Sidebar -- Canadian PRs have a status that is "substantially" similar to the status of a Canadian national (Canadian citizen)
Canadian PR status excludes eligibility for refugee or protected person status, even if and when Canada is acting to terminate PR status. That is, Canada can deny refugee protection status to a Canadian PR because they are a PR even while Canada is at the same time trying to strip that person of their PR status. This is because the status of a Canadian PR is essentially similar to that of a Canadian citizen, including. "the right of return" to Canada, as Justice Zinn ruled in Huang v. Canada, 2023 FC 1491, https://canlii.ca/t/k14ql . . . which is not at all a cessation case but . . .
. . . but its discussion about the status of a Canadian PR as having status similar to that of a Canadian citizen, and in particular the statement (with citation to solid law) that "This includes the right of return" to Canada, underlies a core reason, to my view, why merely returning to the PR-refugee's home country is substantially different (or at least should be treated as substantially different) than a refugee or protected person who is not a PR traveling to the home country, and should NOT create a presumption of reavailment. The capacity to leave a country (like a home country one has fled) with a right to return to Canada is not the same as going to that country without such a right; as much as going to the home country might indicate relying on the home country's protection, that on its face is offset if the individual is largely depending on, in effect relying on it, their right to return to Canada.
Here's the gist of the conflict: Once a person obtains the status of a Canadian PR, they are no longer eligible for protected person or refugee status; they are "excluded" from the class of individuals who might otherwise be eligible for refugee status because they have, in effect, the rights of a Canadian national. That is, they have effectively availed themselves of the protection of the nation of Canada, so there is no need for them to be granted protection status. Yet, since 2012, the Canadian PR-refugee may be subject to the termination of their PR status, not directly but indirectly through the procedure for determining cessation of their refugee status . . . even though, in effect, under the UNHCR rules they already are no longer eligible for refugee status because they no longer need that protection.
Disclaimers:
To be clear, because the prospective consequences are so serious, and for most who may be affected rather severe, potentially extremely severe, it is absolutely important to recognize that under current Canadian law, and current policy and practice, returning to the home country will create a PRESUMPTION of reavailment and very seriously risk loss of status in Canada (that is, cessation of refugee status and concurrent automatic termination of PR status). Nothing I say here should in anyway be seen as diminishing this; so, again to be clear: PR-refugees should NOT travel to their home country. Period.
Secondly, my comments here, in this post, in this context, are outside what one might call "my lane" here. I try to focus on what the rules are and how they work, and do not spend much time or effort addressing how things should work. I have made an exception to this in regards to the changes in law implemented by the Harper government back in 2012, in regards to expanding the impact of cessation resulting in termination of PR status, which to my view are not only draconian but fundamentally inconsistent, if not in outright conflict with the bulk of immigration law governing Canadians, that is both Canadian PRs and Canadian citizens. Or at least in conflict with the underlying principle that the grant of PR status is about PERMANENT status in Canada. Leading to a third disclaimer and caveat, one that I repeat often and is in my signature here . . .
Thirdly, I am NOT an expert. Not close. And cases and decisions like this illustrate just how much I am NO expert . . . how much the fact that I am not a Canadian lawyer is a handicap severely limiting my understanding of what the law is, what the rules require . . . noting that the law here, and in particular how different parts of the law affect one another, is complicated . . . more complicated than I can sort out.
Wrestling with what seems inconsistent:
While I am no expert in this, neither am I a novice; I have, let's say, quite a lot of experience researching and digesting the law, and writing about it (professionally, by the way). Not so much Canadian law in particular, but law in relatively similar jurisdictions in terms of the structure and hierarchy of law, and most of the particular language employed. But, again, there are incongruous if not conflicting principles here, so far as I can discern, which I simply cannot sort out; I do not know and cannot figure out why the presumption of reavailment applies to a Canadian PR who has what are very frequently described as "Shamlou rights" in Canada, including in particular the "right of return" to Canada. There is nothing in the 2012 changes in law that incorporates or evokes that presumption for those with PR status.
That is to say, at the very least it would seem appropriate in cessation cases to impose the burden of proving reavailment on the government (seeking to terminate an individual's status in Canada based on reavailment) rather than imposing on Canadians (PRs who have status similar to that of a Canadian citizen, because they have similar rights including the right of return) the burden of effectively disproving reavailment.
I know. I know. The use of the home country passport makes the difference. Technically. A big difference. Technically. That's an overt act which legally constitutes a transaction relying on home country status, so inherently availing oneself of that country's protection. Except NO ONE, at least not practically, gives using the passport itself, apart from travel to the home country, much weight.
That said, the oft cited, dominant case from the FCA (Camayo at https://canlii.ca/t/jndkg and paragraph 63 in particular) kind of split hairs:
I am not sure how a variable scale of stronger or not so strong presumptions works. But since it appears clear that Canadian PRs have a status that is "substantially" similar to the status of a Canadian citizen, particularly as to the right of return, and the courts recognize a variable scale of presumption, it seems a fair argument that it should not require much to rebut the presumption sufficiently to shift to the government the burden of proving an intentional and voluntary reavailment. In particular, shifting the burden should require little more than the PR's testimony they were relying on their Canadian status and, in particular, the right of return to Canada, not protection from the home country.
To be clear, for now the PR's burden is higher, tougher than that.
Canadian PR status excludes eligibility for refugee or protected person status, even if and when Canada is acting to terminate PR status. That is, Canada can deny refugee protection status to a Canadian PR because they are a PR even while Canada is at the same time trying to strip that person of their PR status. This is because the status of a Canadian PR is essentially similar to that of a Canadian citizen, including. "the right of return" to Canada, as Justice Zinn ruled in Huang v. Canada, 2023 FC 1491, https://canlii.ca/t/k14ql . . . which is not at all a cessation case but . . .
. . . but its discussion about the status of a Canadian PR as having status similar to that of a Canadian citizen, and in particular the statement (with citation to solid law) that "This includes the right of return" to Canada, underlies a core reason, to my view, why merely returning to the PR-refugee's home country is substantially different (or at least should be treated as substantially different) than a refugee or protected person who is not a PR traveling to the home country, and should NOT create a presumption of reavailment. The capacity to leave a country (like a home country one has fled) with a right to return to Canada is not the same as going to that country without such a right; as much as going to the home country might indicate relying on the home country's protection, that on its face is offset if the individual is largely depending on, in effect relying on it, their right to return to Canada.
Here's the gist of the conflict: Once a person obtains the status of a Canadian PR, they are no longer eligible for protected person or refugee status; they are "excluded" from the class of individuals who might otherwise be eligible for refugee status because they have, in effect, the rights of a Canadian national. That is, they have effectively availed themselves of the protection of the nation of Canada, so there is no need for them to be granted protection status. Yet, since 2012, the Canadian PR-refugee may be subject to the termination of their PR status, not directly but indirectly through the procedure for determining cessation of their refugee status . . . even though, in effect, under the UNHCR rules they already are no longer eligible for refugee status because they no longer need that protection.
Disclaimers:
To be clear, because the prospective consequences are so serious, and for most who may be affected rather severe, potentially extremely severe, it is absolutely important to recognize that under current Canadian law, and current policy and practice, returning to the home country will create a PRESUMPTION of reavailment and very seriously risk loss of status in Canada (that is, cessation of refugee status and concurrent automatic termination of PR status). Nothing I say here should in anyway be seen as diminishing this; so, again to be clear: PR-refugees should NOT travel to their home country. Period.
Secondly, my comments here, in this post, in this context, are outside what one might call "my lane" here. I try to focus on what the rules are and how they work, and do not spend much time or effort addressing how things should work. I have made an exception to this in regards to the changes in law implemented by the Harper government back in 2012, in regards to expanding the impact of cessation resulting in termination of PR status, which to my view are not only draconian but fundamentally inconsistent, if not in outright conflict with the bulk of immigration law governing Canadians, that is both Canadian PRs and Canadian citizens. Or at least in conflict with the underlying principle that the grant of PR status is about PERMANENT status in Canada. Leading to a third disclaimer and caveat, one that I repeat often and is in my signature here . . .
Thirdly, I am NOT an expert. Not close. And cases and decisions like this illustrate just how much I am NO expert . . . how much the fact that I am not a Canadian lawyer is a handicap severely limiting my understanding of what the law is, what the rules require . . . noting that the law here, and in particular how different parts of the law affect one another, is complicated . . . more complicated than I can sort out.
Wrestling with what seems inconsistent:
While I am no expert in this, neither am I a novice; I have, let's say, quite a lot of experience researching and digesting the law, and writing about it (professionally, by the way). Not so much Canadian law in particular, but law in relatively similar jurisdictions in terms of the structure and hierarchy of law, and most of the particular language employed. But, again, there are incongruous if not conflicting principles here, so far as I can discern, which I simply cannot sort out; I do not know and cannot figure out why the presumption of reavailment applies to a Canadian PR who has what are very frequently described as "Shamlou rights" in Canada, including in particular the "right of return" to Canada. There is nothing in the 2012 changes in law that incorporates or evokes that presumption for those with PR status.
That is to say, at the very least it would seem appropriate in cessation cases to impose the burden of proving reavailment on the government (seeking to terminate an individual's status in Canada based on reavailment) rather than imposing on Canadians (PRs who have status similar to that of a Canadian citizen, because they have similar rights including the right of return) the burden of effectively disproving reavailment.
I know. I know. The use of the home country passport makes the difference. Technically. A big difference. Technically. That's an overt act which legally constitutes a transaction relying on home country status, so inherently availing oneself of that country's protection. Except NO ONE, at least not practically, gives using the passport itself, apart from travel to the home country, much weight.
That said, the oft cited, dominant case from the FCA (Camayo at https://canlii.ca/t/jndkg and paragraph 63 in particular) kind of split hairs:
. . . there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality . . . This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.
I am not sure how a variable scale of stronger or not so strong presumptions works. But since it appears clear that Canadian PRs have a status that is "substantially" similar to the status of a Canadian citizen, particularly as to the right of return, and the courts recognize a variable scale of presumption, it seems a fair argument that it should not require much to rebut the presumption sufficiently to shift to the government the burden of proving an intentional and voluntary reavailment. In particular, shifting the burden should require little more than the PR's testimony they were relying on their Canadian status and, in particular, the right of return to Canada, not protection from the home country.
To be clear, for now the PR's burden is higher, tougher than that.
