Refugee status cessation and PRs applying for citizenship

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As I noted before

This is especially so in regards to cessation since the whole scheme connecting PR status to cessation is riddled with inconsistencies,

What matters? What is useful information for a PR-refugee?

So, here's the thing . . . that's not just getting into the weeds, that's getting into lawyer's stuff, and any attempt to extrapolate guidelines to apply to actual cases, let alone hypotheticals, would be going well beyond my range. I am not a Canadian lawyer, not a professional involved in immigration or refugee matters at all, let alone cessation litigation. As interesting as I find this stuff, and as much as here in the forum I digest some of the highlights in cessation adjudication, this is mostly to illustrate and emphasize what is at stake, to illuminate how complex and nuanced and tricky things get, and (to be clear) how risky, once a PR-refugee has crossed the primary threshold for being subject to cessation proceedings, once they have traveled to the home country.

In summary: don't travel to the home country or, if you do, get a lawyer. Otherwise it's a gamble, the odds are not good, and for most (and especially those with really good reasons for fleeing their home country) there is a lot at stake.

Agreed 100%

Example; the tangent about utilizing consular services:


There is no hint that utilizing the home country's consular services will stir so much as a whisper about cessation unless the PR-refugee has used a home country passport to travel internationally, or has traveled to the home country.

Let's call it something less than a hint, more like a whisper or a rumor. For example, a refugee in this situation posting in https://www.canadavisa.com/canada-i...nt-questions-and-answers.397458/#post-4966061 and sharing the advice that they were given, to avoid contact with their home embassy.

I see your point, and suspect you're right. Even so, if I were point-blank asked this by a refugee (or someone trying to help a refugee in Canada) my answer would definitely be "lawyer up!" and to avoid contact with the home embassy before then.

I'd be too worried about helping to create the first embassy-related non-home-travel cessation case no matter how unlikely that seems.

Otherwise, for a PR-refugee who is at risk of cessation (one who has traveled to their home country), even though the use of home country consular services can be additional evidence of reavailment (depending on the service obtained), how cessation turns out will depend far more on the nature and extent of passport use and home country travel. As I said, addressing this in response to an explicit question from @stuckinsec, use of consular services (other than for obtaining a passport) is "not likely" to be a factor that makes much of a difference, failing to clearly distinguish enough technically availing a country's protection versus what matters practically. Bottom-line, as interesting as this is, for purposes of cessation generally as applicable to those with PR status, no, the exact nature of the services obtained are not of much importance. Not worth wading much into those weeds.

That said, again, this subject is rife with nuances and pitfalls (which can go in different directions), hard to see sharp turns, so one of the situations in which obtaining a home country passport might not support cessation is if a passport is needed to pursue obtaining a divorce in the home country, in which case (according to the UNHCR handbook, paragraph 120) the act of obtaining the passport should not be considered a "voluntary re-availment," and thus will not constitute grounds for cessation. In the handbook this is characterized as a situation in which the refugee is "constrained, by circumstances beyond his control, to have recourse to a measure of protection from his country of nationality."

The "passport needed for a divorce" is a great example! I didn't make this concern explicit, but perhaps now the refugee wants to access some service from the home embassy while not having any home country travel plans.

Later in the future, the refugee is unexpected compelled to visit the home country for some reason, but for reasons clearly outside of their control.

I'd fear that once this refugee is on the cessation radar, that the former embassy visits might be examined closely to find evidence to support voluntary re-availment. (In particular I'd worry that the refugee voluntarily sought and successfully obtained a service available only to citizens while there were alternative options.) Hopefully this wouldn't be enough to mean anything that could hurt the refugee's case (being far apart in time and having entirely unrelated purposes) - but as you say, this is rife with nuances and pitfalls.

Which leads to an IRB legal resource titled Interpretation of Convention Refugee and Person in Need of Protection in the Case Law, and Chapter 12 Applications to cease refugee protection in particular, where this is discussed.

Caution: the IRB's legal resources regarding cessation, and the presumption of reavailment in particular, are outdated; while the questions certified in the FC Camayo case are quoted, there is no reference to the FCA decision in Camayo, for example, which is perhaps the most comprehensive binding precedent regarding cessation, let alone any discussion of FC decisions applying the FCA Camayo decision.​

Getting off topic, but they really should update that... it's a bit concerning that they haven't yet, considering.

Reminder: while Federal Court decisions carry a lot of weight they are not binding precedent, so there can be and often are inconsistent interpretations and applications of law among the FC decisions, and the RPD can choose which to follow; Federal Court of Appeal decisions, in contrast, are binding precedent (but what that means, distinguishing what is a holding establishing binding precedent versus dicta for example, is itself a huge subject, too much to cover in a single law school course for example).​

Ah, I did not realize that the RPD could choose which of the inconsistent interpretations from the FC to follow.

This source (available to the public but mainly for IRB/RPD guidance) also addresses cases in which the FC considered a PR-refugee's belief they are not (in effect) availing home country protection because they are relying on the security of having permanent resident status in Canada . . . which you have brought up a few times . . . including:

There are a number of cases (many if not most of which I probably discussed here over the course of the last ten plus years) which discuss rebutting the presumption of reavailment with evidence the PR-refugee believed they were protected by their Canadian PR status (or something along those lines, although I have not seen "solace" in being a PR mentioned despite it having a nice ring to it). One of those is a case that has been frequently cited in other decisions: Cerna v. Canada, 2015 FC 1074, https://canlii.ca/t/gl76g

In the how-things-should-work camp, I very much agree this should be a big factor in cessation cases. It goes to the core of the issue: whether the PR-refugee actually intended (formed what in criminal law is a "specific intent") to in effect give up the protection that Canada provides by embracing the protection of their home country.


[There exists] the underlying incongruity of linking what is intended to be permanent status (with the purpose of facilitating the individual's settlement and integration in Canada) with what is largely temporary status (with the purpose of providing an individual with protection, refuge, which generally is temporary unless the individual is part of a long term immigration plan). According to a lawyer with extensive cessation litigation experience, Doug Cannon, Canada is the only country which imposes cessation on those who have been granted immigrant/permanent status.

I really feel that, in terms of how-things-should-work, Canada should not impose cessation of PR on those who have been granted immigrant/permanent status. The fact that Canada alone does this suggests to me that perhaps there's a good reason why Canada is alone in this: namely that it's a bad idea. We're wading far off-topic into politics here but I have to point out, we know which gov't/administration introduced this rule and their stance on immigration in general.

 

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(I hit some kind of limit and had to post the last part separately...)

But notwithstanding the reasoning of justices like Judge Avvy Yao-Yao Go (in Omer) and Judge Negar Azmdeh (in Cerna), and some others, it appears that the IRB (which includes decision-makers sitting as RPD panels) embraces a view more in line with that of Justice Fothergill in Abadi v. Canada, 2016 FC 29, https://canlii.ca/t/gn0cx who rather summarily dismisses giving much consideration (in a reavailment case) to the PR-refugee's reliance on the security of being a PR of Canada.

In the IRB's legal resources for application to cease refugee protection (again Chapter 12, linked above), in its summary of Cerna regarding this issue (in examples of cases where the presumption of reavailment is rebutted) it says in effect (paraphrasing) but see Abadi; in its summary of Abadi (in examples of cases where the presumption was not rebutted) it does not so much as hint there is a contrary view let alone refer to Cerna.

Note: Justice Fothergill (in the Abadi decision, which it appears carries significant weight in the RPD) cites a source suggesting the presumption of reavailment may be so strong as to be "conclusive" where a refugee has used his national passport to travel to his country of nationality, and cites the UNCHR handbook to say "It is only in 'exceptional circumstances' that a refugee’s travel to his country of nationality on a passport issued by that country will not result in the termination of refugee status," the latter of which has been cited by other judges as recently as Justice Ferron in the Li v. Canada, 2025 FC 934, https://canlii.ca/t/kc9p2 decision this past May . . . an indication of how high the bar is for those who have traveled to their home country.​

I take some solace in Li v Canada from this,

> The RPD found that this factor (and others that were in his favor) were insufficient to trump the presumption that Mr. Li intended to re-avail himself of the protection of China, given all the other evidence assessed holistically.

So it seems to me that there the judge took both Cerna and Abadi as guidance and tried to come up with a reasoning that would work through both - namely that Li did believe in the security of his status as a Canadian PR as providing protection against his home country as a point for Li, but that there were too many strong points against Li even so for him to prevail. (Li is the only case I've seen where the refugee has signed a letter of apology to his original gov't. I really do feel that this is quite unusual and rare.)

Abadi was decided after Cerna but close enough that the judge might not have been aware of the decision in Cerna. He specifically says,

> The Minister argues that Mr. Shamsi is confusing an intention to re-establish oneself in one’s country of nationality with the intention to re-avail oneself of that country’s diplomatic protection. I agree with the Minister

And thus dismisses the "security in PR" argument without fully considering the belief that having Canada's protection would protect the refugee even while in the other country's embrace of "diplomatic protection". (Now, I'm not a lawyer, perhaps this was a case where the defense didn't do a good job of wording their counterargument to the Minister. Also, I notice that Cerna's defense team seems to be related to Doug Cannon - echoing your point on how important it is to have lawyers deeply experienced in this field for the defense.)

As an aside, and yes very weedy, but I also feel that the RPD is mistaken to rely so heavily on Abadi and not Cerna, when the FC (see again Li) acknowledges Cerna and at least seems to try to make a balancing act between the two. But this might again be in the how-things-should-work territory....

In conclusion, I would like to remain optimistic in face of clear and mounting evidence among the weeds that there's still hope for refugees facing cessation, while definitely agreeing 100% that a refugee in that situation needs to immediately seek out the advice of a competent legal team that's experienced in handling cessation cases.

 

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Reading through https://www.canlii.org/en/ca/fct/doc/2016/2016fc29/2016fc29.html again brings me to this quote,

> Mr. Shamsi argues that the uncertainty surrounding the precise reasons why he acquired refugee status in Canada makes it impossible to assess whether country conditions have changed in Iran, or whether he took reasonable precautions in Iran not to expose himself to the risks that caused him to flee that country almost 20 years ago.
> However, the parties agree that Mr. Shamsi was granted refugee status in Canada on the basis of his mother’s well-founded fear of gender-based persecution in Iran. It is doubtful that Mr. Shamsi himself ever required refugee protection in Canada. He is a male, now an adult, and there is nothing about his profile to suggest that he has a well-founded fear of persecution in Iran. He acquired refugee protection in Canada only because he was the dependent child of a woman who was eligible for refugee protection.

This had me thinking as follows. Hypothetically, let us imagine what if Shamsi, as an adult, had applied somehow to cease being a refugee - for a cessation proceeding taking place in 2005 - and argued that he was only granted protection as a dependent of his mother. But as an adult, he's no longer dependent on his mother, and thus no longer needs protection. Thus arguing that his status as a refugee should cease on the grounds of IRPA 108(1)(e) the reasons for which the person sought refugee protection have ceased to exist.

Would it be the case that later as a PR he'd be able to obtain an Iranian passport, and even travel to Iran without fear of losing PR... because he'd already been through cessation and thus would be ineligible to go through it a second time?

It doesn't seem like there's actually a way for a refugee PR to explicitly request their own cessation proceedings - but I can imagine that if it were, there'd be some willing to take that risk.