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Date: 20250527 |
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Docket: IMM-11850-24 |
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Citation: 2025 FC 934 |
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Toronto, Ontario, May 27, 2025 |
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PRESENT: The Honourable Madam Justice Ferron |
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BETWEEN: |
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YAGE LI |
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Applicant |
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and |
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Minister of Citizenship and Immigration |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mr. Yage Li seeks the judicial review of a decision by the Refugee Protection Division [RPD] dated June 18, 2024 [Decision], whereby the RPD granted the application by the Minister of Citizenship and Immigration [the Minister] to cease Mr. Li’s refugee protection. It was determined that Mr. Li had re-availed himself of the protection of his country of nationality, China, pursuant to section 108 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].
[2] In brief, Mr. Li argues that the RPD substituted an assessment of his subjective knowledge of the consequences his trips could have on his status in Canada for an assessment of his objective knowledge; that the RPD ignored a mandatory factor upon assessing his intention to re-avail to China, namely the severe consequences that losing his refugee protection would have on him; and that the RPD failed to analyze country condition documents on the treatment of Christians (like himself) in China.
[3] The Minister essentially submits that it was reasonable for the RPD to conclude that Mr. Li had voluntarily, intentionally and successfully re-availed to China. This finding was based on the facts that Mr. Li had voluntarily chosen to apply for and had in fact travelled on his Chinese passport to China, where he remained for several months at a time, on two distinct occasions, without any incidents with the Chinese government. The Minister further submits that in reaching this conclusion, the RPD weighed all the relevant factors prescribed by caselaw and the evidence attached to each factor.
[4] For the reasons that follow, the application for judicial review will be dismissed.
II. Brief Summary of the Facts
[5] First, the Court notes that there is no issue of credibility in this case. None of the facts provided by Mr. Li in his affidavit are contested.
[6] Amongst those facts, the Court notes the following. Mr. Li is a citizen of China. He was born in 1993. When he was not even one month old, his father left home and was never seen again. Soon after his father disappeared, his mother left him and never came back. He was therefore raised by his paternal grandparents, but his grandfather died when he was only 4 years old. As for his maternal grandparents, they too passed away approximately 10 years ago. Thus, his paternal grandmother is his only known family member. She is the one who raised him. She is also the one who introduced him to Christianity.
[7] Mr. Li fled China after being persecuted by the Public Security Bureau due to his newly found Christian faith. He entered Canada with a student visa on September 2, 2015, and his refugee status was recognized on December 11, 2017. He then obtained permanent residence on August 23, 2018.
[8] Thereafter, Mr. Li applied for a Chinese passport at the Chinese Consulate of Toronto, which was issued on December 9, 2019. To do so, he consulted the internet for information as to what documents he needed to provide. His search directed him to provide a letter of repentance, pledging that he would no longer participate in the church he had been adhering to.
[9] Afterwards, Mr. Li used his Chinese passport to return to China on two occasions. From January 11, 2020, until August 15, 2020 (eight months), he returned to care for his grandmother, whose general health was deteriorating and who had recently begun to lose her vision. Mr. Li explained that he had initially intended for his first trip to be two to three months long, but that the pandemic restrictions had prevented him from returning to Canada earlier. The second trip took place from October 8, 202,1 to March 25, 2022 (five months). Mr. Li again returned to care for his grandmother, who had to undergo surgery and had requested his care for her convalescence.
[10] During these trips to China, Mr. Li took precautions to avoid issues with the Chinese state by restricting his movements to his grandmother’s weekly medical appointments and refraining from attending church.
[11] On March 25, 2022, upon returning to Canada, Mr. Li was intercepted by the Canada Border Services Agency. During his interview, he was transparent and admitted to his two trips to China.
[12] On August 16, 2023, the Minister applied to the RPD pursuant to subsection 108(2) of the Act for the cessation of Mr. Li’s refugee status. Mr. Li was self-represented before the RPD and made no written submissions. He nonetheless had the opportunity to testify before the RPD, which held a hearing on May 2, 2024. Here again, Mr. Li responded transparently to the questions asked of him and his credibility was not raised as an issue.
III. Decision under Review
[13] The RPD found that Mr. Li had voluntarily, intentionally and actually re-availed himself of the protection of China and allowed the Minister’s application to cease his refugee protection. The RPD considered section 108 of the Act 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 [UNHCR Handbook]. Applying Nsende v Canada (Minister of Citizenship and Immigration), 2008 FC 531 [Nsende], the RPD examined the three elements for the test for re-availment: (1) voluntariness; (2) intention; and (3) whether diplomatic protection was actually obtained.
[14] Regarding voluntariness, the RPD accepted Mr. Li’s stated reason for his trips but determined that he acted voluntarily since he was not the “only person”
who could provide care for his grandmother. In fact, Mr. Li testified that his grandmother had been living with a family friend for five to six years, and that this friend assisted her in her day-to-day life and was able to care for her. The RPD also found that Mr. Li had voluntarily signed the letter of repentance to renew his Chinese passport.
[15] Turning to intention, the RPD assessed Mr. Li’s intention through the guidance of Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 [Camayo].
[16] The RPD determined that the presumption of intention applied to Mr. Li’s case as he had reacquired his Chinese passport and travelled to China with it. The RPD found that Mr. Li was not aware of the consequences his trips could have on his status in Canada, and that he had taken some precautions during his stays by restricting his movements to his grandmother’s weekly medical appointments. Nonetheless, the RPD found that these favorable factors were not sufficient to overcome the presumption that Mr. Li had intended to re-avail himself of the protection of China.
[17] The RPD found that Mr. Li had exposed himself to risks from his agent of persecution by interacting in with Chinese authorities. He did so when he applied to renew his passport at the Chinese Consulate (he attended in person, provided a letter of repentance, his Chinese national identity card and his Canadian permanent resident card); when he used his Chinese passport to return to China on two occasions; and when he provided Chinese authorities with his contact information as he completed his mandatory quarantine for COVID-19 at the beginning of his second trip.
[18] Moreover, the RPD insisted that during the hearing, Mr. Li had himself stated that he was not fearing the Chinese state as his grandmother had informed him that the fellow church members who had been arrested during the raid that prompted him to leave China had since been released and were no longer pursued. Mr. Li also stated that since he had signed a letter of repentance and had refrained from attending church during his stays, he did not fear the Chinese state.
[19] On the final element, namely whether diplomatic protection was actually obtained, the RPD found that Mr. Li had received China’s protection when he entered and exited the country by using his Chinese passport, as per the relevant case law.
[20] For these reasons, the RPD granted the Minister’s application to cease Mr. Li’s refugee status.
IV. Analysis
A. Statement of the Law
[21] Pursuant to Article 1 of the United Nations Convention Relating to the Status of Refugees, Can TS 1969 No 6, an individual may lose refugee protection where their actions indicate that they no longer have a well-founded fear of persecution in their country of nationality. The rationale under cessation clauses is that “international protection should not be granted where it is no longer necessary or justified”
(UNCHR Handbook at para 111). This principle is reflected in section 108 of the Act.
[22] The Court agrees with the RPD that re-availment comprises three elements. The individual must: (1) have acted voluntarily; (2) have intended to re-avail themselves of the protection of their country of nationality; and (3) have actually obtained diplomatic protection (UNCHR Handbook at para 119; Nsende at paras 12–13).
[23] The Court also agrees that the obtention or renewal of a passport issued by the country of nationality creates a presumption that an intentional re-availment of national protection did occur, which is nonetheless rebuttable under “certain exceptional conditions”
(UNCHR Handbook at paras 121, 124). The federal courts have held that this presumption is particularly strong when an individual uses this passport to travel to their country of nationality (Camayo at para 63; Abadi v Canada (Citizenship and Immigration), 2016 FC 29 at paras 16, 18 [Abadi]). In fact, as noted by Justice Fothergill in Abadi, “it is only in ‘exceptional circumstances’ that a refugee’s travel to his country of nationality on a passport issued by that country will not result in the termination of refugee status”
(Abadi at para 18).
[24] In Camayo, the Federal Court of Appeal sets out a list of factors which “may assist in rebutting the presumption of reavailment”
upon assessing the individual’s intention (Camayo at para 84). These non-exhaustive factors, none of which are determinative on their own, are:
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The provisions of subsection 108(1) of the Act;
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The provisions of relevant international conventions and guidelines;
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The severity of the consequences that a cessation of refugee protection will have on the affected individual;
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The parties’ submissions;
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The state of the individual’s knowledge with respect to cessation provisions;
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The personal attributes of the individual, including their age, education and level of sophistication;
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The identity of the agent of persecution, especially whether it is a state or a non-state actor;
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Whether the individual obtained their passport voluntarily;
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Whether the individual used their passport to travel and, if so, if it was to the country of nationality or a third country;
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The purpose of the travel;
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The frequency and duration of the travel;
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What the individual did in the country during their travel;
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Whether the individual took precautionary measures while in their country of nationality;
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Whether the actions of the individuals demonstrate they no longer have a subjective fear of persecution in their country of nationality.
[25] In Camayo, the Federal Court of Appeal also states:
[82] As noted earlier, the RPD’s reasons on the redetermination need not involve a microscopic examination of everything that could possibly be said on the matter. There need only be a reasoned explanation concerning the relevant evidence and key issues, including the key arguments made by the parties: Sexsmith v. Canada (Attorney General), 2021 FCA 111, at paragraph 36, [2021] 2 F.C.R. D-1.
[83] Moreover, as the Federal Court observed in this case, the outcome in each cessation proceeding will be largely fact-dependent. I further agree with the submission of the intervener, United Nations High Commissioner for Refugees, that the test for cessation should not be applied in a mechanistic or rote manner. The focus throughout the analysis should be on whether the refugee’s conduct—and the inferences that can be drawn from it—can reliably indicate that the refugee intended to waive the protection of the country of asylum.
B. Standard of Review
[26] Both parties submit that the applicable standard of review is reasonableness. I agree. This is in line with the Supreme Court of Canada’s landmark decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] (see also Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 7 [Mason]).
[27] In Smajlaj v Canada (Citizenship and Immigration), 2025 FC 821, Justice Gascon provides a good summary of the role of a reviewing Court when the standard of review is reasonableness:
[11] Where the applicable standard of review is reasonableness, the role of a reviewing court is to examine the reasons given by the administrative decision maker and to determine whether the decision is based on “an internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85; Mason at para 64). The reviewing court must therefore ask whether the “decision bears the hallmarks of reasonableness—justification, transparency and intelligibility” (Vavilov at para 99). Both the outcome of the decision and the decision maker’s reasoning process must be considered in assessing whether these hallmarks are met (Vavilov at paras 15, 95, 136).
[12] Such a review must include a rigorous evaluation of administrative decisions. However, as part of its analysis of the reasonableness of a decision, the reviewing court must take a “reasons first” approach and begin its inquiry by examining the reasons provided with “respectful attention,” seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (Mason at paras 58, 60; Vavilov at para 84). The reviewing court must adopt an attitude of restraint and intervene “only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process” (Vavilov at para 13), without “reweighing and reassessing the evidence” before it (Vavilov at para 125).
[13] The onus is on the party challenging the decision to prove that it is unreasonable. Flaws must be more than superficial for the reviewing court to overturn an administrative decision. The court must be satisfied that there are “sufficiently serious shortcomings” (Vavilov at para 100).
C. The Decision is Reasonable.
[28] As previously mentioned, the onus was on Mr. Li to demonstrate flaws which are “sufficiently central or significant to render the decision unreasonable”
(Vavilov at para 100). While his counsel made able representations on his behalf, he did not meet that burden.
[29] The Court has much empathy for Mr. Li’s situation, especially given the consequences of a cessation of refugee protection. The Court understands the special bond between Mr. Li and his grandmother, and why he would want to be there for her. Still, even when considering the context of Mr. Li’s case, this Court cannot reach the conclusion that the Decision was unreasonable.
[30] As mentioned, it is not this Court’s role to reweigh and reassess the evidence (Vavilov at para 125). Taking into account the record, the reasons provided by the RPD and the applicable caselaw, the Court is unable to conclude that the Decision is unreasonable. On the contrary, the Decision exhibits the requisite degree of justification, intelligibility and transparency to meet the standard of reasonableness (Vavilov at para 100).
[31] First, it is the Court’s view that it was not unreasonable for the RPD to conclude that Mr. Li had voluntarily re-availed himself of the protection of China. The RPD’s determination was based on the facts that: (1) Mr. Li had voluntarily signed a letter of repentance to renew his passport after researching online the requirements of the issuance of a Chinese passport; and (2) Mr. Li had confirmed that another caregiver was available to provide the required care for his grandmother. This therefore meant that his assistance to his grandmother was not necessary but voluntary, i.e., he did not “need”
to be there but rather “wanted”
to.
[32] This Court has established on numerous occasions that when another relative is in a position to give the requisite care, then an applicant cannot claim to have been compelled by the circumstances to travel to their country of nationality to the point that this travel was involuntary (Wu v Canada (Citizenship and Immigration), 2023 FC 1071 at para 24; Kovacs v Canada (Citizenship and Immigration), 2022 FC 1532 at para 23; Jing v Canada (Citizenship and Immigration), 2019 FC 104 at para 24 [Jing]; Tung v Canada (Citizenship and Immigration), 2018 FC 1224 at para 41 [Tung]). While the other caregiver in the present case was not a relative but a family friend with whom his grandmother lived, given the case law, it was not unreasonable for the RPD to conclude that Mr. Li’s presence was not in itself necessary but instead voluntary.
[33] Turning to the intention factor, as mentioned above, when an individual travels back to their country of nationality with their country of nationality’s passport, the presumption of re-availment is stronger and will only be rebutted in “exceptional circumstances”
(UNCHR Handbook at paras 121, 124; Camayo at para 63; Abadi at paras 16, 18; Tung at para 43).
[34] To rebut this presumption, Mr. Li tried to rely on a number of cases in which decisions were quashed on judicial review because the RPD failed to consider the applicants’ unawareness that their trips could put their permanent residence in jeopardy (Cerna v Canada (Citizenship and Immigration), 2015 FC 1074 at paras 18–20 [Cerna]; Mayell v Canada (Citizenship and Immigration), 2018 FC 139 at paras 17–19 [Mayell]; Moradi v Canada (Citizenship and Immigration), 2025 FC 157 at paras 13–17 [Moradi]; Chen v Canada (Citizenship and Immigration), 2024 FC 1099 at paras 11–16; Cao v Canada (Citizenship and Immigration), 2025 FC 218 at paras 11–16). However, this is not what occurred in the case of Mr. Li.
[35] The Court agrees that, in assessing Mr. Li’s intention, the RPD was required to consider his subjective knowledge of the immigration consequences that his trips could have on his status in Canada (Moradi at para 13 citing Camayo at para 68). As the Federal Court of Appeal explained in Camayo, lack of actual knowledge of the immigration consequences of one’s actions may not be determinative of the question of intent, but it remains a key factual consideration which must be weighed with other factors (Camayo at para 70).
[36] In this matter, the RPD did make that assessment. The RPD in fact acknowledged that Mr. Li lacked this subjective knowledge but found that this factor was not determinative in itself (Aslam v Canada (Citizenship and Immigration), 2024 FC 4 at para 36-37 [Aslam]). The RPD found that this factor (and others that were in his favor) were insufficient to trump the presumption that Mr. Li intended to re-avail himself of the protection of China, given all the other evidence assessed holistically.
[37] As for Mr. Li’s submissions that the RPD failed to take into account the severity of the consequences of a finding of re-availment, given the country’s conditions and his Christian faith, the Court disagrees.
[38] First, while in Camayo, the Federal Court of Appeal explained that the RPD should consider “at a minimum”
its list of non-exhaustive factors to determine if the presumption of re-availment is rebutted, such that ignoring one could be an error, Mr. Li provided no argument to the RPD about the severity that a finding of re-availment would have on him personally (Camayo at para 84; see generally Malik v Canada (Citizenship and Immigration), 2023 FC 443 at paras 10–18). Given that the onus was on him to rebut the presumption of intent, the Court cannot accept that an argument which was never put before the RPD by Mr. Li would now justify this Court’s intervention. This would run counter to the principle of a judicial review, which is to assess whether a decision is reasonable in light of the record and arguments that were before the decision-maker.
[39] I also find that absent specific submissions about the severity of a finding a re-availment on Mr. Li, this factor does not require a separate analysis of the severity of the Decision but rather imposes a heightened duty to justify it given the harsh consequences of a finding of re-availment (Caine v Canada (Citizenship and Immigration), 2024 FC 866 at para 34; Li v Canada (Citizenship and Immigration), 2023 FC 792 at para 16).
[40] Furthermore, Mr. Li submits that the RPD would have committed another error as it did not refer to the treatment of Christians by China as reflected in country condition documents. However, this Court has ruled that prospective risks of persecution are irrelevant in cessation hearings (Aslam v Canada (Citizenship and Immigration), 2024 FC 4 at para 27; Ahmed v Canada (Citizenship and Immigration), 2022 FC 884 at para 59; Iqbal v Canada (Citizenship and Immigration), 2022 FC 387 at para 23 [Iqbal]; Al-Habib v Canada (Citizenship and Immigration), 2020 FC 545 at para 14; Jing at para 34; Balouch v Canada (Public Safety and Emergency Preparedness), 2015 FC 765 at para 19).
[41] In the present matter, the RPD assessed the Camayo factors. It found determinative that Mr. Li had exposed himself to his agent of persecution – the Chinese state – by interacting with it at the Chinese consulate, by sharing his personal information with it upon completing his quarantine, and more crucially by exposing himself to it while transiting in an out of China with his Chinese passport on two occasions.
[42] Therefore, while Mr. Li submits that he demonstrated his subjective fear and his unwillingness to re-avail himself of China’s protection, and that he had taken precautions during his trips by limiting his outings to what was strictly necessary for his grandmother’s medical care and by not attending church, it was not unreasonable for the RPD to conclude that Mr. Li intended to re-avail himself to the protection of China. This RPD finding was based, amongst others, on the fact that (1) Mr. Li himself stated that he did not fear returning to China; (2) Mr. Li stated that he felt comfortable travelling to and from the hospital with his grandmother; (3) his grandmother had informed him that fellow church members who had been arrested had since been released; (4) he stayed in China for many months on each occasion without any issues with the Chinese government; (5) if he was apprehended in China, he thought that his letter of repentance would protect him; and (6) he did not avoid interactions with the state upon acquiring a Chinese passport and travelling with it (Siddiqui v Canada (Citizenship and Immigration), 2015 FC 329 at para 32; Abadi at paras 19, 21).
[43] With respect to the repentance letter, if the Court understands Mr. Li’s written submissions correctly (this argument was not reiterated during the hearing), he implies that he fears the Chinese state as the Chinese government forced him to sign this repentance letter, which indicates that the Chinese government is aware of his previous religious activities. This would thus potentially put him at risk because he is still a practicing Christian and there is no religious freedom in China.
[44] However, this argument is contradicted by the record that was before the RPD. During his hearing, Mr. Li stated that he provided a repentance letter to the Chinese consulate after he learnt through an online research that it would be required to renew his passport. He then added that the letter of repentance protected him from the Chinese state, as it was a pledge to the fact that he no longer attended church. Mr. Li also declared that he did not fear the Chinese state anymore given that his grandmother had informed him that his fellow church members had been released and were not pursued by the Public Security Bureau anymore.
[45] As for the third criteria, the case law is clear that using a passport to travel to the country of nationality signals that an individual has actually obtained that country’s protection (Iqbal at para 67, citing Seid v Canada (Citizenship and Immigration), 2018 FC 1167 at para 14; Cerna at para 13; Mayell at para 12). Once again, based on the applicable case law, the RPD’s determination that the presumption of re-availment applied given that Mr. Li travelled in and out of China using a Chinese passport was not unreasonable.
V. Conclusion
[46] For these reasons, the Decision was reasonable and therefore, the application for judicial review is dismissed, without costs.
JUDGMENT IN IMM-11850-24
THIS COURT’S JUDGMENT is that
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The judicial review application is dismissed.
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No question of general importance is certified.
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“Danielle Ferron” |
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Judge |
FEDERAL COURT
SOLICITORS OF RECORD
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