Refugee status cessation and PRs applying for citizenship

[scylla]

Another cessation case. This one was not decided in the applicant's favour.

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1371/2022fc1371.html

 

[dpenabill]

Another cessation case. This one was not decided in the applicant's favour.

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1371/2022fc1371.html

To be clear, the applicant in this case (Canada v. Zinali, 2022 FC 1371, https://canlii.ca/t/js8qs ) is Public Safety and Emergency Preparedness.

The PR-refugee who was the subject of the cessation proceedings in that case did NOT lose her protected person status, so did NOT lose PR status. The Federal Court upheld the decision made by the Refugee Protection Division (RPD) denying the application for cessation of Zinali's status.

The decision does not add much to what we know about cessation proceedings, but it does illustrate a case in which (so it appears) applying for citizenship triggered the cessation investigation leading to cessation proceedings; Zinali applied for citizenship, indicating two trips to the home country and obtaining a home country passport.

The RPD refused the application for cessation of Zinali's status because:

. . . it found that the Respondent had rebutted the presumption that she intended to obtain the protection of the Iranian state when she obtained her passport and returned to that country. The RPD found that she had gone back for exceptional reasons, and had taken steps to remain out of the purview of state officials while she was there, and it accepted her evidence that she continued to fear persecution as a Baha’i in Iran. In light of this, the RPD concluded that the Respondent did not intend to seek state protection, and she had therefore not reavailed.​

The Federal Court acknowledged "minor" errors by the RPD, but upheld the RPD's decision as supported by the evidence and consistent with the applicable law, including the law as set out in the Camayo decision, which is oft cited and discussed at length in previous posts above.

NOTE in particular, this case does NOT illuminate how things are likely to go for any other PR-refugee facing cessation proceedings for reavailment of home country protection. It illustrates that the RPD is not blindly applying the presumption of reavailment.

It is not clear that Zinali was assisted, in the RPD proceedings, by the same lawyer representing her in the Federal Court, but given the structure of the case made on Zinali's behalf before the RPD, that seems very likely. Which is to suggest that having the assistance of a lawyer in these cases can and probably will make a big difference in how it goes. Rebutting the presumption of reavailment, which is the burden Zinali faced before the RPD, typically demands a concurrence of argument based on the facts and the applicable law which requires specialized expertise.

 

[Kambs16]

Hello again,
Another quivk update. IRCC responded to my lawyer after sending a demand letter. This is their response:

Hello,
This citizenship application was suspended pursuant to section 13.1 of the Citizenship Act. The application is now considered non-routine, and standard processing times no longer apply.
The application remains in progress at the clearances stage for the time being.
Regards,
Edmonton CIC

Without reading much into it, what this tells me is it's likely a security clearance issue instead. I failed to provide a police certificate for another country I spent 6.5 months in.,even though I provided a written explanation and proof that I had tried within my means to obtain it. This could be cause of delay. When I look back at GCMS notes I ordered a while back the page that displays "Security" had information redacted under 22(b) which was indicated in the right hand corner.
This might be a relief that it isn't a cessation issue.,and more clues are coming underway. it means indefinite wait time and now rethinking whether the mandamus would be worth it. I will discuss with my lawyer and see our next step, if any. What would you advise?

 

[dpenabill]

Hello again,
Another quivk update. IRCC responded to my lawyer after sending a demand letter. This is their response:

Hello,
This citizenship application was suspended pursuant to section 13.1 of the Citizenship Act. The application is now considered non-routine, and standard processing times no longer apply.
The application remains in progress at the clearances stage for the time being.
Regards,
Edmonton CIC

Without reading much into it, what this tells me is it's likely a security clearance issue instead. I failed to provide a police certificate for another country I spent 6.5 months in.,even though I provided a written explanation and proof that I had tried within my means to obtain it. This could be cause of delay. When I look back at GCMS notes I ordered a while back the page that displays "Security" had information redacted under 22(b) which was indicated in the right hand corner.
This might be a relief that it isn't a cessation issue.,and more clues are coming underway. it means indefinite wait time and now rethinking whether the mandamus would be worth it. I will discuss with my lawyer and see our next step, if any. What would you advise?

I am nowhere near qualified to offer advice. There are some exceptions.

One exception applies here; I can suggest, advice of a sort, to pay attention to your lawyer.

Beyond that I also cannot guess any better than you (and probably even less so than you, let alone your lawyer) what the grounds are for the Section 13.1 suspension. PR-refugees appear to have a significantly higher risk of collateral, security related non-routine processing, than most PRs, generally, which most likely, most of the time, derives from the general circumstances and location of their lives prior to coming to Canada (compared to the majority of non-refugee immigrants coming to Canada). That is not to say what has triggered a heightened and more extensive security screening for you, if that is even what is involved.

IRCC, CBSA (and its NSSD in particular), and CSIS, all make a concerted effort to keep investigatory processing out of sight, behind the curtain, even when it is about something totally unrelated to security, like background investigation into the applicant's actual physical presence, let alone when it involves security related issues, with investigation into possible cessation of protected person status falling somewhere in-between. Even a lawyer will generally not be able to get much information about investigatory processing.

Non-routine processing does not give IRCC, even if it involves security related investigatory processing, and even if it involves a referral to CSIS (the darkest of the behind the curtain confidential processing), a blank check to take longer. In some actual cases it does go very, very long (recently in another topic, and some time ago in this one as well, I have referenced and linked one person's citizenship application that, at last report, had gone more than two decades without resolution). But if and when it is time to pursue Mandamus is something you need to discuss and decide in consultation with your lawyer.

Please keep the forum posted in the meantime. Hoping you see some resolution sometime soon.

 

[Kambs16]

Thanks for your words as usual. I've just been on the phone with my lawyer. He has genuinely suggested that I'm a good candidate for mandamus. He agrees with your point of view that the IRCC shouldn't own the matter and decide when and how to finish up my file. They still owe a duty to me to make a decision and my lawyer believes the court can rule that they have been unreasonable in my case. My lawyer is very experienced in such matters. I intend to pursue the mandamus asap. It's all about finding the money...we are working on something because it is done in phases. I will keep the forum updated.

 

[Kambs16]

Borrowing the words of Justice Harrington, in Hamalipoor, dealing with the excuse of IRCC sometimes trying to justify inordinate delay in processing based on the apparent fact that they are waiting on third party security clearances.

[21] Furthermore it is not adequate to pass the buck and avoid responsibility by blaming delays on another government organization. An applicant's right to a decision is an obligation on the Government of Canada acting through the responsible minister. It is the Respondent's obligation to cause the necessary steps within government so that the rights under the statute are fulfilled.

 

[dpenabill]

Borrowing the words of Justice Harrington, in Hamalipoor, dealing with the excuse of IRCC sometimes trying to justify inordinate delay in processing based on the apparent fact that they are waiting on third party security clearances.

[21] Furthermore it is not adequate to pass the buck and avoid responsibility by blaming delays on another government organization. An applicant's right to a decision is an obligation on the Government of Canada acting through the responsible minister. It is the Respondent's obligation to cause the necessary steps within government so that the rights under the statute are fulfilled.​

Yep.

Well, except I believe this quote comes from a decision by Justice Phelan in Hamalipoor v. Canada (Minister of Citizenship and Immigration), 2005 FC 803, https://canlii.ca/t/1l09f . . . and it was in the context of a long delayed application for Permanent Residence.

There are other FC decisions expressing similar sentiments, and that includes the case I have alluded to, the May 2022 Federal Court decision in Sharafaldin v. Canada, 2022 FC 768, https://canlii.ca/t/jpgxw . . . although no one wants to follow the path that Sharafaldin had to travel . . . even though the FC eventually ordered costs paid to Sharafaldin in the amount of $65,000 (this order is here: Sharafaldin v. Canada, 2022 FC 997, https://canlii.ca/t/jqf7b ), no one wants to wait twenty plus years to get a decision.

In any event, various FC decisions have said something similar. IRCC cannot just shuffle an application into a non-routine file and let it languish.

It's all about finding the money..

Therein, as the Bard would tell us, "lies the rub." It can be and usually is expensive.

 

[scylla]

Another recent one:

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1472/2022fc1472.html

 

[dpenabill]

Another recent one:

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1472/2022fc1472.html

Re: Akar v. Canada (Citizenship and Immigration), 2022 FC 1472, https://canlii.ca/t/jsnnz

Fairly routine, nothing particularly new or informative . . . but does reinforce the key elements in many, probably most of these cases involving refugees and protected persons with Canadian PR status (in contrast to refugees who are not PRs and refugee-claimants pending adjudication of status):

When a refugee applies for and obtains a national passport from the country of nationality, there is a rebuttable presumption that the refugee intended to avail themself of the protection of that country. . . . The presumption is stronger when a refugee uses a national passport to travel to the country of nationality, as they are not only under diplomatic protection while travelling, but also entrusting their safety to government authorities upon arrival.​

Justice Pallotta also refers to the UNHCR Handbook, observing that it provides instructive guidance, and that it is not domestic law. There are two sides to this.

One side is that what constitutes reavailment, what creates the presumption of reavailment, and the strength of that presumption, which is mostly about what will suffice to rebut the presumption. In this case Justice Pallotta affirms there is a presumption of reavailment if a PR-refugee obtains a home country passport, and that presumption is stronger if the PR-refugee uses that to travel to the home country. Other cases (cited and linked in several previous posts) affirm the presumption if the PR-refugee uses a home country passport for any international travel.

The other side is the effect of reavailment.

The what constitutes reavailment side is prescribed in the Canadian statutes, IRPA, but that is derived from the UNHCR. The Canadian law, regarding this, is just an adoption of the UNHCR standards.

The effect for PR-refugees in Canada does not derive from the UNHCR. Prior to 2012 cessation of protected person status in Canada had no effect on Canadian PR-refugees.

So, for example, for all those trips to the home country Akar made prior to 2012, even Akar's obtaining status documents from the home country, there was no significant effect on Akar's Canadian status at the time he made those trips.

In 2012 the Harper government adopted the provision which automatically terminates a PR-refugee's PR status if there is cessation of protected person status. And Akar probably would have been fine, no problem, except for the trips in 2016 and 2018 (cessation of his protected person status did not happen until 2020).

 

[Blind Dolphin]

A recent case to share..
Entered Canada 2015
Refugee Accepted 2016
PR 2017
Visited home country 2019 due to father's critical health for around 3 weeks
upon arrival in Canada examined by CBSA and given benefit of doubt because no IDs were renewed
2020 Applied for Citizenship
2022 got a letter from CBSA for interview and its attended - it was 1.5 hour questions answer session
Waiting for Result - either they are satisfied or they apply to cassette the refugee/pr status
FINGERS CROSSED

 

[akbardxb]

@Husseinwahab This is the thread I was referring to.

 

[dpenabill]

A recent case to share..
Entered Canada 2015
Refugee Accepted 2016
PR 2017
Visited home country 2019 due to father's critical health for around 3 weeks
upon arrival in Canada examined by CBSA and given benefit of doubt because no IDs were renewed
2020 Applied for Citizenship
2022 got a letter from CBSA for interview and its attended - it was 1.5 hour questions answer session
Waiting for Result - either they are satisfied or they apply to cassette the refugee/pr status
FINGERS CROSSED

That appears to fit with examples of no-cessation proceedings, meaning it does not fit the pattern of most of the actual cases of cessation we have seen (typically involving either more lengthy stay in home country, or more stays in home country, and usually both). So as far as we know, as far as the actual cases we have seen reported, this looks like you should have GOOD odds it will be OK.

But that is not for-sure. So far as we have seen, the fact-pattern you describe has not, not usually, even triggered a CBSA investigation leading to an in-person interview. The fact of the interview itself suggests at least somewhat more concern. You crossed the line creating a presumption of reavailment. So the burden was on you to show that you did not voluntarily or intentionally reavail home country protection. Hopefully you met that burden.

Please update this thread when you learn more. Your scenario is very much like scores of others.

In particular, your situation might suggest what has triggered the investigation was indeed the citizenship application. If so, that would signal to others who have traveled to the home country that before applying for citizenship it would be better to wait a full five years since last returning to Canada from a trip abroad to the home country, so that there is no trip to the home country showing up in the residency calculation.

In fact that seems the prudent way to go anyway, since obviously at the least your citizenship application has run into this non-routine processing with a lengthy delay. No guarantee this would not have happened if, say, you waited until 2024 to apply for citizenship. But if you waited, the relevant travel history for the eligibility period would not have included the trip to the home country, and it is quite possible that is what triggered the cessation investigation in your case.

Again, hoping this goes well. And, again, please update this thread when you learn more.

 

[Blind Dolphin]

That appears to fit with examples of no-cessation proceedings, meaning it does not fit the pattern of most of the actual cases of cessation we have seen (typically involving either more lengthy stay in home country, or more stays in home country, and usually both). So as far as we know, as far as the actual cases we have seen reported, this looks like you should have GOOD odds it will be OK.

But that is not for-sure. So far as we have seen, the fact-pattern you describe has not, not usually, even triggered a CBSA investigation leading to an in-person interview. The fact of the interview itself suggests at least somewhat more concern. You crossed the line creating a presumption of reavailment. So the burden was on you to show that you did not voluntarily or intentionally reavail home country protection. Hopefully you met that burden.

Please update this thread when you learn more. Your scenario is very much like scores of others.

In particular, your situation might suggest what has triggered the investigation was indeed the citizenship application. If so, that would signal to others who have traveled to the home country that before applying for citizenship it would be better to wait a full five years since last returning to Canada from a trip abroad to the home country, so that there is no trip to the home country showing up in the residency calculation.

In fact that seems the prudent way to go anyway, since obviously at the least your citizenship application has run into this non-routine processing with a lengthy delay. No guarantee this would not have happened if, say, you waited until 2024 to apply for citizenship. But if you waited, the relevant travel history for the eligibility period would not have included the trip to the home country, and it is quite possible that is what triggered the cessation investigation in your case.

Again, hoping this goes well. And, again, please update this thread when you learn more.

Thank you so much for a detailed reply. I would be keeping updated once i get some news about my interview. Just to add, i had this trip due to my dad's critical health and he only could survive around 12 months after my visit and passed away. I have provide them the death certificate of my father also. Hoping to have answer soon as this was a long weekend so it may take couple more days or don't know when they will revert back.

 

[scylla]

Cessation case. Renewal of home country passport + multiple trips to home country.

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1595/2022fc1595.html

 

[dpenabill]

Cessation case. Renewal of home country passport + multiple trips to home country.

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1595/2022fc1595.html

As always, updated citations to relevant decisions is appreciated.

This is not actually a cessation decision, but a collateral proceeding which . . . well, that gets into legalese weeds . . . the decision in Gnanapragasam v. Canada, 2022 FC 1595 https://canlii.ca/t/jt4xd is likely of far more interest to lawyers and those engaged in related jurisprudence than those potentially subject to cessation proceedings. The decision rejecting a motion to stay the RPD acting against Gnanapragasam (I'll refer to him as "Jude G") illuminates very little about grounds for cessation or the procedure.

It is one more case illustrating that for those PR-refugees who have engaged in actions which could constitute reavailment of home country protection, there is a real risk an application for citizenship could trigger cessation proceedings. It is not certain that is what happened, but given the chronological sequence it looks very much like Jude G's application for citizenship is what triggered CBSA's commencement of proceedings before the RPD to cease Jude G's protected person status.

This warrants a reminder:

PR-refugees who have obtained or used a home country passport (for travel to anywhere), and especially those who traveled to the home country, would be prudent to STOP using the passport, NOT renew any such passport, and NOT travel to the home country . . . AND THEN WAIT a full five more years, five years AFTER the last home country passport has expired, and wait at least five years since the last trip to the home country, before applying for citizenship. So that when they apply for citizenship the obligation to report travel during the five year "eligibility period," and present passports that could have been used for travel during that period, does not require them to give IRCC information documenting the actions which could constitute reavailment. STOP doing things that can be considered reavailment and then WAIT, WAIT, WAIT.​

The case also illustrates the nature and scope of efforts to find ways to get relief from cessation in the Federal Court. Some might see what the lawyers and the The Canadian Council for Refugees have done, here, as grasping at straws.

Severity of Impact -- Cessation Consequences:

One aspect of cessation I had given little attention, and to a significant extent I have been overlooking, is that not only does cessation automatically terminate the individual's PR status (this is the operative effect of Section 46(c.1) IRPA), it also makes the individual INADMISSIBLE (Section 40.1 IRPA) . My observations about how severe, often harsh and even draconian, the consequences of cessation are have typically focused on the automatic loss of PR status. I overlooked Section 40.1.

Section 40.1 is discussed in Jude G's case in the context of challenging its constitutional validity. (I'm guessing that's a long shot . . . and apparently is subject to a Kafkaesque Catch-22 . . . something about the requisites for challenging this cannot be met before a cessation determination, but a cessation determination eliminates standing to make the challenge, or something legalese-complicated like that -- that is, something like: unless there has been a cessation decision, a constitutional challenge of 40.1 is not appropriate, but if there has been a cessation decision, a constitutional challenge of 40.1 is not available.)

The impact of Section 40.1 is only incidentally referenced in Jude G's case. But its import is obvious: this means, for example, if the PR-refugee is married to a Canadian (citizen or PR), they are NOT eligible to be sponsored because they are inadmissible. Apparently there is no family reunion for a former refugee whose protected person status has been ceased. I do not know what relief from this might be available, if any, or when.