Sari c. Canada, 2025 CF 533,
https://canlii.ca/t/kb62g
In this case Justice Saint-Fleur dismissed a cessation appeal, a ruling which like so many others of late upholds what appears to be RPD's decision in which it states it considered the lack of subjective knowledge of the legal consequences but found that did not outweigh other factors supporting the conclusion that the presumption of reavailment, including intentional reavailment, was not rebutted.
As I have discussed previously in this thread, many FC decisions have in effect gutted the ruling by the Federal Court of Appeal, in
Camayo (cited and linked many times above) in regards to weighing the evidence of reavailment, and in regards to the intent to reavail. The PR-refugee's subjective understanding MUST be considered in determining whether they intended to reavail home country protection.
In this and many other cases it appears that the RPD simply says it considers this but practically gives it no real weight, which looks an awful lot like they are not actually giving this factor any real consideration (contrary to what the FCA has mandated). And many FC judges seem to be rubber-stamping this.
Leading to . . .
Al Balushi v. Canada, 2025 FC 567 (CanLII),
https://canlii.ca/t/kb9kc
There are some
glaring red flags in this decision by Justice Heneghan, including what seems to me to be an explicit misstatement of the law, or perhaps a decision to deliberately not follow the law. Justice Heneghan states:
[40] The Applicant argues that she was unaware of the impact upon her status in Canada of travelling on her Omani passport and that she had received wrong advice.
[41] In my opinion, the Applicant was responsible for learning about the effect of using her Omani passport. Likewise, she bears the consequences of acting upon inadequate or wrong legal advice.
This is blatantly contrary to the spirit, if not the letter of the law as decided in Canada v. Galindo Camayo, 2022 FCA 50, [2022] 4 FCR 220,
https://canlii.ca/t/jndkg which is a Federal Court of Appeal decision that is binding on the FCs. In that decision the FCA explicitly listed the factors that
MUST be considered, including:
The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions;
The FCA's full discussion of this factor is set out in paragraphs 61 to 71 in the decision, in which it describes this as a "
key factual consideration" which, again, MUST be considered, and states:
[68] If it were acting reasonably . . . the RPD should have considered not what Ms. Galindo Camayo should have known, but rather whether she did subjectively intend by her actions to depend on the protection of Colombia. Having failed to find that Ms. Galindo Camayo’s testimony on this point lacked credibility, the RPD is deemed to have accepted her claim that she did not know that using her Colombian passport to return to Colombia and to travel elsewhere could result in her being deemed to have reavailed herself of Colombia’s protection, and that this was not her intent.
[71] In order for it to make a reasonable decision, the RPD was required to take account of the state of Ms. Galindo Camayo’s actual knowledge and intent before concluding that she had intended to reavail herself of Colombia’s protection.
Justice Heneghan, in contrast, and so far as I can see, overtly contrary to the FCA's ruling, put the burden, the responsibility, on Ms. Al Balushi, not only making her responsible to learn about the "
effect of using [her home country]
passport," but imposing on her the consequences of bad advice.
There is no mention of the Camayo decision or the factors it requires to be considered and rather than rely on the applicable standards for finding cessation which are explicitly prescribed in the Camayo decision, Justice Heneghan cites the elements of cessation in Nsende v. Canada, 2008 FC 531,
https://canlii.ca/t/1wrls which is a 2008 Federal Court decision (so not binding precedent and absolutely carries no weight as a precedent against law prescribed by a Federal Court of Appeal) that is NOT about a PR-refugee and is based on law BEFORE cessation was even applicable to PR-refugees.
And make no mistake, it is not as if Justice Heneghan is unaware of what the FCA's Camayo decision mandates. Which brings up some other cessation cases that we (my bad) have overlooked in this forum:
Bujbaczi v. Canada, 2025 FC 88,
https://canlii.ca/t/k939d in which earlier this year Justice Heneghan dismissed a cessation appeal in which the Camayo decision is discussed, including in reference to Bujbaczi's "ignorance of the consequences," but only referenced that such ignorance is not dispositive, NO ffffing acknowledgement, no suggestion at all, that it is nonetheless a "
key factual consideration."
Shrestha v. Canada, 2024 FC 1117,
https://canlii.ca/t/k5v92 in which, just last year, Justice Heneghan dismissed a cessation appeal in which the Camayo decision is "acknowledged" and little more, and a RPD decision relying on "
the relevant test" for cessation as discussed in Nsende. (Shaking my head.)
Yurtgul v. Canada, 2024 FC 481,
https://canlii.ca/t/k3r0l in which, again just last year, Justice Heneghan dismissed a cessation appeal in which the Camayo decision is not only acknowledged but referenced by the government, arguing that the RPD "
addressed the factors identified in Camayo". . . but Justice Heneghan does not discuss what those factors are, or how it is that the RPD reasonably addressed them, and makes no more than a passing reference to the applicant's position that the RPD unreasonably assessed his subjective knowledge of the potential consequences of his travel.
In both the Bujbaczi and Balushi cases, Justice Heneghan also gives weight to what she claims was an "
opportunity to 'perfect' [the PR-refugee's]
status" in Canada "
by applying for citizenship," as if that is relevant. This is not a relevant factor in convention cases generally, and there is no hint in Camayo that this is an appropriate factor to consider. But even if it was relevant, in neither of these cases there is no reference, no hint even, as to whether, as a matter of fact, these applicants met the requirements for citizenship and had an actual opportunity to become citizens.
My sense: good luck for anyone with a cessation case going before Justice Heneghan; someone in this situation should retain the best lawyer they can and urge the lawyer to identify questions to certify, with a hope the case can get to the Federal Court of Appeals.
