Docket: IMM-11334-23
Citation: 2025 FC 735
Toronto, Ontario, April 24, 2025
PRESENT: Mr. Justice Pentney
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BETWEEN: |
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A.B.
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
[1] The Applicant seeks judicial review of a decision of the Refugee Protection Division (“RPD”
), granting the Respondent’s application to cease her refugee protection because she reavailed herself of the protection of Türkiye.
[2] The Applicant claims that the RPD decision is unreasonable because it failed to deal with several relevant factors in assessing her return to Türkiye, and its explanations for certain key conclusions was insufficient.
[3] For the reasons that follow, the application will be granted. I find that the RPD’s analysis of the Applicant’s subjective intention fails to follow the guidance of the binding jurisprudence. This is a central element in the analysis and is therefore sufficiently serious to make the entire decision unreasonable. The decision is therefore quashed and set aside, and the matter is remitted back for reconsideration.
[4] The style of cause in this matter is anonymized, pursuant to an Order granted on February 7, 2024.
I. Background
[5] The Applicant is a citizen of Türkiye, who has resided in Canada since February 2017. She fled Türkiye with her husband and obtained refugee status in May 2017. The RPD accepted that the Applicant faced risks from state authorities due to her husband’s political activism in Türkiye. There was no evidence that the Applicant was politically active; her risk was due to the government’s persecution of family members of opposition groups. On December 28, 2018, the Applicant was granted permanent resident status in Canada.
[6] After receiving her permanent residence, the Applicant returned to Türkiye on two occasions, using her Turkish passport both times. In May 2019 she returned for 22 days to help care for her mother who was having a difficult time dealing with the loss of the Applicant’s maternal grandmother and maternal aunt; her mother was also recovering from knee surgery. The second trip was in December 2020 and lasted for 20 days. The Applicant said she returned home because her mother had been diagnosed with depression following the loss of the Applicant’s maternal grandmother. The Applicant travelled with her minor son on both occasions.
[7] The Applicant also used her Turkish passport to travel to Cuba, the Bahamas and the United States.
[8] On February 23, 2023, the Respondent applied to the RPD pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c 27 [IRPA] for the cessation of the Applicant’s refugee status. The Respondent based their application on the fact that she had reavailed herself of Türkiye’s protection by voluntarily returning to that country using her Turkish passport and using it to travel to other countries.
[9] The RPD found that the Applicant had voluntarily, intentionally and actually reavailed herself of the protection of Türkiye, and allowed the Minister’s application to cease her refugee protection. The RPD considered section 108 of IRPA in light of the interpretive principles set out in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Applying the decision in Nsende v Canada (Minister of Citizenship and Immigration), 2008 FC 531, the RPD examined the three elements of the test for reavailment: voluntariness, intention and whether the refugee actually obtained diplomatic protection.
[10] On voluntariness, the RPD acknowledged the Applicant’s stated reasons for her trips to Türkiye, but found that these were not compelling or exceptional, and therefore concluded that her trips were voluntary. In assessing the Applicant’s intention, the RPD noted the guidance set out in Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 [Galindo Camayo]. The RPD found that the Applicant had directly exposed herself to risk from the agent of persecution by using her passport to travel to Türkiye. Although the RPD accepted that the Applicant genuinely believed she had taken reasonable precautions to minimize her risk, the fact that she presented herself to Turkish authorities on four occasions while entering and exiting the country indicated an intention to reavail herself of its protection. This was reinforced by the Applicant’s use of her Turkish passport to travel to other countries, thus placing herself under that country’s diplomatic protection.
[11] The RPD accepted the Applicant’s evidence that she was not aware of the immigration consequences of her actions when she travelled to Türkiye and other countries on the strength of her Turkish passport. However, it found that her lack of actual knowledge was not sufficient to overcome the presumption of an intention to reavail. The RPD noted that the Applicant was highly educated and sophisticated, with broad-ranging employment experience as a professional. The RPD found that she had access to her former counsel who could have provided her with information about the consequences of travel using her Turkish passport.
[12] Regarding the necessity of her travel, the RPD found that the Applicant’s mother had other people in Türkiye who could have supported her, such as her son (the Applicant’s brother). As well, the Applicant could have met her mother in a third country to avoid exposing herself to the risk from Turkish authorities. Overall, the RPD found that the Applicant subjectively intended to reavail herself of Türkiye’s protection.
[13] On the final element, the RPD found that the Applicant actually received Türkiye’s protection when she travelled using her Turkish passport. By using that passport, the Applicant brought herself under that country’s diplomatic protection.
[14] Based on its analysis, the RPD granted the Minister’s application to cease the Applicant’s refugee status.
[15] The Applicant seeks judicial review of this decision.
II. Issues and Standard of Review
[16] The only issue is whether the RPD’s decision is reasonable.
[17] This is assessed under the framework for reasonableness review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], and confirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21[Mason].
[18] In summary, under the Vavilov framework, 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). An administrative decision-maker’s exercise of public power must be “justified, intelligible and transparent”
(Vavilov at para 95).
[19] The onus is on the Applicant to demonstrate flaws in the decision that are “sufficiently central or significant to render the decision unreasonable”
(Vavilov at para 100). The decision must be assessed in light of the history and context of the proceedings, including the evidence and submissions made to the decision-maker (Vavilov at para 94).
III. Analysis
[20] The Applicant argues that the RPD decision is unreasonable because it failed to apply the guidance from Galindo Camayo, including: the absence of any discussion of the severity of the consequences of cessation on the Applicant and her husband, the RPD’s focus on what she should have known about the consequences of her return to Türkiye rather than what she actually did know, and its failure to properly assess whether her travel was for compelling reasons.
[21] While I do not accept all of the Applicant’s arguments, I agree that the RPD erred in its application of the analytical framework set out in Galindo Camayo, and in particular its failure to adequately explain its findings regarding her subjective knowledge.
[22] The RPD’s decision sets out the proper legal test, noting that the question to reavail is distinct from the purpose of travel and that the onus shifted to the Applicant to rebut the presumption that she intended to reavail whenF she returned to Türkiye using her passport. The RPD observed that the Galindo Camayo decision calls for an individualized assessment of all of the evidence in determining whether the individual has rebutted the presumption that they intended to reavail. The RPD then correctly stated at para 19 that it had to “consider what the [Applicant] knew – not what she should have known – with respect to the immigration consequences of re-availment.”
In many respects, the RPD’s summary of the applicable legal principles is a model of clarity and it accurately captures the Federal Court of Appeal’s key findings in Galindo Camayo.
[23] The problem arises when I examine the RPD’s application of these principles to the Applicant’s case. The RPD acknowledged the Applicant’s evidence that she was not aware of the consequences of her actions when she returned to Türkiye using her Turkish passport. She possessed a Canadian Travel Document but believed that it was only temporary – something she could use if she needed to travel until she obtained Canadian citizenship.
[24] The Applicant testified that an official with Immigration, Refugees and Citizenship Canada [IRCC] told her and her husband that they could retrieve their Turkish passports once they were granted permanent residence. She also testified that an IRCC official told her they could use their Turkish passport as long as it was not expired. The Applicant’s evidence was that she only learned that her travel could put her permanent residence at risk when she returned from her second trip to Türkiye.
[25] The RPD accepted the Applicant’s evidence on this point, but found that it was not sufficient to rebut the presumption that she intended to reavail herself of the Türkiye’s protection:
[28] The panel has considered and accepts that the Respondent was not aware of the consequence of her actions with respect to her immigration status in Canada when she travelled to Türkiye on two occasions and travelled to other countries using her Turkish passport on several other occasions. However, the panel finds the evidence before it is not sufficient to rebut the presumption in this case. The Respondent is not unsophisticated, she is highly educated in that she obtained a degree in civil engineering in Türkiye and obtained a certificate in construction management from Conestoga College in Canada. The panel also notes that the Respondent had access to her former legal counsel who represented her and her husband at their RPD hearing, who would have been able to provide her with information regarding her rights and responsibilities to travel as a recognized Convention refugee.
[26] The panel found that the Applicant had failed to rebut the presumption of reavailment by providing “proof to the contrary,”
applying the test set out in Canada (Citizenship and Immigration) v Nilam, 2015 FC 1154 at para 26, which in turn cites Li v Canada (Citizenship and Immigration), 2015 FC 459 at para 42. Based on its analysis, the RPD concluded that the Applicant’s “actions demonstrate that the intended to re-avail herself of the diplomatic protection of Türkiye…”
because she travelled to Türkiye and other countries using her Turkish passport rather than her Canadian Travel Document.
[27] The RPD found the Applicant’s evidence to be credible, and in particular it did not question her testimony that she was told she could travel on her Turkish passport:
[27] Counsel for the Minister argued that the [Applicant] has not established that she was misinformed by IRCC staff about travelling using her Turkish passport by providing corroborative evidence, such as a sworn statement….On this point, the panel found the [Applicant’s] testimony to be credible overall throughout the hearing, and there has been no reason to doubt her credibility with respect to these statements about IRCC and CBSA staff, therefore the panel accepts that she was misinformed or perhaps misunderstood, what she was told about her Turkish passport and her ability to travel using it, on a balance of probabilities. However, the Federal Court has established in the case of Iqbal that neither IRCC nor CBSA is required to warn a refugee claimant about the consequences they may face by travelling to their country of nationality [citing Iqbal v Canada (Citizenship and Immigration), 2022 FC 387 at para 61 [Iqbal].
[28] The difficulty with the RPD’s conclusion on this point is that it appears to have failed to grasp the true import of the Applicant’s evidence. She testified that she did not realize that she was putting her status at risk by returning to Türkiye. Moreover, she said that IRCC officials had advised her that she could travel on her Turkish passport, without warning her of the legal jeopardy that could ensue if she did so. The RPD’s reliance on Iqbal is misplaced, because that decision dealt only with whether officials have any duty to warn a refugee claimant about the consequences of returning to their country of nationality. That is not what is at issue here. The Applicant is not arguing that the officials had any duty to warn her about the dangers of travelling to Türkiye using her Turkish passport. Instead, she asserts that officials actively misled her by telling her that she could use her Turkish passport to travel but failing to mention that she might be putting her legal status at risk. This goes well beyond a duty to warn scenario.
[29] Under Galindo Camayo, the RPD was required to examine all of the circumstances of the Applicant’s case in assessing her subjective intention. The RPD accepted her evidence that she did not intend to reavail herself of Türkiye’s protection. It also accepted the Applicant’s evidence that she did not know that travelling to Türkiye using her Turkish passport rather than her Canadian Travel Document could further jeopardize her case. Moreover, the RPD accepted the Applicant’s evidence that IRCC officials advised her that she could use her Turkish passport to travel. In the face of all of this evidence, the RPD was required to explain its conclusion that the Applicant had not rebutted the presumption that by travelling to Türkiye using her Turkish passport, she intended to reavail herself of that country’s protection.
[30] The only explanation offered by the RPD was that the Applicant “is not unsophisticated, she is highly educated in that she obtained a degree in civil engineering in Türkiye and obtained a certificate in construction management from Conestoga College in Canada.”
The RPD also noted that the Applicant “had access to her former legal counsel who represented her and her husband at their RPD hearing, who would have been able to provide her with information regarding her rights and responsibilities to travel as a recognized Convention refugee.”
[31] In my view, the RPD’s analysis flies in the face of the guidance set out in Galindo Camayo. As stated in Chen v Canada (Citizenship and Immigration), 2024 FC 1099 at para 12 [Chen]:
[I]n concluding that the Applicant knew or should reasonably have known of the immigration consequences of her trips to China, I find that the RPD applied the wrong legal test. The Federal Court of Appeal in Camayo clearly stated that the RPD is not to consider what the Applicant should have known, but rather whether she did subjectively intend to depend on China’s protections, which involves considering whether she had actual knowledge of the immigration consequences of reavailment…”
[32] I find that the RPD in this case committed the same error identified in Chen and found by the Federal Court of Appeal in Galindo Camayo. In assessing the Applicant’s subjective intention, the question before the RPD was what she actually knew, not what she should have known. The reality of the situation was that the Applicant had obtained permanent residence, and had received a Canadian Travel Document that she thought was only a temporary measure. She was told by IRCC officials that she could travel using her Turkish passport, and the RPD accepted this as credible. There is no evidence that any official advised her of the legal consequences of doing so until she returned from her second trip from Türkiye. In examining the Applicant’s subjective intention, the RPD had to grapple with those facts and explain its analysis.
[33] I am persuaded that the RPD’s analysis of the Applicant’s subjective intention does not meet the standard of responsive justification set out in Vavilov and confirmed in Mason. It fails to follow the guidance of the Federal Court of Appeal in Galindo Camayo. This flaw is sufficiently central to the Applicant’s case to make the entire decision unreasonable: Vavilov at para 100.
[34] Based on the analysis set out above, I find the RPD’s decision to be unreasonable. The application for judicial review is granted. The decision is therefore quashed and set aside, and the matter is remitted back for reconsideration by a different Panel.
[35] There is no question of general importance for certification.
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