Lakhi v. Canada (Citizenship and Immigration)

Lakhi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2024-12-20
Neutral citation
2024 FC 2077
File numbers
IMM-15485-23
Decision Content
Date: 20241220
Docket: IMM-15485-23
Citation: 2024 FC 2077
Ottawa, Ontario, December 20, 2024
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ALTAF AIYUB LAKHI
SAMIRA ALTAF LAKHI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] The Applicants were found to be excluded from refugee protection pursuant to Article 1E of the United Nations Convention Relating to the Status of Refugees due to the Principal Applicant’s status as a permanent resident of Panama and the Associate Applicant’s access to permanent residency as his spouse.
[2] The only issue before the Court is whether the decision of the Refugee Appeal Division [RAD] is reasonable. I find that it is.
[3] The Principal Applicant is a citizen of South Africa. The Associate Applicant, his spouse, is a citizen of India.
[4] In February 2019, both Applicants travelled to Panama together as the Principal Applicant’s temporary residence was approved. The Principal Applicant’s Panamanian Permanent Resident [PR] card was issued on March 14, 2019, valid until March 14, 2029.
[5] In March 2019, the Applicants travelled to the United States, motivated by the Principal Applicant’s difficulty finding employment in Panama due to language barriers. In September 2019, after meeting with a US immigration lawyer who advised that their refugee claim would likely fail, they crossed the border into Canada and made a refugee claim in November 2019.
[6] The Refugee Protection Division [RPD] determined that the Minister established a prima facie basis for the Principal Applicant’s PR status in Panama, which the Applicants failed to rebut. The RPD further found that even if his status had lapsed, it was voluntary, and he retained the right to return and rehabilitate his status if necessary. The appeal to the RAD was dismissed.
[7] The RAD first found prima facie evidence of the Principal Applicant’s Panamanian PR status through his valid PR card issued March 14, 2019 and valid until March 14, 2029. This finding triggered the shift of onus to the Applicants to demonstrate, on a balance of probabilities, that they were not entitled to permanent residency.
[8] In assessing whether the Applicants met this burden, the RAD focused on three key elements. First, the RAD analyzed Resolution No. 17405 of Panama which states:
…the Director General of the National Immigration Service may cancel the permanence or residence in the national territory to the non-resident foreigner, temporary or permanent resident in any of hits [sic] migratory subcategories, among other causes, for having been absent for more than two years from the national territory, unless such absence is justified and authorized by the Director of the National Migration Service.
[emphasis added]
It found the language that the PR “may” be cancelled after a two-year absence established a discretionary rather than an automatic cancellation regime. The RAD explicitly rejected contrary evidence from a legal blog post, finding it inconsistent with the resolution’s text and unsupported by examples or jurisprudence.
[9] Second, the RAD took issue with the Principal Applicant’s unjustified assumption of PR expiration despite holding a valid PR card until 2029, as he failed to make any inquiries to Panamanian authorities about his status.
[10] Third, regarding the Associate Applicant, the RAD found her eligible for permanent residency through undisputed spousal sponsorship rights, concluding she voluntarily elected not to obtain status based solely on language and employment challenges.
[11] Additionally, the RAD rejected the Applicants’ claim that they could not travel to Panama. It noted that even if the Principal Applicant’s permanent residency status had been revoked, Panamanian law allows for the rehabilitation of residency within six years of absence, provided the individual applies within 30 days of re-entry. Citing their prior successful travels to Panama without barriers, the RAD concluded there was no evidence to suggest the Applicants could not return to Panama. Consequently, it concluded that Article 1E applied to exclude both Applicants from refugee protection.
[12] The Applicants’ challenge to the reasonableness of the RAD’s decision rests on two interconnected submissions about it imposing an impossible evidentiary burden and a misinterpretation of the Panamanian Resolution.
[13] As to the Applicants’ submission that the RAD imposed an impossible evidentiary burden, I find the core contention is whether the RAD’s evidentiary requirement creates an internally irrational burden as contemplated by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. In my view, three cases are crucial to the analysis: Khan v. Canada (Citizenship and Immigration), 2024 FC 860 [Khan]; Canada (Citizenship and Immigration) v Tajdini, 2007 FC 227 [Tajdini]; Obumuneme v. Canada (Citizenship and Immigration), 2019 FC 59 [Obumuneme]. Each case presents a distinct approach to the Article 1E exclusion: Khan outlines the vulnerability principle, Tajdini provides the reasonable proof standard, and Obumuneme imposes the “actually happened” requirement. I conclude that the RAD’s decision appropriately aligns with the principles established in these authorities.
[14] Khan establishes that an Article 1E analysis must consider the vulnerability associated with the status in question and the possibility of its non-recognition. However, the factual matrix in Khan was unique. There were three distinct pieces of evidence: (1) the applicants required a Returning Resident Visa to re-enter the third country, (2) expert evidence predicted “almost certain” loss of status, and (3) documented evidence demonstrated a concrete risk of removal to the applicants’ country of persecution. Together, these factors created a compelling basis for concluding that the status was insufficiently secure to meet the requirements of Article 1E.
[15] The present matter is distinguishable. The Principal Applicant holds valid permanent residence documentation until 2029, with no identified additional entry requirements. Unlike the near-automatic status loss in Khan, the Panamanian law, as set out in Resolution No. 17405, includes discretionary authority, as reflected in its “may cancel” language. Furthermore, the Applicants demonstrated their ability to enter Panama without special permissions, having done so successfully multiple times in 2019. These distinctions materially differentiate the present case from Khan and do not raise comparable concerns regarding the vulnerability of the Applicants’ status.
[16] Obumuneme provides decisive guidance on the “actually happened” standard applied by the RAD. In that case, this Court emphasized the importance of distinguishing between speculative evidence suggesting status “could have” been lost and concrete evidence that it “actually happened.” While definitive proof is not required, applicants must show they have taken steps to verify their status. In both Obumuneme and the present case, the absence of such efforts undermines claims of unreasonable evidentiary burden for proving status loss. Here, the Principal Applicant failed to take any steps to confirm his residency status during the three months between receiving notice and the hearing. If anything, this complete lack of effort to make any verification is less favourable to the Applicants’ position than those considered by the decision-maker in similar cases: Omorogie v Canada (Citizenship and Immigration), 2015 FC 1255; Rrotaj v Canada (Citizenship and Immigration), 2016 FC 152.
[17] The Applicants’ central contention that proving actual loss of status would require abandoning their refugee claim fundamentally misapprehends this evidentiary framework. Obumuneme explicitly holds that a failure to attempt status verification can be fatal to such claims. While Khan’s vulnerability principle shields against unreasonable demands for definitive proof, it cannot be read as supporting the establishment of status loss based on purely subjective assertions. The contrast between the robust, concrete evidence of vulnerability in Khan and the speculative nature of the Applicants’ claims in this case highlights the reasonableness of the RAD’s approach.
[18] The RAD’s analysis also aligns precisely with the reasonable proof standard articulated in Tajdini. Read in context, the RAD’s application of the “actually happened” standard did not require certainty “beyond a reasonable doubt” but instead sought objective evidence beyond subjective assumptions. This is logically in-line with the burden-shifting framework established under Article 1E jurisprudence. By failing to provide any evidence of status loss or to pursue verification beyond theoretical possibilities, the Applicants have left the presumption of valid status intact.
[19] The Applicants’ second submission attacks the RAD’s interpretation of Panamanian law. This argument fails for reasons that flow naturally from the preceding analysis of the evidentiary burden, particularly when examined against the text of Resolution No. 17405 of Panama.
[20] While Resolution No. 17405 creates a comprehensive framework for permanent residency in Panama that includes both discretionary cancellation powers and rehabilitation procedures, the Applicants’ interpretation artificially collapses these distinct processes. As the Respondent correctly submits, the Resolution creates separate mechanisms for status verification, discretionary cancellation for extended absences, and rehabilitation options. This mirrors the framework examined in Melo Castrillon v Canada (Citizenship and Immigration), 2018 FC 470, where the Court upheld the distinction between potential status loss and rehabilitation procedures. Nothing in the text of the Resolution suggests these processes are inseparable or that status verification requires physical presence.
[21] The Applicants’ position particularly falters given their failure to provide any meaningful evidence supporting their interpretation. Beyond an unsubstantiated law firm blog post, to which the RAD reasonably assigned little weight after finding it inconsistent with the language of the Resolution, the Applicants offered no documentation suggesting Panama requires physical presence for status verification, no evidence of attempted inquiries being rejected, and no evidence of Panamanian administrative practice requiring return for verification.
[22] Therefore, I find the RAD’s interpretation of Panamanian law maintains the internal coherence required by Vavilov.
Conclusion [23] For the above reasons, the Applicants’ arguments about evidentiary impossibility and interpretive flaws do not meet the Vavilov requirement that flaws be more than “superficial or peripheral.” The RAD properly applied the Article 1E framework outlined in jurisprudence. It made well-justified findings about the Applicants’ status in Panama based on valid documentation until 2029, the discretionary nature of status loss under Resolution No. 17405, and the Applicants’ complete failure to attempt any status verification. Neither the evidentiary requirement for actual status loss nor the interpretation of Panamanian law creates the kind of impossible burden or fundamental flaw that the Applicants argue would render the decision unreasonable.
[24] No question was proposed for certification.
JUDGMENT in IMM-15485-23
THIS COURT’S JUDGMENT is that this application is dismissed and no question is certified.
"Russel W. Zinn"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-15485-23
STYLE OF CAUSE:
ALTAF AIYUB LAKHI, SAMIRA ALTAF LAKHI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
Toronto, Ontario
DATE OF HEARING:
December 4, 2024
JUDGMENT AND REASONS:
ZINN J.
DATED:
DECEMBER 20, 2024
APPEARANCES:
David Orman
For The Applicants
Rachel Hepburn Craig
For The Respondent
SOLICITORS OF RECORD:
Orman Immigration Law Barristers and Solicitors Toronto, Ontario
For The Applicants
Attorney General of Canada Toronto, Ontario
For The Respondent