Lack of Awareness of Consequences Cessation Case:
In the Tul Muntaha v. Canada, 2024 FC 1040,
https://canlii.ca/t/k5lh6 decision, issued a few days ago, it appears that the RPD did not acknowledge or cite the Federal Court of Appeal decision in Camayo, which is here
https://canlii.ca/t/jndkg and which is the definitive case prescribing the conjunctive three-part test for cessation, notwithstanding the RPD deciding this case well after the Camayo decision. It is NOT necessary for the RPD to specifically follow or even reference the Camayo FCA decision but it must nonetheless appropriately apply the well established conjunctive three-part test for cessation.
In this case the Federal Court, in a decision by Justice Gleeson, set aside the RPD's cessation determination because "
the RPD failed to meaningfully grapple with the Applicants’ evidence and submissions in addressing the issue of intent to reavail. This error renders the decision unreasonable."
Unfortunately this decision does not address or illuminate much in regards to the particular facts underlying its conclusions that the RPD failed to adequately consider the PR-refugee's lack of awareness of the consequences arising from travel to the home country, and the PR-refugee's evidence as to precautions taken while in the home country.
A PR-refugee's lack of awareness of the consequences, that is that travel to the home country would constitute reavailment resulting in cessation of status in Canada, is a relevant consideration in assessing the PR-refugee's intention (to reavail home country protection), but such lack of awareness "
is not necessarily determinative." In many of the other cessation decisions cited above, the PR-refugee's lack of awareness of the consequences has failed to rebut the presumption of intent to reavail. Based on that I have often commented that despite Camayo clearly declaring this to be a relevant consideration, it has not carried much weight in decisions by the RPD and many FC justices, largely given it is
NOT a definitive factor.
Justice Gleeson, however, states that the lack of awareness of consequences "
is of significant relevance" to whether the presumption of intent to reavail has been rebutted, and as I understand the decision (this is not stated nearly as clearly as I would like to see), for the RPD's decision to be reasonable it should have supported its analysis that the lack of awareness was not sufficient to rebut the presumption of intention.
I do not know that this offers much hope for others that asserting lack of awareness of the consequences will carry much weight in their case. Despite Camayo, and this and a couple other cases, in most cases this factor seems to be given rather little weight if not rather easily dismissed.
While this is another ONE trip case, it is interesting that the RPD characterized a 53 day trip as "
lengthy" and "
for an extended period of time," and even though it was to be with a dying grandparent, "
not strictly necessary" (other relative were caring for the grandparent).
There is no explanation indicating what triggered the commencement of cessation proceedings around three years AFTER the trip to the home country.
Also of note: one of the PR-refugees in this case is a minor. The RPD concluded that given the child's age they were "
unable to have an intention different from that of her mother."
My sense is that perhaps Justice Gleeson was swayed by the harshness of this cessation decision. But, my sense is also that cases like this also indicate that CBSA and IRCC are more or less strictly enforcing cessation for those who travel to the home country. As I have mentioned recently, a year or more ago it was not apparent that single trips to the home country were typically resulting in cessation proceedings. A case like this, which was based on
a single home country trip back in 2018, illustrates otherwise.
The latter demands a
CAUTION: obviously, there is a huge lag in time involved in these cases which means what we know is inherently dated.
