It’s me again regarding fear of triggering a cessation:
The lawyer once advised to write them a letter but upon discussing with his senior colleagues he wrote me this:
As I mentioned, I have been discussing your case with some of my more senior colleagues here at the firm. I learned recently that IRCC and the CBSA have a tendency to ignore submissions related to the Camayo case, which is the key case we relied upon to structure your submissions.
This means that there is a significant element of risk associated with making any submissions to IRCC regarding the renewal of your passports. Essentially, if we submit everything as planned, we may be handing IRCC all they need to commence a cessation proceeding on a silver platter.
While I do believe we have made strong arguments in your favour, there are still elements of your case which may be viewed unfavourably by IRCC. As such, I presented you with the following two options today in terms of next steps:
Continue with the submissions as originally planned and accept the risk that it may harm your case and/or trigger a cessation proceeding.
OR
2: Stop what we are doing and do not make ANY submissions to IRCC.
The advantage of option #2 is that we avoid drawing any unnecessary attention to the fact that you renewed your passports. The risk is that it could still lead to a cessation proceeding being commenced against you.
You should take some time to think this over and let me know what you want to do in a response to this email. I am also happy to discuss this further on the phone over the next couple of days.
Given the time sensitive nature of this situation, I recommend deciding within the next week.
Whomever has gone through this please advise me. It’s of great need.
Passport was renewed for a one time trip (not to home country)
Trip was less than 2 weeks and for medical purposes.
I am just 18 and don’t have experience with this.
This report is very much appreciated.
It is totally consistent with what most of us, and me in particular, apprehend and have discussed, and in particular it illustrates the huge difference between the compelling caution to NOT obtain a home country passport, for example, versus reassurance there is little risk, little reason to worry if a PR-refugee has (and even if they have and used it for travel other than to the home country).
"Whomever has gone through this please advise me. It’s of great need."
As I repeat, I am NO expert. And I was not a refugee, so I have not come close to going through something like this.
But I have followed this very closely, for eight years now, and with
@scylla's help have probably read (and I read these cases closely) the vast majority of actual cessation cases litigated in the Federal Court, if not nearly all of them. Based on that, and what you have reported doing, as I have posted several times, you really should have NO REASON to worry.
So, relax. Do not use the passport for travel again. Odds are very good all is well.
Regarding the Lawyer's Options:
Frankly, I read what you have shared to be a strong suggestion to NOT make any submission to IRCC. Which would be consistent with my view about how to best approach this. (
Why poke a sleeping lion?)
While ordinarily I would not, and here did not, express a view contrary to what a qualified lawyer advises (with some exceptions), my inclination would have been (and still is) to do nothing, just wait. As I noted in response to your post about the lawyer proposing to send a letter to IRCC:
Assuming you have done enough homework to find a reliable lawyer, I almost always will defer to a lawyer's judgment. They're the experts. I am NOT, not even close.
So I did not suggest otherwise. Even though my view leans otherwise.
This recent update and report suggests you have indeed found a reliable lawyer, one willing to actually work out questions like this. And, importantly, willing to reconsider advice they have already given. And this change in advice makes good sense to me.
I cannot see any advantage in contacting IRCC about this. The second option seems the hands-down better way to go.
There should be no need to worry about this.
Some Further Observations:
Some probably have difficulty understanding why we say there is low or even very low risk of cessation just for having obtained and using a home country passport to travel other than to the home country, so there is no need to worry even when a PR has done this; but then be so adamant that a PR-refugee should NOT do this.
There have been a few forum participants who, for example, in one fashion or another, have said it is OK to obtain a home country passport and use it for travel other than to the home country, and at least one seemed to actually encourage doing this. The flawed reasoning underlying that view is the failure to give due consideration to the consequences, which for most PR-refugees would be severe and for many devastating, understanding that a cessation case can be made based on just obtaining a home country passport and more so if the passport is used at all for travel. That view tends to focus only on the risk of cessation, the probability of CBSA or IRCC pursuing cessation, which just for this does indeed seem to be quite if not very low. That's not quite playing Russian Roulette (good odds, but literally a dead end on the line), but in that direction.
It's like walking along the edge of a half-metre high curb versus along a ledge fifteen-metres above the ground below. The risk (the probability) of stumbling and falling off the curb and ledge are just about equal, but for the latter the risk of serious injury looms much larger.
All of which is to say that there is probably a low to very low risk of running into a problem given what you have done so far.
And I doubt that even if the lawyers proceeded to make the submission initially recommended, that would trigger cessation. The problem is it could. And, indeed, the submission itself would document grounds for cessation. As the lawyer indicated, the submission could in effect make the case. Here too, again, low probability of it triggering cessation does not make it a good gamble, given the seriousness and severity if a cessation action is commenced.
A Word About Camayo:
The lawyer's comments about the
Camayo case are worth noting with some emphasis. I do not know precisely what "
submissions" the lawyer is referencing, where they state:
"I learned recently that IRCC and the CBSA have a tendency to ignore submissions related to the Camayo case, which is the key case we relied upon to structure your submissions."
In particular, I am not clear whether they meant the "
submissions" ignored were made preemptively, as they were suggesting to do for you (which would be comparable to "
your submissions"), or submissions made in the course of cessation proceedings, in response to a cessation action taken against the individual making those submissions.
My sense, not much better than a guess I suppose, is the latter, that they are referring to how
Camayo is actually being applied in active cessation cases, and perhaps the observation about ignoring
Camayo related submissions is specifically about the cases we have discussed here, above, in which cessation has been upheld in case after case notwithstanding the arguments against cessation made relying on the
Camayo decision.
To be clear: CBSA and IRCC are obligated to follow the ruling in Camayo. They cannot ignore it.
Camayo is binding law, a decision by the Federal Court of Appeals, not just a Federal Court or administrative tribunal.
And so far as can be seen, the law in
Camayo is not ignored. In case after case, the parameters of inquiry defined by
Camayo are applied. The far more common outcome, however, is that cessation is upheld, the Federal Court justices typically holding that the decision meets the standards imposed by Camayo. (Not always; will need to address this in another post.) Typical outcome is illustrated in a very recent decision authored by FC Justice Walker, in Dari v. Canada, 2023 FC 887,
https://canlii.ca/t/jxwhw in which the Justice states: "
The RPD effectively considered and balanced the relevant factors summarized by the FCA in Camayo FCA . . . "
That is, solicitor (lawyer) Styliani Markaki made submissions based on
Camayo which did not persuade the court that the evidence before the RPD failed to support findings that the PR-refugee's actions met the voluntariness and intention elements. It is not that the submissions were "
ignored" but, rather, were not persuasive as to the facts.
There was, I suspect, a lot of hope that
Camayo would offer an escape hatch that would allow many who had traveled to the home country avoid the drastic, harsh consequences of cessation. Instead, it has become more of an outline for how to justify and uphold cessation decisions. Many of the decisions are more or less oriented to distinguishing why the PR-refugee in that case involves circumstances different from those before the FCA regarding Galindo Camayo.
