Mostly: see a lawyer.
beko9812 said:
You man answered almost all my questions. It's really very clear to me now.
Not sure how I answered your questions leading to things being really clear
unless you mean you now realize you should go to an immigration lawyer.
It certainly is
not clear to me. The more I have seen so-called "re-availment" cases, the less it appears there is a clear standard or set of criteria . . . any visit home creates a
risk, but not every visit home constitutes reavailing oneself of the country's protection.
The issue which is largely not clear to me is what factors are relevant versus what factors are not relevant, what determines if or when a person has "voluntary reavailed [himself] of the protection of [his] country of nationality."
And the application of the termination of refugee status to also constitute definitive termination of PR status is, again, quite new and rife with unsettled questions.
As for what constitutes reavailing oneself with the protections of the home country, in the more general sense this issue has been around for a long time. I am
NOT familiar with the UNHCR Handbook, which appears to play a big role in how the Refugee Protection Board approaches these issues. Immigration lawyers handling refugee cases (and there are many) are almost certainly familiar with the UNHCR Handbook.
This is not merely an issue in Canada. It appears to be a common issue in many countries. Immigration lawyers handling refugee cases should be familiar enough with this issue to at least offer real advice about your situation.
No one here can or should offer advice. We can make observations, like just visiting your home country in itself risks PR status. But these are mere observations based on generalities. These cases are very individual specific . . . and again, the law is far from settled.
For example, PMM has linked four cases. One case was in favour of the refugee (both by the Board and the Federal Court), but a question was certified. Two of the three cases that went against the refugee also had questions certified. That's a lot of unanswered questions and, frankly, these were not really tough cases factually.
In contrast, the case which went against the PR with no question certified, for example, involved a person who was a citizen of China and spending a great deal of his time in China (at times he "actually resided primarily in China"), was actually carrying on a business in China, and it appears questions arose about whether he was spending so much time in China as to not even be (potentially) in compliance with the PR Residency Obligation (outcome was favourable in that he was issued a PR Travel Document at the time).
Moreover, that individual also has a criminal record and alleged, in his appeal, that the real motive for the Minister to pursue the application was to remove him from Canada because of his criminal record. Gotta say, that's not an ideal position to be arguing from.
beko9812 said:
Just one more question you said here that Brief visits may not rise to the level of having reavailed oneself of the country's protection if one is not using a passport from that country.
I am not sure if I understood this point correct. How come tha person visit his home country with a passport not from that country?, he can not visit it with the travel document for sure and he do not have any other passport to travel with
My observation was about the importance of having acquired a passport from one's home country. I do not know your circumstances. I know enough about this issue to know, however, that whether or not the refugee has acquired a new or renewed passport from his home country is a key factor. Thus, the refugee who travels abroad using the Canadian Travel Document (for refugees) does not incur the same risks . . . whether or not a particular individual can travel to his home country using the Canadian Travel Document is up to that particular country, its laws. Canada has no say in who another country allows to enter it or what Travel Documents are necessary to enter it.
That is, who can travel to this or that country depends mostly on the laws of the country being visited. The Canadian Travel Document issued to those with refugee status in Canada can be used to travel to many countries in the world. But which ones in particular is not a matter of Canadian law, but the law of each country itself. I do not know which countries in the world allow travelers to come into the country using a Canadian Travelers Document.
Note: The combination of acquiring a passport from one's home country and using that passport to visit anywhere appears to be almost conclusive, but of course to use it to travel to one's home country is even stronger evidence that the individual has availed himself of the protections of his home country.
Without being familiar with the UNHCR Handbook, it appears that the act of acquiring a passport from one's home country alone creates a presumption that the person "intends to re-avail himself or herself of the protection of the issuing state." (According to Justice O'Reilly's account -- which I must say is at least somewhat suspect given some other observations which make no sense.)
Remember, in the
Najeeb Bashir case, the question certified was whether the mere acquisition of a passport intending to use it for travel to any country constitutes
"irrefutable proof that the refugee had the intention of reavailing himself of the protection of his country of nationality."
Justice O'Reilly's decision in the Peter Sum Li case.
This case is actually very informative. It quotes the UNHCR Handbook. It offers some discussion about factors relevant to what shows a person has reavailed himself of the home country's protection.
But the discussion about whether this case involves the retroactive application of a new law is, to me, confusing if not baffling. And I find Justice O'Reilly's conclusions rather unpersuasive.
But that is a side issue not related to the questions posed here.
Going Back to What I Previously Said Was the More Practical Question For the OP: What triggers the Minister of Public Safety or CIC to Seek Termination of Status?
This is what I would be most interested in before applying for anything.
There is an undercurrent in the Peter Sum Li case hinting, if not outright suggesting, that the Ministers are selective in deciding who to target for termination of protected status.
As indicated in the Bashir case, the application for PR status triggered the inquiry leading to the application. In a case I cannot recall the name of, it was the application for citizenship which triggered it. In the Peter Sum Li case, it was the combination of a Residency Determination in conjunction with a PR Travel Document proceeding plus serious criminal charges which triggered the application (Justice O'Reilly explicitly states "it appears likely that Mr Li’s file came to the Minister’s attention based on Mr Li’s criminal offences . . . ").
In the Balouch case it appears that an examination at the POE upon a return from the refugee's home country, using a passport from her home country, may have been what triggered the Minister to proceed with the application.
My sense is that there are perhaps scores and scores of Canadian PRs who were initially refugees who, for one reason or another, could be subject to cessation of refugee status, and thereby lose PR status . . . a far greater number than the number who the respective Ministers are in fact targeting to have their status terminated. That is, my sense is that anyone in this situation probably wants to consider what is likely to trigger an inquiry which in turn would lead to the Minister taking action.
Thus, until consulting with a lawyer, no more travel abroad (and especially so with a passport issued by the home country), no applying for a home country passport or renewal, no applying for PR status or Canadian citizenship, no applying to sponsor a family member. See a lawyer. See a lawyer.
Note: the re-availment issue can arise in the context of determining whether an individual is even a refugee entitled to protection in the first place. For example, the issue is explicitly addressed in the Kaissi case, which just muddies things more, and it was this background (but from other cases for which I do not recall the names) which induced my observation that mere brief visits to one's home country do not necessarily show re-availment of that country's protections.
Again, this is complex stuff. There are many factors. Relative to PRs at risk, the law is new and not settled. Despite Justice O'Reilly's rather casual dismissal of the retroactive force of the changes implemented in 2012, this is an issue I would expect to see arise again.
See a lawyer. See a lawyer.
