Federal Court Sets Aside Refugee Protection Division's Decision on Safety Precautions

OUTCOME: Allowed

Date: 20260611 Docket: IMM-3418-23 Citation: 2026 FC 782 Ottawa, Ontario, June 11, 2026 PRESENT: Madam Justice Sadrehashemi BETWEEN: [APPELLANT] Applicant and THE MINISTER OF IMMIGRATION AND CITIZENSHIP Respondent

REASONS AND

JUDGMENT I. Overview [ 1 ] The Applicant, [APPELLANT], received [NAME] protection in Canada approximately 14 years ago on the basis of threats from terrorist organizations in Lebanon, his country of citizenship. Since he obtained permanent resident status in 2017, Mr. [APPELLANT] returned to Lebanon on five occasions. The Minister brought an application for cessation of his [NAME] status. [ 2 ] The [NAME] Protection Division ( “[NAME]” ) allowed the Minister’s application and found Mr. [APPELLANT] voluntarily reavailed himself of the protection of Lebanon under section 108(1)(a) of the  Immigration and [NAME] Protection Act,  SC 2001, c 27 [ IRPA ]. This resulted in Mr. [APPELLANT] losing his [NAME] status and permanent residence status. [ 3 ] Mr. [APPELLANT] challenges the [NAME]’s cessation decision on judicial review. Mr. [APPELLANT] does not challenge the procedure followed by the [NAME]. His challenge is to the substance of the decision and therefore I am reviewing the [NAME]’s decision on a reasonableness standard ( Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 SCC 65 [ [NAME] ]). [ 4 ] It is unnecessary for me to address all the issues Mr. [APPELLANT] raised on judicial review. The determinative issue is the [NAME]’s treatment of the security precautions taken by Mr. [APPELLANT] while he was in Lebanon. I find, similar to my colleagues’ determinations in [NAME] v Canada (Public Safety and Emergency Preparedness), 2025 FC 117 [ [NAME] ] and [NAME] v Canada (Citizenship and Immigration), 2025 FC 2018 [ [APPELLANT] ] that the [NAME]’s focus on whether Mr. [APPELLANT] had actually been “in hiding” when he returned did not allow it to consider the nature and impact of his security precautions on the reavailment analysis. This is a sufficient basis to allow the judicial review and send the decision back for redetermination.

II. Procedural History [ 5 ] Mr. [APPELLANT] is 81 years old and has been diagnosed with dementia. Mr. [APPELLANT]’ son acted as his designated representative at his cessation hearing held on January 26, 2023. This meant that Mr. [APPELLANT] did not testify. Mr. [APPELLANT]’ son testified about what he knew of his father’s travels to Lebanon since he had obtained permanent resident status in Canada. [ 6 ] The evidence on when Mr. [APPELLANT] was formally diagnosed with dementia is unclear. Mr. [APPELLANT]’ counsel argues that there was evidence that Mr. [APPELLANT] also had a designated representative at his 2012 [NAME] hearing. While there is evidence that Mr. [APPELLANT]’ son suggested this was the case in his testimony at the cessation hearing, his evidence on this point is far from clear. Moreover, in the record before me, there is nothing from the 2012 [NAME] proceeding to indicate a designated representative was appointed. I do not have the reasons for the decision; I only have the notice of the [NAME]’s positive decision. There is a letter from Mr. [APPELLANT]’ doctor in Canada, dated August 2012, which indicated: [Mr. [APPELLANT]] and his immediate family members reported that he has symptoms of forgetfulness. He has been taking medication in the last few years from his country but he didn’t bring it with him in Canada and cannot recall the name. Mr. [NAME] reported that his father had dementia. In my opinion Mr. [NAME] starts to have early signs of dementia and he has been given treatment. [ 7 ] In 2022 and 2023, the same doctor wrote letters indicating that Mr. [APPELLANT] had been diagnosed with dementia and was on medication. There is no other medical evidence about the progress and impact of the dementia on Mr. [APPELLANT]’ day to day functioning during the relevant years in question. [ 8 ] In a decision dated February 22, 2023, the [NAME] allowed the Minister’s cessation application on the basis that Minister established, under section 108(1)(a) of IRPA , that Mr. [APPELLANT] reavailed himself of the protection of Lebanon. Ultimately, the [NAME] found that the three elements of the cessation test were met: Mr. [APPELLANT] acted voluntarily, intended to reavail himself of [NAME] and actually obtained such protection. The [NAME] accepted that Mr. [APPELLANT] travelled to Lebanon to visit sick and dying siblings and to attend their funerals but found that these were not exceptional circumstances and therefore, his actions were voluntary. The [NAME] found that the medical evidence did not establish that Mr. [APPELLANT] was unaware of the consequences of his decision to travel to Lebanon because of his medical condition. The [NAME] also found that Mr. [APPELLANT] took minimal safety precautions that did not demonstrate that he was living in hiding while in Lebanon.

III. Analysis A. Legal Framework for Reavailment under Section 108(1)(a) [ 9 ] A finding that a [NAME]’s status has ceased under section 108(1)(a) of IRPA  has severe consequences. For Mr. [APPELLANT], it means a loss of [NAME] protection status, a loss of his permanent residence status and an inability to apply for a pre-removal risk assessment or an application for permanent residence on humanitarian and compassionate grounds for one year following the decision, and removal from Canada “as soon as possible” ( IRPA , ss 25(1.2)(c)(i), 46(1)(c.1), 48(2), 63(3), 101(1)(b), 108(3), 112(2)(b.1)). The severity of these consequences increases the obligation on the [NAME] to explain its decision ( Canada (Citizenship and Immigration) v [NAME] , 2022 FCA 50   [ [NAME] ] at para 51; [NAME] at paras 133-135). [ 10 ] In order to allow the Minister’s cessation application under section 108(1)(a) of IRPA , the [NAME] must be convinced that Mr. [APPELLANT] acted voluntarily, that he intended to reavail himself of the protection of Lebanon, and that he actually obtained such protection ( [NAME]  at para 79). The onus is on the Minister to establish all three of these elements on a balance of probabilities. [ 11 ] The Federal Court of Appeal in [NAME]  confirmed that where a [NAME] travels on a passport they have obtained or renewed from the country where they feared persecution/risk to life, they are presumed to have intended to avail themselves of the protection of that country. That presumption can be rebutted ( [NAME] at para 63). The onus shifts from the Minister to the [NAME] to rebut the presumption ( [NAME] at paras 65-66). The [NAME] must conduct an individualized assessment of the evidence, including “any evidence relating to the [NAME]’s subjective intent in obtaining, relying on a passport and/or travelling to their country of nationality” ( [NAME] at paras 65-66). Some non-exhaustive factors highlighted by the Federal Court of Appeal that may be relevant to this analysis include: whether the [NAME] took any safety precautions while in their country of nationality, whether they had knowledge of the Canadian immigration consequences of their return, and the frequency and duration of the travel ( [NAME]  at para 84). [ 12 ] The Federal Court of Appeal in [NAME]  cautioned that the “test for cessation should not be applied in a mechanistic or rote manner” (at para 83). The core question throughout the [NAME]’s evaluation “should be on whether the [NAME]’s conduct—and the inferences that can be drawn from it—can reliably indicate that the [NAME] intended to waive the protection of the country of asylum” ( [NAME]  at para 83). B. Treatment of Evidence on Safety Precautions [ 13 ] The [NAME] acknowledged that Mr. [APPELLANT] travelled by car with a family member directly from the airport to his family’s home in the south of Lebanon and that he would cover his face with a scarf to avoid detection. The [NAME] also noted that Mr. [APPELLANT] “visited his sibling[s] in state-run hospitals and attended their public funerals” and that the airport in Beirut is infiltrated by [NAME] who would “have no trouble identifying the Respondent’s arrival and departure from Beirut International Airport” . Ultimately, the [NAME] concluded “the totality of the evidence before it demonstrates that while the Respondent may have been making minimal efforts to conceal his identity, they do not amount to him being in hiding.” [ 14 ] There are two significant problems with the [NAME]’s analysis of this critical issue in the reavailment analysis. First, the [NAME] required that Mr. [APPELLANT] demonstrate that the efforts he took amounted to living in hiding. This is not the requirement. As explained by Justice Ahmed in [NAME] at paragraph 30: Similarly, the [NAME] erred by requiring the Applicants to have been “in hiding” during their travels. The relevant consideration is ‘[w]hether the [Applicants] took any precautionary measures while [they were] in [their] country of nationality; ( [NAME] at para 84). The Applicants were not obliged to show they were ‘actually hiding.’ The [NAME]’s assessment of this factor does not accord with the consideration set out in [NAME] . [ 15 ] Justice Turley found the same error in [NAME], stating at paragraph 24: …the [NAME] [NAME]  decision does not support the [NAME]’s finding that the Applicant was required to show on a balance of probabilities that she was “in hiding”. Rather, it is a highly contextual assessment that requires consideration of the totality of the precautionary measures taken in light of the nature of the risk in question. It is not a binary determination as the [NAME] treated it in this case. [ 16 ] I find the [NAME] made the same error identified in [NAME] and [NAME] . I see no basis to distinguish the reasoning in those cases. The [NAME] failed to consider the impact of the totality of the evidence about the precautionary measures taken by Mr. [APPELLANT] and instead focused on the binary question of whether these actions amounted to living in hiding. This is a sufficient basis on which to set aside the decision. [ 17 ] I also find that the [NAME]’s evaluation to be missing consideration of key aspects of Mr. [APPELLANT]’ evidence on his precautionary measures. For example, regarding Mr. [APPELLANT]’ hospital visits, the [NAME] did not consider that he would only visit his siblings briefly, during quiet hours and that the hospital itself is in a village in the south of Lebanon where it is not busy. [ 18 ] I am allowing the judicial review. Neither party raised a question for certification and I agree none arises.

JUDGMENT in IMM-3418-23 THIS COURT’S

JUDGMENT is that The application for judicial review is allowed; The [NAME] decision dated February 22, 2023, is set aside and sent back to be redetermined by a different member; and No serious question of general importance is certified. blank "Lobat Sadrehashemi" blank Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-3418-23 STYLE OF CAUSE: [APPELLANT] v. THE MINISTER OF IMMIGRATION AND CITIZENSHIP PLACE OF HEARING: VIA VIDEOCONFERENCE DATE OF HEARING: MARCH 23, 2026

REASONS FOR

JUDGMENT AND

JUDGMENT: [NAME] J DATED: JUNE 11, 2026 APPEARANCE : [APPELLANT] FOR THE APPLICANT [NAME] For The Respondent SOLICITORS OF RECORD : [APPELLANT] [NAME], Ontario For The APPLICANT [NAME] Department of Justice Canada Toronto, Ontario For The Respondent