Docket: IMM-4550-25
Citation: 2026 FC 227
Toronto, Ontario, February 18, 2026
PRESENT: Madam Justice Go
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BETWEEN: |
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Irfan AHMAD |
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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
[1] Mr. Irfan Ahmad [Applicant], a citizen of Pakistan, seeks a judicial review of a decision of the Refugee Protection Division [RPD] allowing an application by the Minister of Citizenship and Immigration [Minister] for the cessation of refugee protection to the Applicant [Decision].
[2] The Applicant was accepted for re-settlement in Canada in 2014 under the “Convention refugee abroad”
program on the basis that he required protection from Pakistan on account of his Ahmadi faith. The Applicant obtained a new Pakistani passport through the Pakistani Consulate in Toronto issued on October 19, 2015 and received a second Pakistani passport issued on December 8, 2020. The Applicant travelled to Pakistan on his Pakistani passport six times between January 2016 and March 2022, for a total of 336 days.
[3] The RPD found the Applicant voluntarily re-availed himself of the protection of Pakistan pursuant to paragraph 108(1)(a) of the of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The RPD also found the Applicant had not provided sufficient evidence to rebut the presumption of intention to reavail himself in Pakistan, and that he actually reavailed to the protection of Pakistan when he travelled there repeatedly using his Pakistani passports.
[4] The Applicant argues that the RPD erred by unreasonably determining that he had reavailed himself of Pakistan, within the meaning of paragraph 108(1)(a) of the IRPA. The Applicant also submits that the RPD erred as it should have considered the Minister’s cessation application under paragraph 108(1)(e) instead of paragraph 108(1)(a) of the IRPA.
[5] For the reasons set out below, I grant this application for judicial review.
II. Issues and Standard of Review
[6] The Applicant raises the following errors with respect to the RPD’s reavailment analysis and the RPD’s rejection of his alternative argument:
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The RPD unreasonably found that the Applicant had voluntarily reavailed himself of the protection of the Pakistani state;
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The RPD erred in finding that the Applicant intended to reavail of the protection of the Pakistani state;
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The RPD unreasonably concluded that the Applicant actually reavailed himself of Pakistan’s protection; and
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The RPD erred in refusing to apply paragraph 108(1)(e) with respect to change in circumstances to preserve the Applicant’s permanent resident status.
[7] Citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 62, the Applicant submits the reasonableness standard of review applies to the Decision.
[8] While I agree with the Applicant on the standard of review, I look to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] for instructions on how to apply the reasonableness standard.
[9] For the Decision to be unreasonable, the Applicant must establish the Decision contains flaws that are sufficiently central or significant: Vavilov at para 100. Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker: Vavilov at para 125. Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep:”
Vavilov at para 100.
[10] Having said that, a finding of reavailment under paragraph 108(1)(a) of the IRPA has significant consequences for the affected individual. Not only does it lead to the loss of their refugee status but also to the loss of their permanent resident status and their potential removal from Canada: Kaban v Canada (Citizenship and Immigration), 2025 FC 1626 at para 35; Singh v Canada (Citizenship and Immigration), 2022 FC 1481 at para 28.
[11] Given these consequences, there is a heightened duty on the RPD to provide justified, transparent, and intelligible reasons explaining its decision: Vavilov at para 133; Canada (Citizenship and Immigration) v Galindo Camayo 2022 FCA 50 [Galindo Camayo] at para 49.
III. Analysis
A. Legal Test for Reavailment
[12] The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status [UNHCR Handbook] provides guidance in the interpretation of the Convention cessation clauses. While not binding, the Court has endorsed the test set out in paragraph 119 of the UNHCR Handbook which comprises three requirements for cessation: voluntariness, intention and reavailment: Canada (Public Safety and Emergency Preparedness) v Bashir, 2015 FC 51 [Bashir] at paras 43-47.
[13] In Galindo Camayo at para 18, the Federal Court of Appeal [FCA] reiterated the following three-part test for determining whether cessation has occurred:
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Voluntariness: The refugee must have acted voluntarily;
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Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and
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Reavailment: The refugee must actually obtain state protection.
[14] These three elements are cumulative. The onus is on the Minister to establish all three elements on a balance of probabilities: Uc v Canada (Citizenship and Immigration), 2025 FC 1945 at para 11; Baquero Alvarez v Canada (Citizenship and Immigration), 2024 FC 770 at para 16.
[15] Where a refugee acquires and travels on a passport issued by their country of nationality, there is a presumption that they have intended to avail themselves of the protection of that country: Galindo Camayo at para 63. This presumption is rebuttable: Galindo Camayo at para 65. The refugee must adduce sufficient evidence to rebut the presumption on a balance of probabilities when it arises: Ahmad v Canada (Citizenship and Immigration), 2023 FC 8 at para 34; Shah v Canada (Citizenship and Immigration), 2023 FC 1332 at para 10; Canada (Citizenship and Immigration) v Safi, 2022 FC 1125 at paras 33 and 35.
[16] In Galindo Camayo, the FCA outlined a list of non-exhaustive factors for assessing whether an individual has rebutted the presumption: Galindo Camayo at para 84. The FCA reminded decision makers that the test for cessation should not be applied in a mechanistic manner, and that the focus of analysis should be on the conduct of the refugee and the inferences that can be drawn from it: Galindo Camayo at para 83.
B. Did the RPD err in finding that the Applicant had voluntarily reavailed himself of the protection of Pakistan?
[17] The Applicant submitted to the RPD that he had compelling reasons to return, namely, for marriage, for the birth of his child, and to attend to his parents’ illness and funeral. The Applicant submits that the RPD erred in finding that he voluntarily reavailed despite his reasons for return.
[18] The Applicant points to paragraph 125 of the UNHCR Handbook to argue that cases where the refugee visits his former home country with a travel document issued by his country of residence should be judged on their individual merits, and that visiting an old or sick parent will have a different bearing on the refugee’s relation to the former home country than regular visits on holiday or for the purpose of establishing business relations.
[19] The Applicant also argues that the RPD erred by treating his concession that he would not have returned to Pakistan if he had known he would lose his status as a negative factor, when the lack of knowledge about potential consequences of returning may contribute to rebutting the presumption of reavailment: Galindo Camayo at para 84.
[20] I do not find the Applicant’s arguments persuasive.
[21] Citing decisions from this Court including Bashir, the RPD acknowledged that “a [refugee] who does not act voluntarily has not re-availed and will not cease to be a refugee.”
The RPD also quoted from para 120 of the UNHCR Handbook that provides examples in this regard, noting if a refugee “is instructed by an authority, e.g. of his country of residence, to perform against his will …. [to apply] to his Consulate for a national passport, [the refugee] will not cease to be a refugee merely because he obeys such an instruction.”
[22] The RPD went on to examine the reasons the Applicant provided for his travels to Pakistan as well as his submissions that his actions were involuntary because he “had compelling reasons to return.”
The RPD found no indication that the Applicant returned “for any compelling administrative purpose; that he was forced or pressured to return to Pakistan by a national authority; or that he was constrained by circumstances beyond his control.”
The RPD accepted the Applicant “felt personal and emotional reasons to return on six occasions,”
but found that it “does not diminish the voluntariness of his actions.”
The RPD further referenced Zhou v Canada (Citizenship and Immigration), 2024 FC 895 at para 16, where the Court found the “necessity for travel must be a legal necessity, rather than something the applicant may deem as necessary. The element of coercion is key in assessing voluntariness.”
[23] I see no flaws in the RPD’s reasoning and in finding that the “existence of a reason does not alter the voluntariness.”
The RPD’s analysis was consistent with the case law and with the principles set out in the UNHCR Handbook.
[24] I further note that the Applicant’s reliance on paragraph 125 of the UNHCR Handbook is misplaced. Paragraph 125 reads in full as follow:
Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and not to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relation to his former home country than regular visit to that country spent on holidays or for the purpose of establishing business relations.
[Emphasis added.]
[25] Thus, this paragraph appears to describe situations where the refugee travels to their former home country not with a national passport, but with a travel document issued by their country of residence. This was not what happened in the case at hand.
[26] As to the Applicant’s argument that the RPD made a perverse finding by treating his concession that he would not have returned to Pakistan if he had known he would lose his status as a negative factor, as opposed to be a relevant factor per Galindo Camayo, I disagree.
[27] While the RPD is required to consider, at the minimum, all the factors set out by the FCA, none of the factors in Galindo Camayo is determinative; they are to be “considered and balanced”
in order to assess whether the presumption of reavailment has been rebutted: Galindo Camayo at para 84. Further, nowhere in Galindo Camayo did the FCA require decision makers to treat all the factors in para 84 only in a positive way.
[28] Finally, I observe that the RPD did acknowledge the Applicant’s lack of knowledge of the immigration consequences as a relevant factor when considering the Applicant’s intent to reavail, indicating that the RPD did not only consider this factor in a negative manner.
C. Did the RPD err in finding that the Applicant intended to reavail of the protection of Pakistan state?
[29] Before the RPD, the Applicant submitted that he had no intention to reavail of Pakistan’s protection as the purpose of obtaining the passports was to travel. The Applicant further submitted that he was in hiding as he feared religious extremists and did not attend mosque or engage with the broader community. Finally, the Applicant argued that he had no knowledge of the immigration consequences of travelling to Pakistan using a Pakistani passport.
[30] The RPD rejected all of the Applicant’s submissions, finding, among other things, there was inconsistency related to the Applicant’s identification of the agents of persecution. The RPD considered the Applicant’s testimony about precautionary measures in Pakistan such as travelling at night and remaining at home as much as possible, but found his activities, such as bringing his family to Pakistan and having a wedding with 80-90 guests, irreconcilable with his alleged subjective fear of persecution. The RPD accepted that the Applicant did not know he risked his status in Canada by travelling to Pakistan but found it to be only a relevant factor rather than a determinative one.
[31] The Applicant argues that the RPD erred in finding that the fear of the local government and religious extremists were mutually exclusive. The Applicant submits that the RPD erred in failing to consider that the denial of a religious right as a precaution was itself a sufficient indication of a lack of intention to reavail. He cites Galindo Camayo to argue that the application of cessation must be in accordance with the values and principles of international law, including the Refugee Convention which protects religious freedom: Galindo Camayo at para 84.
[32] The Applicant notes that the RPD confirmed later in the Decision that there is no state protection for Ahmadis in Pakistan when considering paragraph 108(1)(e), which contradicts the RPD’s own conclusion here.
[33] The Applicant also takes issue with the RPD’s finding that the Applicant intended to reavail because there were no “exceptional circumstances”
for his return and argues that this is an unduly high standard and unreasonable in light of his family obligations.
[34] I do not find all of the Applicant’s submissions persuasive. However, I find the RPD erred by failing to engage with critical evidence that contradicted its conclusion that the Applicant intended to reavail of the protection of Pakistan.
[35] Further, while I would not characterize the RPD’s consideration of the Applicant’s alleged fear of the state and religious extremists as “mutually exclusive,”
I agree with the Applicant that the RPD erred in finding inconsistency related to the Applicant’s identification of the agents of persecution.
[36] The RPD noted at paragraph 37 of the Decision that the Applicant’s description of the agents of persecution “evolved depending on the audience.”
The RPD noted that, in his initial refugee claim, the Applicant indicated his fear of being killed by religious extremists as well as government authorities. When interviewed by Canada Border Services Agency officials after returning from Pakistan, the Applicant stated it was safe for him to travel as long as it was not for a long time despite that he remained in Pakistan for weeks and sometimes months at a time. Then in his testimony, the Applicant stated that he mostly feared religious extremists and that he feared local government officials a little bit, whereas in written submissions, he indicated that his primary fear was of the religious extremists and that the authorities would not protect him.
[37] Rather than being inconsistent, the Applicant submits that these are merely different ways of saying the same thing, namely that he primarily fears the religious extremists and that he fears the authorities would not protect him.
[38] I agree with the Applicant.
[39] I also agree that the Applicant’s evidence about who he fears the most was consistent with his testimony that he could not go to mosque in Pakistan due to his fear of the religious extremists but, was not so afraid of the state that he would not fly in and out of Pakistan.
[40] By finding inconsistency where none existed, the RPD thus unreasonably concluded that the Applicant lacks credibility as it relates to his subjective fear.
[41] The RPD compounded this error by failing to consider a key precautionary measure that the Applicant took against the religious extremists while in Pakistan, i.e. by not going to the mosque. While the RPD noted the Applicant’s evidence that he did not attend mosque or engage with the broader community at paragraph 35 of the Decision, the RPD never engaged with this evidence when conducting its analysis on the Applicant’s intention at paragraphs 36 to 52. Rather, the RPD focused on the fact that the Applicant had a “large wedding,”
the duration of his visits, and the fact that the Applicant brought his family to Pakistan, and found these factors to indicate a lack of subjective fear of persecution.
[42] By failing to engage with a critical piece of evidence that may rebut the intent to reavail, the RDP fell short of its heightened duty to provide justified, transparent, and intelligible reasons to explain its decision: Vavilov at para 133; Galindo Camayo at para 49.
D. The RPD’s findings on actual reavailment and the Applicant’s alternative argument
[43] As I find that the RPD’s finding of the Applicant intended to reavail was unreasonable, and as the test for cessation is cumulative, the Decision as a whole must therefore be set aside.
[44] While I need not address the remainder of the Applicant’s submissions, I note that the RPD based its finding on actual reavailment in part on its finding of the Applicant’s intent to reavail. Given the RPD’s finding on the intent to reavail was unreasonable, it follows that its finding on actual reavailment was also unreasonable.
[45] The application for judicial review is granted.
[46] There is no question for certification.
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