Refugee status cessation and PRs applying for citizenship

[dpenabill]

Hi @dpenabill,

Thank you for your informative input. I have been following this thread for a while now and decided to share my experience.

I received my refugee PR in 2019 and shortly after, I returned to my home country for only 7 days due to a family member's illness. Upon my return to Canada, I was referred to secondary screening. The CBSA officer was quite angry, questioning why a refugee PR would travel back to their home country. He copied my IDs and informed me that he would submit a cessation request to the IRB, but allowed me to enter Canada, telling me to wait for a letter or court notice.

Since then, I have not received any updates regarding it. I have not traveled until I became a Canadian citizen about 2 years ago. My concern is whether I should be worried about receiving a notice regarding my cessation case at this point. The submission was filed in 2019 while I was at the airport PoE, but I never received any notice till today.

Is it possible that they did not proceed with my case, or is there a backlog that might result in a notice in the future? What would happen to my Canadian citizenship if they proceed with the cessation? Should I be concerned about traveling back to my home country as a Canadian citizen in my specific case?

I cannot offer personal advice or assessment of a specific individual's particular case, but if you are now a Canadian citizen and you made no misrepresentations in any of your immigration proceedings, there is no current basis (in law) for taking away your Canadian citizenship.

By the way, your status as a refugee became conclusively subject to cessation when you acquired Canadian citizenship. Acquiring citizenship is one of the grounds for cessation.

 

[yellowpepper]

Why is there no recent cessation cases? I'm assuming not everything gets posted on Canlii but there is not much new besides the new Uppal case.

 

[scylla]

Why is there no recent cessation cases? I'm assuming not everything gets posted on Canlii but there is not much new besides the new Uppal case.

I depends on what is in front of the courts on any given week.

There was an interesting one this week related to cessation. The appeal was on the PRRA decision and was negative. However the reason why the person was offered PRRA is because they lost status due to cessation.

 

[dpenabill]

Why is there no recent cessation cases? I'm assuming not everything gets posted on Canlii but there is not much new besides the new Uppal case.

As far as I can see it is NOT the norm for CanLII to publish cessation decisions by the IRB, so the absence of new cessation determinations in CanLII is not at all indicative of the extent to which such decisions are being made.

There are many cessation determinations by the IRB that are published at CanLII, but generally much of the information relative to the PR-refugee affected is redacted, so it can be difficult to correlate published Federal Court decisions regarding cessation decisions with the underlying IRB determination that is subject of the appeal.

So far as I can see, NONE of the IRB determinations addressed in the more recent Federal Court decisions are published IRB decisions in CanLII. This includes cases which we know were decided by the IRB more recently than the most recent published cessation decision at the IRB, including:

Tul Muntaha v. Canada, 2024 FC 1040, https://canlii.ca/t/k5lh6​

Zhou v. Canada, 2024 FC 895, https://canlii.ca/t/k56dh​

Wiseman Hunt v. Canada (Citizenship and Immigration), 2024 FC 837, https://canlii.ca/t/k52hs​

Shah v. Canada, 2024 FC 923, https://canlii.ca/t/k59gw​

This suggests the norm is to NOT publish the IRB cessation determinations.

Moreover, even in regards to the published Federal Court decisions I do NOT agree that there are "no recent cessation cases." As I said in regards to the Shah decision, that was "just one more in what, again, is a more or less steady stream of decisions upholding RPD cessation of protected status."

It warrants remembering that the total number of PR-refugees affected by cessation proceedings is only a few hundred. This is based on stats a few years old now, but there is no reason to expect that there has been a flood of PR-refugees risking their status, if not their lives, by traveling to their home country, let alone a flood of new cessation cases.

Meanwhile, the published Federal Court decisions only reflect cessation determinations that are appealed, which is only a portion of the cessation cases.

I guess the PRRA case that @scylla mentions is Yuan v. Canada, 2024 FC 1253 https://canlii.ca/t/k68pf which is a cessation case dating back more than a decade, even though the more recent cessation determination (after appeals) was just in 2020.

In late July there was the decision in Yu v. Canada, 2024 FC 1189 https://canlii.ca/t/k61w7 which offers almost no details; cessation was upheld; the PR-refugee failed to appear for IRB hearing and cessation decision made in her absence. Decision does not reveal date of IRB decision so I have not confirmed whether this too is also an unpublished cessation determination by the IRB (again, names and many other details are usually redacted in the published IRB cessation decisions).

MAIN THING: There is no indication that the government is backing off pursuing cessation against PR-refugees who travel to their home country. It would be unwise, if not seriously reckless, to to rely on any suggestion of that happening.

 

[scylla]

New case: https://www.canlii.org/en/ca/fct/doc/2024/2024fc1383/2024fc1383.html

 

[dpenabill]

New case: https://www.canlii.org/en/ca/fct/doc/2024/2024fc1383/2024fc1383.html

At this juncture the cessation cases tend to be unremarkable other than illustrating the government continues to screen and enforce cessation provisions against Permanent Residents, including those who have traveled just once to their home country. It warrants repeating, and emphasizing, that the number or frequency of these cases in published Federal Court decisions ONLY reflects cases seen in appeals to the Federal Court, not the number or frequency of cases decided by the RPD. But given that there continue to be these cases in the Federal Court, and in particular that many involve just ONE trip to the home country, they very much indicate continuing enforcement resulting in cessation of status when a PR-refugee engages in conduct that constitutes reavailment of home country protection.

So, please forgive my repetition, but it is important for PR-refugees to be aware: Again, there is no indication that the government is backing off pursuing cessation against PR-refugees who travel to their home country. It would be unwise, if not seriously reckless, to to rely on any suggestion of that happening.

Meanwhile, while I am hesitant to read too much into isolated statements in Federal Court decisions (as this case referenced by @scylla illustrates why), there is a statement in the published decision Shah v. Canada, 2024 FC 1383, https://canlii.ca/t/k6ls0 which might be worth noting, in paragraph 23 stating that the presumption of reavailment arises "when a protected person acquires, renews, or uses a passport issued by their country of origin." So far we have not seen any determinations of cessation based on this apart from travel to the home country, but it warrants cautioning PR-refugees that the courts are often citing this presumption, and given the severe consequences of cessation this is something prudent PR-refugees should approach very carefully.

Meanwhile, there is an interesting aspect to this case. The PR-refugee here cited the case of El Kaissi v. Canada, 2011 FC 1234, https://canlii.ca/t/fnq1g and Camargo v. Canada, 2003 FC 1434, https://canlii.ca/t/1g2lv in which Justices Near and O'Keefe, respectively, stated that a return to the home country does NOT constitute re-availment unless there is an intent to permanently reside in that country.

In particular, it is stated in those cases that “re-availment” is not a temporary visit but requires an intention to permanently reside in that country before physical presence will negate refugee status."

Here, in this Shah decision, that is rejected based on distinguishing those applying for refugee protection versus those have been conferred refugee status. I am no where near familiar enough with the law governing applications for refugee status to comment on the reasoning in Kaissi and Camargo, but it seems to me this may be essentially a distinction without a difference. In any event, there is "no confusion" in regards to re-availment and cessation, travel to the home country is a key element which will support a finding of re-availment and a determination of cessation of status.

Which is to say, while there are multiple cases stating that to establish re-availment requires an intent to permanently reside in the home country, that is NOT actually how it works in cessation cases. Which, in turn, illustrates the danger in relying on isolated statements in the law; whenever trying to understand or apply statements of law, careful consideration of the context and other decisions is important.

 

[lost-in-Canada]

Hello everyone,
I would need your suggestions @scylla @dpenabill. I will explain my whole story and try to make it short and easy. I know you will not give me legal advice but I found you have been following these cases for a long time and I will appreciate your advice.

Refugee case:
I came to Canada in 2018 and asked for protection. My case was accepted in October 2019. My PR was approved in December 2021.

During the process, the IRCC asked me for a police certificate from China as I spent 2 years in China as a student. I applied for a police certificate (one of my friends in China did for me) and they approved the Chinese version but when my friend asked them to translate it into English, the guy was asking for a valid passport because my previous passport was expired. But the other guy by mistake approved the Chinese version and did not check the passport copy which was expired. And then I applied for my country's passport which I did not know not to do. Anyhow it took time and then I took the Chinese version to the translator in Montreal and they translated it for me. My Pr was approved then.

In the meantime. I got an award from the Chinese Scholarship Council for the research I was doing and they sent my money to my Chinese bank which I was not using anymore. I called the bank and they asked for my old passport copy. I called the CBSA to give me my old passport they seized so I can provide it to them to release the money for me. And they provided me with my old passport.

PhD study: (not to show that I am highly educated just giving the snapshot of the whole story)

I applied for Ph.D. admission in one of Canada's best universities and I got admission and funding too. I was supposed to start in September 2021 but I requested deferral due to some issues. My mom went two surgeries back in my country In November 2021.
Then I was supposed to be starting in January 2022 but again my mom's situation was not good and the doctor was asking for another surgery. I emailed my Professor and asked again for deferral and mentioned that Mom is sick. I have that email in my history.

Then I started My PhD in May 2022. I was awarded the most prestigious award by the Natural Science and Engineering Research Council of Canada (NSERC) and was ranked in the top 10 candidates in the whole of Canada. After I got many other awards for my PhD, many of them very prestigious from NSERC.

Marriage/ Relationship:

I was in contact with someone back in my home country in 2018 and then my parents did my engagement in 2019 when I was already in Canada. We were in contact from 2018 until our marriage.

Trips to home country:

As I mentioned above when I was getting a Chinese police clearance certificate I applied for my home country's passport. I got the passport later after some time.

1) when the doctor asked for third surgery for my Mom, Mom said I am not doing any more surgeries and she was asking for me because i did not meet her for 4 years.
2) there was no option for me but to go to my home country in March 2022 as I already asked my professor that my mom is sick and I cannot start my studies.
3) I visited my home country and after 17 days they scheduled the surgery. In the meantime, I also got married as she was waiting for me since 2018 and this was also my mom's wish to get married in front of her and case something goes wrong in the surgery.
4) The surgery went well and she is good now.
"here was my first trip to my country" (45 days)

After coming back I submitted a spousal sponsorship application. which is now in process for the last 15 months. I ordered GCMS notes and nothing was mentioned about me but the officer said the marriage is valid and an interview was required.

The IRCC also asked for the spousal application ADR and asked for chats, money transfer bills, and a Visit of Spr. I provided them with chats and money transfer receipts and wrote a letter that I did not visit because of my study and research obligations.

All the processing time, my wife was depressed and a miscarriage has also happened. Because of stress, she was passing out every second day and was m, missing me.
she attempted suicide (i don't want to say but have no option now) and I bought it a ticket right away to visit her. They did some dialysis and stuff while she was in the hospital. I left my classes and everything to go but my flight was delayed 24 hours and when I reached they already left the hospital. She is seeing a Psychiatrist now and doing well somehow
"Second trip after one year" (four weeks)

Port of entry officer question:
First trip:
the officer asked why I visited and I told her my mom was sick. she said you know you can not go and I said yes but I was in hiding and Mom was really sick. She took my passport and PR and went and did something. I don't know and then She came and asked for a Medical report and I told her that I did not bring it because I didn't know and told her if you need I can provide it later.

She said next time when you go bring the medical report with you and gave me back the passport and PR.

Now I don't know if she initiated the cessation or not but now I am thinking not because she shouldn't tell me to bring a medical report next time if I go again.

2nd trip:
when I come back the officer said why I visited and I said to see my wife I had the medical reports this time but he did not ask for it. just did something in the computer and gave me back the passport and PR.

Possibility of Cessation: (did not know these things before and was never educated by anyone)
I called the MP office to inquire why it is taking long for the spousal application. Every time they were just providing me with the status. I asked to speak to the MP because I did not want my wife to be alone anymore.
In the meantime, I applied 2 times for TRV and both times it was refused due to no family ties outside of home country.

The MP office contacted the Montreal call center about the refusal of the 2nd TRV because it was applied after the new policy spousal TRV.

Then I talked to the MP and she asked how you came to Canada and then she said you can't go back to your home country. From there I started looking into the immigration policies and found this thread.

I ordered another set of GCMS notes for the last refused TRV and received the TRV GCMS notes today.
There is mentioned in the notes:
Date: 2023/06/15
office: Montreal call center
TEXT: MP office status inquiry (no action). Provided TRV x2 refusal rationale. FC1 is under review. SPR returned to the Country of persecution on possibly two occasions. CR-3783

Today, I am shaking seeing these notes in the TRV GCMS notes.

The Spousal application GCMS notes I received on 2023/06/29 and there was nothing about me.

Next step:
Now I really need your advice on what to do. I am not sure if they initiated cessation for me or not.
I am in stress and can't focus on my studies anymore.

this is the 2nd year of my Ph.D. and I don't want something to happen to me.

If they really start doing the cessation what should I do?

All these things happened due to a lack of knowledge and were out of my control because the passport I applied for to get the police certificate and visited both times to my county due to an emergency. Also, I plead my country because of the Taliban, and the guy who was after, died in 2021, and then no one was caring about me. But still, when I visited I was hidden and never went outside just stayed in my home.

Option:
I am not sure if they will initiate or not the cessation process but I am really disappointed.
Before something happens, now I am thinking to apply for US green card based on an advanced degree and research. I have a strong profile with many research publications and national awards in Canada and outside. And I am sure I will complete my degree before any decision.

Please suggest, I am confused and sorry for the long story.

following post

 

[lost-in-Canada]

I have explained the whole story above in detail, but I will provide just a snapshot.
Became a protected person, in December 2021.
Receive PR card February 2022.
Renewed home county passport in February 2022.
First trip to home county March 2022.
Submitted spousal application in April 2022.
Second Trip in April 2023.

All that happened because of a situation that I only know, and more importantly I had no idea and knowledge of cessation that I cannot do this like other hundreds of refugees. I think we need to educate the refugees that you cannot review your passport or travel to your home country. And no one is doing this not the IRCC nor the CBSA. IRCC agents over the phone will always give wrong information, as before getting my PR card, I applied for the refugee travel document and I only knew at that time that the refugee travel document you only need when you do not have your PR card and the same was told me by the IRCC agent over the phone, which was wrong information.

On my trip when I was questioned by the CBSA officer, she said you cannot travel and I explained my situation. She went to the back office, talked to some senior officer maybe, and then told me next time when you go bring a medical report with you. I still do not know that time that there is a thing called cessation. On the second trip, the officer did not even bother to ask anything but stamped my passport and let me go, which was nice of him.
Now to the point: My area MP was inquiring about my spouse's application regularly from the IRCC Montreal call center, and one day I ordered my spouse's application GCMS Notes, and I saw there that the call center agent mentioned that I had visited 2 times to the country of persecution and got married. The MP office told me that there is a law that they can take your status from you and from that day I started reading and knowing about the cessation. Then I came to know about this thread and it educated me a lot. Then I started reading the cases on CanLII, I think I have read 98% of the cases there.
Now back to spouse application: In the meantime, my spouse got a call for an interview, and I thought it was the end. I have accepted that I have no way to avoid this thing. Started looking for alternatives, mostly US green card based on higher education. But decided to wait till my spouse's interview.
The interview was conducted in May 2024, and thank God, they did not even bother to ask her about me. It was a simple interview, and the application was approved in one month. She is now in Canada.

Now my Citizenship Application:
I had an alternative and they did not ask anything during my spouse interview, so I was confident and submitted my application.
Application timeline:
Submitted May 2024.
Citizenship test Jun 20, 2024.
Fingerprint request July 26, 2024
Fingerprint received August 19, 2024, and completed: 20 August 2024
Physical presence, language, and prohibition completed: 21 August 2024
Ceremony in progress: 22 August 2024
Ceremony scheduled: 22 August 2024 for September 3, 2024
Oath (in-person): September 3, 2024, received the hard copy of the citizenship certificate the same day.
Passport received after 1 week.
It took 4 months for me.

The purpose of this post is to educate and offer some relief to those who are currently in the immigration process. No one understands better than I do how difficult it is to be in limbo and not know what to do. First and foremost, never renew your passport or travel to your home country as depan is advises in every post.

 

[scylla]

following post

Is there any progress on your case? Has your wife's spousal sponsorship application been approved? Any news about your citizenship application?

 

[lost-in-Canada]

Is there any progress on your case? Has your wife's spousal sponsorship application been approved? Any news about your citizenship application?

Hi I have posted the whole story but waiting for moderator approval. Yes my spousal application was approved as well as my citizenship in 4 months.

 

[scylla]

Hi I have posted the whole story but waiting for moderator approval. Yes my spousal application was approved as well as my citizenship in 4 months.

That is amazing! A huge congrats!

 

[lost-in-Canada]

That is amazing! A huge congrats!

Thank you

 

[dpenabill]

Hi I have posted the whole story but waiting for moderator approval. Yes my spousal application was approved as well as my citizenship in 4 months.

Congratulations and looking forward to what you can share. Your update is appreciated.

And just seeing the outcome for you based on the information you shared here (so your quote of that post with link is also appreciated), more than a year ago, is useful information that helps us to further clarify what we know about cessation. I am particularly interested in the timeline and any information about non-routine processing you experienced.

So Some Observations:

The salient, key observation is that your experience illustrates that NOT every PR-refugee who visits their home country is subject to cessation. That is a big deal. For any who have traveled home and have not had cessation proceedings started against them, as yet, that signals things may still go OK (but they should still avoid traveling home again, assuming they can, or even using the passport again).

However, the import of this fact should not be misunderstood: it does not suggest any other PR-refugee can expect the same outcome. Some probably will experience a similar outcome. Others will not. The particular details in each individual situation almost certainly make a big difference in how it goes.

However, we do not know much about the criteria CBSA/IRCC consider, what details most influence how it goes, let alone any particular criteria that could itself make the difference.

We do know, at least more recently, that just ONE trip to the home country can trigger cessation proceedings and be sufficient for a determination of cessation upheld on appeal (this was not so apparent a couple years ago).

In describing your situation last year you referenced a couple factors . . .

. . . the officer asked why I visited and I told her my mom was sick. she said you know you can not go and I said yes but I was in hiding and Mom was really sick . . .

. . . that are given significant weight in the FCA Camayo decision (oft cited and linked above):

-- purpose of travel was for a compelling reason (medical condition of parent considered together with the surrounding circumstances), and​

-- steps were taken to address risk without enlisting protection from authorities ("in hiding")​

These may have made a positive difference for you. They are factors that must be given consideration when the PR-refugee says there was no intention to reavail home country protection. This is specifically dictated by the Camayo decision, which is binding precedent on the RPD and all Federal Courts (decisions by individual Federal Courts carry a lot weight but are not binding precedent -- so quite a few FC decisions are inconsistent, some explicitly contrary, in conflict).

That said, for any PR-refugee weighing whether to make a trip to the home country, they should be aware of the risks involved in the decisions they make, and recognize that exercising caution and a damn good reason for the trip is NO guarantee that will be enough to avoid cessation. In many of the negative FC decisions discussed above, the PR-refugees advanced a compelling purpose and taking "precautions" defense but lost anyway. This includes the last case @scylla linked here, Shah v. Canada, 2024 FC 1383, https://canlii.ca/t/k6ls0 in which Shah claimed compelling reasons for the trip including medical reasons, and claimed she "took precautions and mostly remained in her house, hiding." And again, this is a one-trip home case in which not only did CBSA prosecute and the RPD determine cessation of status, the cessation determination was upheld by the FC.

It is probably near impossible to sort out correlations and numbers sufficient to make even broad ball park estimates, to assess the probabilities; but what is readily discernible is that there is at least a significant risk (even when compelled by demanding circumstances, and taking precautions) and if CBSA pursues cessation the potential outcome is severe. Which does not dictate what a PR-refugee should do. That depends on the situation and the individual PR's best judgment, what is best for them. And that can amount to some damn-hard-to-make decision-making.

For those who choose to go, compelled to go by circumstance, in addition to being prepared to explain why, they should indeed take precautions and be prepared to describe how so. (And, frankly, prepared to deal with cessation if that happens.)

Didn't Know Defense:

It warrants noting that Shah also claimed a "lack of subjective knowledge of the risks to her refugee status in travelling to [her home country]."

This is also another must-be-considered factor dictated by the Camayo decision. Subsequent FC decisions strongly suggest this factor does not carry much weight. As I responded a year ago:

By the way: the I did not know, no one told me defense, does not seem to get much traction . . . perhaps I did not understand might work better. Obviously only go with whichever is true. But most of what we see suggests that the government is not buying claims that the information about not returning to home country et al was not provided.

And obviously any "didn't know" defense will not fly in regards to trips after one in which border officials say something like "you know you can not go . . . yes but . . ." (Other rebuttal as to intent to reavail may still fly, such as there was compelling reason plus precautions taken; we just have no way of forecasting if and when they will fly for others.)

 

[dpenabill]

Comments triggered by Federal Court decision setting aside a cessation decision in Zou v. Canada, 2024 FC 1337, https://canlii.ca/t/k6r3r . . .

At this juncture the cessation cases tend to be unremarkable other than illustrating the government continues to screen and enforce cessation provisions against Permanent Residents, including those who have traveled just once to their home country.

That was an overly broad statement. It can be hard to keep the full range of context and tangents in perspective, or else I get even more overly wordy than usual in trying to account for context in the myriad factual tangents that can be involved.

At this juncture there tends to be little revision or clarification of the law governing cessation, let alone any indication of significant changes in how the cessation provisions are applied, which is the context in which I made the remark about cessation cases tending to be unremarkable. Which leads to what I return to again and again, given the risks and the potential consequences if status is lost:

-- PR-refugees should NOT obtain a home country passport​

-- -- but if they have they should not use it​

-- -- or if they have used a home country passport, they should NOT use it again​

​

-- PR-refugees should not travel to their home country​

-- -- but if they have, they should NOT do that again​

That's the basics. That's the safer approach. (No passport, no home country travel at all, is the safest approach.) There is no indication of any change in this regard. It is important that anyone with protected status that could be subject to cessation resulting in the loss of their status to live in Canada be aware of this.

But of course the real world, real life, tends to be more complicated than that. Not every trip to the home country will trigger cessation, let alone always lead to cessation. The actual application of cessation in particular circumstances is varied, depending on a very, very wide range of circumstances in which a specific PR-refugee's case arises. That is, the facts in the individual case matter.

So, here again in reference to yet another cessation decision issued by the Federal Court, a decision by Justice Norris allowing the appeal: Zou v. Canada, 2024 FC 1337, https://canlii.ca/t/k6r3r Here again there is nothing particularly remarkable about what the law governing cessation is or how it is applied . . . except, perhaps, the RPD's reference to and application of a presumption of voluntariness (one of the key elements in establishing reavailment), when there is no such presumption, and Justice Norris rejecting the Minister's argument this was harmless error.

The key to this particular case, in which Justice Norris has given this PR-refugee another opportunity before the RPD, is this PR has another chance to persuade the RPD (upon redetermination) there was no intent to reavail home country protections, so there should be no cessation of status. This issue revolves around the evidence of cognitive impairment and the PR's capacity to understand the implications of his actions. The RPD had actually judged this evidence to be compelling enough to warrant the appointment of a designated representative in the proceedings, but then more or less brushed off the argument the PR's cognitive impairment and mental health issues prevented the PR from understanding the legal consequences of returning to the home country sufficient to rebut the presumption of intent . . . and in this particular case, the RPD's view was there is also a presumption of voluntariness which was not rebutted.

We do not see many of the RPD's decisions but it is near certain that there is typically a lot of skepticism when the PR-refugee claims the "I didn't know" defense. It would be easy to suspect the "I didn't know" defense generally falls on deaf ears EXCEPT the Federal Court of Appeals, in the Camayo case (oft cited and linked in previous posts), mandates consideration of this. If raised, it must be considered and addressed. But it rarely flies.

Even in those cases which reach the Federal Court in which the PR-refugee has asserted they did not know returning to their home country was strong evidence of reavailment, and bolstered the presumption of intent to reavail, it is clear that it is damn hard to get traction based on this, on the "I didn't know" defense.

To be clear, there is NO guarantee, none at all, that Xinwu Zou will succeed with this defense when his case is re-determined by another RPD panel. He might. He might not. But this is NOT a no-one-told-me defense. He has at least an arguable position because there is a rational, substantive medical/mental-health explanation as to why he was not aware of the consequences.

Voluntariness:

This is actually a key element. Cessation based on reavailment must be based on voluntary actions. A common and obvious situation in which travel to the home country was not voluntary is a minor child traveling with their parent. Not so obvious, but also common, are circumstances in which there are compelling reasons for going to the home country. A brief trip to attend the funeral of a parent, for example, in which the PR-refugee takes precautions to avoid the dangers involved other than through state protection, has been deemed sufficiently compelling as to not meet the voluntariness element (caution: this outcome in some cases does not guarantee the same in another -- hard as it can be, PRs with protected status should be aware that travel to the home country even for this reason risks cessation).

Even though the voluntariness of the protected person's actions is a key element, and it is the Minister's burden to establish the protected person acted voluntarily, in the reported cases this is not an issue that has made much difference in the outcome. Not because there is a presumption of voluntariness, but because absent coercion, compulsion, duress, or something that more or less forces a person to act a certain way, the choice to act this or that way generally supports an inference the act was voluntary.

In this case, however, there were unresolved issues as to the PR-refugee's cognitive capacities. And Justice Norris rejected the argument "that the RPD's erroneous reliance on a presumption of voluntariness was a harmless error."

 

[Harry9909]

Comments triggered by Federal Court decision setting aside a cessation decision in Zou v. Canada, 2024 FC 1337, https://canlii.ca/t/k6r3r . . .



That was an overly broad statement. It can be hard to keep the full range of context and tangents in perspective, or else I get even more overly wordy than usual in trying to account for context in the myriad factual tangents that can be involved.

At this juncture there tends to be little revision or clarification of the law governing cessation, let alone any indication of significant changes in how the cessation provisions are applied, which is the context in which I made the remark about cessation cases tending to be unremarkable. Which leads to what I return to again and again, given the risks and the potential consequences if status is lost:

-- PR-refugees should NOT obtain a home country passport​

-- -- but if they have they should not use it​

-- -- or if they have used a home country passport, they should NOT use it again​

​

-- PR-refugees should not travel to their home country​

-- -- but if they have, they should NOT do that again​

That's the basics. That's the safer approach. (No passport, no home country travel at all, is the safest approach.) There is no indication of any change in this regard. It is important that anyone with protected status that could be subject to cessation resulting in the loss of their status to live in Canada be aware of this.

But of course the real world, real life, tends to be more complicated than that. Not every trip to the home country will trigger cessation, let alone always lead to cessation. The actual application of cessation in particular circumstances is varied, depending on a very, very wide range of circumstances in which a specific PR-refugee's case arises. That is, the facts in the individual case matter.

So, here again in reference to yet another cessation decision issued by the Federal Court, a decision by Justice Norris allowing the appeal: Zou v. Canada, 2024 FC 1337, https://canlii.ca/t/k6r3r Here again there is nothing particularly remarkable about what the law governing cessation is or how it is applied . . . except, perhaps, the RPD's reference to and application of a presumption of voluntariness (one of the key elements in establishing reavailment), when there is no such presumption, and Justice Norris rejecting the Minister's argument this was harmless error.

The key to this particular case, in which Justice Norris has given this PR-refugee another opportunity before the RPD, is this PR has another chance to persuade the RPD (upon redetermination) there was no intent to reavail home country protections, so there should be no cessation of status. This issue revolves around the evidence of cognitive impairment and the PR's capacity to understand the implications of his actions. The RPD had actually judged this evidence to be compelling enough to warrant the appointment of a designated representative in the proceedings, but then more or less brushed off the argument the PR's cognitive impairment and mental health issues prevented the PR from understanding the legal consequences of returning to the home country sufficient to rebut the presumption of intent . . . and in this particular case, the RPD's view was there is also a presumption of voluntariness which was not rebutted.

We do not see many of the RPD's decisions but it is near certain that there is typically a lot of skepticism when the PR-refugee claims the "I didn't know" defense. It would be easy to suspect the "I didn't know" defense generally falls on deaf ears EXCEPT the Federal Court of Appeals, in the Camayo case (oft cited and linked in previous posts), mandates consideration of this. If raised, it must be considered and addressed. But it rarely flies.

Even in those cases which reach the Federal Court in which the PR-refugee has asserted they did not know returning to their home country was strong evidence of reavailment, and bolstered the presumption of intent to reavail, it is clear that it is damn hard to get traction based on this, on the "I didn't know" defense.

To be clear, there is NO guarantee, none at all, that Xinwu Zou will succeed with this defense when his case is re-determined by another RPD panel. He might. He might not. But this is NOT a no-one-told-me defense. He has at least an arguable position because there is a rational, substantive medical/mental-health explanation as to why he was not aware of the consequences.

Voluntariness:

This is actually a key element. Cessation based on reavailment must be based on voluntary actions. A common and obvious situation in which travel to the home country was not voluntary is a minor child traveling with their parent. Not so obvious, but also common, are circumstances in which there are compelling reasons for going to the home country. A brief trip to attend the funeral of a parent, for example, in which the PR-refugee takes precautions to avoid the dangers involved other than through state protection, has been deemed sufficiently compelling as to not meet the voluntariness element (caution: this outcome in some cases does not guarantee the same in another -- hard as it can be, PRs with protected status should be aware that travel to the home country even for this reason risks cessation).

Even though the voluntariness of the protected person's actions is a key element, and it is the Minister's burden to establish the protected person acted voluntarily, in the reported cases this is not an issue that has made much difference in the outcome. Not because there is a presumption of voluntariness, but because absent coercion, compulsion, duress, or something that more or less forces a person to act a certain way, the choice to act this or that way generally supports an inference the act was voluntary.

In this case, however, there were unresolved issues as to the PR-refugee's cognitive capacities. And Justice Norris rejected the argument "that the RPD's erroneous reliance on a presumption of voluntariness was a harmless error."