Background
Hasan Topbas, a Turkish citizen of Kurdish ethnicity, was granted refugee protection in Canada on February 26, 2018. His claim had been accepted on the basis of a well-founded fear of persecution linked to his Kurdish identity, political activism, and concerns about mandatory military service. The original RPD panel specifically found that if he returned to Türkiye and continued his political activism, there was a serious possibility he would face persecution.
In July 2020, Topbas obtained a deferral of mandatory military service from the Turkish consulate in Toronto and then traveled to Türkiye for 20 days to visit his mother, who believed she was dying and wished to see him one last time. After returning to Canada, the Minister commenced proceedings to cease his refugee status under section 108 of the Immigration and Refugee Protection Act.
The Refugee Protection Division (RPD) allowed the cessation application, finding that Topbas had voluntarily re-availed himself of Türkiye’s protection. The RPD concluded that his reason for returning did not constitute exceptional circumstances, that he lacked ongoing subjective fear, that he trusted Turkish authorities with his safety, and that actual re-availment had occurred based on his conduct in Türkiye. Topbas sought judicial review of that decision.
The Court’s Holding
Justice Battista granted the application for judicial review, finding the RPD’s decision unreasonable on multiple grounds. Applying the presumptive reasonableness standard from Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Court held that the RPD had misapplied the framework established by the Federal Court of Appeal in Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50, which requires decision-makers to consider at least fifteen enumerated factors when assessing whether the presumption of re-availment has been rebutted.
The Court identified four specific errors. First, the RPD failed entirely to address the frequency and duration of Topbas’s travel — a single, 20-day visit — which is an identified Galindo Camayo factor and a key factual constraint in cessation analysis. Second, the RPD unreasonably evaluated the purpose of travel by imposing an elevated “absolute necessity” test that the FCA had explicitly rejected; the correct inquiry concerns the refugee’s subjective intent, not whether the travel was objectively necessary. Third, the RPD unreasonably doubted Topbas’s subjective fear of persecution without making an adverse credibility finding, and without engaging with the original basis of his refugee claim — which tied his risk to future political activism, not to travel itself; there was no evidence he engaged in activism during the 20-day stay. Fourth, the RPD failed entirely to address Topbas’s submissions on the consequences of cessation, including his allegation that removal of protection would expose him to persecution — an omission that violated the duty of responsive justification articulated in Vavilov at paragraph 133.
The Court also noted that the RPD had incorrectly characterized the Galindo Camayo factors as obiter and therefore non-binding. While this error alone did not render the decision unreasonable, it contributed to the Court’s loss of confidence in the decision overall. The RPD’s decision was set aside and the matter remitted to a differently constituted RPD panel for redetermination.
Key Takeaways
- The Galindo Camayo factors for assessing re-availment are binding appellate authority, not obiter dicta; an RPD that refuses to engage with them commits a reviewable error.
- The correct test for the purpose of travel in cessation proceedings is the refugee’s subjective intent — not whether the travel was objectively necessary or justified; imposing an “absolute necessity” requirement is an elevated and legally incorrect standard.
- An RPD cannot reasonably reject a refugee’s claim of subjective fear without making an explicit adverse credibility finding, particularly where the original refugee determination tied the risk to conduct (political activism) in which the applicant did not engage during the return visit.
- Where a cessation decision will strip a person of permanent residence and previously recognized refugee protection, and the applicant alleges this exposes them to persecution, the RPD has a non-discretionary duty under Vavilov to provide responsive justification addressing those consequences.
Why It Matters
This decision reinforces that cessation of refugee status — one of the most consequential decisions in Canadian immigration law — demands rigorous, individualized analysis. The ruling confirms that brief, compassionate returns to a country of nationality (here, a single 20-day visit to see a gravely ill parent) cannot be dismissed through formulaic application of a necessity test, and that decision-makers must engage concretely with the specific factual circumstances, including the nature of the original protection and what the returnee actually did while abroad.
The case also serves as a reminder that binding FCA guidance cannot be sidestepped by labelling it obiter, and that the Vavilov duty of responsive justification carries real weight when life, liberty, or protection status is at stake. Practitioners advising refugees facing cessation applications will find useful support here for arguing that short-duration, family-emergency returns should receive careful, factor-by-factor analysis rather than presumptive findings of re-availment.