Federal Court Overturns Refugee Protection Exclusion Decision

OUTCOME: Allowed

Date: 20260622 Docket: IMM-21583-24 Citation: 2026 FC 851 Toronto, Ontario, June 22, 2026 [NAME]: Mr. Justice Brouwer BETWEEN: [APPELLANT] Applicant and [NAME] Respondent

REASONS AND

JUDGMENT [ 1 ] [APPELLANT] seeks judicial review of the decision by the [NAME] [[NAME]] of the [NAME] [[NAME]] dismissing his [NAME] claim on the basis that he is excluded from [NAME] protection pursuant to Article 1E of the Convention Relating to the Status of [NAME] , 28 July 1951, Can TS 1969 No 6 [the [NAME]] and s. 98 of the Immigration and [NAME] Protection Act , SC 2001, c 27 [IRPA]. For the reasons that follow, the decision is unreasonable and must be set aside.

I. Background [ 2 ] [APPELLANT] is a citizen of Colombia. He alleges that after completing his mandatory military service in Colombia in 2001 he began to receive threats from the [NAME] (known by its Spanish acronym [FARC]). These threats followed him as he relocated to various cities in Colombia, so he moved to Venezuela in 2009. He secured a work permit there, and then in 2015 he obtained permanent resident status, valid for five years. However, Mr. [APPELLANT] alleges that the FARC tracked him down in Venezuela in 2018, so he decided to return to his native Colombia in hope that, following the 2016 peace agreement, the situation there was better than it had been when he left. The FARC located him yet again in Colombia, he says, in 2019, so he went into hiding. He remained in this situation for three years until finally fleeing to Canada to seek [NAME] protection in 2022. By this time several of Mr. [APPELLANT]’s siblings had come to Canada and secured [NAME] protection based on their own fears of persecution by the FARC. [ 3 ] Mr. [APPELLANT] retained a lawyer [ “[NAME]” ] to assist him with his [NAME] claim and to represent him before the [NAME] Protection Division [[NAME]]. Mr. [APPELLANT] asserts that this lawyer did little to prepare his Basis of Claim form and narrative or to prepare him for his hearing, and it is undisputed that the [NAME] did not submit copies of the [NAME] decisions accepting the [NAME] claims of Mr. [APPELLANT]’s siblings. [ 4 ] Prior to the hearing the [NAME] invited the Minister of Citizenship and Immigration to intervene on the question of whether Mr. [APPELLANT]’s previous status in Venezuela justified his exclusion from [NAME] protection pursuant to Article 1E of the [NAME] and s. 98 of the IRPA. The Minister declined the invitation to intervene, however, asserting that “there is insufficient evidence to establish, on a balance of probabilities, that the claimant is excluded pursuant to [Article] 1E of the Convention.” As it was entitled to do, the [NAME] nevertheless identified Article 1E exclusion as an issue at the hearing. [ 5 ] The [NAME] provided brief post-hearing submissions on the issue of exclusion, addressing Mr. [APPELLANT]’s legal status in Venezuela and appending and quoting from what appears to be a mobile phone screenshot of the automatically generated summary of [NAME] search results for the term “residente in venezuela.” [ 6 ] The [NAME] dismissed Mr. [APPELLANT]’s claim, finding that he was excluded under Article 1E and that he had not established a credible claim for [NAME] protection under ss. 96 or 97(1) of the IRPA. [ 7 ] Mr. [APPELLANT] hired a different lawyer [ “[NAME] lawyer” ] to appeal the refusal to the [NAME]. This lawyer later advised Mr. [APPELLANT] that the [NAME] had produced “very, very, very poor quality work” and had done “such a poor job” in representing him that it made her “so angry” on his behalf; however, she did not put her concerns directly to the [NAME] and did not raise any allegations regarding the effectiveness of the [NAME]’s representation before the [NAME]. The [NAME] lawyer made no inquiries about Mr. [APPELLANT]’s family members’ claims and, like the [NAME], did not seek to disclose the positive results of those claims. Nor did she adduce additional or better evidence regarding Mr. [APPELLANT]’s legal status in Venezuela and/or the possibility of regaining permanent residence there. Instead, she adduced two news reports regarding conditions in Venezuela and argued that the [NAME] decision did not reflect the evidence regarding current conditions in Colombia and Venezuela. She also asserted that the [NAME] had erroneously conflated the legal tests for ss. 96 and 97(1) of the IRPA. [ 8 ] By decision dated October 25, 2024, the [NAME] dismissed Mr. [APPELLANT]’s appeal. The [NAME] affirmed the [NAME]’s findings on the first two prongs of the test outlined in Canada (Citizenship and Immigration) v [NAME] , 2010 FCA 118 at para 28 [ [NAME] ], and upon assessing Mr. [APPELLANT]’s risk in Colombia and in Venezuela upheld the [NAME]’s determination on exclusion under Article 1E. The [NAME] also affirmed the [NAME]’s finding that Mr. [APPELLANT]’s [NAME] claim was not credibly established, and identified several inconsistencies between his oral evidence and the evidence provided in his Basis of Claim narrative that were not previously noted by the [NAME]. [ 9 ] Mr. [APPELLANT] retained new counsel for this application for judicial review. Upon meeting with Mr. [APPELLANT] and reviewing the [NAME] and [NAME] records, this counsel determined that Mr. [APPELLANT] might not have been effectively represented by either of his two previous lawyers, resulting in breaches of procedural fairness at the [NAME] and the [NAME]. As he was required to do by this Court’s protocol for such matters ( Consolidated Practice Guidelines for Citizenship, Immigration, and [NAME] Protection Proceedings (December 31, 2025)), [NAME] wrote to both previous lawyers setting out his concerns. Both previous lawyers provided written responses denying the allegations, and these correspondence forms part of the record before me.

II. Issues [ 10 ] Mr. [APPELLANT] argues that the [NAME]’s Article 1E exclusion analysis is flawed because the Member’s findings regarding his failure to attempt to reacquire permanent residence in Venezuela are unreasonable and do not reflect the evidence. [ 11 ] Both parties submit, and I agree, that the substance of the [NAME]’s decision is reviewable on a standard of reasonableness, where this Court assesses “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” ( Canada (Minister of Citizenship and Immigration) v [APPELLANT] , 2019 SCC 65 at para 99 ). [ 12 ] Mr. [APPELLANT] also asserts that he was denied procedural fairness in his appeal to the [NAME] because his [NAME] lawyer failed to make an allegation of negligence against his [NAME]. Put another way, he asks the Court to find that it was negligent of the [NAME] not to accuse the first lawyer of negligence, and that this resulted in a breach of procedural fairness at the [NAME]. He also asserts that it was procedurally unfair for the [NAME] to make fresh credibility findings without convoking an oral hearing. [ 13 ] The standard of review for questions of procedural fairness is a standard akin to correctness, where this Court asks “whether a fair and just process was followed” by the decision-maker ( [COMPANY] v Canada ([NAME] [NAME]) , 2018 FCA 69 at para 54).

III. Analysis A. The [NAME]’s exclusion finding was unreasonable [ 14 ] Article 1E of the [NAME], which is incorporated into the IRPA through s. 98, excludes from protection any [NAME] who is “recognized by the competent authorities of the country in which [they have] taken residence as having the rights and obligations which are attached to the possession of the nationality.” In [NAME] at para 28, the Federal Court of Appeal set out a three-part test for exclusion under this provision, which has been helpfully summarized by Justice John Norris in [NAME] v Canada (Citizenship and Immigration) , 2021 FC 1218 at para 36 [ [NAME] ]:

1. As of the date of the hearing, does the claimant have status in a third country substantially similar to that of its nationals? ➢ If yes, the claimant is excluded. ➢ If no, proceed to the [NAME] question.

2. Did the claimant previously have such status and lose it or have access to such status but fail to acquire it? ➢ If no, the claimant is not excluded. ➢ If yes, proceed to the third question.

3. Considering and balancing all of the circumstances of the case – including the reason for the loss of status (or the failure to acquire it), whether the claimant could return to the third country now, the risk the claimant would face in their home country, and Canada’s international obligations – should the claimant be excluded? ➢ If yes, the claimant is excluded. ➢ If no, the claimant is not excluded. [ 15 ] The parties agree that the [NAME], like the [NAME], identified and purported to apply the test from [NAME]. Mr. [APPELLANT] does not challenge the [NAME]’s findings under the first two steps, namely that while he did not have permanent resident status in Venezuela at the time of the [NAME] hearing (first step), he did have permanent resident status in Venezuela from 2015 to 2020 and did not attempt to reacquire it before making a [NAME] claim in Canada ([NAME] step). [ 16 ] The issue for judicial review is the [NAME]’s consideration of the third step, which requires the decision maker to “balance all of the circumstances of the case” and sets out a non-exhaustive list of factors for consideration, including the reason for the loss of the status (or the failure to acquire it). Mr. [APPELLANT] asserts that the [NAME]’s assessment of his reasons for not returning to Venezuela to reacquire status there is unreasonable. [ 17 ] The evidence established that Mr. [APPELLANT] had left Venezuela four years before coming to Canada to seek [NAME] protection and had never returned. He testified that he could not return to Venezuela because the country was in crisis and he feared for his life there. Documentary evidence contained in the [NAME]’s own National Documentation Package confirmed the ongoing humanitarian and human rights crisis unfolding in Venezuela. Indeed, as the [NAME] itself acknowledged: [41] [T]he Minister of Public Safety has delegated their authority under section of 230(1) of the Immigration and [NAME] Protection Regulations (IRPR) to the Canada Border Services Agency (CBSA) to impose, in exceptional circumstances, an Administrative Deferral of Removal (ADR) which temporarily stays removals to a particular country or place deemed unsafe for individuals being removed and an ADR is currently in place for Venezuela. [ 18 ] Yet rather than consider whether, in these circumstances, it was reasonable for Mr. [APPELLANT] not to return to Venezuela to try and reacquire permanent resident status, the [NAME] limited its analysis to whether he had credibly established a well-founded fear of persecution or “a subsection 97(1) risk that is not experienced by others generally because of the political situation in Venezuela.” Finding that he had not, the [NAME] concluded that “the Appellant’s loss of status in Venezuela was voluntary.” The [NAME] added: “these are the factors weigh in favour of excluding him from protection under the Convention.” [ 19 ] I agree with Mr. [APPELLANT] that the [NAME]’s analysis was too narrow. The third step of the [NAME] analysis requires a broader analysis than simply whether a claimant has made out ss. 96 or 97(1) risk in the third country. [ 20 ] In [NAME] v Canada (Minister of Citizenship and Immigration), 2009 FC 466 at para 34, Justice Frederick Gibson, as he then was, found that the analysis required consideration of whether a claimant had provided “a good and sufficient reason” for failing to preserve their right to re-enter a third country. On appeal, the Federal Court of Appeal elaborated that this third step analysis required decision makers to consider and balance various factors: [28]…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. [ 21 ] In [NAME] v Canada (Citizenship and Immigration), 2025 FC 902, my colleague Justice Lobat Sadrehashemi applied the test in [NAME] and found that it was an error for the [NAME], in its analysis of third step of the test, to fail to consider whether the treatment faced by a claimant in the third country, “even if it did not amount to grounds for protection under sections 96 or 97, could still weigh against exclusion under Article 1E” (para 16). [ 22 ] Likewise in both [NAME] and in [NAME] v Canada (Citizenship and Immigration) , 2019 FC 639 [ [NAME] ], Justice John Norris found that treatment in the third country that fell short of the risk thresholds under ss. 96 and 97(1) of the IRPA are relevant to the balancing exercise in the third step of the [NAME] test. As he explained in [NAME] : [44] Even assuming, as the [NAME] and the [NAME] concluded, that these experiences were insufficient to establish her claims under sections 96 or 97 of the IRPA, it does not follow that they could not still be a very good reason for Ms. [NAME] not to want to “normalize” her status in Guyana (or to bring her son there). [NAME], Ms. [NAME] explanation for why she lost her status in Guyana must be considered but the member never does so. As a result, his conclusion that she is excluded from [NAME] protection under Article 1E of the [NAME] lacks justification, transparency and intelligibility. [ 23 ] The [NAME] made the same error here. The [NAME] was required to look beyond the question of ss. 96 and 97(1) risk at the third step of the [NAME] analysis but failed to do so, despite clear evidence of conditions in Venezuela that might very well constitute good reasons for Mr. [APPELLANT] not to return to Venezuela to reacquire status there. [ 24 ] This is a sufficient basis upon which to grant the judicial review. However, considering that this matter will be remitted to the [NAME] for redetermination, some additional comments are warranted. B. Allegations of Counsel Incompetence [ 25 ] [ADDRESS] has adopted a three-part framework to assess claims that counsel incompetence resulted in a breach of procedural fairness. Under this framework, the applicant must demonstrate that (i) prior counsel’s acts or omissions constituted incompetence; (ii) a miscarriage of justice resulted in the sense that, but for the alleged conduct, there is a reasonable probability that the result would have been different; and (iii) the representative was given a reasonable opportunity to respond ( [NAME] v Canada (Citizenship and Immigration) , 2020 FC 99 at para 22). The standard of review for assessing counsel’s conduct is reasonableness, with the starting point being “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 194 at para 35). [ 26 ] The allegations that Mr. [APPELLANT] has made against the lawyers who represented him before the [NAME] and before the [NAME] are significant. While as explained below I am unable to find, based on the record before me, that there was a breach of procedural fairness, the record before me raises serious concerns regarding the sufficiency and effectiveness of the representation provided both lawyers. [ 27 ] For instance, it is undisputed that neither of the impugned lawyers took steps to adduce the claims and decisions of Mr. [APPELLANT]’s family members. While these documents could well have been relevant, the record does not permit me to find it reasonably likely that adducing them would have changed the outcome of his claim. But this should not be taken as an endorsement of counsel’s failure to adduce them; the assertions of both lawyers that they exercised competent professional judgement in not adducing the materials is entirely undermined by the fact that they had not even obtained and read them. [ 28 ] Considering the [NAME] lawyer’s claimed concerns about the quality of representation provided by the [NAME], her failure to obtain and review the complete recording or transcript of the [NAME] proceedings when preparing an appeal on Mr. [APPELLANT]’s behalf is likewise concerning, but again I am unable to find based on the record before me that it affected the outcome. [ 29 ] Most concerning is the [NAME]’s representation at the [NAME]. The [NAME] summary screenshot that this lawyer submitted as evidence of the state of the law in Venezuela obviously falls far short of the professionalism that a [NAME] should be able to expect from their counsel. Mr. [APPELLANT] also raises grave allegations about whether his [NAME] fulfilled his core obligations to assist Mr. [APPELLANT] with the preparation of his Basis of Claim form and narrative and to adequately prepare Mr. [APPELLANT] for the hearing. If made out, the latter allegations would likely establish incompetence resulting in a breach of natural justice ( [NAME] v Canada (Citizenship and Immigration) , 2021 FC 1388 at paras 56-57 ; [NAME] v Canada (Citizenship and Immigration) , 2013 FC 250 at paras 86-89; [NAME] v Canada (Citizenship and Immigration) , 2011 FC 1234 at para 18). However, I am not satisfied that the [NAME] was given a sufficient opportunity to respond to Mr. [APPELLANT]’s allegations regarding the Basis of Claim narrative and hearing preparation, and as a result I am unable to make a definitive finding on the issue. [ 30 ] The fact that I am unable to make findings of ineffective assistance based on the record before me should not be understood as a finding that counsel’s representation was effective. To the contrary, and as noted above, I share some of Mr. [APPELLANT]’s concerns. If he chooses to raise his allegations in the redetermination of his appeal and does so in a manner that complies with the tribunal’s guidelines for such matters and that is properly supported with evidence, the [NAME] may be better placed to make the findings he seeks. [ 31 ] As for Mr. [APPELLANT]’s argument that the [NAME] erred by making credibility findings without convoking a hearing, there is no need to decide the issue as I am granting the application on other grounds. [ 32 ] Neither party has proposed a serious question of [NAME] importance for certification, and I agree that none arises.

JUDGMENT in IMM-21583-24 THIS COURT’S

JUDGMENT is that : The application is granted. The decision of the [NAME] is set aside and the appeal is remitted for redetermination by a different panel in accordance with these reasons. No question is certified. "Andrew J. Brouwer" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM- 21583-24 STYLE OF CAUSE: [APPELLANT] v [NAME] OF HEARING: videoconference DATE OF HEARING: February 23, 2026

REASONS AND

JUDGMENT: [NAME] j. DATED: JUNE 22, 2026 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondent SOLICITORS OF RECORD : [NAME], Ontario For The Applicant [NAME] [NAME] of Canada Toronto, Ontario For The Respondent