Refugee status cessation and PRs applying for citizenship
- Thread starter dpenabill
- Start date
Re-availment is a fact to be determined through a fair process.sopranotb said:Can you explain your point again in a simple words?. my understanding is that re-availment makes PR holder immediately inadmissible upon determination of cessation per c-bill 32 of 2012?.. so confusing. thanks a lot
Not even the criminal act of murder immediately renders a PR inadmissible. Proper process must be followed. For the crime of murder, first there is the criminal prosecution, standard of proof is beyond a reasonable doubt, and if there is a conviction then inadmissibility proceedings must be brought against the PR in order to actually revoke the PR's status.
The 2012 legislation, as I understand it, merely implemented an automatic termination of PR status if there is a final determination of cessation. The actual process of cessation did not change. What changed is that before 2012 there was no impact on PR status. After 2012, cessation automatically terminated PR status.
But before that happens, the procedure for actual cessation of refugee status has to be followed, providing the affected refugee a fair procedure, including notice, a right to respond, and so on.
There are multiple grounds for cessation of refugee status, including re-availment. But to reach a final determination formally resulting in a cessation determination, CBSA must do an investigation and decide, if appropriate, to initiate cessation proceedings. This is comparable to the prosecutor filing criminal charges in a criminal case. The refugee must be given notice and an opportunity to respond, to explain or contest the facts CBSA alleges in claiming the refugee has re-availed himself of his home country's protection. The UNHRC guidelines are followed in these cases, pursuant to which merely obtaining a passport from one's home country raises some degree of presumption of re-availment. But this is not conclusive. The refugee can explain and argue this does not constitute re-availment in his particular case.
Unless CBSA commences cessation proceedings, a refugee's actions constituting re-availment have no impact. Thus, for example, if the refugee is qualified for citizenship, applies and becomes a citizen before CBSA commences any cessation proceedings, the individual becomes a citizen and that cannot be taken away even if it is shown the individual earlier had re-availed himself of his home country's protection.
Not sure that is what you are looking for, but that is the best I can offer.
Umm No!dpenabill said:
Not to open another can of worms here but that is factually incorrect. The Minister can initiate proceedings to repeal a grant of citizenship if he/she can show that an applicant never qualified for citizenship in the first place, and the way to show that is to show that the applicant was not actually a PR at the time the citizenship application was processed. The whole citizenship application rests on a PR status whose sole basis is refugee status. Once it is established that that basis no longer existed, the argument can be made that the applicant was not in fact a PR during the time the citizenship application was processed.
I don't know the exact details of how the Minister would go about knocking down this house on shaky foundations but I do know that citizenship can be repealed if the requirements for it were not met before the oath, and there is no statute of limitations for commencing such repeal proceedings. Any time they can prove you didn't actually have the PR status required for a citizenship application, they can move against you.
This is just what happens when you let the UN do the thinking for you. Asking the courts to rule that obtaining a passport and returning home does not constitute re-availment of your home country's protection is akin to asking us to believe that sticking your hand in the cookie jar does not imply you meant to grab cookies.
Seriously? This is what it's come to any more? The judges might as well go ahead and issue these absurd rulings right at the start and spare everyone the time it takes to run the "theater" of courtroom arguments. The judges have already made their rulings in their heads based on their own personal opinions and anyone who believes courtroom speeches are more than just "keeping up appearances" should have their heads examined.
In the case of Xin Li Yuan, the judge highlighted that by using his Chinese passport to return to China, he had alerted Chinese authorities to his presence. And yet, later down the ruling the judge says that he had NOT re-availed himself of his home country's protection because he was "hiding" while in China ("hiding" established on nothing other than Yuan's words IN HIS DEFENSE after the commencement of cessation proceedings). In other words, you can travel to your home country as a refugee as much as you like. All you have to say in your defense is that even though you traveled to your home country, you were hiding there the whole time. And that's sufficient for a conclusion that you did not actually re-avail yourself of your home country's protection. Never mind that when you showed up at your country's borders with your own passport, you let your home country government know you were available in the country.
This is in response to my statement:marcus66502 said:
"Unless CBSA commences cessation proceedings, a refugee's actions constituting re-availment have no impact. Thus, for example, if the refugee is qualified for citizenship, applies and becomes a citizen before CBSA commences any cessation proceedings, the individual becomes a citizen and that cannot be taken away even if it is shown the individual earlier had re-availed himself of his home country's protection."
While I am no expert, and especially so regarding refugees, I am confident my statement is correct.
In particular, the only grounds for taking away (revoking) citizenship are:
-- misrepresentation or fraud made in the process of applying for status in Canada (including refugee and PR status) or in the application for citizenship (section 10.(1) current Citizenship Act)
-- conviction for certain criminal offences (section 10.(2) in current Citizenship Act)
The second of these appears likely to be repealed this year (subject, perhaps, to obstruction by Conservatives in the Senate), pursuant to proposed legislation in Bill C-6.
There is NO provision for revoking or terminating the citizenship of an immigrant, who came to Canada as a refugee, based on re-availment of home country protection. In particular, there is simply no provision of law which gives any Minister the authority "to repeal a grant of citizenship if he/she can show that an applicant never qualified for citizenship in the first place," UNLESS it is shown that the applicant made misrepresentations leading to the grant of citizenship.
And, to be clear, there is no provision for the termination of PR status on the grounds the PR came to Canada as a refugee but has re-availed himself of his home country's protection. Re-availment is grounds for cessation of refugee status. Thus, however, if there are proceedings brought resulting in cessation of refugee or protected person status based on re-availment, that automatically results in the termination of PR status (this is pursuant to change in law in 2012).
In other words, a refugee's re-availment of home state protection does not automatically affect PR status. CBSA or CIC (IRCC) must commence cessation proceedings, give proper notice to the affected refugee/PR, provide the refugee/PR an opportunity to explain or contest the allegations of re-availment (or other grounds for cessation), including a hearing if requested, and the decision must be consistent with the law and with fair procedure, including proper notice of the decision and the reasons for the decision.
If that process was not followed before citizenship was granted, no Minister has authority to revoke or remove or terminate or repeal the person's citizenship later . . . except in the obvious situation, which would be where the applicant made misrepresentations or committed fraud in obtaining status or citizenship.
My best guess is that you have confused the authority of the Minister to not grant citizenship versus the authority to revoke, repeal, or otherwise terminate citizenship. Again, the only grounds for revoking a grant of citizenship, once granted, are prescribed in section 10 of the current Citizenship Act, and those are basically just two:marcus66502 said:
-- fraud/misrepresentation
-- terrorism related crimes
Moreover, again, merely obtaining a passport from one's home country, even traveling there and living there, does NOT have any automatic effect on an individual's PR status.
Only if CBSA commences cessation proceedings is there an impact. And PR status remains valid unless and until there is a final determination in the cessation proceedings. Only if there is legal cessation does that affect PR status, but indeed if there is legal cessation then PR status is automatically terminated. No separate government action or notice is required. Upon cessation of refugee status, then PR status is terminated as a matter of law.
And of course if this happens BEFORE a PR applying for citizenship actually takes the oath of citizenship, the applicant-PR is NO longer qualified for a grant of citizenship.
If the government identifies reason to believe the individual re-availed himself of home country protection after the oath of citizenship has been taken, again so long as there was no misrepresentation in obtaining status or citizenship, there is no legal authority to revoke or repeal that individual's citizenship.
case of Xin Li Yuan
Justice Boswell's decision (see http://canlii.ca/t/gkfq5 ) offers a good, albeit partial outline of how the 2012 change in law has affected PR-refugees, discussing in detail the consequences of cessation pursuant to the 2012 changes in law.marcus66502 said:
Beyond that, Justice Boswell's decision reiterates what I have posted multiple times: that the finding of re-availment itself is a determination of fact. This is a conclusion which must be based on a reasonable assessment of the evidence. (see paragraphs 35, 36 in Justice Boswell's decision). Based on the particular facts and circumstances, Justice Boswell ruled that the RPD's finding that Xin Li Yuan re-availed himself of Chinese protection was NOT reasonable.
As I posted above:
[Fact of obtaining and using home country passport raises presumption of re-availment "is not conclusive. The refugee can explain and argue this does not constitute re-availment in his particular case."
Justice Boswell in effect concluded that the RPD had unreasonably rejected Xin Li Yuan's explanation and refutation.
That is not the end of that story, however, as the case was returned to the Refugee Protection Division for redetermination. I do not know whether Xin Li Yuan succeeded or was again adjudicated to have his status ceased, or that any decision has yet been made.
Caveat regarding PR-refugee friendly decisions:
There are many cessation cases, and the outcomes vary considerably. For those affected, they should be careful not to read too much into the decisions favouring these particular PR-refugees. The individual-specific factual details can matter a great deal. The law is somewhat unsettled, with a number of challenges still pending. Outcomes for some with what appears to be stronger cases have gone the other direction, depending (it appears) on which Federal Court justice decides the case. And there may be some revision in policy and practice taking place at IRCC under the new Liberal leadership.
For example of some cases going against the PR-refugee even for relatively few trips to home country, using home country passport, see cases cited and linked in earlier post of mine above, last year:
dpenabill said:
Davis William Lezama Cerna case:
Again, there are many cessation cases; again, caution should be exercised in drawing conclusions from any specific decision.
I mention this case in particular, however, because it reinforces important aspects of Justice Boswell's decision in a factual context involving extensive travel to the PR-refugee's home country, and because it illustrates a particular context in which many of these cases have arisen: when the PR-refugee has an application for citizenship pending.
See http://canlii.ca/t/gl76g
This case illustrates a Federal Court justice taking what appears to me to be a fairly creative approach to avoid a harsh outcome for a PR-refugee who had, nonetheless, obtained his home country passport (renewed it twice in fact) and used it to travel to his home country on multiple occasions.
Justice O'Reilly accepted that this individual's decision to obtain his home country passport and travel to his home country was not re-availment but based on the [mistaken] belief that his Canadian PR status protected him. Thus he did not have a subjective intention to obtain his home country's protection.
That's is a very generous assessment by the Federal Court and not one another PR-refugee should rely on as likely to happen in their case. But again, this illustrates that before status can be adjudicated and cessation effected, the PR-refugee is entitled to an opportunity to explain and contest an allegation of re-availment, and while the presumption exists (the impact of which should not be underestimated), it is not necessarily conclusive for those who have obtained their home country passport even if they have traveled to their home country.
The other salient aspect of the Cerna case is that it illustrates the manner in which the 2012 change in law has had a dramatic impact: it comes up in the processing of citizenship applications by RP-refugees.
Commencement of cessation proceedings:
As best I can discern, the typical cessation case might be triggered by a PoE examination, such as when a refugee returns to Canada after an absence, and upon arriving at a PoE (particularly after an extended absence) presents a home country passport. In the course of the PoE examination CBSA would become aware the refugee had obtained a home country passport, and stamps in the passport would indicate actual use of the passport. Even without going back to the home country, this meets the UNHRC guideline indicating a presumption of re-availment.
It warrants noting that, it appears, many PR-refugees specifically obtained a home country passport precisely so they could travel to their home country. The Travel Document Canada issues to a refugee does not authorize travel to the refugee's home country (as I understand it, these TDs explicitly exclude authorizing travel to home country). But many refugees have encountered compelling reasons to return to their home country, like a seriously ill parent back home or a family member's wedding, and having a sense they could travel to their home country for such purpose without encountering the danger they had fled, they look for ways to make the trip. But to do that they need their home country passport. And many have been willing to risk traveling to their home country.
And as noted in the Cerna case, cited and linked above, many times (probably usually) they are not aware of the potential consequences, that their status as a refugee is subject to cessation and that, in turn, will terminate their Canadian PR status.
Prior to 2012, once the refugee had become a PR there was no consequences for doing this, for obtaining a home country passport or traveling to one's home country. Even if CBSA closely examined the returning PR-refugee, cessation of refugee status would have no impact on PR status, so there was no reason to initiate cessation proceedings. One of the more controversial aspects of the 2012 change has been the cessation of refugee status resulting in loss of PR status based on actions by the PR-refugee prior to the change in the law, when there were no consequences for in effect re-availing oneself of home country protection. Thus, for example, after 2012 CBSA brought cessation proceedings against PR-refugees who had done things like spending a lot of time in their home country some years before.
In particular, one of the more high profile cases involved an individual for whom there was an official decision his PR status was not lost due to an extended absence to his home country, a Residency Determination proceeding assessing whether he was inadmissible for a breach of the PR Residency Obligation. Then years later, after 2012, CBSA again went after this individual in a cessation proceeding based largely on the same facts, the same extended period of residing in his home country many years earlier, determined cessation of status, and the cessation was upheld on appeal, including the consequence of terminating this individual's PR status. The court ruled the cessation provision terminating PR status applied regardless when the re-availment occurred. In effect, thus, it applied retroactively . . . although technically Justice O'Reilly ruled this was not a "retroactive" application of the law, even though the consequences apply to cessation based on acts prior to the change in law -- see the Peter Sum Li case: http://canlii.ca/t/gh849 Nonetheless, this individual lost PR status many years later based on spending time in his home country many years prior to the 2012 change in the law.
Citizenship Applications on Hold:
The most salient impact of the 2012 change has been for PR-refugees applying for citizenship. The applicant for citizenship must submit a copy of all travel documents covering the relevant time period, and must declare all travel abroad. Those PR-refugees who had obtained a home country passport thus disclosed this fact to CIC. Those PR-refugees who traveled to their home country thus disclosed this fact to CIC. (Of course those who concealed or otherwise did not disclose such facts committed misrepresentation, in itself a separate ground for denying citizenship.)
And for many all went well until the test-interview, when their passport and travel declarations were examined in some detail. And even then they were not advised of a problem. But they were not scheduled for the oath. The months and for many the years went by. In the meantime, unbeknownst to the PR-refugee, CIC had made a referral to CBSA, informing CBSA of the information about the home country passport and home country travel, referring the PR-refugee to be investigated for cessation.
The first time many of these individuals became aware that CBSA or CIC was taking action to terminate their refugee status, thus also their PR status, thus rendering them NOT eligible for a grant of citizenship, was when they got formal notice of cessation proceedings. For more than a few, there was the notice, and an opportunity to respond, and a hearing, and then the cessation determination. (Again, typical such case is the Cerna case, cited and linked above.) Even then, it appears many received no notice from CIC about their citizenship application. Under Kenney and Alexander, CIC simply stopped processing their citizenship applications and otherwise would not grant citizenship.
For those who sought recourse in the Federal Court, the results have been mixed. Some have found sympathetic Federal Court justices who identified technical reasons to overrule cessation.
It was such a case which triggered me to start this topic. That was the Otto Raul Godinez Ovalle case. See my first post in this topic. See http://canlii.ca/t/gkgft (this case is also addressed in more depth in a later post, above, last fall)
Just as another example of an individual whose citizenship application appears to have triggered the cessation proceedings, while in the meantime CIC simply suspended processing the citizenship application, see the Abdalla Osama Khalifa case at http://canlii.ca/t/gn7gv
Note: Ovalle won. Khalifa lost.
This leads back to the anecdotal reports here by shahbj, who earlier reported attending the test-interview, then this post:
Decision Made at this stage tends to be good news. So this is promising. Since shahbj has reported being in Canada pursuant to refugee status and obtaining a home country passport, and traveling to the home country, if indeed shahbj is scheduled for and takes the oath of citizenship, this could indicate that under Liberal leadership the government is taking a more open or flexible approach to PR-refugees in these circumstances.shahbj said:
Obviously, a single report does not warrant a general conclusion. Moreover, it remains to be seen whether shahbj is actually scheduled to take the oath.
And in the meantime the UNHRC guidelines still raise the prospect that a person in Canada pursuant to refugee status risks cessation of status if that person obtains a passport from the home country, especially if they travel using the passport, and even more so if they travel to the home country. The consequences can be so severe, the prudent course of action for PR-refugees is to NOT obtain a passport (or renew a passport) from their home country and to NOT travel to their home country . . . at least not without consulting with an experienced refugee lawyer.
In any event, overall, contrary to what is suggested by marcus66502, those granted citizenship cannot have their citizenship revoked or repealed because they allegedly re-availed themselves of their home country's protection.
(Noting, again, however, of course anyone who make misrepresentations in their application, such as not disclosing they had obtained a passport from their home country, or not disclosing travel to their home country during the relevant time period, could face revocation on the grounds of misrepresentation.)
I'm not going to regurgitate what I've already said because it's no use. Listening is not your strongest suit. In fact, from what I see, your only skill is for repeating yourself multiple times and for taking long paragraphs to say .... not much really.dpenabill said:
Call it whatever you want, misrepresentation or pistachio roasting. The Minister can move against you just by showing you never actually had PR status when you were granted citizenship. And yes re-availing yourself of your home country's protection while being a refugee is one way of accomplishing this because it goes right to the very heart of the basis for granting you refugee status in the first place.
I'm talking about what's possible here, not what's likely under the liberal government. Yes, of course, everyone knows phony refugees are at no risk whatsoever under the liberals' watch. But the likelihood of repeal scenarios does change when power changes hands from liberals to Conservatives. I think everyone knows that as well.
As for the repeal of the provision for revoking citizenship based on misrepresentation, it's purely your opinion that it's likely to be changed soon. I wouldn't count your chickens before they are hatched. The liberals are liberal but they are also politicians who want to be re-elected and they have no support for this repeal in the general public. The Conservatives will make sure the public knows they repealed a provision with the net effect of that now people who got their citizenship based on lying will keep their citizenship for life with no consequences.
Anyway it doesn't matter if the "revocation for misrepresentation" provision is repealed. It can and will be re-enacted into law when the Conservatives take power again (to be enforced conservative-style: retroactively). You keep forgetting the first thing you should keep in mind about Canada: it bends whichever way the wind blows.
You also keep forgetting a couple of funny things about time: it's infinite and it just keeps running.
Among the many things you confuse or outright get wrong, there is NO proposal to repeal the provision "for revoking citizenship based on misrepresentation."marcus66502 said:
Moreover, there is no prospect that the statutory grounds for revoking citizenship obtained by misrepresentation will be repealed. And accordingly it is NOT my "opinion that [this is] likely to be changed soon." That is not going to happen. I do not think it is going to happen. I have not suggested or so much as hinted this is going to happen.
Otherwise, Bill C-6 (currently in committee stage) already proposes to repeal section 10.(2) grounds for revoking citizenship (grounds related to convictions for terrorism related criminal offences), but that will have no impact on the provision governing revocation for misrepresentation/fraud.
In the meantime, there are no other grounds than these (misrepresentation/fraud, and terrorism-related criminal convictions) for revoking or repealing a person's citizenship. And no other grounds are proposed.
Reminder: naturalized citizenship is a GRANT by the Minister.
Even under the old law, which required the approval of a Citizenship Judge, citizenship itself was a grant from the Minister. Once the Minister has granted citizenship, and the oath has been taken and citizenship conferred, the Minister cannot later change his or her mind and decide to take away the new citizen's citizenship. Nor can a later Minister determine that citizenship should not have been granted and decide to take away the individual's citizenship.
Once obtained, citizenship can be taken away only if there are specific grounds for revoking citizenship, and again the only grounds for doing this are prescribed in section 10 of the Citizenship Act: misrepresentation/fraud or terrorism-related criminal convictions. (Subsections 10.(1) and 10.(2) respectively.)
Canada is a nation governed by the rule of law and Canadians (both PRs and citizens) are entitled to fair procedure. Ministers cannot relitigate determinations already made. A Minister cannot re-examine a citizen's qualification for citizenship and decide to take-away citizenship if the Minister concludes the individual was not really qualified. That is NOT how it works.
Can we know if refused cases like kuoch and balouch were really deported to their home country?, for example balouch discontinued her federal court of appeal if you check their website which may be managed to stay somehow.. most of these cases also have strong H&C for example kuoch has 5 or 4 kids living in Canada..
I am no expert and you are asking a question beyond what I have studied.sopranotb said:
In particular, beyond grounds or events terminating PR status (and eligibility for citizenship), what then happens is an aspect of the process I have not followed closely.
But you allude to yet another very important aspect of the overall process: an individual's right to fair procedure before being physically deported even after having exhausted all recourse in the adjudication which resulted in the loss of status in Canada. Even those persons in Canada without status are entitled to fair process before being physically deported. There are various avenues for seeking recourse, ranging from, as you allude, possible H&C applications, to the Pre-Removal Risk Assessment process itself.
I have not followed, let alone studied, much about these stages of removal. I am aware that some changes in law were implemented under the last few years of the Conservative leadership restricting the nature and scope of review, and other elements of recourse. I am also aware that for an individual who has had his or her status adjudicated, there are often findings in the adjudication which can have bearing on how any H&C or PRRA is handled and decided. After all, for example, the PR-Refugee who loses refugee status because he has re-availed himself of his home country's protection by acts including spending time in his home country, faces the inference that since he has spent time in his home country it is not unduly dangerous for him to return to his home country.
There are also serious logistical hurdles for anyone who has lost status in Canada. To what extent they could work, or obtain health care, among other things, I do not know. I suspect it can get complicated or downright difficult.
Also see the Refugees and Asylum conference at this site:
For further forum discussion regarding refugee related matters, including home country passport, travel abroad, travel to home country, and other aspects related to status, see related topics in the Refugees and Asylum conference.
In particular, see
That is a long post (I am not the only one eh) followed by a lot of tangential discussion; but the OP highlights key considerations, including general advisories for those who have refugee status (including after becoming a PR):rainbowbee said:
• Do not travel back to your home country
• Do not renew your home country’s passport.
• Do not travel on your home country’s passport, even to a third country, such as USA for example
• Just simply don’t have any contact with embassy of your home country.
The post is largely about the Refugee Travel Document, but it also illustrates the extent to which there is confusion and outright erroneous information about these issues. For example, it reports one call centre agent telling the PR-refugee (the OP) that using home country passport "will not impact" PR status, and later a different call centre representative saying the first agent gave wrong information regarding this. We know the second agent was correct, and that indeed, pursuant to the change in law in December 2012, obtaining and using home country passport can result in cessation of refugee status and loss of PR status.
Another participant similarly reports, in that topic, the absence of clear information, including from IRCC/CIC call centre agents:
Caveat: just as occurs here, there are posts in that topic reflecting confusion or outright erroneous information.light88 said:
One participant speculates that the Liberal government is not exercising the cessation authority even though it was being applied during the Harper government.
The conclusion is still the prudent course to follow: do not obtain or renew home country passport, and avoid travel to home country. I cannot offer even a guess as to the speculation about the Liberals not using this power at all.LoveCanada10 said:
For now, though, the law is what it is. And with the current law, obtaining and using the home country passport could lead to cessation and thus loss of PR status, thus ineligibility for citizenship.
The problem for many is that prior to 2012 there were NO consequences for PR-refugees if they obtained and used their home country passports, or traveled to their home country. So there was little or no incentive to not obtain a home country passport and use that while traveling abroad, and no incentive to avoid traveling to one's home country so long as one believed they could do so safely. Thus many did obtain their home country passports and use it for travel.
Then, after 2012 and until at least until late last year, those who did this were at risk for cessation of refugee status which would also terminate their PR status.
And in so far as current law goes, they remain at risk. Even if the Liberal government is applying a lenient approach to these cases, those who have PR-refugee status should exercise caution about this issue.
Overall Observation:
We see only a very tiny slice of actual cases. We do not see enough to draw generalizations. It is certain that the individual facts and circumstances for a particular individual can have a huge impact. Thus, there is a lot we do not know about how CBSA or IRCC generally approach PR-refugees, and how things will go for any one in particular will depend a lot on the specifics of that individual's situation. This includes how things go if there is a cessation finding and status is lost, as to what happens next.
I started looking into this, in some depth, the day before yesterday. I have not yet seen the Federal Court of Appeal decision you refer to. If you have a link or at least a citation, that would be helpful.sopranotb said:
Thus, I cannot assess the significance of this decision. And as yet cannot identify any source which will help me learn more about it.
Moreover, I am no expert, and I am not a Canadian lawyer. So unraveling the intricacies and nuances of interpretation and application regarding these complex issues is not about just looking the answers up.
All that noted, it may not be so bad as you apprehend. I do not know for sure, and actually I am way short of knowing, but there is the possibility this is ONLY about the Minister's decision to make an application for cessation, NOT about what the Refugee Protection Division actually considers in determining if protected status is ceased or not. For emphasis: I am not familiar with the actual hearing and decision-making process in the RPD.
If we are talking about the same Bermudez case, remember this case is about challenging an application for cessation, not a cessation determination by the Refugee Protection Division (RPD), and not a decision by the Refugee Appellate Division (RAD). (Note: there is much about procedure in refugee cases I do not know; I am not familiar with what cases are decided by the RAD, for example, versus those for which the only review is pursuant to an application for leave made to the Federal Court.)
That said, there is the Justice Fothergill decision earlier this year, January 8, 2016, about which I will say more below.
Some explanatory observations:
While there have not been a large number of cases involving persons named "Bermudez," there are several. I am guessing, given the certified question, this is about the same case in which Justice Mosley (Federal Court) issued a decision in June of last year; dated June 8, 2015.
See http://canlii.ca/t/gj6wb
In that decision, Justice Mosley certified the following question:
"Does the CBSA hearings officer, or the hearings officer as the Minister’s delegate, have the discretion to consider factors other than those set out in s. 108(1), including H&C considerations and the best interests of a child, when deciding whether to make a cessation application pursuant to s. 108(2) in respect of a permanent resident?"
This same question was certified the previous year by Justice Strickland in the Silvia Olvera Romero case; see http://canlii.ca/t/g82b1
Again, I have not seen the decision you refer to. I do not know what the issues of appeal are in that case. Those issues make a difference, and could make a huge difference.
In particular, both Justice Mosley's decision (Bermudez) and Justice Strickland's decision (Olvera Romero) were cases challenging a hearing officer's decision to make an application for cessation; and thus were not challenging a cessation determination itself. It is possible, perhaps likely, that the Federal Court of Appeal has ruled that H&C considerations are not part of the assessment in deciding whether to make a cessation application, without ruling out the consideration of such factors in making a cessation determination itself.
The Minister (well, actually the Minister's delegate, sometimes referred to as the "Hearing Officer") decides to make an application, and then the Refugee Protection Division may determine that protected status has "ceased." See Section 108.(2) IRPA:
http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-20.html#h-60
BUT this is where what I know about the process falls quite short: While for purposes of this particular discussion, and related issues in discussions about preserving (or losing) PR status, I have become familiar with the grounds for cessation and the consequences (since 2012, those being loss of PR status and thus, as well, eligibility to be granted citizenship), all I know about the procedure itself is that the process includes the usual procedural safeguards, that is the elements of fair procedure, including notice, an opportunity to explain or contest, and so on. I am not much familiar with the particular procedures employed, nor with the scope of discretion the decision-makers have, let alone what access there is to review, either administrative (as in before the RAD) or judicial.
The Justice Fothergill decision in http://canlii.ca/t/gn0cx (Sajjad Shamsi Kazem Abadi):
As I referenced above, there is the Justice Fothergill decision earlier this year, January 8, 2016, which states the presumption arising from travel to the refugee's home country using a home country passport more emphatically than many other decisions:
"It is only in “exceptional circumstances” that a refugee’s travel to his country of nationality on a passport issued by that country will not result in the termination of refugee status."
See http://canlii.ca/t/gn0cx (Sajjad Shamsi Kazem Abadi)
Make no mistake, according to Justice Fothergill's interpretation of the governing law, travel to the home country using the home country passport, will result in cessation unless there are EXCEPTIONAL CIRCUMSTANCES controverting the presumption of re-availment. If this interpretation and application of the law is followed, there are participants in this discussion whose status in Canada could still be very much at risk.
The decision by Justice Fothergill is also interesting in its discussion of both the Olvera Romero decision (Justice Strickland) and the Bermudez decision (Justice Mosley):
"However, in Olvera Romero v Canada (Citizenship and Immigration), 2014 FC 671 at para 69 [Olvera Romero], Justice Strickland held that the function of the RPD in a cessation hearing is to consider whether re-availment was voluntary, intentional and actual. She acknowledged that in circumstances where the decision may adversely affect the best interests of a child and where this factor must be accounted for, H&C considerations may ultimately prevail. Justice Mosley clarified in Bermudez v Canada (Minister of Citizenship and Immigration), 2015 FC 639 (CanLII) at para 34 [Bermudez] that this must be understood as a reference to a separate application for an exemption under s 25 of the IRPA, since the RPD does not have the authority to consider H&C factors."
Confession: in the last two days I have read all three of these decisions (Bermudez, Romero, and Abadi) several times, and numerous other decisions related to these issues, and I cannot sort this stuff out. It is hard in part because I can sort out enough to know that Justice Fothergill misstates what Justice Strickland "held," since Justice Strickland was not even reviewing a decision by the RPD and thus had no occasion, in Olvera Romero, to make a holding regarding the function of the RPD in a cessation hearing. Justice Strickland was reviewing a Hearing Officer's decision to make a cessation application. Yes, this is being rather nitpicking. The difference between what lawyers, and jurists generally, refer to as a "holding," versus what is "dicta," is of little import in a decision which itself has little precedent significance (Federal Court decisions are not binding on other Federal Court Justices). But this is enough to signal that one cannot rely on the literal statements made in Justice Fothergill's decision, which simply renders the Justice's observations about H&C considerations all the more unclear.
Yes, this is a long way of restating I do not know as to whether, and if so when, H&C considerations might be considered in the cessation process. I do not know.
If the Federal Court of Appeal has issued a decision supported by a written opinion ("opinion" being what an appellate court explains in support of the decision) on the certified question (in Bermudez & Romero), that should go a long way toward clarifying what is considered and when.
Just knowing the outcome really does not offer much, since these decisions arose out of a challenge made to a Hearing Officer's decision to make the cessation application, not out of a decision by the RPD.
These are complicated cases:
Despite various changes in the law while Harper was PM, efforts to reduce or eliminate avenues of recourse for those persons in Canada pursuant to claims based on grounds for obtaining or preserving refugee or protected person status, procedure regarding refugee cases still appears to have many complicated elements, perhaps a large array of variable issues and avenues of recourse, at the least multiple layers of decision-making and review. While Canada has one bureaucracy for governing immigration, refugees, and citizenship, the law governing refugees, and especially the law prescribing the procedures in refugee cases, tends to be a separate area and quite specialized. Many "immigration" lawyers, for example, are not well versed or experienced in refugee law.
How complicated these cases, and the particular issues in them, can be is illustrated by cases like that reflected in the Justice Fothergill decision (Miodrag Zaric) http://canlii.ca/t/gk8w0 which on its face seems to be something of a backwards cessation case, Zaric the one arguing that protected person status automatically ceased upon his becoming a Canadian citizen, and the Minister arguing otherwise, so that . . . well, so that the Minister could pursue a separate ground for not merely cessation of status but to vacate the original grant of status and thus "nullify" it. The case does not specifically indicate why, but my guess is that the latter is somehow a prerequisite to revoking Zaric's Canadian citizenship. What I do not understand about it, is that the alleged misrepresentation, which would support the proceeding to vacate (not just cessation), should suffice (as best I understand these things) to revoke citizenship on the grounds of misrepresentation without having to vacate the original grant of refugee status. Perhaps there is some other angle that I am not seeing. In any event, the intricacies of this case illustrate that these cases can get rather tangled in both substantive and procedural complexities.
How difficult it is to unravel competing principles and interests in these cases is illustrated by the decision written by Justice Annis last year, regarding Misagh Heidari Gezik (see http://canlii.ca/t/gm3b8 ), in which Justice Annis tends to flip and flop back and forth, ultimately rules against the Minister but nonetheless certifies the question as to whether family members of refugees, themselves not a refugee, are subject to cessation of refugee status. (Last fall Justice Locke similarly ruled, see http://canlii.ca/t/glrm0 (BAHAREH ESFAND), and certified much the same question.)
These are complicated cases AND they can swing due to very particular aspects:
Justice O'Reilly's decision in the Al-Obeidi case (see http://canlii.ca/t/gl1cf ) illustrates a nuance which saved Al-Obeidi from losing PR status despite cessation. There are five grounds for cessation. Cessation pursuant to four of those five results in the automatic termination of PR status. Cessation pursuant to the fifth ground (see Section 108.(1)(e) IRPA) does not terminate PR status. Thus, for Al-Obeidi, while the Minister applied for cessation based on Section 108.(1)(a) IRPA, that is re-availment, the RPD determined Al-Obeidi's status ceased pursuant to Section 108.(1)(e) IRPA, that is based on changed circumstances in the home country resulting in the conditions resulting in the need for protection no longer existed.
Justice O'Reilly upheld the RPD's decision, thus Al-Obeid did not lose PR status despite the cessation of his refugee status, and thus ostensibly he also remained eligible for citizenship.
Reference is made to another case, not appealed apparently, in which the RPD determined a PR's status ceased pursuant to both Section 108.(1)(c) and 108.(1)(e) IRPA, the 108.(1)(c) ground based on the acquisition of citizenship in a third country, and this did result in termination of the individual's PR status.
Some additional cessation cases:
Decision by Justice Noël upholding RPD determination of cessation; see http://canlii.ca/t/gh67g (Obaildullah Siddiqui)
Decision by Justice Annis upholding RPD determination of cessation where PR obtained U.S. citizenship; see http://canlii.ca/t/glt7h (Abdalla Khalifa)
Decision by Justice Mactavish overruling the RPD determination the PR had not re-availed himself of his home country's protection; see http://canlii.ca/t/gllrk (Nisreen Ahamed Mohamed Nilam) This case is noteworthy in that it tends to represent a rather strict approach to assessing what constitutes re-availment. Obviously, this is a case in which the Minister brought the appeal.
Decision by Justice Bédard, also in an appeal brought by the government/Minister, upholding the RPD decision that the refugee had not re-availed himself of his home country's protection. See http://canlii.ca/t/gg3kz (Najeeb Bashir) This is not a PR case, but it illustrates the relatively extreme position the government was taking under Conservative leadership. This individual obtained home country passport under the mistaken belief he needed it to complete the process of becoming a PR, but also intended to use it to travel to a third country where he could visit his parents, but had not used it. That was enough, however, for the government to push for his loss of status.
And otherwise, still, we do not know whether the Liberal government is approaching these cases differently.
Congrats on getting across the line.shahbj said:
I am in a "similar" boat and never heard of this cessation until now. I think this is the most wicked and evil of all laws in history of mankind, how can there be two classes of PR in Canada?
please any advice I can get will go alone way, I am looking to hire a lawyer who is familiar with cessation and would like to stay on top of things before or if they come at me.
When I made my claim as a refugee i surrendered my passport and when I landed in 2013 my "valid" passport was given back to me by CIC with the warning not to return back to my country until I became a Canadian citizen. But I was not told not to renew or apply for a new passport when this expires not to mention do not travel on your national passport.
I never went back to my home country but I presume the CIC may be coming after me now that I have a citizenship application in progress. My only crime was renewing my passport here in Canada (Ottawa Embassy) and traveling with it (mainly to the US).
This law makes no sense; this law should be applicable to procted persons (status) not PR holders that was the intent of the law by the previous government choose to apply it how they deemed fit and started coming after PR holders to make up their target number of cessation each year.
(1) 99% of refugees never knew about this cessation law , we all know you are not supposed to travel back home
(2) we are still citizens of our country of birth being a refugee doesn't strip you of that and at no point was I asked to denounce my citizenship
(3) Why not issue Canadian passport instead of PR to refugees then
(4) why do CIC return valid national passports back when you become a PR
(5)Another area that confuses me is that Protected person status is temporary not permanent, if you do not apply for your PR with that time you actually loose it and have to go through a tedious process to get it back
(6) How can you be of PR status and yet be considered a refugee ,my understanding is that you crossed that bridge and all PR holders are equal in status
(7)Just to be clear; the refugee passport in itself states that you are not protected or entitled to any protection , so how does this even help
(8) passport Canada will not issue you a refugee passport if you have a valid national passport and if you don't you have to explain and provide proof that you did "attempt" to get one and was denied
(9) How does travelling on your national passport mean you are protected by your country ? The people who put this law together are very naive and fail to put into prospective that 3rd world countries do not function like UK,US or Canada. My country embassies all over the world are very useless they will never come to your aid, the ambassador is there to make his or herself rich, they aren't there to assist their citizens.Using the embassy of my country here as an example...you can call a million times they will never answer your phone call and you can't gain access to the consular at any time so how did I see protection by applying for a passport from my country of birth to enable me freedom of movement like other PR holders?.
11) An officer can decide that he/she doesn't like an applicant's face and start to make the applicant's life a living hell? Just because these officers are like gods ,they are not answerable to anyone and can do as they please.
12) I have established roots here for over 6 years and some officer can just make a case against you and you will be asked to leave in 30days? where is that done ? with no criminal record ,paid taxes every year and work my back off since I arrived in this country.
Hopefully shahbj will indeed keep the forum updated. If indeed shahbj soon receives a notice to attend the oath ceremony, that will be a very good sign. More than a few have the impression that the current IRCC, under Liberal leadership, is not following the strict, rather harsh and draconian approach to screening PR-refugees that took place while the Conservatives were at the helm. If shahbj soon takes the oath, that would suggest there may be some truth to this.frankwhyte22 said:
It is apparent that some Federal Court justices are also sympathetic to how harsh this change in the law can be, and even some RPD decisions (as indicated in some appeals by the Minister) hint that at least some decision-makers have deliberately approached such cases so as to avoid the harsh consequences of cessation.
That said, we really do not know how IRCC is currently approaching these situations. And, you are correct, as the law now stands the door stands open to widely disparate results depending, indeed, on what personally influences the individual with decision-making authority, potentially including prohibited forms of discrimination.
By the way, and apparently this is not well-publicized either, Canada will issue a Refugee Travel Document. This authorizes travel to any country which will accept it as a travel document (there are many) but does not authorize travel to the refugee's home country.
In many decisions it is emphasized that the Refugee Travel Document is a viable and adequate alternative to obtaining a home country passport, and thus that obtaining the home country passport evidences a voluntary, intentional decision to avail oneself of the home country's protection.
As for the presumption of re-availment itself, based on obtaining or renewing the home country passport, that is in the UNHCR guideline, which Canada follows. The difference, the variables in determining whether a given refugee has re-availed himself of his home country's protection, arise in assessing whether the acts were intentional, voluntary, and actually resulted in obtaining protection. Justice Fothergill's decision in http://canlii.ca/t/gn0cx (Sajjad Shamsi Kazem Abadi) illustrates what seems, to me, to be the far extreme in terms of a strict, more harsh approach.
While some of the cases involve obtaining home country passport and the only travel using it was to countries other than the home country, many of the cases tend to highlight the greater significance of travel to the home country. My impression is that those who have obtained and used a home country passport for minimal amounts of travel and NO travel to the home country, the risk is relatively moderate. Not sure of this. But it appears to be travel to the home country, or extensive travel abroad using the home country passport, which has tended to trigger commencement of most cessation proceedings.
Thanks dpenabill, I would use all the advise and information I can get. I did write my citizenship test in Feb and got CIT 052 form in March which I did return, now I am waiting to hear back. My concern is that this could be a deliberate attempt to make my citizenship application non-routine hereby buying CIC time to bring a case of cessation against me while not technically putting my application on hold.
I noticed that most of the cessation cases are in the Vancouver/east coast area and not many here in the GTA (Toronto).
If i had a reason to prove that my that acts were not intentional, voluntary, and actually resulted in obtaining protection from my home country then I presume I may stand a chance considering I never went back. I guess this is why I need to lawyer up asap before the CIC makes a move on my PR
In as much as it is in the UNHCR guideline , I want believe it is up to individual countries as to how this guideline is applied.
I guess the previous government decided to flex their powers by extending this guideline to affect a PR holder when clearly that individually has transitioned from protected person status to PR.
This law could lead to witch hunting, some officers will have a conscience while some hard line anti immigration officer will want to push this till the end , just to have that satisfaction that an "immigrant" got kicked out.
In as much as I never traveled back to my home country , I want to lawyer up and be prepared for the worse case. If anyone knows a good lawyer in the GTA that is familiar with cessation please PM me. Not a lot of lawyers are even familiar that this law exist for PR holders unless they did infact handled a cessation case.
This whole CIC process is tortuous ,discriminatory and mentally draining .
I noticed that most of the cessation cases are in the Vancouver/east coast area and not many here in the GTA (Toronto).
If i had a reason to prove that my that acts were not intentional, voluntary, and actually resulted in obtaining protection from my home country then I presume I may stand a chance considering I never went back. I guess this is why I need to lawyer up asap before the CIC makes a move on my PR
In as much as it is in the UNHCR guideline , I want believe it is up to individual countries as to how this guideline is applied.
I guess the previous government decided to flex their powers by extending this guideline to affect a PR holder when clearly that individually has transitioned from protected person status to PR.
This law could lead to witch hunting, some officers will have a conscience while some hard line anti immigration officer will want to push this till the end , just to have that satisfaction that an "immigrant" got kicked out.
In as much as I never traveled back to my home country , I want to lawyer up and be prepared for the worse case. If anyone knows a good lawyer in the GTA that is familiar with cessation please PM me. Not a lot of lawyers are even familiar that this law exist for PR holders unless they did infact handled a cessation case.
This whole CIC process is tortuous ,discriminatory and mentally draining .