Congratulations
@Blind Dolphin
Meanwhile . . . there appears to be a near steady stream of cessation decisions these days.
Another one filed just yesterday: Alvarez v. Canada, 2024 FC 770,
https://canlii.ca/t/k4qqb . . . or find here:
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/525653/index.do
In terms of the law governing cessation there is nothing new or remarkable in this decision by Federal Court Justice Régimbald . . . except perhaps it is remarkable how similar the analysis is in many of these cases; like in many of the other recent cases, the "
crux of this matter rests on the second part of the cessation test, being the Applicant’s intention."
And, very similar to what other court's have stated, the court states: "
The refugee claimant’s subjective knowledge with respect to cessation and reavailment is one of the many factors that the RPD should consider, but is not determinative of its own." This statement is typically employed to mean that just because the refugee did not know of the potential consequences that could result from obtaining a home country passport and traveling to the home country, this is not sufficient to rebut the presumption of intention to reavail home country protection.
In this case Alvarez did not raise this issue before the RPD; that is, Alvarez did not argue to the RPD he lacked subjective knowledge that returning to the home country could have an impact on his status. But in his appeal, Alvarez does raise this issue and argues that he did not know at the time that his actions could result in losing his status in Canada, and the RPD should have weighed this but did not, and so its decision should be set aside.
Here's the thing . . . which is not new, not at all new, but which nonetheless warrants attention:
when Alvarez returned to his home country, there was NO reason, none at all, to apprehend that doing so could have an impact on his PR status in Canada. The case against Alvarez was based on his obtaining a home country passport in 2011, and the trip to the home country Alvarez made in 2011. At that time, traveling to the home country would NOT affect his PR status (note that even overtly and explicitly reavailing himself of home country protection would NOT have been grounds for terminating his PR status at that time).
That is, there was NO reason, none at all, why Alvarez would have subjective knowledge that getting his Colombian passport and traveling to Colombia would affect his Canadian PR status, because at the time he did these things there was NO legal consequences for doing so.
Some contextual background:
When I first became a Canadian (five years before I became a Canadian citizen), it
appeared that a Canadian PR-refugee could travel to their home country, even overtly reavail themselves of home country protection, without risking loss of PR status for having done so. Their status as a protected person could be deemed ceased but that would not affect their PR status (this was still the case when Alvarez obtained a Colombian passport and traveled to Colombia in 2011).
That was until the law changed in late 2012. It was in December 2012 that the Harper government added cessation (for most but not all grounds) to the list of events that, by operation of law (or, as some say, "
automatically"), terminate PR status.
Leading to why I said that before the change in law "
it appeared that a Canadian PR-refugee could travel home, even reavail themselves of home country protection, without risking loss of PR status for having done so." Even though there was no provision of law at the time that would result in loss of PR status for reavailment, let alone for travel to the home country, it turns out that travel to the home country before the change in law could and after the law changed would be (and in numerous cases has been) the basis for cessation of status that would cause the loss of PR status.
That is, the addition of cessation of refugee status as an event resulting in the loss of PR status not only applied to cessation supported by travel to the home country after the change in law but also applied to cessation based on travel to the home country
BEFORE the change in law.
Notwithstanding the scope of my background in Western jurisprudence (confessing, for example, next month it will be
a full half century since I wrote and submitted to a higher court my first appellate brief), I cannot understand how this does not constitute an
ex post facto penalty, the implementation of a new law and applying it retroactively, taking away important rights for conduct that was not subject to such punitive effect when originally performed. But the Canadian courts have not hesitated in rejecting that, and a large number of PR-refugees have lost their PR status based on home country travel they did prior to the change in law.
Since it has been more than a decade since the change in law, it is not likely there will be many more cessation proceedings commenced involving the retroactive application of cessation based on home country travel before the change in law. That said, as the Alvarez case illustrates, there are at least some such cases still in process.
In contrast, when I started this topic in 2015, many if not most of the cessation cases were at least largely based on travel before the change in law, and more than a few were exclusively based on travel before the change in law. Even though the law had changed in December 2012, it was readily apparent in 2015 that many PR-refugees were still not aware that they would be risking their PR status if they traveled to the home country.
And for many who had traveled to the home country, but had NO cessation proceedings commenced against them, they were NOT aware that applying for citizenship could trigger cessation proceedings.
Back to Alvarez . . .
Along comes Alvarez. He remained in Colombia for several years, so was still in Colombia after Canada changed the law to add cessation based on reavailment to events that would result in the loss of PR status, by operation of law (or, again, as some courts and the RPD refer to it, "
automatically"). After returning to Canada he applied for citizenship in 2018. While that application was still pending, in late September 2020 the Minister commenced cessation proceedings. (It took until 2023 for the RPD to rule on the application for cessation, so Alvarez is one more example of how extraordinarily long the process can be.)
Hard to guess if the RPD might have ruled differently if Alvarez had specifically raised the claim that given the lack of subjective knowledge of the consequences for travel to the home country, because there was no provision of law at the time that would lead to such consequences, that there was no intent to reavail himself of home country protection.
A couple notes:
Re One-Trip Cases: While Alvarez might appear to be a one trip to home country case, Alvarez did not merely travel once to Colombia but then remained in Colombia to live for several years.
Re Cessation grounds NOT resulting in loss of PR status: One of the cases cited in the Alvarez decision is Tung v. Canada, 2018 FC 1224,
https://canlii.ca/t/hwgr8 . . . which brings up an issue raised in another very recent (late April) cessation decision (Wang) mentioned in a previous post, in which the RPD's decision is set aside, and which issue is the possibility that cessation can be based on the reasons for refugee protection no longer existing. Cessation on these grounds (which is pursuant to Section 108(1)(e) IRPA) does NOT result in loss of PR status.
That is: Cessation for reavailment results in loss of PR status. Cessation because the need for protection no longer exists does NOT result in the loss of PR status.
I did not give Wang v. Canada, 2024 FC 632,
https://canlii.ca/t/k48ft much attention when I referenced it nearly two weeks ago. This was mostly because other Federal Court decisions discussing section 108(1)(e) alternative grounds for cessation have largely dismissed the argument the RPD erred in determining cessation based on reavailment when it could have based cessation on the reasons for which the person sought refugee protection have ceased to exist.
In revisiting the Tung decision, and in turn a decision that addresses this issue in some depth, that is Karasu v. Canada, 2023 FC 654,
https://canlii.ca/t/jx63x, which I discussed multiple times (last year, see post #723 for example), I realize that Wang, Karasu, and Tung, and the possibility of cessation based not on reavailment but rather on changes in home country conditions, probably deserve more attention and clarification. This is particularly so given that there has been an indication the main case raising a Constitutional challenge to the automatic loss of PR upon cessation, that is Gnanapragasam v. Canada, 2023 FC 1735,
https://canlii.ca/t/k2j7q , may have been more or less resolved by a determination that cessation in that case is based on Section 108(1)(e) IRPA, and thus has no effect on Gnanapragasam's PR status (potentially making the Gnanapragasam constitutional challenge moot, as reported in the Bubreg v. Canada, 2024 FC 40,
https://canlii.ca/t/k269d case).
Which leads back to a discussion last week about how cessation for reavailment "
automatically" results in loss of PR status.
