Cerna v. Canada (Citizenship and Immigration), 2015 FC 1074 : Refugee Cessation Decision Overturned Because Board Did Not Properly Consider the Applicant’s Intent

The Federal Court reviewed a decision ending the applicant’s refugee protection because he had repeatedly travelled back to Peru and renewed his Peruvian passport.

The Board found that these actions showed that he had reavailed himself of Peru’s protection.

The Court agreed that the Board used the correct legal test, but found that its conclusion was unreasonable because it failed to properly consider the applicant’s subjective understanding and intentions.

Key Principle

Reavailment requires consideration of three elements:

1. the person acted voluntarily;
2. the person intended to obtain the protection of their country of nationality; and
3. the person actually obtained that protection.

Renewing or obtaining a passport from the country of nationality creates a rebuttable presumption of an intention to reavail oneself of that country’s protection.

Background

Mr. Cerna received refugee protection in Canada in 2008 based on persecution in Peru related to his sexual orientation and became a permanent resident the following year.

He later renewed his Peruvian passport and travelled to Peru several times for reasons including visiting his parents, obtaining educational documents, and having cosmetic surgery.

The Minister subsequently sought cessation of his refugee protection on the basis that he had voluntarily reavailed himself of Peru’s protection.

Court Findings

The Federal Court found that the Board correctly applied the legal presumption arising from the renewal and use of a national passport.

However, the Board failed to meaningfully consider Mr. Cerna’s evidence about why he believed he could safely travel to Peru.

Mr. Cerna testified that he believed his Canadian permanent resident status gave him security and protection and that he did not understand that travelling back to Peru could place his refugee status at risk.

The Court found that this evidence was directly relevant to whether he actually intended to reavail himself of Peru’s protection.

Because the Board did not analyze that subjective understanding when deciding whether the presumption had been rebutted, its conclusion was unreasonable.

Outcome

The Federal Court allowed the application for judicial review and returned the cessation matter to a different panel for reconsideration.

The case shows that passport renewal and return travel are highly important in cessation cases, but the decision-maker must still examine the refugee’s actual intention and understanding of the consequences of those actions.

Case Citation:

Cerna v. Canada (Citizenship and Immigration), 2015 FC 1074 CanLII