Federal Court Dismisses Refugee Claim Due to Access to Permanent Residency in South Africa

OUTCOME: Dismissed

Date: 20260604 Docket: IMM-2167-25 Citation: 2026 FC 737 Toronto, Ontario, June 4, 2026 PRESENT: Madam Justice Pallotta BETWEEN: [APPELLANT] Applicants and THE MINISTER OF CITIZENSHIP [RESPONDENT] Respondent

REASONS AND

JUDGMENT I. Introduction [ 1 ] The applicants, [APPELLANT] and his wife [NAME] [APPELLANT], are citizens of Türkiye. They made a refugee claim at the Canada-USA border in May 2023, alleging a fear of persecution in Türkiye for their political beliefs. The [RESPONDENT] and [NAME]’s [NAME] ([NAME]) refused the refugee claim on the basis that the applicants have access to permanent residency in South Africa, and they are excluded from [NAME] in Canada by the combined effect of section 98 of the [RESPONDENT] and [NAME] , SC 2001, c 27 [ IRPA ] and article 1E of the [NAME] to the Status of Refugees [Convention]. The applicants allege that the [NAME]’s decision [1] was unreasonable and they ask the Court to set it aside on judicial review. [ 2 ] For the reasons below, I am dismissing this application. The applicants have not established that the [NAME]’s decision was unreasonable.

II. Background [ 3 ] After leaving Türkiye in 2017, the applicants lived in South Africa for more than four years. They left South Africa for the United States in December 2022 and lived there until they made their claim for [NAME] in Canada. [ 4 ] Article 1E of the Convention states, in essence, that the Convention does not apply to a person who has taken residency in a country and would be recognized as having substantially the same rights as a national of that country. IRPA section 98 incorporates this principle into Canadian law by excluding a person described in article 1E from [NAME]. [ 5 ] To decide whether the applicants are excluded from [NAME], the [NAME] applied the test set out by the Federal Court of Appeal in [NAME] v Canada (Minister of Citizenship [RESPONDENT]) , 2010 FCA 118: [28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the [NAME] must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts. [ 6 ] The applicants’ [RESPONDENT] status in South Africa stemmed from Mr. [APPELLANT]’s status. Mr. [APPELLANT] held a retired person visa that was valid for four years and Ms. [APPELLANT] held a visitor visa as his spouse. In 2022, Mr. [APPELLANT] applied to extend his retired person visa. Mr. [APPELLANT] was granted interim rights to live, work, and travel while his extension application was being processed. However, the interim permit was not in evidence, so the [NAME] made its decision based on an assumption that Mr. [APPELLANT]’s retired person visa had expired. As part of its analysis, the [NAME] considered whether Mr. [APPELLANT] could obtain a retired person visa that would grant the applicants access to permanent residency in South Africa, and whether permanent residency grants a status that is substantially similar to that of South African nationals. [ 7 ] The applicants urged the [NAME], in applying the test in [NAME] , to follow Justice Battista’s holding in [NAME] v Canada (Citizenship [RESPONDENT]) , 2024 FC 1839 on the question of who bears the onus to prove that a lost status can be reacquired. Justice Battista held in [NAME] that it is a reviewable error to require a claimant to prove that they cannot reacquire a lost status—the onus to establish an exclusion under article 1E is exclusively on the Minister and it is not reasonable to place an onus on claimants to prove an inability to reacquire lost status in a third country in order to avoid the application of article 1E: [NAME] at para 79. The [NAME] declined to follow this holding from [NAME] . In the [NAME]’s view, the “dominant tide of jurisprudence” provides that once the Minister raises a prima facie exclusion case by showing that a claimant has a status similar to nationals of the third country, the onus shifts to the claimant to rebut it by showing that the status was lost or cannot be reacquired. As the jurisprudence was divided and the Federal Court of Appeal had not clearly resolved the question, the [NAME] chose to follow the “vast majority” of cases that allow for the onus to shift, a principle that it found to be “well recognized and accepted over the years.” [ 8 ] Applying the test in [NAME] and considering all the evidence, the [NAME] concluded that the applicants are excluded from [NAME]. [ 9 ] The [NAME] examined South Africa’s [RESPONDENT] legislation and noted the financial and documentary requirements for a retired person visa: (i) a minimum retirement income or net worth; (ii) a police clearance certificate; and (iii) a passport with at least 3 years before expiry. It was not disputed that Mr. [APPELLANT] was granted a retired person visa before, and that he had applied for an extension. [ 10 ] The [NAME] found, on a balance of probabilities, that Mr. [APPELLANT] can obtain a retired person visa in South Africa: (i) Mr. [APPELLANT] was drawing a pension from the [NAME], there was insufficient evidence to establish that the amount he was drawing would not meet the income requirement for a retired person visa, and there was no evidence showing how much he was drawing when he was granted a retired person visa before and whether the amount had changed since then; (ii) Mr. [APPELLANT] admitted that he would be able to obtain a police clearance certificate, from Türkiye and from South Africa; and (iii) the applicants had not established that Mr. [APPELLANT] would be unable to renew his passport because of a fear of interacting with [NAME]—the applicants had obtained Turkish passports and travelled on them, there was no evidence the passports had been revoked, and the applicants had not explained why they could interact with the [NAME] to draw a pension and obtain a police clearance certificate but not to renew a passport. It followed that the applicants had not established, on a balance of probabilities, that Mr. [APPELLANT] could not obtain a retired person visa. [ 11 ] The [NAME] then considered whether the applicants have access to permanent residency in South Africa (Mr. [APPELLANT] through a retired person visa and Ms. [APPELLANT] as his spouse). The [NAME] found that they do. The [NAME] found that the requirements for permanent residency through this avenue are almost the same as the requirements for the visa. In addressing the additional requirements, the [NAME] noted that the applicants raised no obstacle to passing a medical examination or to proving that Ms. [APPELLANT] has been legally married to Mr. [APPELLANT] for five years. The [NAME] rejected the applicants’ argument that they never intended to stay in South Africa and reside there, finding that the applicants had established themselves in South Africa and made no attempt to leave for years. [ 12 ] The [NAME] also considered whether permanent residency grants sufficient rights, privileges, duties, and obligations of a citizen to qualify as a status that is substantially similar to that of a South African national and found that it does. [ 13 ] The applicants had alleged that they would face harm in South Africa as targets of [NAME] operatives or as targets of xenophobic violence. However, the [NAME] was not satisfied that the applicants would face the alleged harm, and it also found that the applicants had not rebutted the presumption that they would receive operationally adequate state protection in South Africa. The [NAME] found that the applicants can return to South Africa where they would have access to permanent residency. [ 14 ] After considering and balancing factors that included why the applicants had not acquired permanent resident status in South Africa (whether the reason was voluntary or involuntary), whether they could return to South Africa, the risk they would face in Türkiye, and Canada’s international obligations, the [NAME] concluded that the applicants are excluded from [NAME] under section 98 of IRPA and article 1E of the Convention. [ 15 ] The applicants contend that the [NAME]’s decision was unreasonable for two main reasons. [ 16 ] First, the applicants submit that the [NAME] acknowledged but chose to disregard [NAME] , and the failure to follow established precedent is contrary to the principle of stare decisis . The applicants say the [NAME] wrongly considered [NAME] to be a “line” of case law when this Court has consistently followed [NAME] since its issuance, pointing to [RESPONDENT] v Canada (Citizenship [RESPONDENT]) , 2025 FC 66 and [RESPONDENT] v Canada (Citizenship [RESPONDENT]) , 2024 FC 1868. The applicants contend that the [NAME]’s failure to follow [NAME] contravened the purpose of article 1E of the Convention, which is to exclude those who do not need [NAME], and the [NAME] erred in placing the burden on them to prove that they do not have access to permanent residency in South Africa. At the hearing of this application, the applicants added that the [NAME] erred by failing to adequately justify its decision not to follow the holding in [NAME] . [ 17 ] Second, regardless of where the burden lies, the applicants submit that the [NAME] ignored critical evidence and relied on speculative uncertainties: the [NAME] focused unreasonably on Mr. [APPELLANT]’s ability to obtain a retired person visa in the past, despite the evidence that Mr. [APPELLANT] would not meet the pension requirement; the prior visa may have been granted on embellished or fabricated financial information; the [NAME] speculated that the applicants would be able to renew their passports without any issues when the objective country evidence shows that there are risks of passport confiscation and denial of consular services; the [NAME] cannot leave Türkiye because his passport was confiscated, showing that the family is under scrutiny; the [NAME] ignored the uncertainty in the permanent residency process and the discretion the legislation affords to [NAME] by the use of “may” ( [RESPONDENT] v Canada (Citizenship [RESPONDENT]) , 2024 FC 2077 at para 15), which leaves room to refuse permanent residency even if the legislative requirements are met; and the [NAME]’s unreasonable findings extend to Ms. [APPELLANT], whose status depends on Mr. [APPELLANT]’s status. [ 18 ] The applicants submit that the purpose of IRPA section 98 and article 1E of the Convention is to exclude claimants who have a durable solution in another country. The applicants say they do not have a durable solution in South Africa, and they left because their status was insecure. The applicants add that they would not be returned to South Africa if removal proceedings are initiated. They would be returned to Türkiye because they are citizens of that country alone and they do not have status in any other country. [ 19 ] The Minister submits that the only question the [NAME] was tasked to decide was whether the applicants are entitled to [NAME]. In this regard, the applicants have not established a reviewable error with the [NAME]’s reasons or its conclusion that they are excluded from protection under IRPA section 98. The applicants have not shown that the Court consistently followed [NAME] after it was decided. [ADDRESS] should not entertain the applicants’ new argument that challenges the adequacy of [NAME]’s reasons, but in any event, the Minister contends that the [NAME] addressed the applicants’ arguments and adequately explained why it was not following [NAME] . [ 20 ] The Minister further submits that the [NAME] did not place the onus solely on the applicants. Rather, the [NAME] assessed the applicants’ path to permanent residency according to the objective evidence, and it assessed the reasons why the applicants believe they could not access permanent residency and found those reasons to be insufficient. The Minister contends that the [NAME] properly analyzed the requirements for a retired person visa, considered all the evidence, did not speculate, and reached a conclusion that was based on the evidence: Mr. [APPELLANT] was granted a retired person visa before, and the [NAME] reasonably found there was insufficient evidence that he would no longer meet the minimum income requirement—the applicants filed very limited evidence of their financial circumstances (a one-page screenshot of part of a bank statement showing four pension deposits with fluctuating amounts) and did not explain why they filed no other evidence; the [NAME] reasonably concluded there was insufficient evidence to show that Mr. [APPELLANT] could not renew his passport—the applicants had obtained Turkish passports before and used them to travel, Mr. [APPELLANT] was interacting with the [NAME] by drawing a pension, and he stated he would be able to get a police clearance certificate; the applicants did not raise an issue of passport confiscation or denial of consular services, and the [NAME] was not obliged to comb through the objective country evidence to find support [NAME]’ position ( [NAME] v Canada (Citizenship [RESPONDENT]) , 2019 FC 1336 at para 22; [RESPONDENT] v Canada (Citizenship [RESPONDENT]) , 2018 FC 285 at paras 19‑20); the applicants did not rely on uncertainty in the process for obtaining permanent residency in South Africa and they should not be permitted to challenge the [NAME]’s decision based on an argument they did not raise; and the applicants have not challenged the [NAME]’s other findings, including the findings about the applicants’ allegations of harm in South Africa and state protection.

III. Analysis [ 21 ] To determine whether the [NAME]’s decision was unreasonable, the Court looks to whether the decision bears the hallmarks of reasonableness—justification, transparency, and intelligibility: Canada (Minister of Citizenship [RESPONDENT]) v [NAME] , 2019 SCC 65 at para 99. A reasonable decision is based on an internally coherent and rational chain of analysis, and it is justified in relation to the facts and law that constrain the decision maker: [NAME] at para 85. [ 22 ] In this case, I am not persuaded that the [NAME]’s decision that the applicants are excluded from [NAME] in Canada was unreasonable. [ 23 ] The applicants do not challenge the [NAME]’s findings that they intended to reside in South Africa and that they could safely return. They challenge the [NAME]’s treatment of [NAME] and the [NAME]’s findings that the applicants would have access to permanent residency in South Africa through a retired person visa. [ 24 ] I am not persuaded that the [NAME] was required to follow [NAME] , or that the [NAME] contravened stare decisis when it chose not to follow it. The applicants have not shown that this Court has consistently followed [NAME] since that decision issued. [NAME] is a subsequent decision by the judge who decided [NAME] , Justice Battista. [NAME] is a decision of a different judge who cited [NAME] but not for the principle the applicants rely on (that it is a reviewable error to require a claimant to prove they cannot reacquire a lost status). The Minister points to [RESPONDENT] v Canada (Citizenship [RESPONDENT]) , 2025 FC 277, an article 1E case that did not cite [NAME] . Consistent with earlier decisions, the judge in [NAME] held (at paragraph 9) that once the Minister establishes a prima facie case of exclusion, the onus shifts to the applicant to establish that they are no longer subject to the exclusion. The applicants say that [NAME] , which was decided only a few months after [NAME] , should not be counted as a case where the Court chose not to follow [NAME] . That may be so, but the argument does not assist the applicants because they have not shown that this Court has consistently followed [NAME] . [ 25 ] While I accept that the applicants should not be raising new challenges to the [NAME]’s decision at the hearing before me, I will address their argument that the [NAME] did not do enough to justify why it declined to follow the holding in [NAME] . In my view, the [NAME] provided sufficient justification that allows the applicants to understand why it did not accept their submissions on [NAME] . The [NAME] observed that [NAME] represents a departure from the majority of cases that impose a burden on a claimant once the Minister has established a prima facie exclusion case, and it chose to follow the “dominant tide of jurisprudence.” It noted an unresolved divide and chose to follow a principle it considered to be “well recognized and accepted over the years.” Justice Battista himself acknowledged that there are “several decisions” affirming that claimants have an onus to demonstrate that they cannot reacquire a lost status: [NAME] at para 37. [ 26 ] More importantly, I am not persuaded that the [NAME] erred in its application of the [NAME] test and how it applied the onus in this case. [ 27 ] The [NAME] did not require the applicants to prove that they could not obtain permanent resident status in South Africa, and the Minister is correct that the [NAME] did not put the onus solely on them. The [NAME] assessed the objective evidence, found that the applicants have a path to permanent residency, and considered the applicants’ arguments why that path is not, or is no longer, available to them. I agree with the Minister that the [NAME] properly analyzed the requirements for a retired person visa in South Africa, considered all the evidence, did not speculate, and reached a conclusion that was based on the evidence. [ 28 ] The applicants had status in South Africa and left the country while their applications to extend that status were pending. In assessing whether the applicants could return to South Africa and whether they would have a path to permanent residency through a retired person visa, the [NAME] considered the applicants’ submissions that they would not be able to access permanent residency but found there was insufficient evidence to support their position. The applicants’ main submission was that Mr. [APPELLANT] would not meet the income requirements. The evidence to support this position was within their control and the [NAME] did not place “an onerous burden on a claimant to prove a negative” : [APPELLANT] at para 45. The [NAME] made its findings and reached its conclusions based on the evidence that was before it. [ 29 ] Turning to the findings themselves, the [NAME] reasonably found that the applicants failed to establish that Mr. [APPELLANT] would not meet the minimum pension for a retired person visa in South Africa. He had been granted a retired person visa before and filed an application to extend it, but the applicants did not provide the initial application or the extension application to the [NAME] and they did not file evidence to show that either application contained embellished or fraudulent financial information, as they asserted. After the [NAME] hearing, the applicants filed a one-page screenshot of a recent bank statement. The [NAME] considered the screenshot and noted that it showed different amounts for the monthly pension. Given that Mr. [APPELLANT] met the income requirement before, and in the absence of evidence showing that the fluctuating amounts represented a decrease in his pension, the [NAME] concluded that the bank statement did not establish that he would not meet the income requirement again. [ 30 ] The [NAME] did not speculate about passport renewal. It found, reasonably in my view, that the applicants had not established a fear of interacting with [NAME] that would prevent them from renewing their passports. The applicants now argue that their passports would be confiscated or that they would be denied consular services, but they did not make these arguments to the [NAME]. [ 31 ] The [NAME] reasonably found that Ms. [APPELLANT] could obtain permanent residency in South Africa through Mr. [APPELLANT], as his spouse. [ 32 ] As the Minister points out, the applicants did not rely on the discretion afforded to the [NAME] as a reason why they would be denied permanent resident status. In any event, the [NAME] did not ignore uncertainty in the permanent residency process. As I stated above, the applicants were not held to an onerous standard and the [NAME] did not expect them to prove it would not be possible to obtain permanent resident status in South Africa. The [NAME] applied the civil standard of proof on a balance of probabilities. [ 33 ] The [NAME]’s decision was not inconsistent with the purpose of IRPA section 98 and article 1E of the Convention. As the Minister correctly points out, the [NAME]’s task was to decide whether the applicants are entitled to [NAME]. In fulfilling that task, the [NAME] applied the well-established [NAME] framework to decide whether the applicants are excluded from Canada’s protection. After considering and weighing the relevant factors, the [NAME] reasonably concluded that the applicants are excluded from [NAME] under section 98 of IRPA and article 1E of the Convention.

IV. Conclusion [ 34 ] In summary, I am not persuaded of a reviewable error in the [NAME]’s reasoning process or its findings that the applicants would have access to permanent residency in South Africa through a retired person visa, and that permanent residency grants sufficient rights, privileges, duties, and obligations of a citizen to qualify as a status that is substantially similar to that of a South African national. The applicants have not shown that the [NAME]’s decision that they are excluded from [NAME] pursuant to IRPA section 98 and article 1E of the Convention was unreasonable.

Accordingly, I must dismiss this application. [ 35 ] Neither party proposed a question for certification. I find there is no question to certify.

JUDGMENT IN IMM-2167-25 THIS COURT’S

JUDGMENT is that: This application for judicial review is dismissed. There is no question of general importance to certify. "Christine M. Pallotta" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2167-25 STYLE OF CAUSE: [APPELLANT], [NAME] [APPELLANT] v THE MINISTER OF CITIZENSHIP [RESPONDENT] OF HEARING: Toronto, Ontario DATE OF HEARING: March 24, 2026

REASONS AND

JUDGMENT: PALLOTTA J. DATED: June 4, 2026 APPEARANCES : [RESPONDENT] [NAME] [RESPONDENT] For The Respondent SOLICITORS OF RECORD : [NAME]. Barristers and Solicitors Toronto, [NAME] of Canada Toronto, Ontario For The Respondent [1] The applicants did not have a right to appeal the [NAME]’s decision to the Refugee Appeal Division.