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Refugee status cessation and PRs applying for citizenship

dpenabill

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Apr 2, 2010
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Sidebar -- Canadian PRs have a status that is "substantially" similar to the status of a Canadian national (Canadian citizen)

Canadian PR status excludes eligibility for refugee or protected person status, even if and when Canada is acting to terminate PR status. That is, Canada can deny refugee protection status to a Canadian PR because they are a PR even while Canada is at the same time trying to strip that person of their PR status. This is because the status of a Canadian PR is essentially similar to that of a Canadian citizen, including. "the right of return" to Canada, as Justice Zinn ruled in Huang v. Canada, 2023 FC 1491, https://canlii.ca/t/k14ql . . . which is not at all a cessation case but . . .

. . . but its discussion about the status of a Canadian PR as having status similar to that of a Canadian citizen, and in particular the statement (with citation to solid law) that "This includes the right of return" to Canada, underlies a core reason, to my view, why merely returning to the PR-refugee's home country is substantially different (or at least should be treated as substantially different) than a refugee or protected person who is not a PR traveling to the home country, and should NOT create a presumption of reavailment. The capacity to leave a country (like a home country one has fled) with a right to return to Canada is not the same as going to that country without such a right; as much as going to the home country might indicate relying on the home country's protection, that on its face is offset if the individual is largely depending on, in effect relying on it, their right to return to Canada.

Here's the gist of the conflict: Once a person obtains the status of a Canadian PR, they are no longer eligible for protected person or refugee status; they are "excluded" from the class of individuals who might otherwise be eligible for refugee status because they have, in effect, the rights of a Canadian national. That is, they have effectively availed themselves of the protection of the nation of Canada, so there is no need for them to be granted protection status. Yet, since 2012, the Canadian PR-refugee may be subject to the termination of their PR status, not directly but indirectly through the procedure for determining cessation of their refugee status . . . even though, in effect, under the UNHCR rules they already are no longer eligible for refugee status because they no longer need that protection.

Disclaimers:

To be clear, because the prospective consequences are so serious, and for most who may be affected rather severe, potentially extremely severe, it is absolutely important to recognize that under current Canadian law, and current policy and practice, returning to the home country will create a PRESUMPTION of reavailment and very seriously risk loss of status in Canada (that is, cessation of refugee status and concurrent automatic termination of PR status). Nothing I say here should in anyway be seen as diminishing this; so, again to be clear: PR-refugees should NOT travel to their home country. Period.

Secondly, my comments here, in this post, in this context, are outside what one might call "my lane" here. I try to focus on what the rules are and how they work, and do not spend much time or effort addressing how things should work. I have made an exception to this in regards to the changes in law implemented by the Harper government back in 2012, in regards to expanding the impact of cessation resulting in termination of PR status, which to my view are not only draconian but fundamentally inconsistent, if not in outright conflict with the bulk of immigration law governing Canadians, that is both Canadian PRs and Canadian citizens. Or at least in conflict with the underlying principle that the grant of PR status is about PERMANENT status in Canada. Leading to a third disclaimer and caveat, one that I repeat often and is in my signature here . . .

Thirdly, I am NOT an expert. Not close. And cases and decisions like this illustrate just how much I am NO expert . . . how much the fact that I am not a Canadian lawyer is a handicap severely limiting my understanding of what the law is, what the rules require . . . noting that the law here, and in particular how different parts of the law affect one another, is complicated . . . more complicated than I can sort out.

Wrestling with what seems inconsistent:

While I am no expert in this, neither am I a novice; I have, let's say, quite a lot of experience researching and digesting the law, and writing about it (professionally, by the way). Not so much Canadian law in particular, but law in relatively similar jurisdictions in terms of the structure and hierarchy of law, and most of the particular language employed. But, again, there are incongruous if not conflicting principles here, so far as I can discern, which I simply cannot sort out; I do not know and cannot figure out why the presumption of reavailment applies to a Canadian PR who has what are very frequently described as "Shamlou rights" in Canada, including in particular the "right of return" to Canada. There is nothing in the 2012 changes in law that incorporates or evokes that presumption for those with PR status.

That is to say, at the very least it would seem appropriate in cessation cases to impose the burden of proving reavailment on the government (seeking to terminate an individual's status in Canada based on reavailment) rather than imposing on Canadians (PRs who have status similar to that of a Canadian citizen, because they have similar rights including the right of return) the burden of effectively disproving reavailment.

I know. I know. The use of the home country passport makes the difference. Technically. A big difference. Technically. That's an overt act which legally constitutes a transaction relying on home country status, so inherently availing oneself of that country's protection. Except NO ONE, at least not practically, gives using the passport itself, apart from travel to the home country, much weight.

That said, the oft cited, dominant case from the FCA (Camayo at https://canlii.ca/t/jndkg and paragraph 63 in particular) kind of split hairs:
. . . there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality . . . This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.

I am not sure how a variable scale of stronger or not so strong presumptions works. But since it appears clear that Canadian PRs have a status that is "substantially" similar to the status of a Canadian citizen, particularly as to the right of return, and the courts recognize a variable scale of presumption, it seems a fair argument that it should not require much to rebut the presumption sufficiently to shift to the government the burden of proving an intentional and voluntary reavailment. In particular, shifting the burden should require little more than the PR's testimony they were relying on their Canadian status and, in particular, the right of return to Canada, not protection from the home country.

To be clear, for now the PR's burden is higher, tougher than that.
 

Blind Dolphin

Star Member
Oct 4, 2020
89
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My spouse also got Citizenship Interview letter today. Once she is done with her interview, will update again. thanks for all your support and suggessions.
My spouse interview is done. It was quite simple 4 to 5 questions interview. Checked IDs, asked about what she is doing, any trips outside canada, any family memebers inside canada etc. and officer told her that rest all is completed but her fingerprints are expired so she will send a letter to give new finger prints. Other than that only background check will be in process and rest all are completed.

Today, her language skills and physical presence got updated to COMPLETE.

Now only background check will be in process and have to give new fingerprints.............................keeping fingers crossed until its all done.
 
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Blind Dolphin

Star Member
Oct 4, 2020
89
68
My spouse interview is done. It was quite simple 4 to 5 questions interview. Checked IDs, asked about what she is doing, any trips outside canada, any family memebers inside canada etc. and officer told her that rest all is completed but her fingerprints are expired so she will send a letter to give new finger prints. Other than that only background check will be in process and rest all are completed.

Today, her language skills and physical presence got updated to COMPLETE.

Now only background check will be in process and have to give new fingerprints.............................keeping fingers crossed until its all done.
Fingerprints letter was received for my spouse and we have given fingerprints also. It means, all done from our side. Now will be waiting for the next part 'PROHIBITIONS' to be completed as well as Oath if everything gone okay so far
 
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dpenabill

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Apr 2, 2010
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Interesting case: https://www.canlii.org/en/ca/fct/doc/2023/2023fc1570/2023fc1570.html

This lady is asking the judge to wait for Jude Upali Gnanapragasam case to be finalized before making the decision and its allowed.
Citation appreciated.

Yes, the Federal Court decision in Bajwa v. Canada, 2023 FC 1570, https://canlii.ca/t/k1l2j is interesting . . . referencing some additional, pending interesting cases.

Also see Yousef v. Canada, 2023 CanLII 110973 (FC), https://canlii.ca/t/k1bwk

And Habib v. Canada, 2023 FC 1116, https://canlii.ca/t/k0zvt . . .

These are all cases challenging the constitutional validity of the cessation provisions, including nine additional cases referenced in Habib v. Canada, 2023 FC 1116, https://canlii.ca/t/k0zvt

All reference a pending case referenced as the judicial review application in Court file IMM-8432-22, Gnanapragasam et al v Minister of Citizenship and Immigration et al . . . typically referred to simply as "Gnanapragasam" . . . which is scheduled for a hearing next April.


Bajwa v. Canada, 2023 FC 1570, https://canlii.ca/t/k1l2j in particular:

I am not sure how interesting a case it is in itself (I have yet to see the published decision upholding Bajwa's cessation). What is interesting is the procedure involved and connection to the other pending cases.

This case is at a stage that has barely been mentioned in this topic. Bajwa has already lost PR status. The cessation case was decided, and an appeal was denied.

This case is at a stage which involves proceedings to enforce, or put into effect a Removal Order, to deport this individual who no longer has status in Canada and is a Foreign National deemed inadmissible.

It, and the other cases referenced, illustrate some of the more harsh elements of current cessation law . . . inadmissibility of a nature and scope that is clearly punitive is imposed. This is actually more severe and definitive than what is imposed on former PRs who lost status due to serious criminality, regardless how truly serious their crimes were. It seems blatantly incongruous, at the least, and to my view unjust, to impose a penalty for what involves no wrong-doing. There is no wrong-doing involved if a PR-refugee elects to actually reavail home country protection. Under current law that will result in cessation of protected person status, and automatically mean termination of PR status. Substantively, however, this is not much different than any other PR deciding to live in their home country and no longer be a Canadian PR . . . so they either renounce their PR status or lose it due to not complying with the Residency Obligation . . . which makes them inadmissible, but only for the purpose of terminating their PR status. As soon as they are formally a Foreign National again, they are no longer inadmissible. But the PR-refugee who decides to return to the home country, reavail home country protection, thereby losing their status as a protected person and losing PR status, cannot even apply to visit Canada or if they are married to a Canadian be sponsored for PR status as a member of the family class. Those who have lost PR status based on cessation are not even allowed to make a pre-removal case, at all, that removal will pose very serious risk of harm to them . . . or, for that matter, to minor child affected by the person's removal from Canada.

I have glossed over this many times, just referring to the fact that the impact of cessation is severe and for many it can be an exceedingly harsh outcome . . . the focus being on how important it is to avoid getting into a situation where the PR/refugee might be subject to cessation proceedings.

Note: this decision refers to a previous Federal Court decision denying Bajwa's appeal of the RPD's cessation decision. I was well aware that there is only publication of selected (not all) agency tribunal decisions but I did not realize these kinds of Federal Court decisions might not be publicly published. Makes me wonder about citizenship appeals generally, whether the paucity of published decisions is more about what is not getting published rather than how few cases are heard on appeal. More in my face illustration of how much I am NOT an expert in this stuff.

The Constitutional/Charter case that automatic loss of PR status violates sections 2(d), 7, 12, and 15 of the Charter:

I have no idea how viable, how strong, the Charter arguments are. Way, way, way out of my league. Without revisiting Camayo this morning, I do not recall a Charter argument being addressed in it.

It is probably important to make a clear reminder that the best approach for a PR/Refugee is to avoid doing any act that can be construed to constitute reavailment. PERIOD (assuming keeping Canadian PR status is important to them.) No trips to the home country. NONE. And NO MORE if there has been a home country trip already.

That is, at this juncture there is no where near enough indication, let alone any kind of promise, that the courts are going to seriously stem cessation, let alone stop it, to expect these cases to save those who are the subject of cessation. Best approach remains NOT going to the home country.
 
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alexmathew244

Full Member
Sep 12, 2023
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Citation appreciated.

Yes, the Federal Court decision in Bajwa v. Canada, 2023 FC 1570, https://canlii.ca/t/k1l2j is interesting . . . referencing some additional, pending interesting cases.

Also see Yousef v. Canada, 2023 CanLII 110973 (FC), https://canlii.ca/t/k1bwk

And Habib v. Canada, 2023 FC 1116, https://canlii.ca/t/k0zvt . . .

These are all cases challenging the constitutional validity of the cessation provisions, including nine additional cases referenced in Habib v. Canada, 2023 FC 1116, https://canlii.ca/t/k0zvt

All reference a pending case referenced as the judicial review application in Court file IMM-8432-22, Gnanapragasam et al v Minister of Citizenship and Immigration et al . . . typically referred to simply as "Gnanapragasam" . . . which is scheduled for a hearing next April.


Bajwa v. Canada, 2023 FC 1570, https://canlii.ca/t/k1l2j in particular:

I am not sure how interesting a case it is in itself (I have yet to see the published decision upholding Bajwa's cessation). What is interesting is the procedure involved and connection to the other pending cases.

This case is at a stage that has barely been mentioned in this topic. Bajwa has already lost PR status. The cessation case was decided, and an appeal was denied.

This case is at a stage which involves proceedings to enforce, or put into effect a Removal Order, to deport this individual who no longer has status in Canada and is a Foreign National deemed inadmissible.

It, and the other cases referenced, illustrate some of the more harsh elements of current cessation law . . . inadmissibility of a nature and scope that is clearly punitive is imposed. This is actually more severe and definitive than what is imposed on former PRs who lost status due to serious criminality, regardless how truly serious their crimes were. It seems blatantly incongruous, at the least, and to my view unjust, to impose a penalty for what involves no wrong-doing. There is no wrong-doing involved if a PR-refugee elects to actually reavail home country protection. Under current law that will result in cessation of protected person status, and automatically mean termination of PR status. Substantively, however, this is not much different than any other PR deciding to live in their home country and no longer be a Canadian PR . . . so they either renounce their PR status or lose it due to not complying with the Residency Obligation . . . which makes them inadmissible, but only for the purpose of terminating their PR status. As soon as they are formally a Foreign National again, they are no longer inadmissible. But the PR-refugee who decides to return to the home country, reavail home country protection, thereby losing their status as a protected person and losing PR status, cannot even apply to visit Canada or if they are married to a Canadian be sponsored for PR status as a member of the family class. Those who have lost PR status based on cessation are not even allowed to make a pre-removal case, at all, that removal will pose very serious risk of harm to them . . . or, for that matter, to minor child affected by the person's removal from Canada.

I have glossed over this many times, just referring to the fact that the impact of cessation is severe and for many it can be an exceedingly harsh outcome . . . the focus being on how important it is to avoid getting into a situation where the PR/refugee might be subject to cessation proceedings.

Note: this decision refers to a previous Federal Court decision denying Bajwa's appeal of the RPD's cessation decision. I was well aware that there is only publication of selected (not all) agency tribunal decisions but I did not realize these kinds of Federal Court decisions might not be publicly published. Makes me wonder about citizenship appeals generally, whether the paucity of published decisions is more about what is not getting published rather than how few cases are heard on appeal. More in my face illustration of how much I am NOT an expert in this stuff.

The Constitutional/Charter case that automatic loss of PR status violates sections 2(d), 7, 12, and 15 of the Charter:

I have no idea how viable, how strong, the Charter arguments are. Way, way, way out of my league. Without revisiting Camayo this morning, I do not recall a Charter argument being addressed in it.

It is probably important to make a clear reminder that the best approach for a PR/Refugee is to avoid doing any act that can be construed to constitute reavailment. PERIOD (assuming keeping Canadian PR status is important to them.) No trips to the home country. NONE. And NO MORE if there has been a home country trip already.

That is, at this juncture there is no where near enough indication, let alone any kind of promise, that the courts are going to seriously stem cessation, let alone stop it, to expect these cases to save those who are the subject of cessation. Best approach remains NOT going to the home country.
Thanks for the detailed reply. My friend's lawyer said that the hearing of Gnanapragasam was set on Dec 12 2023. But you are saying it is in april. Do you know the correct date or any reference to it?
 

dpenabill

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Apr 2, 2010
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Thanks for the detailed reply. My friend's lawyer said that the hearing of Gnanapragasam was set on Dec 12 2023. But you are saying it is in april. Do you know the correct date or any reference to it?
In the Habib v. Canada, 2023 FC 1116, https://canlii.ca/t/k0zvt decision, dated August 17, 2023, Justice Sadrehashemi refers to Gnanapragasam being "scheduled for a full day judicial review hearing on December 12, 2023."

In the Bajwa v. Canada, 2023 FC 1570, https://canlii.ca/t/k1l2j decision, dated November 27, 2023, Justice Azmudeh also refers to Gnanapragasam being "scheduled for a full day judicial review hearing on December 12, 2023." This, however, appears to be quoting and relying on the Habib v. Canada, 2023 FC 1116, https://canlii.ca/t/k0zvt decision.

In the Yousef v. Canada, 2023 CanLII 110973 (FC), https://canlii.ca/t/k1bwk decision, dated November 24, 2023, Justice Gleeson states that Gnanapragasam is currently scheduled "to be heard over four days during the week of April 8, 2024 (Order dated October 20, 2023 in IMM-8432-22)."

My sense is that it is the latter, now, BUT these are all proceedings outside the scope of what I am familiar with. Moreover, there is more information about these proceedings available to the public, to the extent someone knows how to access it (someone like a lawyer) but not readily accessible online generally. So lawyers who are engaged (indirectly as well as those directly involved) are likely to have more and better information.

Note: even though the Bajwa decision is dated more recently than Justice Gleeson's decision in Yousef, Justice Gleeson refers to a particular order October 20, 2023, whereas in Bajwa Justice Azmudeh appears to be relying on the hearing date reported in the months earlier Habib decision. So, again, it is my sense that Gnanapragasam is currently scheduled for a four day hearing in April. NOT at all certain of this however.
 

Illusionist4008

Star Member
Oct 28, 2021
144
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I have a question and hope someone answers it:

Im pr from protected person status, I applied for citizenship in March 2023. Test and BG completed in May. Still waiting for LPP.

I used my back home passport just once to travel to Dubai as the travel document not accepted there (Dubai not back home tho). Is it a problem?.

My application is routine and no additional documents required.

I never been back home since I came to Canada.
 

forw.jane

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Apr 29, 2019
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I have a question and hope someone answers it:

Im pr from protected person status, I applied for citizenship in March 2023. Test and BG completed in May. Still waiting for LPP.

I used my back home passport just once to travel to Dubai as the travel document not accepted there (Dubai not back home tho). Is it a problem?.

My application is routine and no additional documents required.

I never been back home since I came to Canada.
If anything it might come in physical presence activity validation. They might call you for interview to seek clarification. If LPP completes without an interview, it's not a cause for concern. If you get an interview call, be prepared to provide justification for using home passport. I am not sure if using home passport to travel to another country is an issue if you on protected person status.
 

armoured

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Feb 1, 2015
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I used my back home passport just once to travel to Dubai as the travel document not accepted there (Dubai not back home tho). Is it a problem?.
Technically it could be but no way to know for sure. Lower risk than travelling to home country, I gather.

But for it to be clear: using your home country passport to travel internationally means, technically, 'availing yourself of the protection of' the passport-issuing country, even to travel to another, unrelated country.

Yes, it is a major inconvenience and if one wishes to reduce the risk, it means NOT travelling to countries that won't accept the travel document.

Did you also renew your home country passport?
 
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dpenabill

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Apr 2, 2010
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I have a question and hope someone answers it:

Im pr from protected person status, I applied for citizenship in March 2023. Test and BG completed in May. Still waiting for LPP.

I used my back home passport just once to travel to Dubai as the travel document not accepted there (Dubai not back home tho). Is it a problem?.

My application is routine and no additional documents required.

I never been back home since I came to Canada.
@armoured mostly covered this.

Renewing or obtaining a home country passport is, obviously, an act that evidences reavailment of home country protection.

Using a home country passport is also, even if not so obviously, an act that evidences reavailment of home country protection.

That said, so far we have not seen any cases in which cessation proceedings have been brought against a PR-refugee who did not go to their home country. (Does not necessarily mean there have not been any; we only see a small selection of these situations in anecdotal reports, and only a percentage of the actual cases as referenced in Federal Court decisions.)
 

Blind Dolphin

Star Member
Oct 4, 2020
89
68
@armoured mostly covered this.

Renewing or obtaining a home country passport is, obviously, an act that evidences reavailment of home country protection.

Using a home country passport is also, even if not so obviously, an act that evidences reavailment of home country protection.

That said, so far we have not seen any cases in which cessation proceedings have been brought against a PR-refugee who did not go to their home country. (Does not necessarily mean there have not been any; we only see a small selection of these situations in anecdotal reports, and only a percentage of the actual cases as referenced in Federal Court decisions.)
 

Blind Dolphin

Star Member
Oct 4, 2020
89
68
In my opinion, there is a small chance of interview to check whether the person may have travelled to home country by any other means if Dubai is one of his neighboring destination. Other than that using home country passport is still an issue sometimes even used for any travel. wish you all the best and hope they wont bother it
 

NaAzaAn

Hero Member
May 26, 2021
293
72
Hello guys
I am a protected person who has PR and wanna apply for citizenship. Do I need to get police certificate from my home country?!!