Those who seek refugee status in Canada do so because they have no protection in their country of origin. By granting an individual refugee status, the individual gets international protection for as long as they require it. However, if an individual returns to the protection of their country of nationality, then they relinquish their refugee status.
A recent Federal Court decision, Caballero v. Canada (Citizenship and Immigration), highlighted multiple ways in which an individual’s actions can be interpreted as having reavailed themselves of the protection of their home country. This means that they relinquish their refugee status and are back in the protection in their country of origin.
How can a refugee voluntarily give up their refugee status and their international protection to regain national protection from the country of their nationality? Article 1 C(1) of the United Nations Refugee Convention states:
118. […] A refugee who has voluntarily reavailed himself of national protection is no longer in need of international protection. He has demonstrated that he is no longer “unable or unwilling to avail himself of the protection of the country of his nationality”.
119. This cessation clause implies three requirements:
a) voluntariness: the refugee must act voluntarily;
b) intention: the refugee must intend by his action to reavail himself of the protection of the country of his nationality;
c) reavailment: the refugee must actually obtain such protection.
In Caballero v. Canada, a Colombian refugee was found by the Refugee Protection Division to have reavailed himself of the protection of Colombia. This means that he relinquished the refugee status he had obtained to come to Canada by voluntarily returning to Colombia multiple times without extraordinary circumstances.
Mr. Caballero, a Colombian national, became a Canadian permanent resident in 2011. He had previously claimed refugee status based on his fear of persecution at the hands of individuals connected with the Revolutionary Armed Forces of Colombia (FARC). His wife and children still reside in Colombia.
In October 2011, Mr. Caballero obtained a Colombian passport from the Colombian consulate. From 2011 until 2020, Mr. Caballero made nine trips to Colombia to spend time with his wife and children. In 2016, Mr. Caballero was questioned at the Canadian border about his frequent trips, and the border services officer referred the issue to the Minister of Citizenship and Immigration to cease his refugee status.
In 2021, the Refugee Protection Division accepted the application for the cessation of Mr. Caballero’s refugee status based on the finding that he had voluntarily reavailed himself of the protection of Colombia. Therefore, he was found to no longer require the international protection that his refugee status provided him.
Mr. Caballero disputed the decision, stating that the Refugee Protection Division did not consider that the Revolutionary Armed Forces of Colombia are a non-state actor and did not correctly assess whether he intended to reavail himself of the protection of Colombia.
The Federal Court dismissed Mr. Caballero’s application for judicial review, finding that the Refugee Protection Division’s decision was reasonable. It held that “the refugee protection regime does not distinguish between state and non-state actors.” As a result, the Court rejected Mr. Caballero’s argument that he had not revealed himself by obtaining a Colombian passport because the agents of his persecution were not related to the Colombian government.
As the test for reavailment is not based on a threat’s status as a government or civilian body, it was not relevant for the Refugee Protection Division to consider the fact that the Revolutionary Armed Forces of Colombia are not state actors.
The Federal Court ruled that the fact that Mr. Caballero returned to Colombia many times showed that he did not fear persecution. Further, one of the requirements for an individual to prove they are not seeking protection within their country of origin is evidence of hiding. In this case, Mr. Caballero took no steps to hide or remain discreet while in Colombia. Instead, he attended social gatherings, including a large wedding, which made him quite visible.
Finally, the Court found that no exceptional circumstances forced Mr. Caballero to return to Colombia, making his returns voluntary. Therefore, the Court found that Mr. Caballero had, in fact, voluntarily reavailed himself of the protection of Colombia, meaning he no longer qualified for his refugee status.
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