HECTOR IVAN SALAZAR VARGAS Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2024 FC 151

Date: 20240130Docket: IMM-9959-22 Citation: 2024 FC 151Ottawa, Ontario, January 30, 2024PRESENT: The Honourable Madam Justice HeneghanBETWEEN: HECTOR IVAN SALAZAR VARGASApplicant andTHE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS AND JUDGMENT [1] Mr. Hector Ivan Salazar Vargas (the "“Applicant”") seeks judicial review of the decision of the Immigration and Refugee Board,Refugee Protection Division (the "“RPD”").

In its decision, the RPD granted the application brought by the Minister of Public Safety andEmergency Preparedness, pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "“Act”")for cessation of the Applicant’s status as a Convention refugee. [2] The Applicant is a citizen of Colombia. He obtained refugee protection in Canada in 2006, on the basis of his fear of persecution bythe United Self Defences of Columbia.

He became a permanent resident of Canada in 2007. [3] The Respondent applied for cessation on the grounds that the Applicant had travelled on eight occasions to Colombia, using apassport issued by that country. [4] The Applicant submits that the destruction of his file, relating to his claim for protection, amounts to a breach of procedural fairness. [5] The Applicant argues that the RPD erred in ceasing his refugee status pursuant to paragraph 108(1)(

a) of the Act, rather than pursuantto paragraph 108(1)(e).

He also submits that the RPD failed to give due consideration to the "“compelling reasons”" exception set out insubsection 108(4) of the Act. [6] Finally, the Applicant argues that the RPD failed to make key factual findings before engaging in a state protection analysis. [7] For his part, the Minister of Citizenship and Immigration (the "“Respondent”") submits that the RPD committed no reviewable error.He argues that the RPD properly allowed the cessation application pursuant to paragraph 108(1)(a), in light of the Applicant’s evidenceat the cessation hearing.

The RPD, in weighing that evidence, concluded that the Applicant had not rebutted the presumption that inreturning to Colombia, he intended to reavail of the protection of that country. [8] The Respondent further argues that the RPD reasonably considered the country condition evidence and reasonably found that theApplicant’s agents of persecution remained active in Columbia.

Therefore, the basis of the Applicant’s claim for protection had notceased. [9] Lastly, the Respondent submits that subsection 108(4) does not apply because the RPD did not find that the basis of the Applicant’sfear of persecution still exists. [10] Issues of procedural fairness are reviewable on the standard of correctness; see the decision in Canada (Citizenship andImmigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339 (S.C.C.). [11] The merits of the decision are reviewable on the standard of reasonableness, following the instructions in Canada (Minister ofCitizenship and Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 S.C.R. 653 (S.C.C.). [12] 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 constraints that bearon the decision”"; see Vavilov, supra, at paragraph 99. [13] I agree with the Respondent that the unavailability of the RPD file respecting his claim for protection does not give rise to a breachof procedural fairness.

That file was the basis upon which refugee status was granted. [14] When it recognized the Applicant as a Convention refugee, the RPD clearly accepted his evidence about a fear of persecution in hiscountry of nationality. A different issue arose upon the cessation application.

In my opinion, the evidence from the earlier hearing is notrelevant to the cessation application. [15] I am satisfied that the RPD understood the issues before it and reasonably considered both the evidence of the Applicant and thedocumentary evidence before it. [16] The evidence shows that the Applicant re-entered Columbia several times, using his Columbian passport.

These travels clearly putin play the question of reavailment and the RPD squarely addressed that issue. [17] In my opinion, the RPD’s decision meets the reasonableness standard. [18] The Applicant has not shown a breach of procedural fairness nor any other reviewable error by the RPD, and this application forjudicial review will be dismissed.

[19] The Applicant proposed the following questions for certification: 1. Is it an error in law for the RPD to lump together and conflate s. 108 (1) (

e) cessation analysis, which arises in this case asa result of change in country conditions and s. 108(1) (

a) ravailment [sic] legal test which was also considered by RPD in thecase at bar? 2. Does it amount to abuse of process and breach of principles of fairness and natural justice when the Minister in a cessationof refugee status case commenced under IRPA s. 108 (1) (

a) fails to preserve and produce the respondent’s Conventionrefugee’s RPD file and fails to adduce it in evidence when requested by the respondent in cessation case and where the issueraised is whether the respondent was granted refugee status under IRPA s. 96 or 97 is pertinent due to the respondent’sdefence and claim that his Convention refugee status ceased pursuant to change of country conditions under IRPA s. 108 (1)(

e) and that his refugee claim was allowed under IRPA s 97 and not under IRPA s 96? 3. Does the fact that for permanent residents of Canada there is no available mechanism provided by IRPA in order to seekconfirmation of change of country conditions in their country of origin has [sic] to be considered and taken into account byRPD in cessation cases? [20] The Respondent opposes certification of any question. [21] Subsection 74(

d) of the Act sets out the test for certifying a question, that is a question that raises a serious question of generalimportance that is dispositive of the case, as discussed in Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 2004 FCA89 , 318 N.R. 365 (F.C.A.). [22] I agree with the position put forward by the Respondent. The adjudication of this application for judicial review turns on the factspresented and the application of the law. No question will be certified. [23] I note that the Applicant incorrectly describes the Respondent as the "“Minister for Citizenship and Immigration”".

The style ofcause will be amended with immediate effect to describe the Respondent as the "“Minister of Citizenship and Immigration”". JUDGMENT IN IMM-9959-22 THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There is no question for certification. The styleof cause is amended to show the "“Minister of Citizenship and Immigration”" as the Respondent. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9959-22STYLE OF CAUSE: HECTOR IVAN SALAZAR VARGAS v.

THE MINISTER OF CITIZENSHIP ANDIMMIGRATIONPLACE OF HEARING: TORONTO, ONTARIODATE OF HEARING: SEPTEMBER 13, 2023REASONS AND JUDGMENT: HENEGHAN J.DATED: january 30, 2024 APPEARANCES: Milan Tomasevic For The ApplicantRachel Beaupré For The Respondent SOLICITORS OF RECORD: Milan Tomasevic Barrister & Solicitor Mississauga, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent