2023 FC, 2023 FC 1303

Date: 20230927 Docket: IMM-3093-22 Citation: 2023 FC 1303 Montreal, Quebec, September 27, 2023 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: JOHNSON ADEGBAYI ADEBANJO Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS AND JUDGMENT [ 1 ] Mr.

Johnson Adebanjo (the “Applicant”) seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the “RPD”), allowing the application of the Minister of Citizenship and Immigration (the “Respondent”), pursuant to subsection 108(2) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “ Act ”). In that application, the Respondent sought a determination that the refugee protection granted to the Applicant had ceased. [ 2 ] The Applicant, a citizen of Nigeria, received refugee protection in Canada on February 11, 2009.

He was granted permanent residence status on December 7, 2009. [ 3 ] On December 18, 2015, the Applicant was convicted of the offence of possession of counterfeit marks. This conviction led to a hearing before the Immigration and Refugee Board, Immigration Division which issued a removal order. Upon appeal to the Immigration and Refugee Board, Immigration Appeal Division (“IAD”), the removal order was found to be legally valid and a plea for relief on humanitarian and compassionate grounds was dismissed.

The IAD issued its decision on March 19, 2019. [ 4 ] In the meantime, the Applicant obtained Nigerian passports on three occasions. He was issued a passport by the passport office in Osogbo, Nigeria on March 1, 2011. He received a second passport from the Nigerian High Commission in Ottawa on March 15, 2016. Finally, he testified that he was issued a new passport from the Nigerian Embassy in Ottawa in August 2021. [ 5 ] The Applicant travelled to Benin, using a passport issued by the Nigerian government.

He travelled on April 22, 2013, and December 7, 2016. [ 6 ] The Respondent filed his " “cessation” " application on October 13, 2020. A " “virtual” " hearing proceeded before the RPD on February 3, 2022. The RPD issued its decision on March 9, 2022. [ 7 ] In its decision, the RPD addressed paragraph 108(1) (

a) of the Act which provides as follows: Rejection 108(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (

a) the person has voluntarily reavailed themself of the protection of their country of nationality; " " Rejet 108(1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants :

a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité; " " [ 8 ] The RPD considered the relevant passages of the United Nations’ High Commission Handbook on Procedures and Criteria for Determining Refugee Status . At paragraph 9 of its decision, the RPD referred to the test for reavailment as follows: 118. A refugee who has voluntarily re-availed himself of national protection is no longer in need of international protection. He has demonstrated that he is no longer “unable or unwilling to avail himself of the protection of the country of his nationality.” 119. This cessation clause implies three requirements:

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;

c) re-availment: the refugee must actually obtain such protection.

[9]The RPD acknowledged that the use of a passport, issued by the country against whom refugee status was granted, gives rise toa rebuttable presumption that the user of such passport had voluntarily reavailed of the protection of that country. It found that theApplicant had failed to rebut the presumption. [10]The Applicant now argues that the RPD’s decision is unreasonable. Among other things, he submits that the RPD failed toaddress the issues set out in paragraph 84 of the decision of the Federal Court of Appeal in Canada (Citizenship and Immigration)v.

Galindo Camayo, 2022 FCA 50. [11]The Respondent submits that the RPD reasonably determined that the Applicant had failed to rebut the presumption ofreavailment. [12]The decision of the RPD is reviewable on the standard of reasonableness, following the decision in Canada (Minister ofCitizenship and Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 S.C.R. 653 (S.C.C.). [13]In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness —justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraintsthat bear on the decision”"; see Vavilov, supra at paragraph 99. [14]I am satisfied that the RPD reasonably found that the Applicant acted voluntarily in applying for and using a Nigerian passportfor his travels to Benin. [15]The Applicant argues that the RPD unreasonably "“conflated”" the elements of voluntariness and intention, and ignored theguidance of the Federal Court of Appeal in Camayo, supra, to consider the subjective perspective of a person who may be indanger of losing protected person status.

He notes that his ignorance of Canadian immigration law, including travelling upon apassport issued by his country of nationality, undermines any reasonable consideration of his intentions. [16]For his part, the Respondent submits that the Applicant’s travel history and possession of counterfeit marks in the name of theCanada Border Service Agency imply a high degree of knowledge of immigration processes in Canada. [17]I am not persuaded by the argument that the RPD failed to assess the Applicant’s evidence, including the evidence of hissubjective intention.

It appears that the RPD inferred the Applicant’s intention from his actions, that is in obtaining passports fromNigeria and using them for international travel. [18]The RPD was aware of the guidance set out in the Handbook for assessing reavailment and the necessary elements of the testfor reavailment. In my opinion, the recent decision of the Federal Court of Appeal in Camyao, supra particularizes those elementsbut does not create a new legal test. [19]I refer to the recent decision of Justice Brown in Ali v.

Canada (Citizenship and Immigration), 2023 FC 383 at paragraphs 45to 50, in dealing with the issue of "“intention”". I note in particular paragraph 47, which provides in part as follows: [47] … Intention is primarily a factual determination and lies within the purview of the trier of fact. The tried [sic] of fact inthis case are the RPD and RAD and in criminal cases, for example it is the jury if there is one, or the trial judge if there is nojury. The rules of evidence in terms of determining intention are generally the same across all fields of law, absentlegislative or judicial intervention.

In this connection, it is well established that a party’s intent may be determined based onthe inference a trier of fact may draw from the evidence that people “intend the natural and probable consequences of theiractions.” This is a rule of evidence and a matter of common sense as stated by Cory J for the Supreme Court of Canada in Rv Seymour, (SCC), [1996] 2 SCR 252 at paragraph 19: [19] When charging with respect to an offence which requires proof of a specific intent it will always benecessary to explain that, in determining the accused's state of mind at the time the offence was committed,jurors may draw the inference that sane and sober persons intend the natural and probable consequences of theiractions.

Common sense dictates that people are usually able to foresee the consequences of their actions.Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonableto infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as toproduce certain predictable consequences, it may be inferred that the person intended those consequences. [Emphasis added] [20]The Applicant’s arguments about the RPD "“conflating”" the issue of voluntariness with intention to reavail are unclear.

In myopinion, the RPD reasonably considered the voluntariness of the Applicant’s actions in obtaining a Nigerian passport and using itfor international travel. [21]The Applicant challenges the finding of the RPD that he travelled at least once to Nigeria. That finding is based upon the factthat a passport was issued to the Applicant in Nigeria on March 11, 2011. [22]The RPD found that the Applicant travelled several times internationally, using a Nigerian passport. This means that heobtained the benefit of diplomatic protection from his use of such passport.

Upon the basis of the evidence presented, I am satisfiedthat the RPD made reasonable findings about the Applicant’s use of the Nigerian passport. [23]In the result, the Applicant has failed to show a reviewable error by the RPD. There is no basis for judicial intervention and theapplication for judicial review will be dismissed. There is no question for certification.

JUDGMENT in IMM-3093-22 THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There is no question for certification. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3093-22 STYLE OF CAUSE: JOHNSON ADEGBAYI ADEBANJO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 3, 2023 REASONS AND JUDGMENT: HENEGHAN J. DATED: September 27, 2023 APPEARANCES : Gavin MacLean FOR THE APPLICANT Gregory George FOR THE RESPONDENT SOLICITORS OF RECORD : Gavin MacLean Immigration Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT