November 5, 2019

Peiqrishvili and Intent to Reavail

Justice Southcott’s recent judgment in Peiqrishvili v Canada (M.C.I.), 2019 FC 1205 has provided some much-needed clarity on the intention analysis in cessation cases based on reavailment under s. 108(1)(a) of Immigration and Refugee Protection Act.  Basically, where a refugee has made efforts to hide from the agent of persecution, they may show that they did not subjectively intend by their actions to rely on the country of persecution’s protection, and their actions may not count as reavailment.

The refugee in this case received protection in 2005, fleeing an ex-husband whose abuse went unchecked by her home government. She became a Permanent Resident of Canada in 2009. In 2009, she obtained a passport from her home country. She later travelled to her home country to care for her elderly foster mother in 2010 and 2012, and then in 2014 returned a final time to marry a new husband. She also renewed her passport on that third trip.

Unfortunately, renewing a passport from the country against which you claimed refugee protection and/or returning to that country’s territory are both presumed to show you have relied on that country’s protection once again, giving up Canada’s protection. This is also known as reavailment. Reavailment is grounds to cease Canada’s refugee protection. Note that this is distinct from situations where a refugee is found to have misrepresented their refugee claim.

Also, when someone first gets refugee protection (i.e. Protected Person status) and then becomes a Permanent Resident, they are considered to hold Protected Person and Permanent Resident status at the same time. In 2012, the law changed so when refugee protection is ceased, Permanent Residence is also revoked automatically.

However, Canadian law has accepted that acts that are normally presumed to show reavailment will not result in cessation of protection if the refugee can show:

• The refugee did not act voluntary;
• The refugee did not intend by her action to reavail; or
• The refugee’s act did not actually result in protection.

At first, the Refugee Protection Division of the Immigration and Refugee Board (RPD) initially found that none of these exemptions applied. First, it found this refugee’s actions were voluntary because her foster mother’s illness was not life-threatening and travelling to marry is not an emergency. Second, because this refugee was educated and sophisticated, the RPD believed that she understood she was relying on her home country’s protection and intended to reavail by her actions; even though the refugee testified that she thought she was travelling under Canada’s protection and did not know about Canadian refugee travel documents, she could have consulted legal counsel or her children. Third, although this refugee argued that she had to maintain a low profile to evade her abusive ex-husband, the RPD found that she had received the diplomatic protection of her home country when she renewed her passport and travelled on it, and diplomatic protection counted as actual protection regardless of whether she was safe from her ex-husband.

The refugee challenged this decision in Federal Court, and the Federal Court set the RPD’s decision aside, finding that the RPD had erred in its analysis of whether the refugee had intended by her actions to reavail herself of her home country’s protection.

First, the Federal Court affirmed that it is the refugee’s subjective intention that must be assessed. It is not enough to say that the refugee could or should have known better – the RPD must assess what she subjectively intended, not what she should have known.

Second, the Court found that the refugee’s efforts to hide or protect herself from the agent of persecution should be considered when assessing her subjective intention.

The Court also found that the specific agent of persecution matters; where the agent of persecution is a non-state actor – like this refugee’s ex-husband – a refugee’s interactions with their home country’s government (ex. renewing a passport or going to that government’s territory) may not show intent to reavail in the same way as it would if she had been fleeing the government itself.

The Court also made note that in Yuan v. Canada (M.C.I.), 2015 FC 923, efforts to hide were also discussed in terms of intent to reavail as well as actual reavailment. The Court also noted that more recent case law, as in Lu v. Canada (M.C.I.), 2019 FC 1060, found that actual reavailment is established as soon as a refugee gets the diplomatic protection of a passport. Here, the Court found that it could best reconcile these principles by treating efforts to hide as a factor most relevant to intent to reavail.

Third, the Court found that exceptional or compelling circumstances are unnecessary to rebut the presumption of reavailment. As in, whether the refugee’s actions were intended to show reavailment must be assessed regardless of how sympathetic or unusual their circumstances were.

In all, it is a positive development that the Federal Court has reinforced its previous findings that a refugee’s subjective intent is central to a cessation analysis. Nonetheless, the law on this complex issue continues to develop. If you are facing cessation proceedings, you should contact a lawyer immediately.