Docket: IMM-4075-23
Citation: 2024 FC 837
Ottawa, Ontario, June 4, 2024
PRESENT: Madam Justice St-Louis
BETWEEN: |
GLENDA CATHLEEN WISEMAN HUNT |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Ms. Glenda Cathleen Wiseman Hunt is a citizen of Saint Vincent and the Grenadines. In 2006, the Refugee Protection Division [RPD] accepted Ms. Wiseman Hunt’s claim as a Convention Refugee on the basis of the domestic violence she suffered for which the authorities of Saint Vincent and the Grenadines were unable or unwilling to offer adequate protection. In 2007, Ms. Wiseman Hunt was granted Canadian permanent resident status.
[2] In October 2007, Ms. Wiseman Hunt secured a passport of Saint Vincent and the Grenadines and travelled there in 2008 and 2012. In April 2012, she secured a second passport and, relevant to this proceeding, Ms. Wiseman Hunt travelled to Saint Vincent and the Grenadines three more times, hence in 2013, in 2015 and in 2016. In 2017, Ms. Wiseman Hunt obtained a third passport.
[3] On April 5, 2022, the Minister of Immigration, Refugees and Citizenship [Minister] applied to the RPD for the cessation of Ms. Wiseman Hunt’s refugee protection pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Immigration Act]. Before the RPD, the Minister argued that Ms. Wiseman Hunt was described under paragraph 108(l)(a) of the Immigration Act, as she has voluntarily re-availed herself of the protection of Saint Vincent and the Grenadines, her country of nationality, and that, as a result, her refugee protection granted in 2006 had ceased.
[4] On February 16, 2023, the RPD heard the case. The Minister presented the evidence and allegations and Ms. Wiseman Hunt testified.
[5] On March 9, 2023, the RPD allowed the Minister’s application for cessation of Ms. Wiseman Hunt’s status as a Convention refugee pursuant to subsection 108(2) of the Immigration Act and, pursuant to subsection 108(3) of the Immigration Act, the RPD determined that Ms. Wiseman Hunt’s refugee claim was deemed to be rejected [Decision].
[6] In its Decision, the RPD outlined the law and, per the applicable legal test, concluded that Ms. Wiseman Hunt (1) had made a deliberate choice to voluntarily return to the country that she left and in respect of which she claimed refugee protection; (2) had not rebutted the presumption of the intention of reavailment; and (3) had actually re-availed herself of the protection of her country of nationality, Saint Vincent and the Grenadines.
[7] The RPD Decision is the subject of this application for judicial review, brought by Ms. Wiseman Hunt on March 28, 2023.
[8] Before the Court, in support of her application, Ms. Wiseman Hunt submits that the Decision is unreasonable and that the RPD (1) adopted the role of the Minister in its determination and Decision and was not an independent and impartial decision maker; (2) failed to adequately consider and apply the relevant guidance, doctrine, and documentation in the record; (3) erred by conducting an unclear and improper analysis of her credibility; (4) erred by failing to properly consider and weigh the evidence regarding the three parts of the test for cessation, voluntariness, intention and actual reavailment; and (5) erred by failing to consider all the consequences of its Decision.
[9] The Minister opposes the application and responds, essentially, that the Decision is reasonable.
[10] For the reasons that follow, and despite the difficult situation Ms. Wiseman Hunt finds herself in, I will dismiss Ms. Wiseman Hunt’s application for judicial review. Having considered the evidence that was before the RPD, the applicable law and case law as well as the RPD’s decision and reasons, I conclude that the Decision has not been shown to be unreasonable. The Decision bears the qualities that make its analysis logical and consistent in relation to the relevant legal and factual constraints (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16-17, 86, 99 [Vavilov]).
II. Analysis
A. Issue and Standard of Review
[11] Given the arguments raised, the RPD’s Decision must be reviewed against the reasonableness standard (Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 at para 39 [Camayo]; Siddiqui v Canada (Citizenship and Immigration), 2016 FCA 134 at para 11). 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).
[12] The onus is on the party challenging the administrative decision to prove that it is unreasonable. Flaws must be more than superficial for a reviewing court to overturn an administrative decision. It must be satisfied that there are “sufficiently serious shortcomings”
(Vavilov at para 100). Any deficiencies in a decision must be “sufficiently central or significant to render the decision unreasonable”
(Vavilov at para 100). Reasons should be considered as a whole and within the context of the record, including the issues raised by the parties.
[13] When conducting reasonableness review, the task of the reviewing court is limited; it can only vet the acceptability and defensibility of an administrative decision, based on the legal standards and the facts found in the evidentiary record. The Court cannot operate outside of these constraints. It cannot do whatever might strike someone as right or just in a general sense (Trigonakis v Sky Regional Airlines Inc, 2022 FCA 170 at para 9 [Trigonakis]).
[14] Furthermore, it is for an administrative decision maker to find facts, not the Court, nor can the Court interfere with the fact-finding absent some fundamental error that vitiates it and renders it unreasonable (Trignonakis at para 10). It is not the task of a reviewing court to reweigh the evidence on the record or to reassess the decision maker’s findings of fact and substitute its own (Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 55).
[15] The issue is to determine whether the Decision is reasonable
B. Legal Framework
[16] Refugee protection is conceived of as a temporary measure. The intent is to provide surrogate protection for refugees until they can either reclaim the protection of their home state or secure an alternative form of enduring protection.
[17] Article 1C of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 [Convention] sets out criteria for determining whether refugee protection is no longer appropriate as a result of a person’s own actions and/or changed country conditions. These criteria include whether the person concerned has re-availed himself or herself of the protection of their home state. Paragraph 108(1)(a) of the Immigration Act reflects the Convention and provides that a claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, where the person has voluntarily reavailed themselves of the protection of their country of nationality.
[18] In Camayo, at paragraph 18, the Federal Court of Appeal affirmed the three-part test set out by the Federal Court in Canada (Public Safety and Emergency Preparedness) v Bashir, 2015 FC 51 at paragraph 46. There are three requirements for cessation of refugee protection under paragraph 108)1)(a) : (a) voluntariness: the refugee must act voluntarily; (b) intention: the refugee must intend by his action to reavail himself of the protection of the country of his nationality; and (c) reavailment: the refugee must actually obtain such protection. These three elements of the test are conjunctive, they must all be met (Wu v Canada (Citizenship and Immigration), 2023 FC 1071 at para 21 citing Camayo at para 79).
[19] The parties do not contest that the Minister bears the burden to prove reavailment on the balance of probabilities. As outlined by the Honourable Madam Justice Cecily Strickland in Canada (Citizenship and Immigration) v Safi, 2022 FC 1125:
[33] The onus is on the Minister to prove, on the balance of probabilities, that the person subject to the cessation application has voluntarily reavailed themselves of the protection of the country they fled from to avoid persecution. However, if the Minister is able to demonstrate that the person has obtained or renewed a passport from that country, then the burden of proof is reversed (Abadi at para 17; Canada (Citizenship and Immigration) v Nilam, 2015 FC 1154 at para 26 [Nilam]; Li v Canada (Citizenship and Immigration), 2015 FC 459 at para 42 [Li]). It is then presumed that the refugee intended to reavail themselves of the protection of the country in question. It is also presumed that the refugee has obtained the actual protection of that country when the Minister establishes that the refugee has used that passport to travel (Seid at para 14; Mayell at para 12). As noted in Seid, this Court has characterized that presumption as “particularly strong” when the refugee has used his or her passport to travel to the country of nationality (Seid at para 14, citing Abadi at para 16; see also Galindo Camayo FCA at para 63).
C. Partiality and Credibility Arguments
[20] I find that none of the allegations of partiality or bias transpires from the reasons of the RPD. Also, I note that these allegations were not made in the affidavit sworn by Ms. Wiseman Hunt and filed in support of her application for judicial review. Finally, I note as well that no record of any objection at the RPD was presented to the Court. In view of these findings, I agree with the Respondent that the allegations of partiality are not clearly made and, in the alternative, that they were not raised at the appropriate time before the RPD as they should have been (Fadhili v Canada (Citizenship and Immigration), 2022 FC 1121 at para 35). I am satisfied that partiality is therefore not an issue in this application.
[21] Additionally, I agree with the Minister that there is disagreement between Ms. Wiseman Hunt and the RPD as to the inferences to be made from her actions, but credibility was not an issue for the RPD.
D. Other Arguments Raised
[22] The remaining arguments raised by Ms. Wiseman Hunt are that the RPD (1) failed to adequately consider and apply the relevant guidance, doctrine, and documentation in the record; (2) erred by failing to properly consider and weigh the evidence regarding the three parts of the test for cessation; and (3) erred by failing to consider all the consequences of its Decision.
(1) The relevant guidance, doctrine, and documentation in the record
[23] First, I am satisfied the RPD did consider and apply the relevant guidance, doctrine, and documentation in the record.
[24] Ms. Wiseman Hunt submits that the RPD did not adequately consider factors that favour maintaining refugee protection, and that it also failed to apply much of the supporting documentation available to it, pointing specifically to (1) the UNHCR Refugee Handbook; (2) certain doctrines; (3) Gender Guidelines; and (4) the National Documentation Package for Saint Vincent and the Grenadines.
[25] I note that the RPD (1) cited the UNHCR Handbook at paragraphs 8 and 17 of its Decision, stating it considered specifically paragraphs 118 to 125 of the Handbook; (2) referred to the doctrine (D-15, the chapter written by Joan Fitzpatrick and Rafael Bonoan, and D-17, the article by Esther Pearson) at paragraphs 26 and 27 of its Decision; and (3) referred to the Gender Guidelines at paragraph 10 of its Decision. Contrary to Ms., Wiseman Hunt’s assertions, the RPD did consider the guidance. In regards to the National Documentation Package, I note that Ms. Wiseman Hunt fails to indicate to the Court which document would have supported her case.
(2) The three parts of the test for cessation
[26] Second, Ms. Wiseman Hunt has not shown that the RPD failed to properly consider and weigh the evidence regarding the three parts of the test for cessation.
[27] Ms. Wiseman Hunt submits that the RPD erred in concluding that her return to the country was voluntary, that she intended to reavail herself of the protection of the country and that she actually reavailed herself of the protection of the country.
(a) Voluntariness
[28] On the first factor of voluntariness, Ms. Wiseman Hunt submits that her testimony makes it clear that she felt she had to return due to the stressful circumstances of her parents and aunt’s deaths, that she benefits from a presumption of truth and the RPD does not provide an explanation for why it does not believe that she felt compelled to return (Ahmad v Canada (Citizenship and Immigration), 2023 FC 8 at para 44). Ms. Wiseman Hunt submits that the RPD took an objective position and failed to recognize the personal or subjective duty that may be as compelling as an external source. She adds that the RPD Decision is unreasonable because it failed to analyze her return from her own perspective and instead insisted on the lack of external pressure compelling her to return.
[29] Additionally, Ms. Wiseman Hunt submits that the RPD relied on a flawed interpretation of the Court’s decision in Canada (Citizenship and Immigration) v Antoine, 2020 FC 370 [Antoine].
[30] The RPD noted that Ms. Wiseman Hunt was neither instructed by Canada to leave, nor did she return to Saint Vincent and the Grenadines to avert the illegality of her stay in Canada. The RPD found there was no evidence that she was constrained by circumstances beyond her control to obtain these passports, and therefore found that she acted voluntarily in obtaining these passports from the authorities of Saint Vincent and the Grenadines.
[31] This Court has confirmed that the reasons provided by an applicant to justify his or her return to the country against which they claimed protection does not alter the voluntariness of the act (Ahmed v Canada (Citizenship and Immigration), 2022 FC 884 at para 32). Further, in assessing the voluntariness of reavailment for the purposes of cessation, the UNHCR Handbook indicates the following:
120. If the refugee does not act voluntarily, he will not cease to be a refugee. If he is instructed by an authority, e.g. of his country of residence, to perform against his will an act that could be interpreted as a reavailment of the protection of the country of his nationality, such as applying to his Consulate for a national passport, he will not cease to be a refugee merely because he obeys such an instruction. He may also be constrained, by circumstances beyond his control, to have recourse to a measure of protection from his country of nationality. He may, for instance, need to apply for a divorce in his home country because no other divorce may have the necessary international recognition. Such an act cannot be considered to be a “voluntary reavailment of protection” and will not deprive a person of refugee status.
[32] As such, the question is whether Ms. Wiseman Hunt was constrained to travel, not whether she felt personally compelled to travel. Here, there was no evidence that Ms. Wiseman Hunt did not travel to Saint Vincent and the Grenadines on her own volition or that she was constrained to do so. The RPD’s finding that Ms. Wiseman Hunt went voluntarily is reasonable and so is the finding that the reasons she indicated for returning to her country of nationality did not constitute exceptional circumstances (Canada (Citizenship and Immigration) v Nilam, 2015 FC 1154 at para 28 [Nilam]).
(b) Intent to reavail
[33] On the factor of intent, Ms. Wiseman Hunt argues that the RPD took into consideration factors like her state of knowledge, the precautionary measures she took, the identity of the agent of persecution, and the severity of the consequences – only some of which speak to her intent –, but does not express the conclusion to this section until the next section on whether she truly re-availed herself of state protection. She submits that this leads to a lack of clarity in the reasons, making them difficult to follow and ultimately unintelligible.
[34] Ms. Wiseman Hunter further argues that a key aspect of intention was not addressed: whether she was aware of the consequences of obtaining a passport and travelling to her country of nationality. She refers to Camayo at paragraph 84 where the Federal Court of Appeal found that the state of an individual’s knowledge regarding cessation provisions must be taken into consideration.
[35] Ms. Wiseman Hunt also asserts that the RPD adopted an analysis that was cautioned against in Camayo at paragraph 79, as it focused and used the fact that she returned to her country of nationality on multiple occasions to justify its findings in all three factors to be considered in this test. She adds that by doing so it leaves little room for the other evidence of the individual who is the subject of the cessation proceeding.
[36] In regards to intent, as previously mentioned, the fact that a refugee applies for and obtains a passport from his or her country of nationality creates a presumption that the individual intends to reavail himself or herself of the diplomatic protection of that country. This presumption is particularly strong where the individual actually uses the passport to travel to his or her country of nationality (Camayo at para 63; Nilam at para 25).
[37] As the Federal Court of Appeal observed in Camayo at paragraph 64:
[64] As the Federal Court observed in Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), 2011 FC 1346, “[r]eavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal security is in jeopardy”: at para. 8.
[Emphasis added.]
[38] At paragraph 65 of Camayo, the Federal Court of Appeal stated that constraining case law from the Federal Court suggests that the presumption is a rebuttable one and that the onus is on the refugee to adduce sufficient evidence to rebut the presumption of reavailment. The Federal Court of Appeal specifically cited paragraph 26 of Nilam and paragraph 42 of Li v Canada (Citizenship and Immigration), 2015 FC 459 [Li].
[39] Paragraph 42 of the Li decision outlines that:
[42] The Minister has the burden of proving re-availment on the balance of probabilities. In doing so, the Minister is entitled to rely on the presumption of re-availment by proving that the refugee obtained or renewed a passport from his or her country of origin. Once that has been proved, the refugee has the burden of showing that that [sic] he or she did not actually seek re-availment. As stated in the UNHCR Handbook, where there is proof that a refugee has obtained or renewed a passport “[i]t will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality” (para 121).
[40] The purpose of the travels, the knowledge of the refugee as to the impact of passports and travels on reavailment, the activities of the refugee in their country and the precautionary measures taken while in the country of nationality are all relevant elements cited at paragraph 84 of the Camayo decision of the Federal Court of Appeal. These issues were canvassed by the RPD with respect to Ms. Wiseman Hunt in its reasons.
[41] In regards to precautionary measures, the only measure described by Ms. Wiseman Hunt was that she was always accompanied everywhere by one or two brothers who were tall with a robust build, as opposed to her former spouse who was comparatively short and lean. It was open to the RPD to find that this was not a reasonable precautionary measure. The facts in Antoine refer to an armoured car and police protection and in Camayo to private security services as precautionary measures. Thus, they are distinguishable from the present case.
[42] In Camayo, the Federal Court of Appeal noted at paragraph 70 that knowledge of the immigration consequences of an individual’s actions may not be determinative as to intent but it is a key factual consideration.
[43] Here, and contrary to Ms. Wiseman Hunt’s arguments, the RPD noted the teachings from the Federal Court of Appeal and even assumed without deciding that Ms. Wiseman Hunt did not have knowledge of the consequences of her actions. As the Federal Court of Appeal instructed in Camayo, the RPD weighed this factor in the mix with the other factors.
[44] Finally, I agree with the Minister that the Court’s decision in Antoine does not fetter or otherwise limit the ability of the panel to examine the facts in this case and whether they show intent to reavail oneself of the protection of the country of nationality. It was open to the RPD to find that the reasons for the travels were not exceptional circumstances.
[45] In light of the facts, and of the evidence, it was reasonable for the RPD to conclude that Ms. Wiseman Hunt had not rebutted the strong presumption that she intended to reavail.
(c) Actual reavailment
[46] On the third factor of actual reavailment of state protection, Ms. Wiseman Hunt submits that the conclusion that she reavailed herself of state protection is unreasonable as the RPD made several errors in interpreting her actions in Saint Vincent and the Grenadines.
[47] Ms. Wiseman Hunt asserts that, although Camayo did not explicitly refer to genuineness of intent, it is implicit in its statement that the individual must subjectively intend to depend on the protection of the country of nationality (Camayo at para 68). Ms. Wiseman Hunt submits this is because if an individual does not subjectively intend to depend on the protection of their country of nationality, they cannot be genuinely entrusting their interests to the protection of that country and vice versa. She argues that the evidence shows she never subjectively intended to depend on the protection of her country of nationality and that the RPD never explicitly determined that she was not credible on these points. Ms. Wiseman Hunt relies on Antoine at paragraph 36 to support her argument.
[48] The RPD noted that Ms. Wiseman Hunt made no mention at the hearing of any difficulties she may have encountered with the authorities of the country when she entered and exited it on the three different occasions. It added that the Federal Court of Appeal confirmed that the presumption of intent to re-avail is stronger when refugees return to their country of nationality (Camayo at para 63). The RPD explained that on all three occasions, she travelled using her Saint Vincent and the Grenadines passport and transited through Barbados, thereby identifying herself as a citizen of Saint Vincent and the Grenadines. The RPD noted that Ms. Wiseman Hunt also used these passports to obtain a visa for the US and that she travelled to the US on multiple occasions on that passport. The RPD further noted that the Court stated that if the refugee returned to the country for a family emergency and remained in hiding then the tribunal must take this evidence into account when assessing the voluntariness of the conduct and whether protection was actually obtained.
[49] However, the RPD distinguished it as it found that Ms. Wiseman Hunt failed to establish, on a balance of probabilities, that her returns were due to exceptional circumstances and that she was in hiding during her trips. This distinguished her case from Antoine.
[50] The RPD noted that Ms. Wiseman Hunt’s ex-husband lives in the same neighbourhood, and when questioned on her plan if she ever encountered him during her trips, she stated that she did not think he would venture near her because her brothers are muscular. The RPD found that their brute force is certainly not enough to keep her persecutor at bay when her country of nationality was unable or unwilling to protect her. It repeated that she returned three times and attended public events and she did not confirm whether he was around, although the RPD acknowledged she was grieving the loss of her family members during the trips. It also acknowledged that she testified having left Canada after her brothers, who were in New York, arrived in Saint Vincent and the Grenadines. The RPD added that she could have asked her brothers to gather information on her ex-husband’s whereabouts before going to the country. I find no reasons for the Court to intervene regarding these findings.
[51] The RPD reasonably found that Ms. Wiseman Hunt intended to re-avail herself of the protection of Saint Vincent and the Grenadines, that she did not rebut the presumption, and that she received such a protection when she asked for passports from their consulate office in Toronto, travelled to her country on those passports via Barbados, and used those passports to obtain a US visa to enter and exit the US.
[52] As such, I find no flaw in the RPD’s reasons.
(3) The consequences of the RPD Decision
[53] Third, I see no error by the RPD in its consideration of the consequences of its Decision.
[54] Ms. Wiseman Hunt submits that the RPD did not consider all the consequences of its Decision. She argues that Camayo and subsequent Federal Court jurisprudence were misinterpreted as they require that the RPD consider all the consequences of cessation when discussing the severity of the consequences (Omer v Canada (Immigration, Refugees and Citizenship), 2022 FC 1295 and Hamid v Canada (Citizenship and Immigration), 2022 FC 1541).
[55] It must be pointed out that in Camayo, the Federal Court of Appeal stated that “the seriousness of the impact of the RPD’s decision on Ms. Galindo Camayo increases the duty on the RPD to explain its decision”
[emphasis added] (Camayo at para 51; Begum v Canada (Citizenship and Immigration), 2023 FC 1317 at para 16).
[56] Again, at paragraph 84 of its decision in Camayo, the Federal Court of Appeal stated, among the factors, that:
-
ŸThe severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above, at paragraphs 133–135;
[Emphasis added.]
[57] Here, the RPD has provided detailed reasons. In addition, and contrary to Ms. Wiseman Hunt’s assertions, the RPD did consider the severity of the consequences of cessation. At paragraph 61 of its Decision, the RPD mentioned specifically that Ms. Wiseman Hunt will lose her permanent residence status and her protected person status, that she cannot apply for a Pre Removal Risk Assessment or make an application for permanent residence based on humanitarian and compassionate considerations for one year following the Decision, and faces removal from Canada “as soon as possible”
, referring to Ati v Canada (Citizenship and Immigration), 2022 FC 1626 at paragraph 16.
[58] Furthermore, the Court has stated that the RPD cannot consider humanitarian and compassionate considerations when assessing cessation (Aydemir v Canada (Citizenship and Immigration), 2022 FC 987 at paras 73-74 citing Bermudez v Canada (Citizenship and Immigration), 2016 FCA 131 at para 38 [Bermudez]). The Federal Court of Appeal in Bermudez, a decision to which our Court is bound, does clearly state at paragraph 40:
[40] It is also clear from a reading of sections 40.1, 46 and 108 of the IRPA that Parliament specifically intended that the right to remain in Canada not be available to refugees who are no longer in need of state protection, including refugees who have acquired permanent residence in Canada. In other words, when circumstances as described in subsection 108(1) of the IRPA arise, and a positive determination to that effect is made by the RPD, inadmissibility under the IRPA ensues. H&C factors have simply not been deemed by Parliament to be of relevance within that context. Had Parliament intended that H&C considerations be taken into account in the cessation process, it would have used language to that effect. It has not done so.
[59] Lastly, I note that the two decisions cited by Ms. Wiseman Hunt, Omer v Canada (Immigration, Refugees and Citizenship), 2022 FC 1295 and Hamid v Canada (Citizenship and Immigration), 2022 FC 1541, do not mention the Federal Court of Appeal’s decision in Bermudez.
III. Conclusion
[60] The RPD’s Decision has not been shown to be unreasonable, and the application for judicial review will consequently be dismissed.
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