Refugee status cessation and PRs applying for citizenship

[alexmathew244]

https://www.canlii.org/en/ca/fct/doc/2024/2024fc647/2024fc647.html

New case, judicial review is allowed. He travelled back home 4 times for long periods.

 

[Onwards56]

Hi all,

I have been reading up on comments provided in this forum for a while now and I must say it has been very informative.

I fall under the category of those who have renewed their home country passport and I used it 6 times to travel to other countries apart from my home country. After learning about this law, I stopped using it and haven’t travelled for almost two years now. I’m eligible to apply for my citizenship but I’ve been so worried about my application triggering cessation.
Not sure what to do now. Do I maintain my PR indefinitely and remain stuck in Canada? Or do I apply and hope for the best. This issue is giving me sleepless nights. Please advise, thanks.

Hi all,

I have been reading up on comments provided in this forum for a while now and I must say it has been very informative.

I fall under the category of those who have renewed their home country passport and I used it 6 times to travel to other countries apart from my home country. After learning about this law, I stopped using it and haven’t travelled for almost two years now. I’m eligible to apply for my citizenship but I’ve been so worried about my application triggering cessation.
Not sure what to do now. Do I maintain my PR indefinitely and remain stuck in Canada? Or do I apply and hope for the best. This issue is giving me sleepless nights. Please advise, thanks.

I finally met with a lawyer and he advised me to give it a few years, as that will reduce my risk.
The major issue is that I applied for a travel document that expired before renewing my passport so in the event of a cessation, I can’t argue that I was unaware (even though I was).

With all these new cases being reported, it doesn’t look like the laws are changing anytime soon.

 

[dpenabill]

Got a surprise, Just received email invitation for our OATH CEREMONY after 2 weeks from now (mid may) ..............haaaaaaaaaaaaaaa finally we have got it.

Update appreciated.

What appears to have been a decision to not pursue cessation despite a trip to the home country is a good sign that the Canadian government is approaching the cessation issue deliberatively, looking at the particular circumstances and reasons for the trip in the individual case, taking into consideration that sometimes there are compelling reasons for the travel which support a conclusion there was no intention to reavail home country protection despite the presumption.

It is important, however, to be aware of and retain context. Such examples can be seen as giving hope to those PR-refugees who have used a home country passport to travel home, depending of course on when, why, for how long, and other factors. That is, hope they will not be made subject to cessation.

In contrast, such examples should NOT be considered much, not much at all, for any PR-refugee thinking about traveling to the home country: PR-refugee's should NOT do that . . . unless the circumstances are so compelling they MUST make the trip, no real choice, and if so, then only with a clear understanding that travel to the home country means a real and serious looming RISK of cessation.

I finally met with a lawyer and he advised me to give it a few years, as that will reduce my risk.
The major issue is that I applied for a travel document that expired before renewing my passport so in the event of a cessation, I can’t argue that I was unaware (even though I was).

With all these new cases being reported, it doesn’t look like the laws are changing anytime soon.

Thank you for sharing the lawyer's input. Makes sense.

My impression is that given NO travel to the home country, the risk of a citizenship application triggering a cessation investigation, let alone a cessation action, is probably quite low, perhaps very low. But the stakes are so high, and just the elevated risk of non-routine processing that could lead to especially lengthy processing times, is enough to agree that waiting longer makes sense (and indeed, I think I likely suggested that might be a sensible approach in a previous post).



Regarding: Canada v. Sardar, 2024 FC 647, https://canlii.ca/t/k4b1b

https://www.canlii.org/en/ca/fct/doc/2024/2024fc647/2024fc647.html

New case, judicial review is allowed. He travelled back home 4 times for long periods.

Note that the "allowed" result here is a LOSS for this PR-refugee, who is the respondent in this case.

Beyond affirming the likelihood that multiple trips home for lengthy periods will result in a determined effort by the government to vacate a PR-refugee's status in Canada, this Sardar decision signals that even when the PR-refugee manages to get a favourable decision from the RPD, that amount of travel to the home country means there is a real risk that IRCC will aggressively pursue an appeal to the Federal Court, as it did here. With a big risk the RR-refugee will lose, as Jannat Hussain Sardar did here.

Moreover, given Justice Favel's characterization of the facts and the conclusions to be drawn from them, it appears that Jannat Hussain Sardar is very much at risk of losing when the RPD re-determines the case, since Justice Favel more or less ruled that would be the only reasonable outcome based on the facts.

Apart from the cases in which cessation has been based on just a single trip to the home country, this Sardar decision seems to be about as strict if not overtly harsh as any of the Federal Court decisions have been toward PR-refugees.

I was tempted to wander, perhaps even wallow deep into some law-nerd weeds . . . as it seems to me that Justice Favel basically disagrees with the factual conclusions in the RPD decision but, since such disagreement will not justify allowing leave and setting aside the RPD decision, frames the explanation of the decision going against the protected person in terms of the what will or will not suffice, as a matter of legal principle, to support the RPD's factual conclusions. As already noted, it appears that Justice Favel all but explicitly rules there is no basis for concluding Sardar did not have the requisite intent.

 

[scylla]

https://www.canlii.org/en/ca/fct/doc/2024/2024fc647/2024fc647.html

New case, judicial review is allowed. He travelled back home 4 times for long periods.

Note that is the Minister's case (minister is the applicant). So this is a negative result for the individual against who the cessation case was made.

A favourable results for the individual would have been a refusal (i.e. no JD allowed).

EDIT: dpenabill beat me to this and said the same.

 

[alexmathew244]

Note that is the Minister's case (minister is the applicant). So this is a negative result for the individual against who the cessation case was made.

A favourable results for the individual would have been a refusal (i.e. no JD allowed).

EDIT: dpenabill beat me to this and said the same.

what do you mean by against the victim? Judicial review allowed meaning his case will be reconsidered by a different RPD team now.

 

[scylla]

what do you mean by against the victim? Judicial review allowed meaning his case will be reconsidered by a different RPD team now.

I don't think I said victim. Yes, a different RPD team will review. However this is in favour of the Minister/IRCC. This is IRCC challenging a negative cessation decision. I think you need to read the case again.

 

[dpenabill]

what do you mean by against the victim? Judicial review allowed meaning his case will be reconsidered by a different RPD team now.

What @scylla said . . .

. . . or, stated somewhat differently:

In this case, the Canada v. Sardar, 2024 FC 647, https://canlii.ca/t/k4b1b case, the PR-refugee won the case before the RPD, where the government's application for cessation was denied. That is, this refugee got a NO-cessation decision from the RPD.

BUT the government appealed (sought leave for review) and argued to the Federal Court that the RPD's decision should be set aside because it was not reasonable, because the RPD should have granted the application for cessation. In this appeal IRCC won; the refugee lost.

That is, the appeal was "allowed," the win for the PR-refugee before the RPD set aside, and now it goes back to the RPD where the government will again be asking the RPD to grant cessation, terminating this refugee's status in Canada.

But it is even more negative for the PR-refugee here (Jannat Hussain Sardar) than that because Justice Favel's decision more or less says that under the facts in the case the only reasonable conclusion is that this refugee had the intent to reavail himself of Pakistan's protection and so not only was the RPD's decision unreasonable procedurally but substantively as well, as a matter of principle. This does not absolutely preclude another favourable decision (favourable for the refugee) when the matter is re-determined, but it is a very imposing signal to the RPD that cessation is the proper outcome.

For those placing bets on how this will go, the odds are quite high this refugee will suffer cessation. Despite having initially won before the RPD.

Justice Favel's decision demands attention because it differs significantly from most of the cessation cases in which an appeal is allowed, decisions in which the respective Federal Court justice ruled that the RPD failed to sufficiently consider this or that, sending the case back to the RPD for a re-determination in which the RPD is directed to take these other factors into consideration. Even though the refugee has won the appeal, in many of these cases the risk remains high that the RPD will again grant cessation after including the additional considerations ordered by the Court. In contrast, Justice Favel's decision was not about the RPD failing to consider something it should have considered, but about the RPD reaching an erroneous conclusion.

So, yeah, as @Onwards56 observed:

With all these new cases being reported, it doesn’t look like the laws are changing anytime soon.

That is, notwithstanding a bit of pushback seen in some of the Federal Court cases (discussed in previous posts), overall there is no sign the government is considering changing the law regarding cessation or how it is applied. In particular, it appears that CBSA and IRCC will continue to pursue cessation, with some hints it will be quite aggressive in doing so.

That is, it warrants adding to the comment made by @Onwards56 that not only is there no change in the law in sight, it looks like the government will not be changing its approach either.

Unfortunately this is NOT good news for those PR-refugees who have traveled to the home country. It is, in contrast, more reason to emphasize:

-- PR-refugees should NOT obtain a home country passport​

-- -- if they already have obtained a home country passport, they should NOT use it for travel anywhere​

-- -- -- if they already have obtained it and already used it, they should NOT use it again​

​

-- PR-refugees should NOT travel to their home country​

-- -- if they have already traveled to their home country, they should NOT do that again​

Otherwise they will be increasing the risk that the government seeks cessation, including a risk the government will do so aggressively.

Other Side-of-the-Coin, Hope For More Lenient Approach:

There remains some cause for hope that either the Charter challenges or those Federal Court decisions imposing a more demanding approach to ordering cessation, or both, could result in at least less severe enforcement of the current cessation law. This should continue to encourage those inclined to push for a more just approach to continue that effort.

I generally try to avoid taking sides in how-it-should-be (not that I do not have views one way or the other, but it helps to stay out of that in order to better focus on how things actually work) BUT in regards to cessation applied against Canadians (that is, those refugees who have been granted PR status), that is one issue I do express a view about how-it-should-be, siding with those who find the current law to be draconian and unjust. But there is not a lot to be optimistic about here. I think @Onwards56 is right. So, again, what looms large here is that there remains much at stake, and it is just plain clear that PR-refugees should take heed and exercise much caution, taking the warning above very seriously.

So, mostly that means GET citizenship before planning any travel back home.

 

[alexmathew244]

What @scylla said . . .

. . . or, stated somewhat differently:

In this case, the Canada v. Sardar, 2024 FC 647, https://canlii.ca/t/k4b1b case, the PR-refugee won the case before the RPD, where the government's application for cessation was denied. That is, this refugee got a NO-cessation decision from the RPD.

BUT the government appealed (sought leave for review) and argued to the Federal Court that the RPD's decision should be set aside because it was not reasonable, because the RPD should have granted the application for cessation. In this appeal IRCC won; the refugee lost.

That is, the appeal was "allowed," the win for the PR-refugee before the RPD set aside, and now it goes back to the RPD where the government will again be asking the RPD to grant cessation, terminating this refugee's status in Canada.

But it is even more negative for the PR-refugee here (Jannat Hussain Sardar) than that because Justice Favel's decision more or less says that under the facts in the case the only reasonable conclusion is that this refugee had the intent to reavail himself of Pakistan's protection and so not only was the RPD's decision unreasonable procedurally but substantively as well, as a matter of principle. This does not absolutely preclude another favourable decision (favourable for the refugee) when the matter is re-determined, but it is a very imposing signal to the RPD that cessation is the proper outcome.

For those placing bets on how this will go, the odds are quite high this refugee will suffer cessation. Despite having initially won before the RPD.

Justice Favel's decision demands attention because it differs significantly from most of the cessation cases in which an appeal is allowed, decisions in which the respective Federal Court justice ruled that the RPD failed to sufficiently consider this or that, sending the case back to the RPD for a re-determination in which the RPD is directed to take these other factors into consideration. Even though the refugee has won the appeal, in many of these cases the risk remains high that the RPD will again grant cessation after including the additional considerations ordered by the Court. In contrast, Justice Favel's decision was not about the RPD failing to consider something it should have considered, but about the RPD reaching an erroneous conclusion.

So, yeah, as @Onwards56 observed:


That is, notwithstanding a bit of pushback seen in some of the Federal Court cases (discussed in previous posts), overall there is no sign the government is considering changing the law regarding cessation or how it is applied. In particular, it appears that CBSA and IRCC will continue to pursue cessation, with some hints it will be quite aggressive in doing so.

That is, it warrants adding to the comment made by @Onwards56 that not only is there no change in the law in sight, it looks like the government will not be changing its approach either.

Unfortunately this is NOT good news for those PR-refugees who have traveled to the home country. It is, in contrast, more reason to emphasize:

-- PR-refugees should NOT obtain a home country passport​

-- -- if they already have obtained a home country passport, they should NOT use it for travel anywhere​

-- -- -- if they already have obtained it and already used it, they should NOT use it again​

​

-- PR-refugees should NOT travel to their home country​

-- -- if they have already traveled to their home country, they should NOT do that again​

Otherwise they will be increasing the risk that the government seeks cessation, including a risk the government will do so aggressively.

Other Side-of-the-Coin, Hope For More Lenient Approach:

There remains some cause for hope that either the Charter challenges or those Federal Court decisions imposing a more demanding approach to ordering cessation, or both, could result in at least less severe enforcement of the current cessation law. This should continue to encourage those inclined to push for a more just approach to continue that effort.

I generally try to avoid taking sides in how-it-should-be (not that I do not have views one way or the other, but it helps to stay out of that in order to better focus on how things actually work) BUT in regards to cessation applied against Canadians (that is, those refugees who have been granted PR status), that is one issue I do express a view about how-it-should-be, siding with those who find the current law to be draconian and unjust. But there is not a lot to be optimistic about here. I think @Onwards56 is right. So, again, what looms large here is that there remains much at stake, and it is just plain clear that PR-refugees should take heed and exercise much caution, taking the warning above very seriously.

So, mostly that means GET citizenship before planning any travel back home.

I see now, thank you for the details. Also, do you or anyone else have any update on the Charter Challenge hearing case? "Upali Gnanapragasam and Al. v. Canada, Court File No.: IMM-8432-22 [“Gnanapragasam”]" (I believe that would give some sort of relief to cessation cases)

 

[JamCan56]

I just recently started following this thread (didn't know it existed) but I've always been interested in cessation cases. Hypothetically, given the Gnanapragasam case, should the FC hold that the law is unconstitutional, and let's say the Government either doesn't appeal to FCA or loses any subsequent appeals and is forced to change the law.. do you think they may reformulate the law so that when it comes to the PR side of things (after cessation is granted) they amend the IRPA to give a right of appeal to the IAD to keep PR status on H&C grounds? I know this is a completely hypothetical situation but wanted to get others' thoughts on the matter. Do you think this would be a more just/equitable relief? Because looking at other methods of losing PR eg under IRPA 40 (misrep) there are provisions to keep PR status based on H&C with an appeal to the IAD.

 

[dpenabill]

. . . any update on the Charter Challenge hearing case? "Upali Gnanapragasam and Al. v. Canada, Court File No.: IMM-8432-22 [“Gnanapragasam”]" (I believe that would give some sort of relief to cessation cases)

There is nothing new at CanLII re the constitutional challenge . . . and I have not seen any reporting or decision in regards to the hearing scheduled for early April. Remember that in regards to the Gnanapragasam case itself (last published decision in that case is here: Gnanapragasam v. Canada, 2023 FC 1735, https://canlii.ca/t/k2j7q ) that could be deemed moot, which counsel for the Minister has argued it should (as reported in the Bubreg v. Canada, 2024 FC 40, https://canlii.ca/t/k269d case). Even if not dismissed as moot, there are other ways the Gnanapragasam case can be decided that will not amount to a decision invalidating Section 46(1)(c.1) IRPA for violating the Charter of Rights, that will not amount to having much if any impact on how cessation terminates a PR-refugee's status in the vast majority of the situations which result in cessation of status.

That is, there are many ways the Gnanapragasam case can turn out which will NOT affect the typical cessation case affecting PR-refugees discussed here. (Gnanapragasam lost protected status under a provision that does NOT result in the loss of PR status as a result of cessation.)

. . . Hypothetically, given the Gnanapragasam case, should the FC hold that the law is unconstitutional, and let's say the Government either doesn't appeal to FCA or loses any subsequent appeals and is forced to change the law.. do you think they may reformulate the law so that when it comes to the PR side of things (after cessation is granted) they amend the IRPA to give a right of appeal to the IAD to keep PR status on H&C grounds? I know this is a completely hypothetical situation but wanted to get others' thoughts on the matter. Do you think this would be a more just/equitable relief? Because looking at other methods of losing PR eg under IRPA 40 (misrep) there are provisions to keep PR status based on H&C with an appeal to the IAD.

Not all hypotheticals are created equal. In particular, some involve far more speculation than others. Like this.

In regards to Parliament changing the law if the automatic termination of PR status provision is found unconstitutional, a lot will depend on who has hold of the government reins at that point. If still a Liberal government, my guess (with lots of emphasis on it being no more than a guess) is that it is likely the government would simply stop applying that provision. Especially assuming they hold a minority government. A Conservative government, in contrast, would be more likely to proceed with making revisions to the law but as strict as the judicial rulings would allow; remember, this provision (again, that is Section 46(1)(c.1) IRPA) was adopted by the Harper Conservative government in 2012.

OVERALL: While there is some possibility that the constitutional challenges will compel some moderation in how cessation affects PR-refugees (in contrast, say, to those making refugee claims or those who have protected status but are not PRs), odds are likely that's a long shot bet. There is not much to hitch one's wagon to here. At the least, for sure, it would be unwise to travel to the home country relying on the outcome of the constitutional challenges to save one's status.

 

[dpenabill]

Just keeping up . . .
. . . Veerasingam v. Canada, 2024 FC 639, https://canlii.ca/t/k499r is another cessation decision published late last month upholding a cessation determination . . .
. . . Wang v. Canada, 2024 FC 632, https://canlii.ca/t/k48ft in contrast sets aside the RPD's cessation decision . . .
. . . and Celvanayaham v. Canada, 2024 FC 621, https://canlii.ca/t/k47f0
is also a one-trip-to-home-country case in which the RPD's cessation of the PR-refugee's status is upheld


The Veerasingam decision is another just-ONE-TRIP to the home country case. Moreover, this trip was more than eight years after Veerasigngam became a refugee in Canada, and was specifically to visit a parent who had suffered a stroke.

The Wang decision, in contrast, involves a refugee who traveled to the home country numerous times (five).

It is not clear whether Veerasingam had PR status. The decision only refers to his obtaining refugee status in May 2011. So this decision appears to offer no light in regards to whether the constitutional challenges raised by the Gnanapragasam case (as to the automatic termination of PR status upon a finding of cessation) are affecting the hearing and disposition of cessation proceedings involving PRs.

In contrast, in Wang 2024 FC 632 (note there are literally scores of "Wang" decisions) there is similarly no mention of Wang being a PR but since the case turns on the difference between whether cessation of Wang's protected person status is based on reavailment versus changed conditions (difference between Section 108(1)(a) IRPA grounds for cessation versus Section 108(1)(e) IRPA grounds), it is clear that Wang must be a PR. Otherwise this distinction would not matter; cessation under Section 108(1)(e) IRPA does not result in termination of PR status.

Justice Ahmed's decision in Wang 2024 FC 632 warrants some consideration as another potential defense for some PR-refugees, but there are other Federal Court decisions which explicitly reject Justice Ahmed's approach, specifically stating that the government can elect to proceed with cessation based on reavailment even if cessation pursuant to Section 108(1)(e) is also available.

Otherwise in the Veerasingam case there is nothing new. That said, the main focus of this decision warrants noting because it reinforces what is emerging as the key issue: the refugee's "intention." Moreover, in regards to this issue this case illustrates (1) that just obtaining the home country passport is a big factor, (2) while reasons for the travel related to family illness is a factor that must be considered, it alone might not be enough to constitute "exceptional circumstances" sufficient to rebut the presumption of reavailment, and (3) lack of subjective awareness the travel can result in cessation is not a strong argument there was no intention to reavail home country protection.

Additionally, the fact that cessation was triggered by just ONE TRIP to the home country EIGHT years after the refugee settled in Canada warrants some emphasis. AND this happened (cessation proceedings initiated) FIVE years ago. In regards to this cessation action being triggered by just one trip, this refugee's case was probably hurt by the refugee's statement (at the Port-of-Entry upon returning to Canada) that he no longer feared returning to the home country. While not much emphasis is given this in the decision, this could have been a significant tipping-point factor, especially if this refugee had not obtained PR status (despite being in Canada for so many years).

 

[Blind Dolphin]

Got a surprise, Just received email invitation for our OATH CEREMONY after 2 weeks from now (mid may) ..............haaaaaaaaaaaaaaa finally we have got it.

OATH is done and received Citizenship Certificate at the same time................ all the best to everyone in que as I can really understand how frustrating it is to wait and standing nowhere.