While the
Bermudez case (should link) warrants some attention and discussion, my overall sense is that the practical venue of import regarding cessation is in how the IRCC, under Liberal and Minister McCallum leadership, is approaching these cases, and in particular to what extent:
-- IRCC or the Public Safety Minister is actively pursuing those cessation proceedings commenced when the Conservatives formed the government
-- IRCC or the Public Safety Minister is actively investigating and pursuing cessation proceedings on its own initiative
-- what criteria is being employed in making decisions to pursue cessation or continue pursuing existing cessation cases
Again, the following is promising:
shahbj said:
Today was my Oath ceremony and it was really great day for me.
Given:
shahbj said:
I also had refugee status and I applied for Citizenship.
. . . I appeared for interview [and interviewer referred to] being refugee [who] went back to [home] country.
. . . .
I arrived Canada in Oct 2010 and since then visited twice. I got PR status in Sept 2012. Visited in 2013 and 2014.
But this does not illuminate much about what criteria is being applied in deciding whether or not cessation is pursued. At the least, however, it indicates that the current government is not pursuing cessation merely because a PR has obtained a home country passport and used it to travel to his or her home country on some occasion.
In any event, Bermudez:
More regarding
Bermudez and the consideration (or, more to the point, the absence of considering) H&C factors in cessation proceedings
For the decision, see http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143934/index.do
The decision itself reflects the complexity of issues involved.
The definitive significance of the Federal Court of Appeal decision in the
Bermudez case (should link) is that it affirmatively holds that a
hearing officer does
NOT have the discretion to consider H&C factors and the best interests of a child, when deciding whether to make a cessation application pursuant to subsection 108(2) in respect of a permanent resident.
Unlike Federal Court decisions, which are not binding on other courts, this decision constitutes binding precedent and thus constitutes a final and definitive interpretation of the law and its application, in respect to the discretion of a Minister's delegate to make an application for cessation.
My impression is that the impact of this probably exceeds the precise scope of the holding itself. The decision alludes to the exclusion of H&C considerations in the RPD's determination as well.
And of course this is the bigger issue: what factors can the RPD consider in determining a cessation application? This decision suggests, but does not itself directly hold, that
NO, no consideration of H&C factors is to be part of the RPD determination.
How much weight does this have? Does this affirmatively mean that indeed, the RPD is not to take into account any H&C factors when deciding an application for cessation? My impression is that this case will be taken to be an affirmation that H&C factors are not to be considered in the RPD's decision, even though that issue was not formally before the court and not a holding. It is what some refer to as
dicta. This is an area in which I am at a disadvantage in analyzing these cases, since I am not a Canadian lawyer. For example, in contrast to the jurisdictions for which I do this sort of analysis in my day job, in which the distinction between a holding and dicta tends to be relatively strict and followed, it is my impression this is considerably less so in Canada.
Thus, my sense is that this case signals a consensus, and probably the general practice, leaning toward
NO consideration of H&C factors in the RPD decision.
Challenging a decision to make an application before a decision on the application is made:
To my view, this challenge was a stretch and it is somewhat remarkable that Justice Mosley allowed review in the first place (for the Federal Court decision by Justice Mosley, see http://canlii.ca/t/gj6wb ). It really was in the vein of claiming a right to a "pre-hearing hearing," as Justice Boivin describes the challenge. The government's argument that the challenge brought by
Bermudez was premature, because it was brought before the RPD had heard and decided the matter, appears to have been the government's primary argument; at the least, the government "placed considerable emphasis on the prematurity argument." (para 27) And, again, frankly, to my view that is a strong argument.
Both Justice Mosley and the FCoA, however, declined to consider the challenge premature.
From my perspective, this challenge was akin to appealing the decision of a prosecutor to bring a criminal case before the case has actually been heard, or akin to appealing the decision of a citizenship officer to refer a citizenship case to a Citizenship Judge to decide, before the application was even in the hands of a CJ.
Or, an appeal, as Justice Boivin described it, of a "pre-hearing hearing," as if there was a pre-hearing hearing.
In another part of the decision, Justice Boivin rules that Hearing Officers do have a duty of fairness in making the decision to make a cessation application, but that the
"scope of this duty, however, is minimal." That, it seems to me, is sufficient to reach a conclusion the challenge was pre-mature.
I suppose that both Justice Mosley and the FCoA declined to foreclose the review on this ground because there is so much uncertainty and complexity underlying the how, why, who, and when cessation should be pursued, they saw a need to answer questions like whether H&C factors should be a part of the decision-making process.
What does this decision really mean for PR-refugees who potentially face cessation proceedings?
There are other aspects of this decision which, to my view, loom larger than the exclusion of H&C considerations at the preliminary stage of deciding whether to pursue cessation. This is not to say that the exclusion of H&C considerations is not of great importance. It is. And it seems profoundly unCanadian to take action against Canadians (PRs, regardless of what class of immigrant they were in becoming a PR, are Canadians), to pursue their exile without considering Humane and Compassionate factors. Justice Boivin says this was a decision to be made by Parliament and Parliament elected to not include H&C factors. Indeed, it was, it was Harper's Parliament, so no surprise no weight was given to Humane and Compassionate considerations.
But there are other aspects of the decision which lean toward a rather harsh approach to applying the cessation provisions in section 108 IRPA. In particular, Justice Boivin states that the use of the term "shall" in Section 108(1) does not leave "any possibility of residual discretion" (see para 44) in the decision to commence cessation proceedings.
I am no one to criticize a justice of Canada's Federal Court of Appeal, but my reading of the procedure is that the cessation application is commenced pursuant to subsection 108(2), not 108(1), and 108(2) uses the term
"may" not "shall," and thus suggests that even if one of the reasons for cessation exists, the RPD still has some degree of discretion to decide whether or not to determine that refugee protection has ceased. Justice Boivin's decision appears to indicate the contrary.
Justice Boivin also declined to distinguish cessation proceedings against those with PR status versus against those who are just claiming refugee status, or those otherwise in Canada as protected persons without PR status. Here too the reasoning was rooted in the authority of Parliament to make any such distinction, and that it did not. My take on this aspect is that counsel for Burmudez may have failed to state a Charter claim. Indeed, my take is that there is a strong argument that once a PR, termination of PR status automatically based on cessation of protected person status violates the PR's Charter Rights, that is, that Parliament (Harper's Parliament) exceeded its constitutional authority when it enacted section 46(1)(c.1).
Which leads back to H&C factors: even when a PR commits the most horrendous criminal acts imaginable, before such a PR can be deported, H&C factors must be considered. Even when a PR has breached the basic PR Residency Obligation, H&C factors must be considered before his or her PR status can be stripped away. And again before physically deporting the individual even if the individual is adjudicated to have lost PR status, H&C factors must be considered.
My sense is that this decision may help trigger positive action by the government to address and possibly amend or even repeal the provision for stripping PRs of their PR status. It is clear that many in the judiciary are concerned about what amounts to inordinately harsh consequences, typically with little or no notice to PR-refugees that they could be risking these consequences, for what is largely innocent and normal behavior -- who does not make a trip home to be by their mother's side when she is dying if it is possible to make the trip?
The outstanding questions I previously posed continue to be, to my view, what PR-refugees should be aware of and pay attention to. Again, for those who have not applied for citizenship but are considering applying, if you have obtained a home country passport and traveled on it, especially traveled to the home country, best to consult with a lawyer before applying for citizenship, or otherwise wait to see how things go under Liberal leadership.