It is not what I think that matters, but what I see in an officially published Federal Court decision, the one just being discussed: Caballero v. Canada, 2022 FC 1143 https://canlii.ca/t/jr4p0
Spoiler alert: Caballero's status in Canada has been terminated.
Part of the evidence that CBSA, the RPD, the Minister, and the Federal Court cited and relied upon, was evidence that Caballero had traveled to Cuba and Florida, and it was a border examination upon returning to Canada from the U.S. that resulted in the referral for cessation.
Yes, he also used the home country passport to travel to his home country. And that was the main evidence against him. There is no doubt, the factor that creates the biggest risk is home country travel. The second biggest risk factor is obtaining and using a home country passport.
But remember: just obtaining or using a home country passport is enough to create the PRESUMPTION of reavailment.
So you are talking about parsing probabilities. But let's be clear here; we are not talking about getting a speeding ticket. We are talking about something more like falling off a cliff.
I buy into parsing probabilities, the risks, distinguishing driving 15k over the speed limit on the QEW or Trans-Canada or 401 (which I have done often, and do just about every time I drive on these highways), from driving 30k over the limit (no confessions intended, but ok, sometimes yeah I do, even faster). Worse case scenario is a fine, license restrictions, increased insurance premiums.
I do not buy into parsing probabilities of cessation enforcement in deciding whether to engage in an act that creates a presumption of reavailment. Even if the risk of enforcement is low, even very low, the consequences are severe and for many affected potentially extremely harsh . . . and no matter how harsh, there is no H&C relief.
I have done some open face high altitude mountain climbing, including some free climbing where there would be no chance of surviving a fall. Back in the day. All more than three decades ago, when I took some risks in life. Even then I never recommended anyone else do that. Those are not the kind of risks anyone should suggest someone else take.
One of the difficulties in this forum is separating the various contexts in which risk factors are typically assessed. Big difference between assessing the risk of enforcement action for PAST events versus assessing risks in making decisions; for example, compare:
-- PR-refugee assessing risk of cessation enforcement because they have used a home country passport in the past,
VERSUS
-- PR-refugee assessing the risk of cessation enforcement in deciding whether to use a home country passport going forward.
I have no problem reassuring a PR-refugee that if they have used a home country passport occasionally but did not use it to travel to their home country, the risk of cessation is very low, probably no need to worry.
But if a PR is wondering about whether it is OK to go ahead and use their home country passport to travel to countries other than their home country, the key to remember is doing that is still enough to create a presumption of reavailment. That's walking on the edge of a high, high cliff. That's free climbing an open rock face in real mountains (not some recreational climbing wall). It's Ok as long as . . . nothing makes you fall.
I do not know the particulars about who, when, or why some PR-refugees have their passports returned to them. My guess is that Canada does not have a legitimate basis for seizing the passport. Or it may be about allowing the PR-refugee to have this important piece of identification to use in dealing with the province or banks or such.
I do not know to what extent PR-refugees are adequately advised they should not use a returned passport for travel. Most of what I have seen indicates PRs are given notice they should not use the passport for travel, or at least they should obtain a Refugee-Travel-Document if they want to travel outside Canada, but it seems this may be given along with a lot of other information and is easily overlooked.
There is no doubt about the rule. Using a home country passport for international travel creates a presumption of reavailment. That is grounds for cessation of status. That can be very harsh.
In contrast, enforcement is very uncertain. Using the passport for a holiday in Cancun or Cabo San Lucas (my preference even though it has been well over a decade since my last Baja trip) is not likely to trigger cessation. Take the risk? That's a very personal decision. Personally just the risk of it leading to elevated scrutiny in a citizenship application would strongly discourage me from taking that risk, even as much as I'd love to go back to Cabo. But for sure, I will not suggest let alone encourage anyone else take that risk any more than I recommend someone else take up mountain climbing.
ALSO note: even if using the passport does not trigger cessation, this can be something that causes significant delays in the processing of a citizenship application. Remember, applicants are not notified of investigatory processing, so a citizenship application can be bogged down with an investigatory referral for a long time, to allow CBSA to decide whether to pursue cessation, and the citizenship applicant will never be advised that is happening or that is the reason for delays.
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