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.
So far we have not seen any cessation cases against PR-refugees who did not travel to the home country at least once. But there have been some cases in which just one trip to the home country has not only triggered cessation, but have been upheld on review.
Getting and using the passport in itself creates a presumption of reavailment, so there is some risk of cessation proceedings even though we have not seen cessation proceedings absent travel to the home country.
I doubt anyone here, and certainly not me, can say what the probabilities are, what the practical risk is. That said, my sense is the risk is fairly low; however, the problem isn't the odds so much as what is at stake.
If you can afford to see an immigration lawyer, a good lawyer with experience in representing refugees, it would be prudent to get a personal, in-depth, paid for consultation BEFORE applying for citizenship.
If you wait to apply for citizenship until five years since your last travel abroad using the home country passport, that would reduce the risk considerably since your application would not reflect using the home country passport (since the applicant only reports travel history for previous five years). But whether the risk in the meantime is high enough to do that, to wait, is hard to say. And that would not necessarily totally eliminate the risk.
Getting input from a lawyer would be a good idea. (And many here would appreciate you sharing here any insights you gain.)
There have been several new cases. I've been lazy and have not been posting them. Here's one more recent one:
https://www.canlii.org/en/ca/fct/doc/2024/2024fc486/2024fc486.html
This decision from just last week, the Dogahen v. Canada, 2024 FC 486,
https://canlii.ca/t/k3r0k decision, does indeed illustrate that the government continues to roll along in cessation proceedings. Its brevity speaks volumes. Notwithstanding some signs of relief from the severity of cessation consequences seen in some cases I referenced last week, above, this Dogahen case and the Naqvi v. Canada, 2024 FC 365,
https://canlii.ca/t/k3k2z decision (cessation upheld based on just one trip to the home country) are clear examples that cessation remains a big risk.
There is a bit of a wrinkle in Dogahen, however, in that Justice Heneghan quotes Justice Brown's decision in Ali v. Canada, 2023 FC 383,
https://canlii.ca/t/jwbhn which is a decision I discussed here a year ago, post #714, which I described as a decision that "
invites some head scratching", apart from and in addition to a rather salient makes-no-sense detail, likely a typo, looming front and center. The part that Justice Heneghan quotes is clear enough, and the underlying basis for the outcome in the Ali case is clear enough, but seems an odd choice to quote as a source.
Maybe all the cases are waiting up on gagaram case which is expected to take place in April or May.
I figured out that you are referring to cases connected to the Jude Upali Gnanapragasam case; that is, in particular:
Upali Gnanapragasam and Al. v. Canada, Court File No.: IMM-8432-22 [“Gnanapragasam”]
Note: "
gagaram" did not ring any memory bells and for search purposes was a dead end; helps to be more precise, a link is best, but at least the correctly spelled case name, preferably including a docket number if not linked.
The “
Gnanapragasam” case involves just a handful or two of specific cases that are on hold (stayed or in abeyance), to some extent, pending further proceedings in regards to the Gnanapragasam constitutional challenge to the automatic termination of PR status. ONLY those cases connected to the Gnanapragasam group are affected, plus a few other individual cases in which the affected party has requested and the Federal Court allowed a stay or hold. I referenced and discussed most of these here in a post back on December 14, 2023, post #815. In addition to the cases I cite and link in that post, I notice that another Federal Court justice has granted a motion to hold the judicial review of a cessation case in abeyance. That is the Bubreg v. Canada, 2024 FC 40,
https://canlii.ca/t/k269d case
The main case in addition to the
Gnanapragasam case itself, is a decision by Federal Court Justice Lobat Sadrehashemi which has put 10 cases on hold; that is Habib v. Canada, 2023 FC 1116,
https://canlii.ca/t/k0zvt which is one of those I discussed back in December. File numbers for the ten cases involved, those being held in abeyance, are listed in that decision. Others we know about include Bajwa v. Canada, 2023 FC 1570,
https://canlii.ca/t/k1l2j and a group of related parties in Yousef v. Canada, 2023 CanLII 110973,
https://canlii.ca/t/k1bwk
At that time there was some confusion about a hearing in the
Gnanapragasam case scheduled for December, and another for April. There was in fact a hearing in December and an order issued December 20, 2023 in regards to some motions to intervene (additional parties asking to be included in the case). See that here: Gnanapragasam v. Canada, 2023 FC 1735 (CanLII),
https://canlii.ca/t/k2j7q
And multiple sources indicate that the Gnanapragasam case is indeed set for another hearing next week, the week of April 8, 2024.
The Current Significance of the Gnanapragasam Constitutional Challenges:
For PR-refugees, for purposes of personal decision-making, there is NO WHERE NEAR enough indication to anticipate, let alone rely on the prospect that the statutory provision automatically terminating PR status upon a cessation determination will be determined to be unconstitutional.
There is no indication that RPD proceedings in cessation are on hold. Let alone cessation investigations. That is, notwithstanding the cases challenging Section 46(1)(c.1) IRPA, there is no indication that has influenced RPD cessation proceedings.
At this stage, the constitutional challenge is at best a legal argument the courts have not decided. There is NO promise, none at all, it will succeed. (Note, the CARL Review of Refugee Law and Practice is available at CanII and there is an article about all this in Vol. 2 No. 1 for 2024, titled "Challenging the Loss of Permanent Resident Status Resulting From Cessation of Refugee Protection.")
The irony is that the Gnanapragasam case itself is NO longer about the automatic PR termination provision, so that case could be dismissed as moot. Or decided on other grounds. (Apparently, or so is indicated in the Bubreg v. Canada, 2024 FC 40,
https://canlii.ca/t/k269d case, cessation of Gnanapragasam's refugee status was eventually based on Section 108(1)(e) IRPA, which does not trigger the automatic termination of PR status, so Gnanapragasam remains a PR even though no longer having refugee status).
If the court proceeds to decide the constitutionality issues, and declares the automatic termination of PR unconstitutional, that will of course be a really huge deal and literally save the day for scores and scores of PR-refugees. I am no where near capable of forecasting the odds of that outcome except that in general many cases like this tend to be a long shot, the odds not good. In any event, the odds are NOT good enough, not anywhere near close, to make decisions based on the constitutional challenge succeeding.
Clarifying What is On Hold, in Abeyance:
The cases on hold are cases in which cessation has already been determined. Remember, there was the earlier Gnanapragasam case in which they sought to stay the RPD from proceeding with cessation. The Federal Court denied the stay. See the Gnanapragasam v. Canada, 2022 FC 1595,
https://canlii.ca/t/jt4xd decision in which Justice Furlanetto denied the motion to enjoin the RPD from proceeding with cessation. (I discussed this case here, back in November 2022, post #690)
To be clear:
there is nothing indicating that currently there is any hold on cessation proceedings themselves. What is on hold is the Federal Court review of cessation decisions in about a dozen or so cases. and so far this appears to be limited.
