Federal Court Sets Aside Exclusion Under Article 1E of Refugee Convention

Date: 20260622 Docket: IMM-21583-24 Citation: 2026 FC 851 Toronto, Ontario, June 22, 2026 PRESENT: Mr. Justice Brouwer BETWEEN: [NAME] Applicant and MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP Respondent

REASONS AND

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

I. Background [ 2 ] [NAME] 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 Revolutionary Armed Forces of Colombia (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, [NAME] 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 refugee protection in 2022. By this time several of [NAME]’s siblings had come to Canada and secured refugee protection based on their own fears of persecution by the FARC. [ 3 ] [NAME] retained a lawyer [ “RPD lawyer” ] to assist him with his refugee claim and to represent him before the Refugee Protection Division [RPD]. [NAME] 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 RPD lawyer did not submit copies of the RPD decisions accepting the refugee claims of [NAME]’s siblings. [ 4 ] Prior to the hearing the RPD invited the Minister of Citizenship and Immigration to intervene on the question of whether [NAME]’s previous status in Venezuela justified his exclusion from refugee protection pursuant to Article 1E of the Refugee Convention 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 RPD nevertheless identified Article 1E exclusion as an issue at the hearing. [ 5 ] The RPD lawyer provided brief post-hearing submissions on the issue of exclusion, addressing [NAME]’s legal status in Venezuela and appending and quoting from what appears to be a mobile phone screenshot of the automatically generated summary of Google search results for the term “residente in venezuela.” [ 6 ] The RPD dismissed [NAME]’s claim, finding that he was excluded under Article 1E and that he had not established a credible claim for refugee protection under ss. 96 or 97(1) of the IRPA. [ 7 ] [NAME] hired a different lawyer [ “[NAME]” ] to appeal the refusal to the [NAME]. This lawyer later advised [NAME] that the RPD lawyer 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 RPD lawyer and did not raise any allegations regarding the effectiveness of the RPD lawyer’s representation before the [NAME]. The [NAME] made no inquiries about [NAME]’s family members’ claims and, like the RPD lawyer, did not seek to disclose the positive results of those claims. Nor did she adduce additional or better evidence regarding [NAME]’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 RPD decision did not reflect the evidence regarding current conditions in Colombia and Venezuela. She also asserted that the RPD 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 [NAME]’s appeal. The [NAME] affirmed the RPD’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 [NAME]’s risk in Colombia and in Venezuela upheld the RPD’s determination on exclusion under Article 1E. The [NAME] also affirmed the RPD’s finding that [NAME]’s refugee 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 RPD. [ 9 ] [NAME] retained new counsel for this application for judicial review. Upon meeting with [NAME] and reviewing the [NAME] records, this counsel determined that [NAME] might not have been effectively represented by either of his two previous lawyers, resulting in breaches of procedural fairness at the RPD and the [NAME]. As he was required to do by this Court’s protocol for such matters ( Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (December 31, 2025)), present counsel 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 ] [NAME] 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 Vavilov , 2019 SCC 65 at para 99 ). [ 12 ] [NAME] also asserts that he was denied procedural fairness in his appeal to the [NAME] because his [NAME] failed to make an allegation of negligence against his RPD lawyer. Put another way, he asks the Court to find that it was negligent of the second lawyer 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 ( Canadian Pacific Railway Company v Canada ([NAME]) , 2018 FCA 69 at para 54).

III. Analysis A. The [NAME]’s exclusion finding was unreasonable [ 14 ] Article 1E of the Refugee Convention, which is incorporated into the IRPA through s. 98, excludes from protection any refugee claimant 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 second 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 RPD, identified and purported to apply the test from [NAME]. [NAME] 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 RPD 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 refugee claim in Canada (second 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). [NAME] 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 [NAME] had left Venezuela four years before coming to Canada to seek refugee 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 IRB’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 Refugee 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 [NAME] 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 [NAME] 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 RPD 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 [NAME] not to want to “normalize” her status in Guyana (or to bring her son there). [NAME]’s 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 refugee protection under Article 1E of the Refugee Convention 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 [NAME] 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 [NAME] has made against the lawyers who represented him before the RPD 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 [NAME]’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]’s claimed concerns about the quality of representation provided by the RPD lawyer, her failure to obtain and review the complete recording or transcript of the RPD proceedings when preparing an appeal on [NAME]’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 RPD lawyer’s representation at the RPD. The Google 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 refugee claimant should be able to expect from their counsel. [NAME] also raises grave allegations about whether his RPD lawyer fulfilled his core obligations to assist [NAME] with the preparation of his Basis of Claim form and narrative and to adequately prepare [NAME] 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; El [NAME] v Canada (Citizenship and Immigration) , 2011 FC 1234 at para 18). However, I am not satisfied that the RPD lawyer was given a sufficient opportunity to respond to [NAME]’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 [NAME]’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 [NAME]’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: [NAME] v MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP PLACE OF HEARING: videoconference DATE OF HEARING: February 23, 2026

REASONS AND

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