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Chapter 12 - Applications to cease refugee protection - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) /
Chapitre 12 - Demandes de constat de perte de l'asile - Commission de l'immigration et du statut de réfugié du Canada (irb-cisr.gc.ca)
12.5.3.2. Intention
In many cessation applications, the issue centres on whether or not the protected person had the intention to reavail him or herself of the protection of their country of nationality. Often this relates to whether or not the protected person has rebutted the presumption of reavailment that arises when they obtain a passport from their country of nationality. As of the date of writing this paper, there are outstanding certified questions before the Federal Court of Appeal on this issue. This is described in more detail below.
12.5.3.2.2. Presumption from obtaining a passport
When looking at whether or not the protected person had the intention to reavail, Canadian jurisprudence has applied the presumption found in paragraph 121 of the UNHCR Handbook:
If a refugee applies for and obtains a national passport or its renewal, it will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality.
The Federal Court in
Li,
Note42 described the presumption as a “factual presumption” which operates such that the Minister is entitled to rely on the presumption by proving that the refugee obtained or renewed a passport from his or her country of origin. Once proved, the refugee has the burden of showing that he or she did not actually seek reavailment.
In
Cadena,
Note43 a case where the protected persons returned to Mexico and applied for passports from within that country, the Court held the presumption did not apply as it only applied when the application is made from outside the country of nationality. However, the Court in that case upheld the RPD’s finding that the protected persons’ refugee protection had ceased.
12.5.3.2.3. Application of the presumption in the case law
Whether or not a protected person has rebutted the presumption of intention to reavail that arises when he or she obtains a passport from their country of nationality depends on the circumstances of each case. The reasons why the person obtained a passport and whether and how they used it are relevant factors.
12.5.3.3. Actual reavailment
Paragraph 121 of the UNHCR Handbook makes a distinction between actual reavailment and occasional or incidental contacts with national authorities. For example, it provides the example of obtaining a passport, which raises a presumption that the protected person intends to reavail, as opposed to obtaining other documents such as birth or marriage certificates, which would not normally be considered to constitute reavailment.
In addition, paragraph 125 of the UNHCR Handbook makes a distinction between travel with a passport issued by the refugee’s country of nationality, and travel with another document -- the latter not necessarily resulting in actual reavailment of protection. Canadian jurisprudence has also emphasized in some cases that travel with a passport from the person’s country of nationality implies that the person has availed himself or herself of the “diplomatic protection” of that country.
Note67
In
Cadena,
Note
82"Because of the weight the RPD put on this passport acquisition"
Chapter 12 - Applications to cease refugee protection - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)
In
Bashir,
Note33 the Court held that with respect to the criteria of voluntariness and intention, the same factual matrix can have a different impact depending on the criterion being assessed. In other words, “the fact the respondent voluntarily requested renewals of his Pakistani passport does not necessarily entail that, by doing so, he had the intention of reavailing himself of the protection of Pakistan.” In that case, the RPD found the protected person credible when he stated he believed a passport was required for his permanent resident application, even if that belief was mistaken. Therefore, the conclusion by the RPD that his act was voluntary was reasonable. However, the Court also upheld the RPD conclusion that the protected person did not have the intention of reavailing, and stated that “it is difficult to see how the renewal of a national passport for the purpose of submitting it to CIC to finalize the permanent residency process can be seen as indicating an intention on the part of the respondent to reavail himself of the protection of his country of nationality.”
Note34
In Camayo,
Note38 the Court found that it was reasonable for the RPD to conclude that the claimant did not obtain her passports voluntarily when she was a minor, but that her subsequent use of the passports to travel after she became 18 was. She made trips to care for her ailing father, although he had permanent resident status in Canada. Further, while her visits to carry out humanitarian work were honourable, they were undertaken on her own goodwill and volition. However, the Court quashed the RPD decision for other reasons.
