for protection in Canada as a Convention refugee, based upon her fear of legal problems with government authorities due to her status as an unwed mother. The Applicant was granted Convention refugee status in December of 2008 and acquired permanent residence status on June 10, 2010.
[4] In 2012, the Applicant travelled to Oman, with her daughter, using her Omani passport. She stayed in Oman from March 1, 2012 until October 10, 2012. She worked in a bank in Oman, from June, 2012 until October, 2012.
[5] The Applicant returned to Oman in 2015, in order to renew her Omani passport. She stayed in the country for three (3) days.
[6] The Applicant used her Omani passport to travel to Oman, the UAE, the USA, Tanzania, Cuba, Jamaica and the UK between 2010 and 2019. Upon re-entering Canada in April, 2014, at Pearson International airport, a Canada Border Services Agent questioned the Applicant about her apparent lengthy stay of eight months in Oman in 2012.
[7] Upon returning to Canada from Cuba in November 2018, a CBSA officer recorded that the Applicant was travelling upon a passport issued in Oman on June 9, 2015.
[8] The Respondent filed an application to cease the Applicant’s Convention refugee status on July 22, 2020. The RPD heard the application on January 31, 2023, February 14, 2023, and February 23, 2023, The Applicant testified before the RPD. Post-hearing submissions, dated March 9, 2023, were submitted by counsel on behalf of the Applicant, opposing the cessation application of the Respondent.
[9] In the decision issued on May 5, 2023, the RPD granted the Respondent’s application.The decision provides that the Minister met his onus, on a balance of probabilities, of establishing that the Applicant voluntarily reavailed herself of the protection of Oman.
[10] In the within application for judicial review, the Applicant argues that the RPD unreasonably considered the evidence and unreasonably made negative credibility findings.
[11] As well, the Applicant submits that she suffered a breach of procedural fairness. She contends that the cessation proceedings amount to an abuse of process since the Respondent delayed making the application for six (6) years after learning that she had travelled to Oman, and elsewhere, using her Omani passport.
[12] The Applicant argues, among other things, that she did not know the potential impact of travelling on her Omani passport, that she had received erroneous legal advice, and that she was unaware of the availability of a refugee travel document.
[13] For his part, the Respondent argues that the decision is reasonable and that there was no abuse of process giving rise to a breach of procedural fairness.
[14] Following the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, the decision is reviewable on the standard of reasonableness.
[15] In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
; see Vavilov, supra, at paragraph 99.
[16] Any issue of procedural fairness is reviewable on the standard of correctness; see the decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339.
[17] The Applicant relies on the concept of abuse of process to argue that the Respondent was aware of her use of her Omani passport for six years, and should not have waited six years to begin cessation proceedings. She relies on the decision in Ganeswaran v. Canada (Citizenship and Immigration), 2022 FC 1797, where Justice Sadrehashemi allowed an application for judicial review on the grounds of abuse of process.
[18] In its decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court of Canada reviewed the elements of an abuse of process arising from delay, as follow:
Delay must be inordinate.
Delay itself must have caused the prejudice.
When these requirements are met, the court or tribunal to make a final assessment as to whether abuse of process is established. It will be so when the delay is manifestly unfair to a party to the litigation.
[19] The key issue here is the delay.
[20] The Respondent argues that the Applicant failed to raise this issue before the RPD and consequently, the RPD did not address it. He submits that without any evidence on the record before the RPD, this Court should not grant the remedy sought by the Applicant, that is a permanent stay of the cessation decision.
[21] The timeline shows that the Applicant was “questioned”
by a CBSA officer at Toronto airport in 2014 about travelling on her Omani passport. The Respondent notified the Applicant in 2020 of his intention to begin cessation proceedings. The hearing before the RPD began on January 31, 2023 and took place over three days.
[22] In making her submissions about abuse of process resulting from the Respondent’s delay in beginning cessation proceedings against her, the Applicant focuses on prejudice – prejudice to her after she has established a stable and secure life in Canada and prejudice to her three Canadian-born children who have grown up in Canada.
[23] I note the decision in Ganeswaran, supra, where Justice Sadrehashemi found that a delay of 10 years before commencement of cessation proceedings was an abuse of process.
[24] Each immigration judicial review turns on its own facts.
[25] In this case, the arguments about abuse of process must be considered relative to the facts of this case.
[26] The Applicant came to Canada as a student in 2003. She applied for refugee status in 2006 and received such status in 2008. She became a permanent resident in 2010. She is not a Canadian citizen, although that opportunity was available to her.
[27] The Applicant began travelling on an Omani passport in 2010, to the United Kingdom and the United Arab Emirates. She first returned to Oman, after receiving refugee protection in Canada, in 2012, using an Omani passport. In 2012, she also travelled to Tanzania and the United Arab Emirates, upon an Omani passport.
[28] In 2014, the Applicant travelled to Jamaica on the Omani passport and upon her return to Canada, she was questioned about her months long stay in Oman in 2012.
[29] It is the period of time from 2014 to 2020, when the Respondent began cessation proceedings, of which the Applicant complains in making her abuse of process argument.
[30] The Respondent is responsible for the administration of the Act. Anyone seeking a privilege pursuant to the Act is entitled to a fair process but not entitled to a particular outcome.
[31] There is nothing in the CTR about an abuse of process argument. The Applicant’s post-hearing submissions, dated March 9, 2023, do not address the issue although they do address the upset in the lives of her children if the cessation application were granted.
[32] I am not persuaded that the Applicant has shown an inordinate delay on the part of the Respondent in beginning the cessation application. The alleged prejudice to that Applicant is that she has established herself in Canada and will lose the benefit of that establishment if she has to leave after so many years.
[33] She had the opportunity to “perfect”
her status to become a citizen. She did not do so.
[34] As provided in Abrametz, supra, the delay must be the cause of the prejudice.
[35] I am not persuaded that in this case, the Respondent’s delay in beginning cessation proceedings caused the prejudice alleged by the Applicant.
[36] Since I am not satisfied that the delay is inordinate or that it caused prejudice to the Applicant, it is not necessary to address the element of manifest unfairness
[37] The elements of reavailment were addressed in Nsende v. Canada (Citizenship and Immigration), [2009] 1 F.C.R. 49 (F.C.) at paragraph 13:
… there are three requirements for reavailment under the Convention: “(a) voluntariness: the refugee must act voluntarily; (b) intention: the refugee must intend by his action to re-avail himself of the protection of the country of his nationality; (c) re-availment: the refugee must actually obtain such protection.”
[38] These requirements are drawn from the United Nations’ High Commission Handbook on Procedures and Criteria for Determining Refugee Status.
[39] The decision outlines the Applicant’s travel history using an Omani passport. The RPD acknowledged the submissions made on her behalf but ultimately found that the Respondent had established the basis for cessation of the Applicant’s protected person status.
[40] The Applicant argues that she was unaware of the impact upon her status in Canada of travelling on her Omani passport and that she had received wrong advice.
[41] In my opinion, the Applicant was responsible for learning about the effect of using her Omani passport. Likewise, she bears the consequences of acting upon inadequate or wrong legal advice; see the decision in Cove v. Canada (Citizenship and Immigration), [2001] F.C.J. No 482 (QL).
[42] The RPD assessed intention and voluntariness in relation to the Applicant’s return to Oman. It considered the change in the law, brought about by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 7 which brought about the introduction of paragraph 46.1(c.1) into the Act. Paragraph 46.1(c.1) is relevant to this case and provides as follows:
A person loses permanent resident status on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
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Emportent perte du statut de résident permanent les faits suivants : la décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant, sur constat des faits mentionnés à l’un des alinéas 108(1)a) à d), la perte de l’asile;
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[43] The RPD acknowledged the Applicant’s arguments before it that she was not aware of the consequences to her immigration status in Canada after the Act was amended. However, it found that her lack of knowledge about the legal consequences did not change its finding about her intentions about travelling to Oman where, if she ran into difficulty, she would rely on Oman, not Canada, for assistance.
[44] The RPD, not the Court, is mandated to assess the evidence. It did so. It considered and applied the relevant jurisprudence.
[45] It assessed reavailment relative to the trips to Oman and other travels to different countries.
[46] The RPD found that the Applicant had failed to rebut the presumption of reavailment and that she had actually received diplomatic protection from her use of the Omani passport.
[47] Upon considering the evidence in the Certified Tribunal Record (the “CTR”
), which sets out the travel history of the Applicant, I find that the RPD’s findings about intention, voluntariness, and actual reavailment are reasonable. The conclusion of the RPD that the Applicant failed to rebut the presumption of reavailment is reasonable. I am not persuaded that the RPD made unreasonable credibility findings that affected its decision.
[48] In the result, the application for judicial review is dismissed. There is no question for certification.
[49] The Applicant may pursue other options for remaining in Canada, including that provided by subsection 25(1) of the Act.
JUDGMENT IN IMM-6546-23
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There is no question for certification.
"E. Heneghan"
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