Your friend needs the assistance of an experienced lawyer.Thanks for the detailed answer. Do you by any chance have any kind of cases where they were allowed to keep their Refugee Status after cessation case? I mean in what ways does it make a little bit more compelling? One of my friend visited back home to get married and visit his wife's grandmother (stayed for 1 month, for once only) and then came back to Canada. After a year, he got this cessation application. (He only went back once for wedding and to visit his wife's grandmother who later died). Do you think this is a bit of a rare case as I have never seen any case online where the applicant got a cessation application on only 1 visit. All of the cases are mostly 2+ times and for a much longer stay.
I have no idea how rare such cases are. But as you saw in my previous response, I do not hesitate to emphasize (repeatedly) that a PR-refugee should NOT obtain or use a home country passport, and as I said in ALL CAPS, for well-founded emphasis, FOR SURE, a PR-refugee SHOULD NOT TRAVEL TO THEIR HOME COUNTRY.
Will Camayo offer your friend an arguable defense? Depends on a number of factors. There is no doubt, however, the best shot your friend has is to get help from a good lawyer, a damn good lawyer.
In some of the cases, as cited and discussed in regards to them in previous posts above, some PR-refugees have been granted an appeal setting aside a RPD cessation decision, and typically it is one or more of the Camayo criteria that decision is based on. That is, yes, some who have traveled to the home country and are then subject to cessation proceedings can present a successful defense based on Camayo related issues . . . probably better shot of winning this in the RPD, or at least more likely to be successful there than it is in Federal Court appealing a negative RPD decision.
So, the gist of it is not complicated: Do Not travel to the home country. If you do, and cessation proceedings are brought, Get a Damn Good Lawyer.
Some Further Context and Background:
Periodically this thread has participants more or less downplaying the risks, largely based on knowing about some PR-refugees who have not become subject to cessation despite using a home country passport, and including some who have traveled to the home country. That view tends to leave out the fact that these individuals have not become subject to cessation YET. Once a PR-refugee has traveled to the home country, Only IF, and Only WHEN, the PR-refugee becomes a Canadian citizen, can they be sure they will not become subject to cessation. In many of the cessation cases we see, the proceedings leading to cessation are not brought for many years. For example, in a case I will address further below, the PR-refugees had a cessation action brought against them in 2017 based on a trip to the home country in 2009, and back before the RPD in 2023 (we do not know the disposition of that).
Not enough definitive situations have been reported for us to be sure, but it looks like at least some of those who run into a cessation action later in time may have triggered the inquiry and an investigation by applying for citizenship.
That said, we have also seen a number of anecdotal reports from PR-refugees who have made successful applications for citizenship despite one or two trips to their home country. And numerous reports about having and using a home country passport otherwise (not traveling to home country) without facing cessation. NOTE: I have made a concerted effort to caution that these instances do NOT, not in any way, mean there is little, let alone no risk of cessation, for using a home country passport for any travel let alone travel to the home country, just once or otherwise.
Reminder: use of home country passport to travel to the home country JUST ONCE creates a presumption of reavailment. Nothing more needs to be presented or argued by the government for that to mandate (not merely justify but require) cessation. The affected PR-refugee can present evidence and argument claiming to rebut the presumption, but as much as Camayo makes it clear that the RPD must hear and consider such evidence and argument, many other cases clearly illustrate that successfully rebutting the presumption of reavailment can be a difficult uphill challenge. After all, the main question is whether the PR-refugee voluntarily traveled to the home country, and at least for adults it is typically difficult to persuasively argue their trip to the home country was not their choice.
We just plain do not know who, when, or why CBSA/IRCC chooses to proceed with cessation against some and not others . . . other than, as I previously stated, the obvious: the more often the travel to the home country, and/or the longer the trip there, the greater the risk that a cessation action will be prosecuted. It appears that CBSA/IRCC does not pursue, or at least so far has not pursued cessation, of every PR-refugee who uses a home country passport to travel to their home country. But even if betting on that seems to have good odds, it is what is at stake, what could be lost, that still makes it a really risky, dangerous gamble.
Another possible tipping factor could be how soon after becoming a PR the PR-refugee travels to the home country, or some other circumstance suggesting the possibility of fraud in the claim underlying the need for protection. This could be where, perhaps, the evidence of fraud is not very strong but the return to the home country gives the government grounds for cessation based on reavailment without having to prove fraud. This would not be limited to cases of actual fraud, but rather might be triggered by any appearance the PR-refugee does not face the risks in the home country they claimed, as suggested by the trip to the home country.
But, again, we do not really know much about what triggers cessation prosecution for some but not others, and again the huge problem we have in trying to assess the risks is that even when a PR has used a home country passport and traveled to the home country, cessation may not be commenced for many years and it is only IF and WHEN the PR-refugee has become a Canadian citizen that it is for sure there is no risk of cessation.
Consider, for example, a case discussed in posts earlier this year, the Malik v. Canada, 2023 FC 443, https://canlii.ca/t/jwg5x case. In this case the cessation action was not commenced until 2017 and was based on just TWO trips to the home country, one of which the RPD concluded did not show reavailment. That is, the cessation was based on just ONE trip, a trip nearly 8 years prior to CBSA bringing the cessation action.
This is one of the examples in which arguments based on Camayo persuaded the Federal Court to set aside the RPD cessation.
But it warrants cautioning that this example offers scant comfort for most of those dealing with cessation (as noted before, see posts #741, 742 for deep dive into why Camayo offers little relief). Back in April I commented it was curious that the government even pushed this case, the reported facts and circumstances easily weighing in favour of not imposing cessation. A couple aspects stand out in particular:
Three of the four PR-refugees in this case were minor children at the time they traveled to the home country (strong argument their travel was not voluntary and even stronger argument rebutting the presumption they intended to reavail the home country's protection); and FC otherwise found that the RPD failed to consider key factors in assessing the PR-refugee's rebuttal of an intent to reavail home country protection.
At the time of the travel (in 2009), travel to the home country would have NO effect on their PR status, so there was no reason for the mother to even apprehend she was risking the loss of PR status by traveling to the home country. Technically this is not a defense. As I noted in my previous post, the courts have ruled the application of cessation based on conduct prior to the change in the law does not constitute an ex post facto law imposing a retroactive penalty for prior actions (which would be prohibited by the Charter). Even though, in terms of its practical effect, it obviously does. Even though anyone with any sense of fairness readily recognizes the draconian injustice. So, despite the blatant inequity, the FC cannot hang its hat on this; but it is my sense that the courts have been approaching the subjective intent to reavail issue in a way that allows relief in these circumstances without specifically hanging it on the change in law, focusing on an "individual’s lack of actual knowledge of the immigration consequences of their actions," and recognizing this is "a key factual consideration" (quotes from Camayo, and quoted by the FC). While this leaves open the "I didn't know . . . " door, regardless when the travel took place, spoiler alert: does not get a lot of traction; see for example the decision in the Karasu v. Canada, 2023 FC 654 https://canlii.ca/t/jx63x case, the Dari v. Canada, 2023 FC 887, https://canlii.ca/t/jxwhw case.
Edit to note that in the most recent case noted here, in Anvar v. Canada, 2023 FC 1194, https://canlii.ca/t/jzzj6 the FC did allow the appeal largely due to the issue of a "I didn't know . . . " defense. But it is not as if the FC gave that defense much credence, the decision to allow the appeal riding on the RPD not considering it at all.
Last edited: