Absolutely. There's a chance @abeabeaeee got a lucky break with the returned application and Canada isn't aware of the possible reavailment yet, but that's something that needs to be fixed long before he considers getting the Canadian citizenship. Ensuring the right to stay in Canada is way higher in their list of priorities right now and that's lawyer material.
Refugee status cessation and PRs applying for citizenship
- Thread starter dpenabill
- Start date
Nevermind my previous message. Didn't realize @abeabeaeee sent a webform and IRCC actually knows they went to their home country. No lucky break here. A lawyer is of utmost importance.
Haha, thank youuu! IRCC didn’t respond to me, so I submitted a cancellation request, and they refunded my $100 application fee. Now, I’m not sure what to do with my second application. and It has been 6 months and there is no information from ircc，im still lucky
Main thing for both @abeabeaeee and @ConfusedGuy28 is to at least get paid-for consultations with an immigration lawyer who is experienced with refugee immigration cases, preferably a lawyer who is regularly engaged in handling refugee cases.
And if still possible, it is important to do this BEFORE making an application for citizenship. Lawyer-up.
For @abeabeaeee, who has personally traveled to the home country, and who may have other issues related to the omission of information in a previous application, there is a very real risk a citizenship application could trigger investigation and potentially cessation proceedings. So, for sure, before applying for citizenship LAWYER-UP. Yeah. Lawyer-up. But as others suggested, probably prudent to see a lawyer sooner, not later, even if not applying for citizenship anytime soon.
But also for @ConfusedGuy28 . . . even though they did not personally travel to the home country, they would be wise to consult (in a paid-for consultation) with a lawyer BEFORE applying for citizenship.
It is not that I disagree with the observations by @abff08f4813c about the prospect that reavailment should not be grounds for cessation against @ConfusedGuy28 personally. However, in regards to potential cessation of the parent's status (based on their travel to the home country), I uncertain about the potential for a vicarious impact on refugee status and how that in turn would affect an accompanying family member's PR status. Too important to guess about. Best to see a duly experienced lawyer and get better information.
Comment About Lawyers:
Lawyers are not magicians. Lawyers are not omniscient.
I am seeing more and more comments by lawyers regarding how much they too do not know when it comes to navigating immigration issues.
However, they are a far, far better informed source than non-lawyers, and importantly this especially includes correlating the laws and rules, as well as program delivery instructions, with actual practices, with how the law and rules are actually applied.
When consulting with a lawyer, it is absolutely crucial to give the lawyer all the possibly relevant information. . . .
. . . and NOT expect miracles.
And if still possible, it is important to do this BEFORE making an application for citizenship. Lawyer-up.
For @abeabeaeee, who has personally traveled to the home country, and who may have other issues related to the omission of information in a previous application, there is a very real risk a citizenship application could trigger investigation and potentially cessation proceedings. So, for sure, before applying for citizenship LAWYER-UP. Yeah. Lawyer-up. But as others suggested, probably prudent to see a lawyer sooner, not later, even if not applying for citizenship anytime soon.
But also for @ConfusedGuy28 . . . even though they did not personally travel to the home country, they would be wise to consult (in a paid-for consultation) with a lawyer BEFORE applying for citizenship.
It is not that I disagree with the observations by @abff08f4813c about the prospect that reavailment should not be grounds for cessation against @ConfusedGuy28 personally. However, in regards to potential cessation of the parent's status (based on their travel to the home country), I uncertain about the potential for a vicarious impact on refugee status and how that in turn would affect an accompanying family member's PR status. Too important to guess about. Best to see a duly experienced lawyer and get better information.
(In particular, I apprehend the possibility it might work similar to how misrepresentations made by the primary applicant in the PR application process itself can lead to loss of status for accompanying family members. )
Comment About Lawyers:
Lawyers are not magicians. Lawyers are not omniscient.
I am seeing more and more comments by lawyers regarding how much they too do not know when it comes to navigating immigration issues.
However, they are a far, far better informed source than non-lawyers, and importantly this especially includes correlating the laws and rules, as well as program delivery instructions, with actual practices, with how the law and rules are actually applied.
When consulting with a lawyer, it is absolutely crucial to give the lawyer all the possibly relevant information. . . .
. . . and NOT expect miracles.
thank u so much ,I understand now
Btw I’m planning not to submit my naturalization application. Do you think I can still travel without returning to my home country?
Btw I’m planning not to submit my naturalization application. Do you think I can still travel without returning to my home country?
Short travel should be fine but I would probably be very careful especially if traveling to neighbouring countries where people have been known to cross land borders without documentation. For example if meeting family would have proof they met you in the neighbouring country, where you stayed, what you did in the country/bank records of regular transactions in that country for example, etc.
If you have a passport from your home country, for sure, definitely, DO NOT USE that for travel.
Beyond that, as noted by more than me, and as noted for damn good reason, time for you to SEE a LAWYER . . . yep, see a lawyer, one you pay to go over the details of your case, to analyze your situation specifically, and offer advice based not on how things work generally but based, as best a lawyer can advise, based on YOUR particular situation.
Meanwhile, remember that every time you make an application to enter Canada (which must be done in order to return to Canada, which is what every traveler does by just arriving at a Port-of-Entry) that can trigger a look into your file that is more probing than typically done in routine screening. Odds are good that presenting your PR card gets the typical waive-through at the PoE. Which is OK. But there is always a risk of a referral to Secondary (even for citizens) and the possibility of a more thorough look, and you have indicated some history which could be flagged for further examination. Perhaps this leans toward being overly-cautious, perhaps even leaning a bit paranoid, but if you have traveled to the home country and have had a citizenship application rejected/denied, probably a good idea to get a lawyer's input before tickling the cessation monster even a little.
I think we are in agreement here.
After I posted, I found https://ccrweb.ca/sites/ccrweb.ca/files/prg_2015_07_eng.pdf - which is from 2015 so perhaps out of date, but at the same time it has this tidbit:
So at least at one point in time the guidance was that some family members could lose their PR status through cessation of a parent.
Though it seems it may even vary by the type of refugee. As per https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef12.aspx under Esfand a dependent of a convention refugee isn't a refugee and can't lose PR status via reavailment for that reason, see https://www.legallycanadian.com/legal/canada-cic-v-esfand-2015-fc-1190-dependent-family-member-of-a-convention-refugee-whos-claim-was-determined-by-a-visa-office-abroad-is-not-a-convention-refuge-under-irpa/ for a more in-depth explanation.
However as per Camayo an inland refugee's dependents have their own individual risk assessments done, and so are refugees who can lose status. (According to https://zachmorgensternlaw.ca/2023/05/31/how-cases-like-galindo-camayo-protect-refugees-from-having-their-status-stripped/ the FC ordered that Camayo should keep refugee status anyways, primarily because Camayo hired private security as a sign that Camayo wasn't trying to obtain the protection of another state - and they point to a similar case where the person stayed at hotels under protection by NATO forces as a sign that protection of the state was not actually sought. Camayo is on appeal.)
Definitely worth nothing that neither of these directly matches our second OP, since they're about children who came with refugee parents and later became adults and traveled, whereas for OP it's the parents who later traveled. But in any case, quite a complex topic, and one for which a lot is at stake for those directly affected.
Thank you. I will consult a lawyer and tell them about my situation.
and
Last year, when I returned to Canada, I couldn’t use the self-service kiosk because a small part of my PR card was damaged. As a result, I was directed to the immigration office for a secondary inspection. The officer asked me which countries I had visited, and I replied, “The U.S. and Japan.” Then, he asked for my passport. After seeing that it was from my home country, he didn’t say anything, stamped it, and let me go.
CBSA officers often have a lot of discretion, but just because it went your way once doesn't necessarily mean it will be the same the next time. Another item to double check with the lawyer.
This doesn't mean that cessation won't be triggered when you apply for citizenship. If you have travelled to your home country then you are at risk of cessation regardless of what happened when you reentered Canada and need to speak with a lawyer.
Others have already stated what should be obvious, that a waive through the PoE does NOT signal all is well. But I too had already cautioned:
So it appears some emphasis is in order: Having traveled to your country in the past, using your passport again would be tempting fate.
Moreover, even though the last re-entry into Canada did not (apparently did not) have any immediate negative impact, that is now one more evidentiary fact which would support grounds for cessation based on reavailment. That use of your passport is a matter of record. It is evidence of your reavailment of home country protection.
So far we have not seen the use of the passport alone trigger cessation; all the cases we have seen so far (noting there are undoubtedly many more cases we have not seen) involve at least one trip to the home country. BUT in many cessation cases, in cases where there has been at least one trip to the home country, the use of the passport for travel to other countries has been a significant evidentiary factor supporting the government's case for reavailment and cessation.
Make no mistake, the fact that border officials did not overtly confront you about using your home country passport is NO indication it is OK to use it. Make no mistake, just obtaining the home country passport and using it for travel creates a presumption of reavailment. Even if that does not, itself, cause the government to pursue cessation, it increases your risk of cessation. And because you have traveled to the home country, that is a real risk . . . and, it is worth noting, it can take the government several years to bring a cessation action, so even if you do not see CBSA or IRCC pursuing cessation for another year or three years or more, it can still happen, and there are many, many cases in which it took the government many years to commence cessation proceedings.
So, be aware that even though on any given occasion, when a returning PR presents a valid PR card to border officials upon arrival here, the odds are good they will be waived through . . . that notwithstanding that, the risk of border officials taking a closer look is real the next time, and unlike most PRs your risks are higher and more serious; in particular, having traveled to your home country, having used your home country passport, that increases your risks every time you go through border screening, and you have a lot more at stake.
Other Stuff . . . Esfand and Camayo for example . . .
. . . to be continued . . .
Other Stuff . . . Esfand and Camayo for example . . .
That said, while not the particular issue here, the Federal Court of Appeal (per a decision authored by Justice Donald Rennie), just to be clear, has definitively ruled that the cessation provisions apply to protected persons regardless of the means by which protection is granted, that there is no reason why the principle of reavailment and its associated criteria should vary according to the route by which status as a protected person is originally obtained. This is the Siddiqui v. Canada, 2016 FCA 134, https://canlii.ca/t/grsb2 decision, which I have cited and discussed in multiple posts. Note that unlike Federal Court decisions, which carry a lot of weight but are not necessarily binding precedent, a decision by the Federal Court of Appeal is binding precedent.
An important aspect of this, however, is that so far as I have seen there is more than a little uncertainty about how this applies to accompanying dependents, in regards to what the law itself is, let alone how it should be applied, and far more so in regards to how this issue is approached by CBSA, IRCC, the RPD, and the Federal Courts. This is too weedy and too uncertain for forum analysis, let alone guessing. I am not sure that even a well-experienced lawyer can offer a definite take, but a duly experienced immigration lawyer should provide more and better information and guidance . . . and, importantly, do so relative to the particular individual's specific situation.
I probably sound like a broken record, reiterating "lawyer-up" whenever a complex issue comes up. But in regards to potential cessation, the risks are so high, the potential consequences so severe, it really is important to repeatedly admonish those potentially in the cross-hairs of a cessation investigation (let alone the subject of a cessation action) that this is lawyer-up time.
As for the Esfand and Camayo cases in particular . . . I have referenced, linked, and discussed these cases at length in this topic.
Re Esfand, that is Canada (Citizenship and Immigration) v. Esfand, 2015 FC 1190, https://canlii.ca/t/glrm0 also see a comparable decision, the Gezik decision: Canada (Citizenship and Immigration) v. Heidari Gezik, 2015 FC 1268, https://canlii.ca/t/gm3b8
Esfand is a decision I discussed above in six different posts back in 2016, and multiple times since, including in two posts just this last April (2024), where I emphasized that for PRs who obtained status as a dependent versus as a primary applicant for protection, that is definitely a question for which a lawyer is a far better resource. I stated:
For reference:
The FC decision is Camayo v. Canada, 2020 FC 213, https://canlii.ca/t/j54n9
The FCA decision is Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, https://canlii.ca/t/jndkg
It is of course the latter ruling which establishes binding precedent in cessation proceedings.
Note that a good deal of caution should be exercised before relying on the blog by Zach Morgenstern, which you reference and link, notwithstanding its reasonable and fair take on the FCA Camayo decision at the time. I do not know the date of that blog post, but it appears the forecast shift toward more leniency has been knocked off course by unfriendly winds. In particular, as many, many cessation cases decided since the FCA Camayo decision unfortunately illuminate, neither Camayo nor the other case referenced by Morgenstern, Hamid . . . that is Hamid v. Canada, 2022 FC 1541, https://canlii.ca/t/jt2jx (which may be one of the few FC cessation decisions I have not previously cited and linked in this topic) . . . have much moderated the Minister, the RPD, or most of the Federal Court justices involved in these cases, with just a few exceptions.
The main relief valve in those decisions revolves around negating the presumption of intent, giving weight to the PR-refugees lack of subjective knowledge of what constitutes reavailment and its potential effect, efforts to avoid risks rather than rely on government protection during travel in the home country, and considering the severity of the consequences of losing status. Case after case, most of which I cite, link, and discuss here in this forum, acknowledge these factors, ostensibly giving them due consideration, but then proceed to uphold cessation, upholding the RPD in its finding that the PR-refugee nonetheless has failed to rebut the presumption of intent to reavail. There are some cases going the other way, but far more have upheld cessation and in many of these cases there was just ONE trip to the home country.
A better analysis of Camayo was written by immigration lawyer Justin Toh, which is here: https://cila.co/refugee-cessation-the-year-since-galindo-camayo/ . . . but it too is dated (it notes, by the way, that Toh's colleagues said the IRB was referencing Camayo but misinterpreting it).
A bit of a quibble for clarity:
With some exceptions, not applicable to Camayo, the FC does not have jurisdiction to make such an order. The Camayo FC order, which was in effect upheld in the appeal to the FCA, set aside the RPD determination of cessation and ordered the matter "remitted to a differently constituted RPD for redetermination." Which is the typical favourable outcome in the appeal of cessation. I do not know the outcome of the case after that, which could range from the Minister electing to withdraw the application for cessation to the RPD rehearing the case and deciding against the government, no cessation, or another determination of cessation. While I do not know the outcome of what, in effect, was a remand for a new trial for Camayo, we have seen other cases (and I discuss some of these in the previous pages of this thread) in which the PR-refugee won an appeal but was again determined to have reavailed home country protection, and appealed that and lost the appeal the second time around (I vaguely recall there might have been one that eventually lost the third time around -- winning the appeal twice, but after a third RPD panel determined cessation, also lost in the appeal).
Take-Aways:
The main take-away is that the cases subsequent to Camayo do not indicate a trend toward leniency in applying cessation to PR-refugees. (I have previously editorialized above why this is disappointing.) A couple of corollary take-aways is the importance of not engaging in actions that will support an allegation of reavailment, and for those who have already engaged in actions that constitute a presumption of reavailment, the importance of avoiding any further activity that will trigger cessation investigation or constitute further evidence of reavailment. And finally, the overriding take-away: for those affected, those who have traveled to their home country (even just once), best to get input from a good lawyer before engaging in any further transactions with IRCC or CBSA, and that includes not applying for citizenship, at least not before getting help from a lawyer.
Regarding the issue at hand, the potential impact on a dependent if there is cessation of a parent's status, you are spot on noting that it can (or at least it might) depend on the path to status in Canada for the particular individual PR, and in particular whether they are themselves a Convention refugee or protected person.
That said, while not the particular issue here, the Federal Court of Appeal (per a decision authored by Justice Donald Rennie), just to be clear, has definitively ruled that the cessation provisions apply to protected persons regardless of the means by which protection is granted, that there is no reason why the principle of reavailment and its associated criteria should vary according to the route by which status as a protected person is originally obtained. This is the Siddiqui v. Canada, 2016 FCA 134, https://canlii.ca/t/grsb2 decision, which I have cited and discussed in multiple posts. Note that unlike Federal Court decisions, which carry a lot of weight but are not necessarily binding precedent, a decision by the Federal Court of Appeal is binding precedent.
An important aspect of this, however, is that so far as I have seen there is more than a little uncertainty about how this applies to accompanying dependents, in regards to what the law itself is, let alone how it should be applied, and far more so in regards to how this issue is approached by CBSA, IRCC, the RPD, and the Federal Courts. This is too weedy and too uncertain for forum analysis, let alone guessing. I am not sure that even a well-experienced lawyer can offer a definite take, but a duly experienced immigration lawyer should provide more and better information and guidance . . . and, importantly, do so relative to the particular individual's specific situation.
I probably sound like a broken record, reiterating "lawyer-up" whenever a complex issue comes up. But in regards to potential cessation, the risks are so high, the potential consequences so severe, it really is important to repeatedly admonish those potentially in the cross-hairs of a cessation investigation (let alone the subject of a cessation action) that this is lawyer-up time.
As for the Esfand and Camayo cases in particular . . . I have referenced, linked, and discussed these cases at length in this topic.
Re Esfand, that is Canada (Citizenship and Immigration) v. Esfand, 2015 FC 1190, https://canlii.ca/t/glrm0 also see a comparable decision, the Gezik decision: Canada (Citizenship and Immigration) v. Heidari Gezik, 2015 FC 1268, https://canlii.ca/t/gm3b8
Esfand is a decision I discussed above in six different posts back in 2016, and multiple times since, including in two posts just this last April (2024), where I emphasized that for PRs who obtained status as a dependent versus as a primary applicant for protection, that is definitely a question for which a lawyer is a far better resource. I stated:
As for Camayo, I have addressed both the FC and FCA Camayo decisions more than two dozen times here, at-length in some posts.
For reference:
The FC decision is Camayo v. Canada, 2020 FC 213, https://canlii.ca/t/j54n9
The FCA decision is Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, https://canlii.ca/t/jndkg
It is of course the latter ruling which establishes binding precedent in cessation proceedings.
Note that a good deal of caution should be exercised before relying on the blog by Zach Morgenstern, which you reference and link, notwithstanding its reasonable and fair take on the FCA Camayo decision at the time. I do not know the date of that blog post, but it appears the forecast shift toward more leniency has been knocked off course by unfriendly winds. In particular, as many, many cessation cases decided since the FCA Camayo decision unfortunately illuminate, neither Camayo nor the other case referenced by Morgenstern, Hamid . . . that is Hamid v. Canada, 2022 FC 1541, https://canlii.ca/t/jt2jx (which may be one of the few FC cessation decisions I have not previously cited and linked in this topic) . . . have much moderated the Minister, the RPD, or most of the Federal Court justices involved in these cases, with just a few exceptions.
The main relief valve in those decisions revolves around negating the presumption of intent, giving weight to the PR-refugees lack of subjective knowledge of what constitutes reavailment and its potential effect, efforts to avoid risks rather than rely on government protection during travel in the home country, and considering the severity of the consequences of losing status. Case after case, most of which I cite, link, and discuss here in this forum, acknowledge these factors, ostensibly giving them due consideration, but then proceed to uphold cessation, upholding the RPD in its finding that the PR-refugee nonetheless has failed to rebut the presumption of intent to reavail. There are some cases going the other way, but far more have upheld cessation and in many of these cases there was just ONE trip to the home country.
A better analysis of Camayo was written by immigration lawyer Justin Toh, which is here: https://cila.co/refugee-cessation-the-year-since-galindo-camayo/ . . . but it too is dated (it notes, by the way, that Toh's colleagues said the IRB was referencing Camayo but misinterpreting it).
A bit of a quibble for clarity:
You state "the FC ordered that Camayo should keep refugee status anyways."
With some exceptions, not applicable to Camayo, the FC does not have jurisdiction to make such an order. The Camayo FC order, which was in effect upheld in the appeal to the FCA, set aside the RPD determination of cessation and ordered the matter "remitted to a differently constituted RPD for redetermination." Which is the typical favourable outcome in the appeal of cessation. I do not know the outcome of the case after that, which could range from the Minister electing to withdraw the application for cessation to the RPD rehearing the case and deciding against the government, no cessation, or another determination of cessation. While I do not know the outcome of what, in effect, was a remand for a new trial for Camayo, we have seen other cases (and I discuss some of these in the previous pages of this thread) in which the PR-refugee won an appeal but was again determined to have reavailed home country protection, and appealed that and lost the appeal the second time around (I vaguely recall there might have been one that eventually lost the third time around -- winning the appeal twice, but after a third RPD panel determined cessation, also lost in the appeal).
Take-Aways:
The main take-away is that the cases subsequent to Camayo do not indicate a trend toward leniency in applying cessation to PR-refugees. (I have previously editorialized above why this is disappointing.) A couple of corollary take-aways is the importance of not engaging in actions that will support an allegation of reavailment, and for those who have already engaged in actions that constitute a presumption of reavailment, the importance of avoiding any further activity that will trigger cessation investigation or constitute further evidence of reavailment. And finally, the overriding take-away: for those affected, those who have traveled to their home country (even just once), best to get input from a good lawyer before engaging in any further transactions with IRCC or CBSA, and that includes not applying for citizenship, at least not before getting help from a lawyer.