Docket: IMM-5479-23
Citation: 2024 FC 1806
Ottawa, Ontario, November 14, 2024
PRESENT: The Honourable Mr. Justice Favel
BETWEEN: |
NASIR SHARIF BHATTI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Nasir Sharif Bhatti [Applicant] seeks judicial review of a March 31, 2023 decision [Decision] of the Refugee Protection Division [RPD] in which the RPD allowed an application of the Minister of Public Safety and Emergency Preparedness Canada [Minister] to vacate the Applicant’s refugee status. The Minister made the application pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The application for judicial review is allowed. The Decision is unreasonable in the application of the subjective intent part of the test for re-availment as discussed below.
II. Background
[3] On June 8, 2017, the RPD accepted that the Applicant faced persecution from the Tehreek-e-Khatam-e-Nabuwat, a non-state actor, due to his Ahmadiyyah religious beliefs. Additionally, the RPD accepted that the Applicant’s uncle threatened to kill him for refusing to follow through with an arranged marriage. Accordingly, the Applicant was granted refugee protection status. On April 1, 2019, the Applicant became a permanent resident of Canada.
[4] In 2019, the Deputy Consul General of Pakistan in Toronto granted the Applicant an emergency travel document extending his expired Pakistani passport until January 2020 so he could visit his ailing mother. The Applicant was instructed to renew his passport during his stay in Pakistan, which he did. The Applicant used his new passport to return to Pakistan in 2020 and 2021.
[5] The dates and reasons for the Applicant’s travel to Pakistan were as follows: (1) December 19, 2019 to January 12, 2020 to visit his ailing mother; (2) November 30, 2020 to February 12, 2021 to visit his ailing mother and to get married; and (3) December 7, 2021 to March 20, 2022 to visit his ailing mother. The Applicant spent a total of 204 days in Pakistan.
III. Decision
[6] On April 3, 2023, the RPD allowed the Minister’s cessation application. The three-part test of voluntariness, intention and re-availment was applied as guided by the United Nation’s High Commission on Refugees Handbook [UNHCR Handbook]. The RPD decision sets out the following findings.
[7] First, the Applicant acted voluntarily. He was not compelled to return to Pakistan. The Applicant’s presence in Pakistan was not required and did not constitute exceptional circumstances as his ailing mother received physical assistance from his father and siblings. The Applicant could continue to assist his mother through their daily conversations while he was in Canada (Tung v Canada (Citizenship and Immigration), 2018 FC 1224 at paras 41-46 [Tung]; Jing v Canada (Citizenship and Immigration), 2019 FC 104 at paras 24-28 [Jing]). If the Applicant feared Tehreek-e-Khatam-e-Nabuwat, it would be reasonable for him to find other ways to support his mother without endangering his own life. The Applicant had the means and resources to meet his mother in an alternative safe country, avoiding return to Pakistan.
[8] Second, the Applicant’s intent is established. He failed to rebut the presumption of re-availment with credible and trustworthy evidence. The Applicant travelled to his country of persecution three times for a total of 204 days. This indicates a lack of subjective fear and intention to re-avail himself of Pakistan’s protection.
[9] Third, by using Pakistani passports the Applicant obtained re-availment of Pakistan’s protection. The Applicant was relying upon the diplomatic protection of these national travel documents and by using them without incident he actually re-availed himself of the protection of Pakistan.
[10] Finally, cessation clauses are not phrased in the future tense. Though the RPD must consider actions taken by the Applicant after he was granted Convention Refugee Status, there is no such requirement to assess what may happen to the Applicant in the future. Voluntarily re-availment negates the refugee’s previous claim that they are “unable or unwilling”
to avail themselves of the protection of their country of nationality (Balouch v Canada (Public Safety and Emergency Preparedness), 2015 FC 765 at para 20). Accordingly, future risk is not a relevant consideration in the cessation analysis.
IV. Issues and Standard of Review
[11] The Applicant raised the following issues:
1. Did the RPD err in its interpretation of section 108 of IRPA?
2. Did the RPD err in its consideration of case law?
3. Did the RPD reasonably consider the evidence in the test for cessation?
4. Did the RPD err in its consideration of future risk?
[12] As set out above, the determinative issue on this application is the RPD’s consideration of the test for cessation. This judgement and reasons only address the determinative issue.
[13] I agree with the parties that the standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). This case does not engage any of the exceptions set out by the Supreme Court of Canada in Vavilov; therefore, the presumption of a reasonableness standard of review is not rebutted (at paras 16-17).
V. Analysis on the RPD’s Consideration of the Test for Cessation
(1) Applicant’s Position
(a) Voluntariness
[14] The RPD erred by narrowing their focus to whether the Applicant’s presence in Pakistan was necessary, rather than considering the compelling reasons for travel which were beyond his control.
[15] First, the RPD based its determination on a finding that the Applicant could continue supporting his mother through their daily conversations. This contradicted the evidence before the RPD that despite daily conversations his mother’s health continued to decline. There was no evidence the WhatsApp communications could do more than they had to that point.
[16] Second, the RPD speculated that the Applicant had the means to meet his mother in an alternative safe country. Alternative travel availability must be evaluated in light of the evidence (Mayell v Canada (Citizenship and Immigration), 2018 FC 139 at para 15). The RPD did not consider evidence showing the Applicant’s mother had been bedridden since approximately 2014, rendering alternative travel unavailable.
[17] Third, the RPD mentioned the Applicant’s compelling reasons for travel, such as the bond with his mother and her deteriorating health, but did not meaningfully grapple with those reasons (Singh v Canada (Citizenship and Immigration), 2022 FC 1481 at para 34). This Court held that “[a]bsent an explanation or pressing need, however, re-availment is considered voluntary[.]”
This Court draws a distinction between reasons beyond the refugee’s control such as caring for a sick mother, and circumstances that do not compel return such as visiting on a holiday or investigating business opportunities (El Kaissi v Canada (Citizenship and Immigration), 2011 FC 1234 at para 29).
(b) Subjective Intent
[18] The RPD did not engage an individualized assessment of the evidence. The RPD is required to review the non-exhaustive factors identified in Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 [Camayo], when determining subjective intent to re-avail (Omer v Canada (Immigration, Refugees and Citizenship), 2022 FC 1295 at para 21; Ahmad v Canada (Citizenship and Immigration), 2023 FC 8 at paras 3, 47; Camayo at para 66).
[19] The RPD did not discuss the severity of the consequences cessation of refugee protection will have for the protected individual. The RPD did not explain how precautionary measures taken by the Applicant while in Pakistan, such as hiring security guards and staying indoors, supported a finding of intent to re-avail state protection. Though finding the Applicant was “cognizant of potential restrictions posed depending on his status within the country of residence”
, the RPD did not demonstrate how this related to the Applicant’s intent to re-avail. The RPD cited a lack of incident while the Applicant was entering and leaving Pakistan. Likewise, they failed to explain how this had any bearing on establishing subjective intent to re-avail.
[20] Furthermore, the RPD did not explain how it could properly assess the Applicant’s subjective fear. The Minister’s Disclosure contained the Personal Information Form for an individual other than the Applicant. Without reference to the basis on which the Applicant was granted Convention Refugee status, how could the RPD determine the Applicant’s subjective fear and intent? No explanation was given.
(c) Actual Re-availment
[21] The RPD erred in failing to consider whether the Applicant had actually obtained state protection from Pakistan. In Din v Canada (Citizenship and Immigration), 2019 FC 425, this Court discussed what the RPD must consider in determining whether re-availment of state protection has occurred:
[45] This does not, however, answer the issue raised in this case that re-availment required the RPD to consider whether the Applicant had actually obtained state protection in Pakistan when he allegedly re-availed himself. Cessation and voluntary re-availment under s. 108(1)(a) do not occur unless the Applicant has actually obtained state protection in Pakistan. So this case is not about whether, given cessation under s. 108(1)(a), was the RPD obliged to consider the Applicant’s profile and future risk…. Even if the Applicant intended to re-avail and so had no subjective fear (s. 96), there was still the possibility that, when he returned to Pakistan, he was at risk under s. 97 of the Act which does not require subjective fear. See Rajadurai v Canada (Citizenship and Immigration), 2013 FC 532 at para 38. The RPD simply did not address these issues.
[22] The Decision’s underlying rationale sees a passport as conferring diplomatic protection. In this logic, an absence of persecution incidents establishes actual re-availment of country of origin protection. However, the RPD did not conduct an individualized assessment. Furthermore, the RPD did not consider whether the Applicant, as an adherent to the Ahmadiyyah faith, could actually obtain Pakistani state protection. A finding of actual re-availment cannot be justified in light of the Applicant’s self-protection actions.
(2) Respondent’s Position
(a) Voluntariness
[23] The RPD did not unreasonably focus on whether the Applicant’s presence in Pakistan was necessary. Rather, the RPD acknowledged the Applicant’s mother was ill and that they shared a special bond. They also noted evidence showing his father cared for her daily needs, his siblings were able to visit her, and the Applicant could maintain daily communication. This determination is consistent with the jurisprudence (Naqvi v Canada (Citizenship and Immigration), 2024 FC 365 at paras 28-30 [Naqvi]; Abadi v Canada (Citizenship and Immigration), 2016 FC 29 at para 18).
[24] The RPD also noted that the Applicant could have arranged to meet his mother in an alternative safe country to avoid returning to Pakistan, a fact the Applicant now disputes, yet acknowledged at the RPD hearing.
(b) Subjective Intent
[25] As for protective measures, the RPD noted the Applicant’s father hired a private security guard. The RPD weighed this fact against the evidence that despite his alleged fear, the Applicant chose to travel to Pakistan three times. Additionally, while in Pakistan, the Applicant left the family home on several occasions without incident: he successfully flew from Karachi to Islamabad for his wedding; he traveled outside the country with his wife; and he admitted to taking his mother to her medical appointments. Furthermore, the Applicant indicated his mother’s illness was not the only reason he returned to Pakistan. He cites the purpose of one trip as, “I got engaged, my parents were helping me look for girls for arranged marriage and I was called to see”
. He did all this despite asserting the agent of persecution is active throughout Pakistan, noted in the decision granting refugee status.
(c) Actual Re-availment
[26] The evidence that the Applicant repeatedly traveled to Pakistan using his Pakistani passport is uncontroverted. He even reapplied for a new Pakistani passport once it expired. As this Court has noted, the presumption of re-availment is particularly strong where a refugee obtains and travels on a passport issued by their nation of origin to return to that country (Veerasingam v Canada (Citizenship and Immigration), 2024 FC 639 at paras 14-15, 21 [Veerasingam]; Kuoch v Canada (Citizenship and Immigration), 2015 FC 979 at paras 25-29; Naqvi at para 33).
(3) Conclusion
(a) Voluntariness
[27] The RPD reasonably determined the Applicant’s travel was voluntary.
[28] I agree with the Respondent, the RPD finding a lack of exceptional circumstances is consistent with case law. Camayo provides that “travel to the country of nationality for a compelling reason such as the serious illness of a family member [has] a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends”
(at para 84). The RPD considered the purpose of the trip, detailing the Applicant’s testimony concerning the relationship with his mother, the state of her health, and the support he provided while in Pakistan.
[29] The RPD cited the principle from Tung and Jing that addressing the needs of a relative does not constitute “exceptional circumstances”
if one’s physical presence is not necessary. The RPD found the Applicant’s return was not necessary. He had the option to motivate his mother during their daily conversations, he had the financial means and resources to meet his mother in an alternative safe country, and there is no evidence of coercion that forced or compelled his return. The RPD did not ignore the evidence.
(b) Subjective Intent
[30] The RPD unreasonably assessed the Applicant’s subjective intent. The key issue raised concerns the RPD’s understanding of the agent of persecution and its lack of engagement with the Applicant’s basis of claim for refugee status.
[31] The Applicant is correct that his refugee claim was based on two unrelated grounds, the Tehreek-e-Khatam-e-Nabuwat and the Applicant’s uncle. The RPD only addressed Tehreek-e-Khatam-e-Nabuwat as an agent of persecution. They did not mention the Applicant’s uncle.
[32] At the RPD hearing, the RPD member asked a clarifying question from the Applicant’s testimony, specifically whom the Applicant feared in Pakistan. The Applicant provided an explanation that Tehreek-e-Khatam-e-Nabuwat became an agent of persecution due to his Ahmadiyya faith. He mentioned his uncle but provided less information about him as an agent of persecution in his testimony. However, the Applicant’s counsel submissions before the RPD noted a blood feud with the uncle. Further information before the RPD concerned the basis for the Applicant’s refugee claim. The decision granting refugee status discussed the Applicant’s uncle threatening and targeting him for an honour killing.
[33] The RPD’s analysis of subjective intent, guided by Camayo (at para 84), demonstrated awareness of the difference between state and non-state actors. However, the lack of discussion regarding the second agent of persecution calls into question whether the RPD was alert and sensitive to the basis for the Applicant’s refugee claim (Vavilov at para 128). The RPD discusses factors such as precautionary measures, identifying the agent of persecution as a non-state actor. However, I agree with the Applicant that it seems difficult to assess subjective fear and intent without acknowledging the full context of two distinct agents of persecution. Given the severe impact of cessation proceedings on the Applicant, the RPD must ensure it reflects these stakes in its Decision and provides responsive justification (Vavilov at para 133).
(c) Actual Re-Availment
[34] The RPD reasonably considered actual re-availment.
[35] The Applicant’s submissions concern whether the Applicant obtained “state”
protection. However, this Court has confirmed the third element of the test requires demonstrating diplomatic protection and not state protection (Veerasingam at para 21; Naqvi at para 33). In this matter, the RPD determined the Applicant had diplomatic protection from Pakistan by obtaining and using two passports issued by Pakistan for three trips, remaining in his country of alleged persecution for a total of 204 days.
[36] I disagree with the Applicant that the RPD failed to conduct an individualized assessment of the evidence before it.
[37] In its analysis, the RPD considered guidance from the UNHCR Handbook on actual availment, and the Cessation Clauses: Guidelines on their Application, UNHCR, Geneva (April 1999) document, particularly paragraph 7, concerning “Voluntary Re-availing of the Protection of the Country of Nationality”
. The RPD considered the Minister’s submissions that by using two Pakistani passports the Applicant relied upon the diplomatic protection that these national travel documents accorded to him as the bearer. Furthermore, the Applicant re-availed himself of that protection by entering and exiting his country of nationality three times.
[38] The RPD noted the text inside the cover of the Pakistani passports:
“Ministry of the Interior, Government of Pakistan requires and requests in the name of The President, Islamic Republic of Pakistan all those to whom it may concern to allow the bearer freely without let or hindrance to afford the bearer such assistance and protection as may be necessary.”
[39] The RPD determined the Applicant’s actions indicate a lack of subjective fear required for protection under section 96. The RPD noted the lack of necessity or exceptional circumstance for the trips, and considered the Applicant’s testimony demonstrating: lack of obstacle entering or exiting Pakistan; and lack of obstacle remaining in the city of Karachi, where he resided prior to initiating his refugee claim. The RPD acknowledged his non-state agent of persecution as active throughout Pakistan, that he was targeted in Karachi, and the precautionary measures taken.
[40] The RPD conducted an individualized assessment of the evidence before it.
VI. Conclusion
[41] For the reasons above, this application for judicial review is allowed. The RPD failed to render a transparent, intelligible and justified decision on the Applicant’s subjective intent by failing to engage with the Applicant’s agents of persecution.
[42] The parties do not propose a question for certification and I agree that none arises.
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