no updates yet. just long wait. my GCMS notes are showing Citizenship Application is 'ON HOLD' and thats all. Nothing new, no updates
Refugee status cessation and PRs applying for citizenship
- Thread starter dpenabill
- Start date
New case on canlii: https://www.canlii.org/en/ca/fct/doc/2023/2023fc654/2023fc654.html
The following is mostly restating what has been been posted here before, and indeed stated here multiple times.
But these cases are worth noting and highlighting, as a reminder at the least. One of the arguments that Karasu made, in this latest case, is that he "did not understand the consequences . . . (re cessation)" No surprise, spoiler alert, this defense, this argument, does not fly well, if at all.
For purposes of this forum, these cases are now mostly continuing affirmation of what has been definitively decided repeatedly before:
It is a little more complicated for those who already have done any of these. That gets into the risks, the probabilities, of CBSA and the RPD pursuing cessation. The main fulcrum in risk is whether or not the PR-refugee has traveled to the home country; low risk if not, significant to high risk if so, but for sure a high risk for those who have traveled to the home country either frequently or for any extended stay.
Thus, for those who have traveled to the home country, the odds range widely. Again, the more or the longer, the bigger the risk of cessation. Best I can offer is (1) STOP using the passport and absolutely NO MORE travel to the home country, and (2) consult with a lawyer BEFORE applying for citizenship, or at the least wait long enough to apply that any travel using the passport, and for sure any travel to the home country, was more than FIVE years previous (thus outside the "eligibility period," outside the time frame for reporting travel history); noting, however, doing the latter does NOT guarantee avoiding cessation.
For those who have not traveled to the home country, it appears the risk is low enough there is little cause to worry. Main thing is to NOT use the passport again and not travel to the home country.
In regards to the latter, there appears to still be some observers and commentators who suggest (some more adamantly arguing) that there is so little risk as long as the PR does not travel to the home country, that it is OK to obtain a passport and even use it for some international travel (such as obtaining home country passport and using it to travel to a vacation destination) . . . as long as they do not travel to the home country. And, indeed, so far all of the cases seen prosecuted, resulting in cessation, have involved at least one trip to the home country.
BUT there should be no mistake, no mincing words, in this case (Karasu), much like almost all the cases reaching the Federal Court, the FC judge reiterates the presumption of reavailment just by renewing the home country passport (or, in many of the other cases, otherwise obtaining passport).
In particular, like most of the cessation decisions, Justice Martine St-Louis states:
Justice St-Louis adds:
But Justice St-Louis also adds, referencing oft quoted prior decisions:
Conclusion: Again, the decision in Karasu v. Canada, 2023 FC 654 https://canlii.ca/t/jx63x does not offer much, if anything, new. But it illustrates and reaffirms what we know, and is a reminder. PR-refugees should NOT obtain (or renew) home country passport, NOT use a home country passport, and ABSOLUTELY NOT travel to the home country.
REMINDER --What Is At Stake:
It is worth repeating what is at stake:
Canadians with PR status who obtained such status as a refugee or protected person are subject to cessation of status on various grounds, with "reavailment" of home country protection looming as the most common, typically triggered by travel to the home country, BUT just renewing or obtaining a home country passport establishes a PRESUMPTION of reavailment.
If subject to cessation of refugee status, this has very severe consequences:[/I]
That is, cessation has far more immediate and severe consequences than those imposed on PRs who lose PR status because they have been convicted of very serious crimes. That's part of why so many find cessation, as applied to Canadians (those with PR status), to be exceedingly harsh.
Some More Technical Aspects:
(FWIW)
Intention versus Voluntariness:
Karasu raises an argument based on distinguishing what constitutes "voluntary" reavailment verus "intentional" reavailment. These are separate elements. Reminder: the Federal Court of Appeals decision that now governs these cessation cases, the oft cited (and in posts above discussed) Camayo decision, frames cessation on the grounds of reavailment as depending on three elements:
I will not attempt to unravel Karasu's argument, or Justice St-Louis response, other than to reiterate and emphasize there is a presumption of intentional reavailment based on just obtaining a passport. See quotes above. In many contexts "intent" is difficult to prove, especially in regards to indirect consequences. There are many reasons why someone will travel to their home country (like Karasu, to find a wife or husband seems to be quite common; visit ailing parents is another), with no thought let alone specific intent to reavail themselves of home country protection by doing that. But because of the presumption, it is the PR-refugee's burden to prove there was NO intent to reavail home country protection. As difficult as proving intent can sometimes be, proving a negative is . . . well, the farm boy perspective looms again: a tough row to hoe.
More 108(1)(e) Arguments:
Karasu also argues that the RPD should have at least explained why it proceeded to find cessation based on reavailment (section 108(1)(a) IRPA), rather than based on the need for protection no longer existing (section 108(1)(e) IRPA). If cessation of status is determined based on the latter, that does not affect a PR-refugee's status in Canada. Cessation based on a determination it is safe to return to the home country does NOT cause the PR-refugee to lose PR status.
There have been several versions of this argument in other cases. So far NONE have worked.
PR-refugees should recognize that even if things have changed in the home country, making it safe to travel there, to actually travel there risks cessation proceedings on the grounds of reavailment and all the severely negative consequences that follow.
But these cases are worth noting and highlighting, as a reminder at the least. One of the arguments that Karasu made, in this latest case, is that he "did not understand the consequences . . . (re cessation)" No surprise, spoiler alert, this defense, this argument, does not fly well, if at all.
For reference that is the decision and written opinion by Justice Martine St-Louis in the Federal Court for the Karasu v. Canada, 2023 FC 654 https://canlii.ca/t/jx63x case.
For purposes of this forum, these cases are now mostly continuing affirmation of what has been definitively decided repeatedly before:
-- the government is in fact proceeding with cessation cases against PR-refugees, and
-- individuals with refugee status should:
-- -- avoid obtaining a home country passport
-- -- avoid using a home country passport
-- -- avoid travel to the home country
It is a little more complicated for those who already have done any of these. That gets into the risks, the probabilities, of CBSA and the RPD pursuing cessation. The main fulcrum in risk is whether or not the PR-refugee has traveled to the home country; low risk if not, significant to high risk if so, but for sure a high risk for those who have traveled to the home country either frequently or for any extended stay.
Thus, for those who have traveled to the home country, the odds range widely. Again, the more or the longer, the bigger the risk of cessation. Best I can offer is (1) STOP using the passport and absolutely NO MORE travel to the home country, and (2) consult with a lawyer BEFORE applying for citizenship, or at the least wait long enough to apply that any travel using the passport, and for sure any travel to the home country, was more than FIVE years previous (thus outside the "eligibility period," outside the time frame for reporting travel history); noting, however, doing the latter does NOT guarantee avoiding cessation.
For those who have not traveled to the home country, it appears the risk is low enough there is little cause to worry. Main thing is to NOT use the passport again and not travel to the home country.
In regards to the latter, there appears to still be some observers and commentators who suggest (some more adamantly arguing) that there is so little risk as long as the PR does not travel to the home country, that it is OK to obtain a passport and even use it for some international travel (such as obtaining home country passport and using it to travel to a vacation destination) . . . as long as they do not travel to the home country. And, indeed, so far all of the cases seen prosecuted, resulting in cessation, have involved at least one trip to the home country.
BUT there should be no mistake, no mincing words, in this case (Karasu), much like almost all the cases reaching the Federal Court, the FC judge reiterates the presumption of reavailment just by renewing the home country passport (or, in many of the other cases, otherwise obtaining passport).
In particular, like most of the cessation decisions, Justice Martine St-Louis states:
[42] In regards to intent, the fact that a refugee applies for and obtains a passport from his or her country of nationality, creates a presumption that the individual intends to reavail themself of the diplomatic protection of that country.
Justice St-Louis adds:
This presumption is particularly strong where the individual actually uses the passport to travel to his or her country of nationality.
But Justice St-Louis also adds, referencing oft quoted prior decisions:
. . . the Minister is entitled to rely on the presumption of re-availment by proving that the refugee obtained or renewed a passport from his or her country of origin. Once that has been proved, the refugee has the burden of showing that that he or she did not actually seek re-availment. As stated in the UNHCR Handbook, where there is proof that a refugee has obtained or renewed a passport “t will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality.”
Conclusion: Again, the decision in Karasu v. Canada, 2023 FC 654 https://canlii.ca/t/jx63x does not offer much, if anything, new. But it illustrates and reaffirms what we know, and is a reminder. PR-refugees should NOT obtain (or renew) home country passport, NOT use a home country passport, and ABSOLUTELY NOT travel to the home country.
REMINDER --What Is At Stake:
It is worth repeating what is at stake:
Canadians with PR status who obtained such status as a refugee or protected person are subject to cessation of status on various grounds, with "reavailment" of home country protection looming as the most common, typically triggered by travel to the home country, BUT just renewing or obtaining a home country passport establishes a PRESUMPTION of reavailment.
If subject to cessation of refugee status, this has very severe consequences:[/I]
-- PR status is automatically terminated
-- there is no right of appeal
-- the former PR-refugee is barred from making a H&C application for PR
-- the former PR-refugee is barred from seeking Pre-Removal Risk Assessment
-- the former PR-refugee is inadmissible, subject to removal from Canada "as soon as possible," and barred from returning to Canada for at least a year (and in practical terms, for far, far longer, given the difficulty the former PR-refugee will have obtaining status to come to Canada)
That is, cessation has far more immediate and severe consequences than those imposed on PRs who lose PR status because they have been convicted of very serious crimes. That's part of why so many find cessation, as applied to Canadians (those with PR status), to be exceedingly harsh.
Some More Technical Aspects:
(FWIW)
Intention versus Voluntariness:
Karasu raises an argument based on distinguishing what constitutes "voluntary" reavailment verus "intentional" reavailment. These are separate elements. Reminder: the Federal Court of Appeals decision that now governs these cessation cases, the oft cited (and in posts above discussed) Camayo decision, frames cessation on the grounds of reavailment as depending on three elements:
-- Voluntariness of the PR-refugee's actions
-- Intention to reavail themselves of home country protection
-- actually obtaining state protection
I will not attempt to unravel Karasu's argument, or Justice St-Louis response, other than to reiterate and emphasize there is a presumption of intentional reavailment based on just obtaining a passport. See quotes above. In many contexts "intent" is difficult to prove, especially in regards to indirect consequences. There are many reasons why someone will travel to their home country (like Karasu, to find a wife or husband seems to be quite common; visit ailing parents is another), with no thought let alone specific intent to reavail themselves of home country protection by doing that. But because of the presumption, it is the PR-refugee's burden to prove there was NO intent to reavail home country protection. As difficult as proving intent can sometimes be, proving a negative is . . . well, the farm boy perspective looms again: a tough row to hoe.
More 108(1)(e) Arguments:
Karasu also argues that the RPD should have at least explained why it proceeded to find cessation based on reavailment (section 108(1)(a) IRPA), rather than based on the need for protection no longer existing (section 108(1)(e) IRPA). If cessation of status is determined based on the latter, that does not affect a PR-refugee's status in Canada. Cessation based on a determination it is safe to return to the home country does NOT cause the PR-refugee to lose PR status.
There have been several versions of this argument in other cases. So far NONE have worked.
PR-refugees should recognize that even if things have changed in the home country, making it safe to travel there, to actually travel there risks cessation proceedings on the grounds of reavailment and all the severely negative consequences that follow.
Hi,
i arrived in Canada as a refugee with my mom and gained pr status as teen. I had an important medical appointment (surgery) scheduled abroad and applied for a travel document 3 (2020) years prior to the appointment. They approved my mothers travel document but not mine so hers expired and we had to reapply for travel documents as they now claimed I was 16 and it was a fresh application. They blamed the delay of travel document due to covid and we marked it urgent 4 months prior to the appointmen. This is the second application that was made in 2021. In fright that they would not bring out the travel document, our country of origin passports were renewed. I had booked this medical appointment in 2020 scheduled for 2023. we received the passports and applied for visa. We kept calling ircc daily explaining it was urgent. The visa application takes 6-8 weeks as notified by the embassy. Ircc sent my travel document 2 days before the travel date Which was impossible to apply for visa. So the country of origins passport along with the visa on it and pr was used to travel. We didn’t spend up to a week outside canada. We got back and applied for passport. I am very worried as I turned an adult before renewal of passport and traveling and was u aware of cessation. We tried our best to get a travel document but due to their delay, unknown to us, we were pushed to do the wrong thing.
I live with just my single parent who went a life changing experience (brain surgery) when I was just a child in a Canadian shelter 6 years ago. I currently care for her and I am honestly scared as I fear for my life and hers.
when apply for citizenship I declared renewal with reasons and medical appointment.
Please help!
i arrived in Canada as a refugee with my mom and gained pr status as teen. I had an important medical appointment (surgery) scheduled abroad and applied for a travel document 3 (2020) years prior to the appointment. They approved my mothers travel document but not mine so hers expired and we had to reapply for travel documents as they now claimed I was 16 and it was a fresh application. They blamed the delay of travel document due to covid and we marked it urgent 4 months prior to the appointmen. This is the second application that was made in 2021. In fright that they would not bring out the travel document, our country of origin passports were renewed. I had booked this medical appointment in 2020 scheduled for 2023. we received the passports and applied for visa. We kept calling ircc daily explaining it was urgent. The visa application takes 6-8 weeks as notified by the embassy. Ircc sent my travel document 2 days before the travel date Which was impossible to apply for visa. So the country of origins passport along with the visa on it and pr was used to travel. We didn’t spend up to a week outside canada. We got back and applied for passport. I am very worried as I turned an adult before renewal of passport and traveling and was u aware of cessation. We tried our best to get a travel document but due to their delay, unknown to us, we were pushed to do the wrong thing.
I live with just my single parent who went a life changing experience (brain surgery) when I was just a child in a Canadian shelter 6 years ago. I currently care for her and I am honestly scared as I fear for my life and hers.
when apply for citizenship I declared renewal with reasons and medical appointment.
Please help!
You need to be consulting with a lawyer. Seeking healthcare abroad would be usually considered as a personal choice especially if the surgery was booked 3 years in advance this wasn’t emergency surgery. You were clearly aware that you were required to apply for an RTD based on your attempts to secure an RTD numerous times. At least you did not return to your home country.
Reminder: so far we have NOT seen cessation prosecuted against any PR-refugee who has NOT traveled to their home country. This is no guarantee. But it is a big clue. Odds are probably very good that there will NOT be a cessation problem if the PR-refugee did not travel to the home country.
Thus, if as @canuck sees this, you did NOT travel to your country of origin or nationality, it appears that the odds of cessation-related action, even an investigation, are LOW. Probably low enough to not need a lawyer, at least not yet. Probably low enough to not worry even, at least not worry as long you do not use the passport again.
That is: if you only used the passport for one trip and did NOT TRAVEL to your HOME country, or the country that issued the passport, no guarantee but probably NO NEED to WORRY. It should be OK.
The risk of cessation triggered by just obtaining a passport and using it once or twice to travel to a country OTHER than the home country is perceived by some to be so low they argue it is OK to do this. I understand their argument. I disagree because the law, the rules, allow for cessation just based on obtaining and using a home country passport. If the potential consequences were not so severe, I would not bother to make much of the fact the law itself allows for cessation even if there is no home country travel. But the potential consequences are severe, potentially extremely severe for those who would still be at serious risk if deported, so even if the chances of cessation are low, best to avoid the risk entirely, if possible.
So the way I see things is this:
For the PR-refugee who has not obtained a home country passport, best to NOT get one.
For the PR-refugee who has obtained a home country passport, best to NOT use it, including NOT use it for international travel; however, there is very little, virtually no reason to worry, if the passport is not used for international travel.
For the PR-refugee who has obtained a home country passport and used it for travel (but not to the home country), best to NOT use it again; still little reason (not much at all) to worry if the passport has been used once for international travel and is not used again. Risk probably goes up for any additional use.
If, in contrast, the trip was to the home country, the country that issued the passport . . . risk assessment gets complicated, and goes up, potentially way up (and for multiple or lengthy trips to home country, the risk clearly does go way up).
If the trip was to the home country . . .
If the trip was to the home country, the country that issued the passport . . . We do not know the probabilities. We do not know how likely or unlikely it is that IRCC or CBSA will initiate a cessation investigation, let alone commence cessation proceedings, in a scenario like you describe (and is to the home country). Frankly, the risk might be low. Frankly, the risk might be enough that the individual should indeed proceed to obtain the advice and assistance of qualified legal representation (a reputable lawyer with significant experience in handling refugee cases). We don't know what the risk is; we cannot quantify the odds.
So, in addition to not being able to offer advice in personal cases, generally, I cannot offer any personal advice beyond that if your travel was to the home country. If you have already made the application for citizenship, well, that's where you are at currently. So, you can see a lawyer or wait to see what happens.
Note Regarding Port-of-Entry Experience: how things went when you arrived back in Canada can be a clue. If it went smoothly with minimal or no questions probing details of the trip, no discussion about your refugee status, that is no guarantee you are in the clear but at least it does not indicate you are flagged for cessation investigation. In contrast, if there was a significant amount of questioning in Secondary about the trip or about your status, that suggests an elevated likelihood you could already be flagged and if so, that suggests getting to a lawyer rather than waiting to see what happens next. If your trip was not to the home country, my guess is the PoE experience was uneventful. If not uneventful, if you were questioned closely about this trip, the details, the reasons for it, and such, and especially if there were questions about your status as a refugee, PLEASE come back and report your experience here. We rely a lot on anecdotal reports to help put the official information into context.
As long as you did not travel to your home country, it appears you have little or no need to worry.
Otherwise, see previous observations.
I saw this online and I’m worried. The stats from 2022-2023 alone are high. Allowed is the approval of cessation ?
https://irb.gc.ca/en/statistics/protection/Pages/RPDVacStat.aspx
You have not definitely said whether your trip abroad was to your home country or not. That's the key fulcrum. That's what makes the biggest difference.
If you did not travel to the home country, no absolute guarantee but the odds are very high there is no need to worry.
If you traveled to the home country:
If you traveled to your home country, worry will do you no good. Main thing is to do NOT again use the passport and do NOT travel to home country again. In the meantime you could see a lawyer but unless CBSA or IRCC actually commences action for cessation there is not much for a lawyer to do . . . so wait and be prepared to hire a lawyer . . . and, again, do not use the passport again and do not travel to the home country again.
If the travel to the home country was just ONE trip, and was short, and was for a medical reason you can document (doctor's letter for example), so far as what we have seen, probably no need to worry much. It's probably OK. You should be OK waiting to see if you need a lawyer later (and you probably won't need a lawyer).
Multiple trips, and long stays in the home country, yeah, then there is a real risk, the risk increasing with more trips, longer trips. Still, not much to do in the meantime but wait, and be prepared to hire a lawyer if there are cessation proceedings.
Application to Cease Protected Status Statistics:
The numbers (as you referenced: https://irb.gc.ca/en/statistics/protection/Pages/RPDVacStat.aspx ) are enough to make it clear that the government is indeed prosecuting cessation cases. We've seen plenty of indicators this is true, that yes indeed the government is pursuing cessation in some cases. Consistent with these statistics.
But since we do not have statistics showing how many protected persons/refugees are using a home country passport to travel to their home country, out of the many tens of thousands of protected persons/refugees in Canada, it is very difficult to map these statistics to quantifying the risks. But from what we see reaching the Federal Court, even though that corroborates the government is prosecuting cessation cases, given the fact pattern in the vast majority of those cases it appears that they go after those who make multiple trips or stay for extended periods of time in the home country. We have seen NO cessation absent travel to the home country, and as best I can recall just ONE cessation action for a refugee who only traveled to the home country once.
Overall these statistics (which I have seen and considered before, relative to the respective numbers then) do not suggest that CBSA is overly aggressive in pursuing cessation.
I have never returned home and do not plan to as it’s dangerous for me. The passport was used just once (under 2 weeks) in another country.
What do I do with the passport now? Other than not using it again ?
i appreciate your detailed response, thank you so much
There is no harm or problem just keeping your passport.
Technically you could use it for certain things (perhaps as identification in some circumstances) without increasing the risk of triggering a cessation investigation, let alone actual cessation proceedings, let alone leading to a conclusion terminating your status. But I am no expert, no lawyer, and in no position to distinguish what is safe or not, other than to state what is the most safe, which as I have said is to not use the passport. (For sure, however, do NOT USE the passport for international travel.)
Since you did not travel to the home country, it is probably safe to say with some emphasis that you can relax.
Given the amount of protected people who have returned to their home country it is still likely a fraction of people who could lose their status.
New cessation case. Not sure there's anything new here: https://www.canlii.org/en/ca/fct/doc/2023/2023fc710/2023fc710.html
And another new one for you @dpenabill - https://www.canlii.org/en/ca/fct/doc/2023/2023fc794/2023fc794.html