Refugees could lose host country’s protection if they visit ‘home’

22 June 2023 · Carmel Rickard

The issue of refugees going ‘home’ for a visit and their asylum status then being revoked in the host country isn’t a common problem for African courts. At least not yet, judging by the absence of reported cases dealing with that question. But it’s very much a problem in some other jurisdictions as Turkish refugee to Canada, Ismail Kaya, for example, has discovered.

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Ismail Kaya is a Kurdish citizen of Turkey. In April 2011 he asked for refugee status in Canada, saying he feared persecution at home because of his ethnicity and his support for an opposition political party and he also feared compulsory military service. That application was successful and in May 2017 he became a permanent resident of Canada.

A year before that, however, he had obtained a new Turkish passport from the Turkish consulate in Toronto and in October 2017, with the help of his father, he was exempted from military service through a then-recently enacted Turkish law.

A couple of months later Kaya set off on a three-month visit to Turkey (December 2017 to March 2018) during which he got married and obtained a Turkish national identity card. He later explained that he had gone to Turkey because his father was ill and faced imprisonment, pending on the outcome of an appeal.

Revoked

During that trip, his father’s appeal was dismissed and after Kaya returned to Canada, the father was indeed imprisoned. On 1 March 2018, Kaya’s brother was arrested at the father’s home, but he was released after four days.

In July 2018, and as a result of that first trip, Canada’s minister of immigration, refugees and citizenship applied to the Refugee Protection Division (RPD) for Kaya’s refugee protection to be revoked, saying that he had ‘voluntarily re-availed himself of Turkey’s protection’. The matter was adjourned to November 2019.

In January 2019, however, Kaya obtained another passport from the Turkish consulate in Toronto and in November of that year, between hearings of the RPD, he made a second trip to Turkey.

Voluntary

Arriving back in Canada, he told border officials that he had travelled to Ukraine to visit his sick mother. But he told the RPD hearing that his main reason for going back to Turkey was to ‘pay respects to his recently deceased uncle, with whom he was very close’.

The RPD approved the minister’s application to revoke Kaya’s refugee status, saying the medical report on his father’s health didn’t disclose adequate grounds for such a trip. It found the first trip was ‘voluntary’, that he had obtained his 2016 passport with the intention of visiting his family and that he wasn’t needed in Turkey to facilitate care for his father.

In considering whether the second trip was also ‘voluntary’, the RPD noted that Kaya well knew that the minister had begun action to revoke his status. He used his second Turkish passport to go to Ukraine, and the following day he used his Turkish identity card to enter his home country.

Credibility

Kaya in fact testified at the RPD that he had used his ID card instead of his passport ‘because he knew that having a Turkish stamp in his passport would not be viewed favourably’ by the RPD. The RPD drew a negative inference about Kaya’s credibility on the reasons for this second trip and found that it too, was voluntary.

The RDP quoted an earlier federal court decision finding that it was only in exceptional circumstances that the refugee status of someone who used their national passport to travel to their country of nationality would not be revoked.

In Kaya’s case he had engaged with the Turkish government to obtain passports, to have his military service deferred, to get a marriage certificate and his ID. There was also ample evidence that he had been out in public while in Turkey. Thus, said the RPD, he had ‘intentionally re-availed himself of Turkey’s protection’.

Confidence

He had used Turkish diplomatic protection by obtaining passports from the consulate, and by engaging with Turkish government authorities while in Turkey. His ID card application, along with the use of his passports and his ID to travel plus the registration of his marriage, all showed that he alerted officials of his presence in Turkey. The RPD concluded that Kaya thus acknowledged confidence in the Turkish government to protect him.

The federal court agreed with the RPD’s findings. The applicable three-part test for revoking refugee status had been correctly applied in the case, said the judge, Paul Favel.

The court re-stated this tripart test: First, there had to be voluntariness, in that the refugee must not be coerced. Second, there must be intention, in that the refugee must intend by their actions to re-avail themselves of the protection of the country of their nationality. Third, there must be actual re-availment, in that the refugee must in fact have obtained protection from that country.

The RPD correctly found that all these conditions had been present and the court thus held that there was no ‘reviewable error’.

Carmel Rickard

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