Giasuddin v. Canada (Citizenship and Immigration)

Giasuddin v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2023-05-23
Neutral citation
2023 FC 711
File numbers
IMM-4673-22
Decision Content
Date: 20230523
Docket: IMM-4673-22
Citation: 2023 FC 711
Ottawa, Ontario, May 23, 2023
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
MD GIASUDDIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision dated May 6, 2022 [Decision], of the Refugee Protection Division [RPD] finding the refugee protection that had been granted to MD Giasuddin [applicant] had ceased on the ground that he had voluntarily reavailed himself of the protection of his country of nationality, under section 108 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The applicant asserts that the RPD erred in assessing whether he had rebutted the presumption of reavailment created by obtaining and using a passport from his country of nationality, and travelling back on many occasions. He also asserts that the RPD erred in finding that he had demonstrated a change in circumstances such that he would no longer face a serious possibility of persecution.
[3] In my view, the applicant does not demonstrate a reviewable error and the application should be dismissed. While the applicant identifies some issues with the Decision, these are minor and his allegations largely amount to disagreements with how the RPD weighed the evidence. These are not circumstances for a role to be played by a reviewing court. The RPD’s decision that the applicant had not established a change in circumstances in his country of nationality were reasonable and responsive to the evidence he adduced.
I. The Facts [4] The applicant is a 65-year-old man from Bangladesh. He has lived in Canada for 20 years.
[5] The applicant had been actively involved with the Awami League [AL], a major political party in his home village in Bangladesh, since 1982. After the Bangladesh Nationalist Party [BNP] was elected in 2001, the applicant began to experience persecution from the BNP. In April 2002, the applicant was arrested by the police. He was held for 30 days without charge and harassed while in custody. The applicant then went into hiding. He fled Bangladesh after the police attempted to arrest him again in August 2002.
[6] The applicant claimed refugee protection in Canada fearing persecution from the BNP. On June 25, 2004, the RPD determined the applicant was a Convention Refugee. On May 3, 2006, the applicant became a permanent resident.
[7] In 2006, the BNP stepped down from power in Bangladesh and a caretaker government took interim control of the country. In 2008, AL was elected and has been in power since.
[8] After the BNP stepped down, the applicant returned to Bangladesh on five occasions:
in July-August 2007, for two and a half weeks, to attend his daughter’s wedding;
in November 2010, for one month, to visit his elderly parents in Dhaka;
in July 2012, for one month, to see his parents in Dhaka and to marry his current wife in Chittagong;
in November 2015 to January 2016, for two months, to see his wife in Dhaka and Chittagong and to visit his parents’ graves in his home village; and
in November 2017 to February 2018, for three months, to visit his wife in Dhaka and Chittagong as he had been unable to sponsor her to come to Canada.
[9] The applicant travelled using a Bangladeshi passport, which he had renewed on four occasions since arriving in Canada: in 2006, 2010, 2013, and 2018.
II. Legislative scheme [10] Under paragraph 108(1)(a) of the IRPA, a claim for refugee protection shall be rejected if “the person has voluntarily reavailed themself of the protection of their country of nationality”. Paragraph 108(1)(e) of the IRPA provides that a claim for refugee protection shall be rejected if “the reasons for which the person sought refugee protection have ceased to exist.”
[11] The relevant portions of section 108 of IRPA are as follows:
Cessation of Refugee Protection
Perte de l’asile
Rejection
Rejet
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:
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) the person has voluntarily reavailed themself of the protection of their country of nationality;
a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité;
…
[…]
(e) the reasons for which the person sought refugee protection have ceased to exist.
e) les raisons qui lui ont fait demander l’asile n’existent plus.
Cessation of refugee protection
Perte de l’asile
(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).
(2) L’asile visé au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1).
Effect of decision
Effet de la décision
(3) If the application is allowed, the claim of the person is deemed to be rejected.
(3) Le constat est assimilé au rejet de la demande d’asile.
[12] Three observations may be offered at this stage. First, there is no constitutional challenge of the provisions being applied in this case. It is understood that the consequences that flow from section 108 are different, depending on the paragraph invoked by the Minister. The loss of refugee protection under paragraph 108(1)(e) does not result in a loss of permanent resident status, with attendant consequences. On the other hand, by operation of law, the permanent resident status is lost if a refugee reavails himself of the protection of his country of nationality. It is subsection 46(1)(c.1) that creates such an outcome:
Loss of Status
Perte du statut
Permanent resident
Résident permanent
46 (1) A person loses permanent resident status
46 (1) Emportent perte du statut de résident permanent les faits suivants :
…
[…]
(c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
c.1) la décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant, sur constat des faits mentionnés à l’un des alinéas 108(1)a) à d), la perte de l’asile;
…
[…]
Although the applicant argues that it is paragraph 108(1)(e) of the IRPA that should result in the cessation of refugee protection, he conceded at the hearing of this case that the two provisions, paragraphs 108(1)(a) and (e), are not mutually exclusive.
[13] Second, there is a fundamental difference between paragraph 108(1)(e) and paragraphs 108(1)(a) to (d). The difference is put eloquently in Ravindi v Canada (Citizenship and Immigration), 2020 FC 761, [2021] 3 FCR 177:
[46] Paragraph 46(1)(c.1) of the IRPA states that a person loses permanent resident status “on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d).” The omission of paragraph 108(1)(e) from this provision means that a person does not lose permanent resident status on a final determination that their refugee protection has ceased on that ground. However, paragraph 46(1)(c.1) does not say that a person loses permanent resident status “on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d) unless it is also found to have ceased for the reason described in paragraph 108(1)(e).” The same is true of inadmissibility under subsection 40.1(2) of the IRPA. Further, there does appear to be a principled basis for treating cessation under paragraph 108(1)(e) differently. Unlike the grounds set out in paragraphs 108(1)(a) to (d), under paragraph 108(1)(e), refugee protection ceases even though the person did not do anything to bring about this result. This rationale arguably loses its force when refugee protection is lost not only because of changed circumstances but also because of something the person did.
[Emphasis in original]
[14] Third, as can be seen from subsection 108(2), it is the Minister who takes the initiative as he may ask the RPD to determine that the refugee protection has ceased. In this case, paragraph 108(1)(a) was alleged to be applicable as the Minister claimed that Mr. Giasuddin did something: he reavailed himself of the protection of his country of origin through his behaviour, particularly by renewing his Bangladeshi passport four times to go back to his country of nationality five times. It follows that the issue before the Court is whether the conditions for reavailment were met and the RPD provided adequate reasons in reaching the conclusion that the Minister had met his burden under paragraph 108(1)(a). In the case at hand, Mr. Giasuddin also argues that paragraph 108(1)(e) should be preferred.
III. Issues and standard of review [15] The applicant raises the following issues on this application:
Did the RPD reasonably assess whether the applicant had rebutted the presumption that he intended to reavail himself of the protection of Bangladesh?
Did the RPD reasonably assess the nature of the protection contemplated by paragraph 108(1)(a) of IRPA?
Did the RPD reasonably assess whether the reasons for the applicant’s claim for refugee protection has ceased to exist?
[16] The parties assert, and I agree, that the standard of review for each issue is reasonableness. A standard of reasonableness is applied to issues concerning the interpretation and application of the law of cessation under section 108 of the IRPA to the facts of the matter (Siddiqui v Canada (Citizenship and Immigration), 2016 FCA 134 at para 11).
[17] A reasonable decision is “based on an internally coherent and rational chain of analysis” that is “justified in relation to the facts and law that constrain the decision maker” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov] at paras 85-86; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900 at paras 2, 31). A decision will be reasonable if, when read as a whole and taking into account the administrative setting, it bears the hallmarks of reasonableness that are justification, transparency, and intelligibility (Vavilov at paras 91-95, 99‑100). Where the impact of a decision on an individual’s rights and interests is severe, the reasons must reflect the stakes and the Board’s duty to explain its decision increases (Vavilov at para 133).
[18] Thus, both the outcome and the decision-making process are reviewable on a reasonableness standard (Vavilov at paras 15 and 83). This Court’s task is to develop an understanding of the RPD’s reasoning in order to assess the reasonableness of the decision. Given that the reasons communicate the rationale of the decision, the reviewing court will consider not only the outcome, but also the decision-making process, that is whether the decision is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). However, the reviewing court does not seek to substitute itself for the administrative decision maker; it rather adopts a posture of respect and starts from the principle of judicial restraint (Vavilov at paras 13, 14, 85, 125).
IV. The RPD decision [19] In August 2018, the Minister applied for the applicant’s refugee protection to cease, alleging that he had voluntarily reavailed himself of the protection of Bangladesh under paragraph 108(1)(a) of the IRPA, by taking the positive step of having renewed his Bangladeshi passport and returning to Bangladesh.
[20] The applicant did not dispute that he had returned to Bangladesh on the five occasions; rather, he explained the circumstances of the visits, and claimed that he thought he needed the passport as an identity document and to manage his remaining affairs in Bangladesh. He also submitted that it would be more appropriate for the RPD to assess cessation under paragraph 108(1)(e) of the IRPA on the ground that the reasons he had claimed refugee protection had ceased to exist.
[21] On May 6, 2022, the RPD issued its Decision, determining that the applicant had voluntarily reavailed himself of the protection of Bangladesh.
[22] The RPD chose to consider also the application of paragraph 108(1)(e), instead of focusing solely on the alleged reavailment raised by the Minister under paragraph 108(1)(a) (Canada (Citizenship and Immigration) v Al‑Obeidi, 2015 FC 1041; Tung v Canada (Citizenship and Immigration), 2018 FC 1224). It is unclear to me why the RPD felt it had to consider both grounds. Subsection 108(2) speaks of an application by the Minister for the refugee protection to cease “for any of the reasons described in subsection (1)”. Moreover, subsection 108(1) speaks in terms of “a claim for refugee protection shall be rejected … in any of the following circumstances”. As is well known, the Interpretation Act, RSC 1985 , c I-21, is quite specific that the “expression “shall” is to be construed as imperative” (s 11). Once the Minister seeks the cessation of the refugee protection pursuant to paragraph 108(1)(a), that constitutes one of the circumstances referenced in the subsection.
[23] Nevertheless, the RPD examined the contention that paragraph 108(1)(e) was relevant and found that it was not applicable to the case at hand. The RPD stated that it has discretion in determining which paragraph of subsection 108(1) best applies to the facts of a particular case. Here, there was not a demonstration by Mr. Giasuddin that the circumstances are such that he would no longer face a serious possibility of persecution in his country of nationality based on his political views. Paragraph 108(1)(e) was not a proper fit to the circumstances as presented by the applicant.
[24] The change of circumstances alleged by the applicant was the election of the political party (the Awami League), a party he supported when he sought refugee status in Canada in 2004. The RPD found, however, that the applicant continued to be fearful of going back to his village and he could suffer violence from BNP (the other political party) goons elsewhere in the country. I reproduce paragraphs 14 and 15 from the decision:
[14] Indeed, he testified at the hearing on the application for cessation that he remains fearful of returning to his village and that he could suffer violence at the hands of BNP goons elsewhere in the country. As such, the respondent still has subjective fear of persecution and, in that context, it becomes obvious there has been no change of circumstances that can be characterized as eliminating the possibility of persecution for the respondent. In his affidavit filed in the context of the application for cessation, the respondent attested that he preferred to avoid his parents’ village because some BNP goons were still there. At the hearing, the respondent was asked if there were issues with these goons when he visited Bangladesh over the years. The respondent answered in the affirmative, saying that from 2002 until the day of the hearing there are still threats to his life and there is a BNP presence in his parents’ village. He testified that he could not visit his parents’ village when he traveled to Bangladesh apart from one time in 2010 when he wanted to visit his mother one last time. The respondent’s own testimony points to his ongoing fear of persecution by the BNP in Bangladesh. Even before looking at country conditions, the evidence shows that the respondent still has a subjective fear of persecution and has had one since he left Bangladesh.
[15] What is more, the objective evidence illustrates that the BNP, though no longer in power, is deeply entrenched in Bangladeshi society and is connected to auxiliary groups responsible for intra and inter-party violence. The BNP has had links to fundamentalists since they formed an alliance with Jamaat e Islami in 2001. This alliance allowed Islamic fundamentalists to assume a high profile. Since then, there are different violent Jihadist groups that operate freely in Bangladesh. The respondent even testified to this close link, saying that there are BNP and Jamaat e Islami members who live in his home village and do whatever they want.
Thus, the country conditions had not changed enough in view of the fact that the BNP is still the main opposition party and acts of violence may still be perpetrated. Indeed, the Bangladeshi police is one of the least reliable in the world, based on objective evidence. The police was one of the institutions feared by the applicant as he sought refugee status in Canada. If the RPD found that it had to consider the applicability of other grounds for cessation, it concluded that paragraph 108(1)(e) was not adequate.
[25] Before examining if paragraph 108(1)(a) applies, the RPD concludes:
[18] As such, the respondent has not pointed to any objective evidence, apart from the change in government, to support his assertion that as early as 2007, the authorities in Bangladesh were no longer looking for him. Considering he testified that he remains fearful of the BNP and Islamic fundamentalists at the date of the hearing, the Board finds there has not been a change of circumstances such that the respondent’s fear of persecution has disappeared. Section 108(1)(e) of the IRPA is therefore inapplicable to the case at hand.
[26] The RPD then considered fully paragraph 108(1)(a). The fundamental principle remains that “international protection should not be granted when it is no longer necessary or justified” (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees). Once reavailment has been found, the refugee does not need the protection of the country where he has been found to be a refugee. Three criteria are set out, and all three must be satisfied before reavailment can be found. They are:
(a) voluntariness: the refugee must act voluntarily;
(b) intention: the refugee must intend by his action to re‑avail himself of the protection of the country of his nationality;
(c) re‑availment: the refugee must actually obtain such protection.
[27] The obtaining of a passport from the country of nationality creates a presumption of the intention to reavail oneself, such presumption being strengthened if the passport is used to travel to the country of nationality. Sufficient evidence must in turn be presented to rebut the presumption.
[28] The RPD referred to Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 [Camayo] at para 84, where a number of factors are listed as being of assistance in considering whether the presumption of reavailment is rebutted. The RPD proceeded then to examine the three criteria.
[29] The voluntariness criterion was easily met: the applicant renewed his passport four times without any constraint. The renewals were entirely free. He was not coerced into travelling five times to Bangladesh either. That conclusion remains unchallenged before this Court. The same can be said of the third criterion.
[30] The intention criterion was also met. The applicant’s testimony that he applied for a Bangladeshi passport in order to have a valid identity document was not seen as convincing, as there are many options for a valid identity document, including a Canadian permanent residence card: that shows an intent to reavail of the diplomatic protection of Bangladesh. The RPD doubted the applicant’s credibility when he testified that he did not intend to travel to Bangladesh when, in fact, he renewed his passport four times and travelled back five times for reasons that were neither pressing nor exceptional.
[31] The reason for the travel is a factor according to Camayo to consider in an assessment of evidence that must be sufficient to rebut the presumption. The decision maker found that the reasons given were not sufficient to rebut the presumption: “A desire to socialize with family does not constitute exceptional circumstances like in the case of an ill family member or other such imperative matters” (Decision at para 42). As the Federal Court highlighted in Chowdhury v Canada (Citizenship and Immigration), 2021 FC 312, “… visiting a country of nationality for the purpose of vacationing does not constitution [sic] exceptional circumstances warranting the rebuttal of the presumption of intention to reavail” (Decision at para 42).
[32] Another factor to consider, according to Camayo, is being aware that returning to the country of nationality might impact the refugee status in Canada. Mr. Giasuddin testified that he was not aware returning to Bangladesh might put his refugee status in jeopardy. For the decision maker, the fact that the passport was renewed on numerous occasions and that he travelled back also on multiple occasions, when he claimed he was still at risk in Bangladesh, points in the direction of an intent to reavail. The same can be said of the concern about the police authorities. The RPD’s view appears to be summarized at paragraph 46 of its Decision:
[46] The number of trips to Bangladesh, five in total, as well as the duration of each stay, around one month for the first three trips and then two and three months for the subsequent trips show that the respondent was not acting with caution or keeping his travels to Bangladesh to a minimum. He chose to get married in Bangladesh, and spend months there. His father passed away before he arrived in Bangladesh in November 2015 but he still remained in the country until January 27, 2016. He did not offer a compelling reason for extending his trip after his father’s passing.
[33] The frequency of the passport renewals and the trips to Bangladesh, together with the increasing lengths of time in duration of the stays, were also decisive as to whether the applicant obtained the diplomatic protection of Bangladesh. The rationale is at paragraph 50:
[50] In the present case, the Board finds that the respondent did obtain de facto national diplomatic protection, as he was issued a Bangladeshi passport on four occasions and was allowed to enter and exit the country by the authorities on five occasions. By traveling with his Bangladeshi passports, the respondent subjected himself to the protection of the State authorities.
[34] Thus, the third criterion was met in the view of the RPD.
V. Arguments and analysis A. Did the RPD reasonably assess whether the applicant has rebutted the presumption that he intended to reavail himself of the protection of his country of nationality? [35] An analysis under paragraph 108(1)(a) requires consideration of the three criteria of voluntariness, intention, and reavailment (Camayo at para 18). The acquisition of a passport from one’s country of nationality, particularly to travel to that country, creates a strengthened rebuttable presumption that the refugee intended to reavail himself of the protection of his country of nationality (Camayo at para 63). The focus of the inquiry ought to be on whether the refugee’s conduct can reliably indicate that the refugee intended to waive the protection of the country of asylum to reavail himself of the protection of his country of nationality. This analysis requires the RPD to consider and balance a broad set of factors (Camayo at para 84; Hamid v Canada (Citizenship and Immigration), 2022 FC 1541 at paras 16‑17; Ahmad v Canada (Citizenship and Immigration), 2023 FC 8 at para 35 [Ahmad]).
[36] The applicant argues that the RPD’s reasons are internally contradictory, unintelligible, and lack justification as he seeks to compare the reasons given to find that paragraph 108(1)(e) is not applicable to the reasons for concluding that the applicant had reavailed himself of the protection of Bangladesh. The applicant asserts a number of errors, each of which will be considered below.
(1) Whether the RPD made contradictory findings regarding subjective fear [37] One factor for consideration is “[w]hether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required” (Camayo at para 84). The applicant asserts that the RPD made contradictory findings regarding his subjective fear using both his fear and lack of fear as an indication of an intention to reavail.
[38] In assessing intention, the RPD noted that in travelling to Bangladesh five times, travelling by train in the country, and attending his daughter’s and his own weddings—both public events—the applicant’s behaviour was incompatible with a subjective fear of persecution (Decision at paras 38-39, 44). In its analysis under paragraph 108(1)(e) of the IRPA, the RPD found that the applicant’s testimony indicated he had an ongoing fear of persecution by the BNP and has since he left Bangladesh (Decision at para 14). The applicant asserts that these findings are contradictory.
[39] The respondent submits that the RPD did not contradict itself. The RPD observed that the applicant’s paragraph 108(1)(e) claim was belied by both the National Documentation Package (NDP) evidence and his own testimony, and then went on to find that under paragraph 108(1)(a), the applicant’s actions evidenced an intention to avail himself of the protection of Bangladesh. The respondent asserts that at no point did the RPD hold both that the applicant’s actions demonstrated a lack of subjective fear and that he continued to fear persecution.
[40] I agree with the respondent. Paragraphs 108(1)(a) and (e) are completely distinct provisions and they operate independently of each other. It may well be that the reasons why the person sought refugee protection in the first place have not completely disappeared, yet someone still chooses to reavail herself of the protection of the country of nationality. Hence, the concern around paragraph 108(1)(e) was said by the applicant to be rather localised and with respect to a particular agent of persecution to be avoided.
[41] In paragraph 14 of the Decision, the RPD noted that the applicant provided evidence that: (1) he remains fearful of returning to his village and could suffer violence at the hands of the BNP elsewhere; (2) he preferred to avoid his home village due to a BNP presence that remains; and (3) he could not visit his home village when he travelled to Bangladesh apart from one time. That was when the RPD was considering the applicant’s contention that paragraph 108(1)(e) applied to the facts he was presenting. The RPD concluded that the reasons for which refugee protection had been sought did not completely cease to exist, given the very evidence of the applicant’s, including his testimony at the hearing before the decision maker. To put it simply, the attempt made to claim that refugee protection had ceased to exist because the reasons to seek protection were gone failed in view of the evidence presented by the applicant. Accordingly, paragraph 108(1)(e) was not to be considered any further. Nevertheless, the applicant could choose to reavail himself.
[42] The RPD noted as part of its analysis concerning the applicant’s reavailment that his claim that he was still at risk somehow did not deter the applicant from going back five times to his country of nationality; in fact this could be evidence of his intent to reavail. One reads at paragraph 44 of the Decision:
… In this particular case, the fact that the respondent was unaware he should not obtain a Bangladeshi passport on four occasions nor should he travel to his country of nationality must be weighed against the fact he chose to travel to Bangladesh five times, despite being fearful of returning to his parents’ village. Though he may have been unaware of the potential impact on his refugee status in Canada, he cannot claim to have been unaware that he was putting himself at risk by returning to Bangladesh. As such, the fact that he consciously and voluntarily chose to return to Bangladesh when he maintains he is still at risk there, points towards his intent of reavailing. Indeed, when he was first accepted as a refugee, he had to show he would face a serious possibility of persecution everywhere in Bangladesh, and not only in his hometown. Consequently, the fact that he he [sic] was unaware his refugee status could be impacted by returning to Bangladesh has to be assessed in conjunction with his behaviour in Bangladesh, where he testifies he was not in hiding and attending public weddings and traveled by train. The respondent returned on different occasions, he obtained from the State authorities not one passport, but four, and he did not try to hide his presence in the country.
[43] In paragraph 14 of the Decision, the RPD takes note of the applicant’s own evidence that he had a subjective fear of persecution when assessing whether a case can be made that the reasons for seeking refugee protection have ceased to exist, pursuant to paragraph 108(1)(e). In paragraph 44, the RPD is scrutinizing the actions the applicant took “when he maintains he is still at risk there” as part of a broader analysis of intent to reavail of the protection of his country of nationality. In the former case, the attempt at using paragraph 108(1)(e) fails because the applicant testifies as to conditions that continue to prevail and the existence of objective evidence of inadequate police activities. In the latter case, still travelling for extended periods of time in spite of the professed risk is evidence of an intent to reavail in the circumstances of this case. When read in context, these are not contradictory findings.
[44] The applicant likens this case to Aydemir v Canada (Citizenship and Immigration), 2022 FC 987 [Aydemir], in which the Court held that the RPD erred in finding that the applicant, an ethnic Kurd, had not rebutted the intent to reavail in obtaining a Turkish passport and travelling to Turkey on six occasions. The Court found that the RPD was inconsistent in finding that the applicant’s repeated trips to Turkey demonstrated a lack of subjective fear while also rejecting his claim under paragraph 108(1)(e) in large part because of his own testimony that he feared Turkish Authorities (Aydemir at paras 69-71).
[45] With respect, Aydemir is of no assistance to the applicant. First, the Camayo court made it clear that “the outcome of each cessation proceeding will be largely fact dependent” (para 83). The issue remains whether or not the refugee’s conduct can reliably indicate that the refugee intended to reavail himself of the diplomatic protection of his country of nationality. That is a decision for the RPD based on the facts before it. In Aydemir, our Court noted:
[45] Paragraph 108(1)(a) incorporates Article 1C(1) of the Convention, which the UNHCR Handbook explains refers to a refugee who remains outside their country of nationality but demonstrates by their actions that they are no longer “unable or unwilling to avail [themself] of the protection of [their] country of nationality” (para 118, referring to the definition of a Convention refugee). The UNHCR Cessation Guidelines note that this refers to diplomatic protection. Diplomatic protection is understood as the actions a state may take when the rights of one of its nationals have been violated by another state, but also includes consular assistance such as the renewal of passports (paras 6–7).
…
[52] I do not agree that the passage in Camayo suggests that anything other than diplomatic protection is contemplated upon return to the country of nationality. The passage at para 63 refers to a stronger presumption of reavailment where the refugee returns to their country of nationality, but does not go so far as distinguishing diplomatic protection from state protection. I also note that in Camayo, at para 61, the Court of Appeal, in addressing whether the RPD reasonably relied on the refugee’s lack of subjective knowledge, referred to “knowledge that use of a passport confers diplomatic protection”
[Emphasis in original].
[46] The facts in Aydemir are different than in our case. The presumption of reavailment can be rebutted; it was found that the RPD in that case had not reasonably assessed whether it had been rebutted. The RPD was said to have failed to focus on Mr. Aydemir’s submission and subjective intention. The Aydemir court notes at paragraph 67 that “the RPD’s finding that his intention in obtaining the passport and travelling to Turkey “is immaterial” does not reflect the guidance in Camayo that all the evidence adduced regarding subjective intention be considered”. That is not the situation in the case of Mr. Giasuddin.
[47] Paragraphs 108(1)(a) and (e) bring to the fore different considerations. The RPD in this case found that paragraph 108(1)(e) could not apply because the claim made by Mr. Giasuddin that the reasons for refugee protection had ceased to exist – and thus he should not have refugee status in Canada – was not sustainable in view of the objective documentary evidence and his own testimony. I see no reason why on this record finding that travelling to the country of nationality on five occasions, for extended periods of time, with four renewed passports from the country of nationality, while still fearful of returning to his village and the risk of violence at the hands of BNP goons, is not reasonable and does not rebut the presumption of reavailment of diplomatic protection conferred by the passport. In other words, it was open to the RPD to find that the reasons for which refugee protection was sought in the first place had not yet ceased to exist locally, did not preclude it from concluding that the applicant had reavailed himself of the diplomatic protection afforded by his Bangladeshi passport. In effect, the RPD reconciled a certain fear with the reavailment, the fear being further evidence of the intention to reavail: in spite of a certain fear, the applicant chose to renew his passport four times and travel back to Bangladesh five times. That, says the RPD, shows an intent to reavail. I do not see how that can be said to be unreasonable on the facts of this case.
[48] It must be remembered that it is the intention to reavail oneself that is to be measured under paragraph 108(1)(a). The presumption of reavailment exists once the passport issued by the country of nationality has been acquired. Here, the applicant sought and obtained four such passports. As explained by the Federal Court of Appeal in Camayo at paragraph 63, “[t]his is because passports entitle the holder to travel under the protection of the issuing country.” That presumption, that exists with the issuance of the passport, is even stronger when refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, but they are also entrusting their safety to governmental authorities upon their arrival. It was open to the RPD to consider that returning to Bangladesh in spite of remaining fears added to the evidence of an intent to reavail.
(2) Whether the RPD made unintelligible findings regarding subjective fear and objective risk [49] The applicant submits that the RPD made unintelligible findings regarding subjective fear and objective risk. This constitutes a variation on the same theme. Here, the applicant argues that his subjective fear of persecution does not co-exist with the objective risk. The explanation given by the RPD that the subjective fear expressed by the applicant was indicative of an intent to reavail is said to be unintelligible.
[50] It is worth quoting again from paragraphs 44 and 45 of the decision under review. The RPD stated at paragraph 44 that while the applicant had given evidence that he was unaware of the impact that his travels would have on his refugee status, “he cannot claim to have been unaware that he was putting himself at risk by returning to Bangladesh. As such, the fact that he consciously and voluntarily chose to return to Bangladesh when he maintains he is still at risk there, points towards his intent of reavailing.” The RPD went on to opine that “when he returned in 2007, he still was under threat by State authorities and chose to return voluntarily in any case. This points towards him having the requisite intent of reavailing himself of the protection of Bangladesh” (Decision at para 45). The applicant argues that these remarks do not explain how his fear and risk are indicative of his intention to reavail.
[51] The respondent submits that the applicant is overlooking that the portion of the Decision he is referring to deals with the rejection of his argument that he did not intend to reavail because he was unaware of the potential impact that his returns to Bangladesh would have on his refugee status in Canada. He asserts that the RPD’s point was that the applicant returning to Bangladesh five times while at risk there points to an intent to reavail. The respondent also submits that the applicant’s arguments ignore that the RPD is referring to diplomatic protection and not state protection.
[52] The role of a reviewing court is not to delve into the merits of an administrative decision, but rather to ascertain whether the decision is legal. As I have tried to explain, it has not been shown how these findings are unintelligible. The RPD explained how the remaining fear can support a finding of an intention to reavail. It was open to the RPD to consider that five returns to Bangladesh, following four passport renewals, and in spite of a professed remaining fear in limited circumstances, were an indication of an intention to reavail oneself of the diplomatic protection of the country of nationality. Although the applicant disagrees, the reasons given were intelligible and transparent. They can be readily understood. Given the facts in this case, there is justification. As put by the Supreme Court of Canada in Vavilov, “a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”” (para 104). Although the applicant seems to believe there exists a contradiction between paragraphs 108(1)(a) and (e), that they cannot co-exist, such is not the case.
(3) Whether the RPD erred in its assessment of the applicant’s knowledge of the risks to his status in Canada [53] It bears repeating that the standard of review is reasonableness, not correctness. Furthermore, the factors under consideration are factors “which may assist in rebutting the presumption of reavailment” (Camayo at para 84). It is in that light that those factors ought to be examined. The fact that there are a number of factors that have to be assessed does not, in my view, change the premise that, because of the strong presumption in a case where someone went often to his country of nationality after having renewed his passport, it will take significant weight for these factors considered collectively to be sufficient to rebut the presumption. The individual factors are not on an equal footing with the presumption to be considered in determining whether the refugee has reavailed. Rather, “[n]o individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment” (Camayo at para 84). As a matter of fact, some of the factors may end up strengthening the presumpt