Docket: IMM-22412-24
Citation: 2026 FC 385
Ottawa, Ontario, March 23, 2026
PRESENT: The Honourable Madam Justice Ngo
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BETWEEN: |
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EMOMMUHAMMAD RAHMATOV |
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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, Emommuhammad Rahmatov [Applicant], is a citizen of Tajikistan and a permanent resident of Ukraine who alleges a fear of persecution in both countries. He seeks judicial review of a decision dated November 4, 2024, where the Refugee Appeal Division of the Immigration and Refugee Board of Canada [RAD] rejected his refugee claim [Decision] on the grounds that he was excluded from refugee status or that he did not meet the definition of a person in need of protection by virtue of section 98 of the Immigration and Refugee Protection Act, Sc 2001, c 27 [IRPA] applying Article 1E of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 137, Can TS 1969 No 6 [Convention]. The RAD confirmed the conclusion reached by the Refugee Protection Division of the Immigration and Refugee Board of Canada [RPD]. The RAD concluded that the Applicant, by virtue of his permanent resident status in Ukraine, has rights and obligations akin to those of a citizen in the country, and that he failed to establish that he faces a risk of persecution in Ukraine.
[2] For the reasons set out below, this application for judicial review is dismissed. The Decision is not unreasonable.
II. Background and Decision Under Review
[3] The Applicant is a citizen of Tajikistan and a permanent resident of Ukraine. He lived and studied in Egypt from 1998 to 2013. The Applicant stated that starting in April 2008, the Tajikistan government began summoning him to its embassy every six months, to question him about his reasons for studying in Egypt and his intention of retuning to Tajikistan. The Applicant describes that these interviews would end with a “recommendation”
that he return to Tajikistan following his graduation.
[4] In November 2010, the Applicant learned that the Tajikistan government was forcibly repatriating its nationals who were studying in Islamic countries, under the guise of preventing the development of extremist views. According to the Applicant, repatriated individuals would be incarcerated following their return and were banned from leaving the country upon release.
[5] In 2017, the Applicant was arrested and detained for seven days in an airport in Egypt. While he does not know the reason for his arrest, he believes that the Egyptian government was cooperating with the Tajikistan government to enforce its repatriation law. At the end of 2017, he left Egypt for Turkey, where he lived and worked on a tourist visa for six months. He describes that the Tajikistan government remained interested in him and sought to locate him and inquire about his plans of returning to Tajikistan.
[6] In 2018, the Applicant moved to Ukraine where he married a Ukrainian citizen. Although he had been married in Egypt, his previous marriage had been under Egyptian law and thus, was not recognized in Ukraine and Tajikistan. Subsequently, the Applicant obtained permanent residence in Ukraine through his spouse. In March 2022, after the beginning of Ukraine’s invasion by Russia, the Applicant relocated to Germany as a Ukrainian Permanent Resident. He did not seek refugee protection in Germany.
[7] In January 2023, the Applicant arrived in Canada and applied for refugee protection on March 2, 2023. His basis of claim form [BOC] described a fear of persecution in Tajikistan. The Applicant did not describe fearing harm in Ukraine in his BOC.
A. RPD Decision
[8] The RPD held a hearing on March 20, 2024. The RPD member identified a possible exclusion under Article 1E of the Convention as the determinative issue. The Minister of Immigration, Refugees and Citizenship [Minister] intervened, submitting by writing that the Applicant “should be excluded from refugee protection because he possesses rights akin to nationality rights in the Ukraine and [he] failed to establish, in conjunction with sections 96 and 97(1) of the
IRPA, that he is at risk of harm today in the Ukraine.”
[9] The Applicant confirmed the following facts about his status in Ukraine, among other things:
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-He could work in Ukraine without restriction;
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-He had no restriction on where he could live in Ukraine;
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-He does not know whether he was entitled to government services and government benefits in Ukraine;
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-He could access medical care in Ukraine;
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-His status in Ukraine expires in November 2031.
[10] During the RPD hearing, the Applicant raised, for the first time, that he was fearful of returning to Ukraine. Upon questioning from the board member, he claimed to be afraid of the chaos, “hoodlums”
and armed people if he were to return to Ukraine. He further specified that he “[does] not know how [he] can go there, where [he] can live there, where [he] can make money.”
At the end of the hearing, the Applicant’s counsel explained that the Applicant feared discrimination in Ukraine based on his skin colour, Tajikistan ethnicity, religion, as well as a “potential bigamy concern”
as he technically has two wives.
[11] The Applicant’s refugee claim was refused on April 29, 2024. The RPD found that the Applicant was excluded from the meaning of a person in need of protection according to article 98 of IRPA as he is a person referred to in Article 1E of the Convention because he has permanent resident status in Ukraine.
[12] First, the RPD found that the Applicant’s rights in Ukraine were akin to rights contemplated within the meaning of Article 1E of the Convention. According to the Applicant’s answers during the interview, his status in Ukraine is valid until 2031. He could enter and exit the country and work there without restriction.
[13] Second, the RPD considered that the Applicant had not shown that he faced mistreatment based on his race, ethnicity, or religion during the four years that he lived in Ukraine. The RPD found that the generalized unsafety he raised is an issue that all residents of Ukraine are confronted with. While the Applicant claimed prospective risks or fear in Ukraine, he failed to mention these in his BOC, which he declared to be correct, true, and complete when he submitted it. He failed to provide an adequate explanation for this omission during the hearing. The RPD considered that if he held a genuine fear of harm, it would have been mentioned in his BOC. On these grounds, the RPD found that the Applicant did not face a serious possibility of persecution in Ukraine and failed to establish that he was a person in need of protection.
B. RAD Decision
[14] The Applicant appealed the RPD’s decision to the RAD. No new evidence was submitted and thus, there was no oral hearing before the RAD (IRPA at ss 110(4), 110(6)). In his notice of appeal, the Applicant stated that the RPD erred in finding that his status in Ukraine is substantially similar to that of its nationals regarding the right to protection from forced return, or non-refoulement; erred by failing to consider reliable country information about the Applicant’s restricted right to return to Ukraine, since he would require transit visas to enter Ukraine by land—Ukrainian airspace was closed to civilian aircrafts at the time of the decision—and there was no assurance that he would obtain these visas from neighbouring European countries; erred by failing to consider possible discrimination the Applicant would face in Ukraine as a Muslim, Russian-speaking, visible minority who is a recent immigrant; and, erred by considering his omission of his fear of return to Ukraine from his BOC. The Applicant argued that the issues with his BOC was a “clerical mistake”
which was rectified during oral submissions by Applicant’s counsel. The Applicant also raised a credibility concern about one of the websites relied on by the Minister, which detailed the rights of permanent residents in Ukraine.
[15] As a preliminary matter, the RAD considered that certain of the sources cited by the Applicant in support of his argument on the risk of refoulement in Ukraine and the possibility of discrimination were not before the RPD. The Applicant had declared that he was not submitting new evidence in his appeal. Accordingly, the RAD concluded that it would not consider this new evidence. The RAD additionally concluded that the website describing rights accorded to Ukrainian permanent residents appeared credible and trustworthy, and accorded it full weight.
[16] Applying the test in Zeng v (Minister of Citizenship and Immigration), 2010 FCA 118 [Zeng], the RAD found that the Applicant’s rights in Ukraine were akin to those of a Ukrainian national. In particular, the RAD noted that while the Applicant may be required to obtain visas from countries of transit, he nonetheless has the right to enter and exit Ukraine without restrictions. The Applicant failed to provide any documentary evidence establishing his need or inability to obtain a transit visa. Moreover, his situation was comparable to other Ukrainian nationals who may also require a transit visa to return to Ukraine.
[17] While the Applicant submitted that Ukraine has been known for sending non-citizens back to countries where they would be at risk, the RAD found that the Applicant did not explain how this assertion applied to his own personal situation. The sources the Applicant cited pertained to Russian or Belarusian citizens residing in Ukraine who were refouled after being unable to claim asylum or letting their residence permit expire in the context of Russia’s invasion of Ukraine. The RAD concluded that the evidence before it did not show how the Applicant, in light of his profile, faced a serious risk of refoulement.
[18] On the risk the Applicant would face in Ukraine, the RAD acknowledged the jurisprudential guide MB8-00025 [Jurisprudential Guide] indicating a risk analysis was required despite making a finding of exclusion under Article 1E of the Convention, while recent Federal Court jurisprudence in Tshimuangi v Canada (Citizenship and Immigration), 2024 FC 1354 [Tshimuangi] directed the RAD to not consider the prospective risk in the third country in the assessment. Although ultimately agreeing with the Federal Court’s direction in Tshimuangi, the RAD proceeded nonetheless with an analysis of the Applicant’s alleged risk in Ukraine and found that he did not face any prospective risk.
[19] The RAD noted that the Applicant failed to point to any objective evidence in his record in support of his argument that he is at risk from the Ukrainian authorities based on discrimination. The RAD noted that although the documentation indicated ongoing issues with discrimination in Ukraine, it mainly affected Romas and Crimean Tatars. The RAD also placed weight on the fact that the Applicant had previously lived in Ukraine for four years and had not described any past incidents of discrimination. Accordingly, the RAD found that the Applicant would not face any risk in Ukraine beyond the generalized risk of harm to all persons in Ukraine as a result of the ongoing armed conflict, which is insufficient to warrant refugee protection. The RAD concluded that the RPD was correct in excluding the Applicant from refugee protection under Article 1E of the Convention.
[20] The RAD’s Decision is the subject of this application for judicial review.
III. Issues and Standard of Review
[21] The issue on judicial review is whether the RAD’s Decision concluding that the Applicant was excluded under Article 1E of the Convention, in application of section 98 of IRPA, was unreasonable.
[22] The parties submit that the standard of review with respect to the merits of the Decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25). I agree that reasonableness is the applicable standard of review.
[23] On judicial review, the Court must consider whether a decision bears the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99). A reasonable decision will always depend on the constraints imposed by the legal and factual context of the particular decision under review (Vavilov at para 90). A decision may be unreasonable if the decision-maker misapprehended the evidence before it (Vavilov at paras 125-126). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100).
IV. Analysis
A. The legal framework: Article 1E exclusions
[24] Article 1E of the Convention provides that:
E This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
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E Cette Convention ne sera pas applicable à une personne considérée par les autorités compétentes du pays dans lequel cette personne a établi sa résidence comme ayant les droits et les obligations attachés à la possession de la nationalité de ce pays.
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[25] Section 98 of the IRPA incorporates Article 1E of the Convention and states that a person who is excluded from refugee protection pursuant to Article 1E is not a refugee for the purposes of the IRPA:
Exclusion — Refugee Convention
98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
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Exclusion par application de la Convention sur les réfugiés
98 La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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[26] The parties both submit that the framework of the analysis for Article 1E exclusion cases is described in Zeng at paragraph 28.
[27] The burden of proof to establish the exclusion lies with the Minister, but on a basis of serious reasons, which is less than the balance of probabilities. Once a prima facie case of exclusion has been made out by the Minister, the onus shifts to the applicant to establish, on a balance of probabilities, that they are no longer subject to the exclusion (Mikelaj v Canada (Citizenship and Immigration), 2016 FC 902 at paras 20, 26; Shahpari v Canada (Minister of Citizenship and Immigration), 1998 CanLII 7678 (FC), 146 FTR 102 at para 6).
[28] To determine whether an applicant has rights akin to those of a citizen in his country of residence, the factors to consider are set out in Shamlou v Canada (Minister of Citizenship & Immigration), 103 FTR 241, 32 Imm LR (2d) 135 [Shamlou], being whether the Applicant has: (1) the right to return to the country of residence; (2) the right to work freely without restrictions; (3) the right to study, and; (4) full access to social services in the country of residence (Shamlou at 152).
[29] The parties do not contest that these criteria, as described in the jurisprudence, are applicable in the case at hand.
B. The parties’ positions
[30] The Respondent described the test set out in Zeng as being comprised of three steps as follows:
Step 1: considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded.
Step 2: if the answer to step 1 is “no”, the next question is whether the claimant previously had such status and lost it or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E.
Step 3: If the answer to step 2 is “yes”, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.
[31] The Respondent argues that where a claimant’s status in another country confers rights similar to those of that country’s citizens, decision-makers should still take into account the fear or risk raised in the third country before excluding the claimant by the combined effect of Article 1E of the Convention and section 98 of the IRPA (citing Canada (Citizenship and Immigration) v Saint Paul, 2021 FCA 246 [Saint Paul]). As such, if a person to whom Article 1E of the Convention applies makes a refugee claim to a third country, possible bars to removal to the country of former residence ought to be examined based on the principles of non-refoulement.
[32] The Respondent argues that the RAD reasonably found that the RPD correctly determined that the Applicant has status substantially similar to that of nationals of Ukraine-the third country referenced-and reasonably applied the factors outlined in Shamlou to the Applicant’s case. This means that the answer to the first step of the Zeng test was “yes”
which leads to the conclusion that the Applicant is excluded. As such, the next step would be to assess whether there were barriers to the removal to Ukraine based on the principles of non-refoulement.
[33] The Applicant asserts that there has been conflicting jurisprudence in the Federal Court concerning the determination of risk in the country of residence in question.
[34] One thread of jurisprudence has held that a risk analysis must be performed prior to the determination of exclusion due to status in that country (citing Mwano v Canada (Citizenship and Immigration), 2020 FC 792 at paras 21-24; Constant v Canada (Citizenship and Immigration), 2019 FC 990 at paras 36-39; Lauture v Canada (Citizenship and Immigration), 2023 FC 1121 at paras 34-38; Jean v Canada (Citizenship and Immigration), 2019 FC 242 at paras 24-30).
[35] The other thread of the jurisprudence holds that the risk analysis ends once the elements of the Zeng test are satisfied. There is no need to consider the risk raised by a claimant in respect of their country of residence after the Article 1E conclusion has been made. Instead, the correct timing of a risk analysis to avoid running afoul of international obligations is during the pre-removal risk assessment phase (citing Saint Paul at para 54; Celestin v Canada (Citizenship and Immigration), 2020 FC 97 at paras 82-108).
[36] This second current of jurisprudence was recently considered in Tshimuangi. Justice St-Louis (as she was then) found that section 98 of the IRPA held no textual ambiguities, and it was incorrect to read in the concept that allegations of fear in the country of residence ought to be examined at all, given that such an interpretation would supersede the legislative branch’s role in creating the laws. She found that the analysis concludes once the Zeng test was satisfied (Tshimuangi at paras 25-34).
[37] Other cases disagreed with the Court’s analysis in Tshimuangi (see Sesay v Canada (Citizenship and Immigration), 2025 FC 167 at paras 21-28 [Sesay]). Justice Grammond also concluded it was open for a tribunal to consider the risk in a country considered by an Article 1E exclusion pursuant to the jurisprudential guide, particularly where the parties agree on its applicability (Ralek Horodiuk v Canada (Citizenship and Immigration), 2025 FC 112 at paras 39-46).
[38] A reasonableness review requires putting the decision-maker’s reasons first and discerning the actual reasoning underlying the conclusion, with the goal of understanding the decision-maker's reasoning process. The court conducting a reasonableness review must focus on the decision that the decision-maker actually made, including the justification offered for it, and not on the conclusion that the Court itself would have reached instead. The ultimate question is whether the decision-maker’s reasons justify the decision to those to whom it applies (Le v Canada (Citizenship and Immigration), 2025 FC 1965 at para 52, citing Vavilov at paras 15, 83, 84, 86).
[39] As such, while the Applicant has appropriately identified two currents of jurisprudence, I do not need to resolve this conflict for the purposes of this judgment. In the Applicant’s case, the RAD agreed with the Court’s guidance in Tshimuangi and found that having answered “yes”
to the first step, the Applicant was excluded and that this would be sufficient to refuse his claim. Regardless, the RAD still proceeded to evaluate the risk to the Applicant in Ukraine, therefore satisfying the other thread of this Court’s jurisprudence. I must therefore assess the RAD’s analysis in the context in that it applied both currents.
[40] The Applicant claims that the Decision is unreasonable and emphasized that the RAD erred in the way it assessed his risk. At the hearing, the Applicant emphasized that the purpose of the assessment under Zeng and Article 1E is to exclude a person if they have protection outside of Canada. The Applicant claims that since the country of residence is at war, the RAD should have proceeded with a “more purposeful”
reading of section 98 of the IRPA, particularly in regard of his forward-facing risk. He posits that the RAD failed to consider the context and object of the Convention, informed by the Vienna Convention on the Law of Treaties, Can TS 1980 No 37, as is required by jurisprudence (citing Sesay at paras 21-28, citing Febles v Canada (Citizenship and Immigration), 2014 SCC 68 at para 12; Zeng at para 28).
[41] Further, given the alleged absence of health and social services available to him in Ukraine, the Applicant submits that the RAD’s application of the Shamlou test was not reasonable. He alleges that the RAD underplayed the personalized risks that the Applicant would face by failing to consider his unique profile—that of an ethnic, racial, and linguistic minority in Ukraine—in concluding that he was excluded under Article 1E of the Convention. The Applicant points to passages in the National Documentation Package according to which protection against members of racial and ethnic minorities are not properly enforced and identifies that these protections will be all the more weakened in the context of the ongoing war in Ukraine. Omitting to consider these realities resulted in an alleged misapplication of the Shamlou and Zeng tests. The Applicant argues that had the RAD properly conducted the analysis, it would have reached the conclusion that Ukraine is untenable as a country offering safe surrogate protection.
[42] According to the Respondent, the Decision is reasonable. The Respondent submits that given the Applicant’s uncontested admissions demonstrating his rights in Ukraine and his failure to present any evidence that countered the Minister’s submissions on exclusion under Article 1E, the RAD reasonably concluded that the Applicant had rights and obligations akin to those of a citizen in Ukraine.
[43] I agree with the Respondent’s submissions that the RAD’s conclusion was reasonably grounded in the evidence before it, including the Applicant’s testimony and objective evidence.
[44] First, the RAD considered that Article 1E precludes the conferral of refugee protection if an individual has surrogate protection in a country where they enjoy substantially the same rights and obligations as nationals of that country. The factors described in Shamlou were then applied to assess whether the person had a status that was substantially similar to the status of nationals of the country of residence. If the factors are satisfied, the Applicant would reasonably be deemed to have status substantially similar to those citizens of Ukraine (Fleurant v Canada (Citizenship and Immigration), 2019 FC 754 at para 16 [Fleurant], other citations omitted).
[45] The Applicant had testified that his permanent resident status in Ukraine gave him the right to return, the right to work, and the right to obtain healthcare. As such, I find that the RAD reasonably justified its finding that the Applicant had rights similar to nationals in Ukraine.
[46] Second, the RAD considered the alleged risks to the Applicant in Ukraine. The Applicant had not presented in his BOC any harm or risk which arose when he lived in Ukraine between 2018 and 2022. The RAD considered his assertions of fears from chaos, hoodlums, and armed people in Ukraine, as well as the harms associated to his ethnicity, skin colour, and religion. The RAD’s conclusion was reasonably grounded in the evidence before it, including the Applicant’s testimony and objective evidence. It found that there was no evidence applicable to the Applicant’s profile and concluded that the Applicant’s allegations of risk did not amount to a serious possibility of persecution.
[47] The Applicant did not persuade me that the RAD erred in its consideration of his claims of possible racial discrimination and difficulties in Ukraine. The question on judicial review is not whether I agree with the RAD’s conclusions but whether the Decision is justified based on the judicial and factual constraints that bear upon the decision-maker. I find that it is. With respect to his personalized risk, the Applicant is essentially asking the Court to come to a more favourable conclusion. That is not the Court’s role on judicial review (Vavilov at para 83).
[48] During the hearing, the Applicant frequently referred to Ukraine as not being a “safe surrogate country”
to challenge the Decision at issue. The conflict in Ukraine was considered by the RAD. The RAD concluded that the serious challenges and safety risks raised apply to all residents of Ukraine and that the Applicant had not established a personalized risk of harm in Ukraine under either section 96 or 97 of IRPA. While the Applicant challenges the RAD’s conclusion, he did not explain how the RAD erred in its analysis that would justify the Court’s intervention.
[49] Moreover, the Applicant’s arguments presented in challenging the RAD’s conclusions seem to conflate two separate legal issues: the regime for protecting persons subjected to persecution for any of the listed grounds, or for protecting persons who would personally be subjected to a danger of torture or a risk of cruel and unusual treatment or punishment, with the extremely difficult situation and upheaval in the country of residence.
[50] In Fleurant, also in the context of an Article 1E exclusion, the Applicant, a citizen of Haiti who had status in Venezuela, sought to avoid exclusion under section 98 of IRPA because of the exceptionally difficult conditions in Venezuela. I can do no better than to cite Justice Roy at paragraphs 17 to 18:
[17] There is no doubt that the RPD and the RAD found that the four [Shamlou] factors were satisfied. The applicant’s burden was to establish that these findings were not reasonable. This was not done. Instead, it is my view that the regime for protecting refugees subjected to persecution for any of the listed grounds, or for protecting persons who would personally be subjected to a danger of torture, or a risk of cruel and unusual treatment or punishment has been conflated with the social upheaval that Venezuela is currently facing. In fact, the applicant does not by any means allege being persecuted for any of the grounds listed in section 96 of the Act. Moreover, it is not claimed that he may qualify under section 97 of the Act. Instead, he complains about the extremely difficult situation currently facing residents of Venezuela. In my opinion, there is a conflation of two separate issues here. Mr. Fleurant does not deny that he is able to return to his country of residence; he does not deny that he is able to work there freely; he does not deny that he is able to study there; and he does not deny that he has full access to social services in his country of residence. He instead complains about the quality of life, as probably any Venezuelan national suffering the same shortages as the applicant could do.
[18] Therefore, the applicant is excluded under section 98 of the Act because his country of residence is accessible to him and he is able to work there, study there or obtain access to social services in the same way as citizens of Venezuela. In my opinion, the fact that there is a shortage of work or that social services have been reduced (which, in any case, was not proved) because of the problems the country is facing is not among the factors to be considered in the context of a refugee protection regime. The evidence shows that despite everything, when the RAD sought to establish whether the conditions of sections 96 and 97 could be met, it was forced to conclude that such was not the case. No persecution was demonstrated under section 96 (or even seriously alleged), or for that matter under section 97, which explicitly requires personal risk in order to benefit from it. It is worth reproducing section 97 here. As can be seen, the risk must be personalized, and the fear must concern personal attacks that are defined in this provision: [citation omitted]
[51] In the Applicant’s case, the RAD appropriately identified and applied the correct test under Zeng and Shamlou. Accordingly, the Applicant was excluded under section 98 of the IRPA because his country of residence is accessible to him and he is able to work there, study there, or obtain access to social services in the same way as citizens of Ukraine. Based on the record before it, it was open to the RAD to conclude that the Applicant had rights and obligations akin to those of a citizen in Ukraine. The RAD also reasonably assessed the Applicant’s risk upon his return to Ukraine. I cannot find that the RAD erred in either its assessment of the Article 1E exclusion or the risks presented by the Applicant.
[52] The Decision is justified in light of the legal and factual constraints that bear upon it. The Decision was responsive to the Applicant’s submissions and is coherent and rational in its analysis of the evidence and arguments provided. As such, the Decision is reasonable.
V. Conclusion
[53] The application for judicial review is dismissed.
[54] The parties do not propose any question for certification, and I agree that in these circumstances, none arise.
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