Refugee status cessation and PRs applying for citizenship

[dpenabill]

I do not have time to fully digest the Ovalle mandamus decision recently decided by Justice Russell, but for anyone who is a refugee PR this is a very significant case. A lot of the issues related to CIC's relatively recent purge of refugees considered to no longer be in need of protection, including those who are in the process of applying for Canadian citizenship, are addressed in this decision.

In theory, the policy makes sense. In practice, however, it tends to be draconian and harsh. My sense is that Justice Russell is very concerned about the actual impact this policy has on people's lives.

There is another recent and significant case regarding cessation of protected person status and loss of PR status as well, but I do not have the link handy.

This is a busy area of law right now. The impact is huge for those involved.

Anyone who is a refugee with PR status should be aware of the policy to terminate protected person status and thereby terminate PR status for those who either travel to their home country or who obtain a Travel Document from their home country, and especially anyone who does both.

 

[Emily12345]

Hi I have the same worry.
i sumbit my citizen application on June 3 by Canada post.the cic received it by June 05, since then i didn't hear any respond.I didn't receive Aor.

I m pr with refugee status, 2 yrs ago,my father experienced heart attack back home.I searched online,it's said go back to mother country for a short visit is resonable.as long as keep it shorter than one month.
I certainly understand it has risk.i went to the embassy apply a new passport.planing pay a visit to my dad.but thing happens too quick.when I get the passport.my dad ' surgery has been done successfully.so i didn't Travle back to my home country.

But I was using the passport grab the US visa and Travle to Cuba once.

I was not aware of the cessation due to the applying passport since i start preparing the citizenship application this feb.Acutually there is no related and official article explaining it well before .When I claimed as refugee. I had been told the passport would be back to me when i became to a Pr by my case manager.but the date becoming pr,i kept asking the officer where is the passport.they simply answered "I don't know,call cic call center".I also called the cic.they told me they have no idea.I also received a letter regarding to seized passport.i fax the seized form i had 5 years ago and get no respond.

Before I sent the application out,I met the settlement worker on march 2015,they told me do not worry about the citizenship application leads to cessation,I have also been told it's not necessary to hire a Lawer unless you like to waste money.they have helped a lot of people who has the same situation filled up the application form in their office,none of them are rejected.a lot of them Travle back to their homeland.as long as the visit is medical reason and you can prove it.

Unfortunately,I didn't receive any Respond from Cic,I check the excel sheet everyday.i saw most of the status turn green which gets me streesed.

I can't stop thinking if i get deported.the life i build up here from the past 5 year is ruined.I do have fear go back my mother country, but I also wanna visit my dying grandma and sick Parant who can't take airplane.so crazy. Who can tell me what can i do? So sad,so worry.

But back to the reality,the worry and the anxious are useless,there is no direct answer untill i cross the bridge.

I know a lot of people hates refugee,most of them think refugee could have the welfare from the govement easily.they don't work and they are lazy.I knew some of them did this,but i also believe there are a lot of refugee appreciate the kindness from the canda gorvement who will never abuse this system. Like me,i only apply welfare for 2.5 month before I had my working visa.When I need help,the Canada gorvement helps me,I don't wanna make her dispointed.I believe a lot of refugee also feel the same.A chance is deserved.

In the past five year,since i worked so hard,i Learnt a lot thing about Canada.
Canadian is also human being,as human nature,they always use their own way to seek the shortcut to the success.except the welfare, there is a lot of benifit the Canadian shares in commen.EI,insurance benifit,low income family benifit,Odsp.To save some tax or money,people always can find a loophole to filled them in. I don't think people has a elegant Pr status are better than refugee.Stop hating.

English is not my first language,and Its my first time express myself in a forum like this.pleae
Forgive my grammar and spelling.i remembered years ago when i post some question on some immigration forum in my mother language here.i have never had a chance to get a answer except insult.

This time I just expect people has the same worry as me who read this could feel some connection.

 

[on-hold]

Don't worry about the AOR yet -- many people from June have not received one. Even if CIC has an issue with your refugee status, they won't use that to not acknowledge your application, any examination of that will come later.

As for the rest, I can't comment -- but I suspect that if your PR status is in danger, CIC would give you a chance to present your case. I find what you argue here persuasive and not incriminating (particularly since it seems that you did not actually travel back to your home country), but there are no doubt details that are important. With any luck, there will be a change of government before your citizenship application is processed, and this policy regarding refugees will be given some humanitarian nuances.

 

[AnaMaria]

I can't stop thinking if i get deported.the life i build up here from the past 5 year is ruined.I do have fear go back my mother country, but I also wanna visit my dying grandma and sick Parant who can't take airplane.so crazy. Who can tell me what can i do? So sad,so worry.

But back to the reality,the worry and the anxious are useless,there is no direct answer untill i cross the bridge.

Very true. If you start thinking what if scenarios, you will be spending your time worrying but worrying will not change anything, certainly not for the better. It is hard not to, but as you mentioned, worry and anxious are useless. Focus on what you need to do now. Believe in your faith.

 

[sopranotb]

In theory, the policy makes sense. In practice, however, it tends to be draconian and harsh. My sense is that Justice Russell is very concerned about the actual impact this policy has on people's lives.

There is another recent and significant case regarding cessation of protected person status and loss of PR status as well, but I do not have the link handy.

This is a busy area of law right now. The impact is huge for those involved.

Anyone who is a refugee with PR status should be aware of the policy to terminate protected person status and thereby terminate PR status for those who either travel to their home country or who obtain a Travel Document from their home country, and especially anyone who does both.
[/quote] please provide more details. The decision looks positive but we need more clarification on what was the judge comments regarding cessation. Sorry so many law vocablary that i cannot understand. Thanks.

 

[beko9812]

I wonder how the new government will deal with revocation of PR status for refugees through what so called cessation application. Will they stop this at all or just keep it with some changes?. how much time approximately this would take?

 

[farid-]

hi there totally understand the stress u guys are going through just so u know u r not the only one.....The law itself doesn't make sense because as a refugee when u get pr no where it said you can't do this or that just like for example selling drugs has no law n one fine morning decides it's illegal to sell drugs n punish all those who sold drugs 10 yrs back...
it's so true that law does make sense but not practical at least be reasonable and could have said OK this is the law n those who will renew passport or go Home country will be punished going forward.
but all of u trust me I know someone who have actually been through all that recently by all means appeal in federal court as well finally won the case for cessation of pr status
As cbsa had a new quota for striping away pr status.
but again all of u don't give up God forbid if they go that far being 5 yrs in Canada have strong h &c case but hopefully none of you have to go through all that n get citizenship ASAP..Also don't waste money on lawyer until God forbid cic or cbsa bring in cessation of PR..
so don't give up have faith in God none of u are criminals I guess or have done something wrong as there was no such law in past. so try to relax as too much worry will only make ur every day life difficult

 

[dpenabill]

I have seen no particular statements regarding this from PM Trudeau or the Liberals generally. They have, however, expressed a commitment to the refugee program. Their sentiments appear to be with the plight of refugees.

It is impossible to guess how CIC and CBSA will approach this issue going forward, but I would guess that there will less effort to target PRs, or especially PRs applying for citizenship, on this issue.

The problem, though, is that the underlying policy is based on international law and the UNHRC guidelines, which specifically provide that if a protected person re-avails himself or herself of the home country's protection, that refugee status will cease. Obtaining a passport from one's home country is typical evidence of having done this. Traveling to one's home country is typical evidence of doing this.

The cessation of refugee status has been part of Canadian law for a long while. It was just in December 2012 that Canada added the provision which automatically terminates PR status if refugee status is adjudicated to have ceased. This has come up in screening PRs applying for citizenship, particularly those who, I suspect, disclosed travel to their home country in the residency calculation (which such travel must be disclosed of course), or who submit a copy of a passport from their home country (which must also be done if one has such a passport).

CIC has gone so far as to in effect suspend processing such applicants while the individual is referred to CBSA for further investigation and cessation proceedings. The Federal Courts have allowed this in some cases and rejected it in others. Some Federal Court justices are clearly concerned about the draconian scope of how CIC has approached this.

In any event, it would be prudent for refugees who have traveled home, or who have acquired a passport from their home country, to not apply for citizenship and otherwise stop traveling home unless and until there is clear indication that the new government will change policies about this.

 

[sopranotb]

I have seen no particular statements regarding this from PM Trudeau or the Liberals generally. They have, however, expressed a commitment to the refugee program. Their sentiments appear to be with the plight of refugees.

It is impossible to guess how CIC and CBSA will approach this issue going forward, but I would guess that there will less effort to target PRs, or especially PRs applying for citizenship, on this issue.

The problem, though, is that the underlying policy is based on international law and the UNHRC guidelines, which specifically provide that if a protected person re-avails himself or herself of the home country's protection, that refugee status will cease. Obtaining a passport from one's home country is typical evidence of having done this. Traveling to one's home country is typical evidence of doing this.

The cessation of refugee status has been part of Canadian law for a long while. It was just in December 2012 that Canada added the provision which automatically terminates PR status if refugee status is adjudicated to have ceased. This has come up in screening PRs applying for citizenship, particularly those who, I suspect, disclosed travel to their home country in the residency calculation (which such travel must be disclosed of course), or who submit a copy of a passport from their home country (which must also be done if one has such a passport).

CIC has gone so far as to in effect suspend processing such applicants while the individual is referred to CBSA for further investigation and cessation proceedings. The Federal Courts have allowed this in some cases and rejected it in others. Some Federal Court justices are clearly concerned about the draconian scope of how CIC has approached this.

In any event, it would be prudent for refugees who have traveled home, or who have acquired a passport from their home country, to not apply for citizenship and otherwise stop traveling home unless and until there is clear indication that the new government will change policies about this.

Yes I agree that underlying policy is based on international law and the UNHRC guidelines HOWEVER academics like Hathaway and Foster argue that returning to one’s country for short trip/trips has nothing to do with re-availment. Rather, the question that arises when a refugee goes back to his/her country is whether he/she has voluntarily re-established himself/herself. the Federal Court held that travelling back to one’s country to visit a sick relative “alone cannot justify re-availment” (Siddiqui, 2015 FC 329). A person would have to do more than that to justify a finding of re-availment (for example, setting up a business, enrolling one’s children in school, purchasing a home…).

 

[Bigudi]

Although I agree that the practical effects of this policy might be very draconian, I can see why it is this way, at least in theory.

Refugee is a VERY serious status. Refugees are not people seeking for a better life. They are people seeking to survive.
If that is the case, and PR was granted on this basis, makes perfect sense to cease the status if the person return to his or her country of origin or even get its travel documents (i.e. passport).

 

[dpenabill]

Yes I agree that underlying policy is based on international law and the UNHRC guidelines HOWEVER academics like Hathaway and Foster argue that returning to one’s country for short trip/trips has nothing to do with re-availment. Rather, the question that arises when a refugee goes back to his/her country is whether he/she has voluntarily re-established himself/herself. the Federal Court held that travelling back to one’s country to visit a sick relative “alone cannot justify re-availment” (Siddiqui, 2015 FC 329). A person would have to do more than that to justify a finding of re-availment (for example, setting up a business, enrolling one’s children in school, purchasing a home…).

It is accurate to say that the legal mechanism relating to cessation of refugee protection on the basis of reavailment requires a distinction between what might be described as the "actual reavailment of protection" versus what constitutes merely occasional or incidental contacts with the refugee's home country. See, for example, the Kuoch decision. Thus, for example, merely visiting one's home country will not, in itself, constitute reavailment and thus not be sufficient grounds for cessation of protected person status.

But to support a finding of reavailment it is not necessary for Canada to show that the person with protected status did something, in the home country, on the scale of setting up a business, enrolling one's children in school, purchasing a home, or such. Indeed, these circumstances refer to a wholly separate ground for cessation of protected person status.

The relevant IRPA provisions are in Section 108.(1), which lists the specific grounds for cessation of protected person status.

In particular, activities such as establishing a business or purchasing a home in one's home country are relevant to Subsection 108.(1)(d), which states, as a ground for cessation of protected person status:

"(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada"


Reavailment is a separate ground, prescribed by Subsection 108.(1)(a), which states, as a ground for cessation of protected person status:

"(a) the person has voluntarily reavailed themself of the protection of their country of nationality"

The biggest factor which arises in the typical reavailment case is the obtaining of a passport from the refugee's home country. Both the UNHCR Handbook and numerous Federal Court decisions (including the case you cited, Siddiqui, 2015 FC 329) state (as quoted from the Siddiqui decision) . . . "if a refugee applies for and obtains a national passport or its renewal, it 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."

While Justice Bédard, in the Bashir decision, does not frame it this way, her decision tends to emphasize the significance of both obtaining a passport from the home country in conjunction with also traveling to the home country. Bashir did not use his home country passport to travel to his home country, and thus the Refugee Protection Division of the Immigration and Refugee Board decided he had not reavailed himself of his home country's protection despite having obtained a passport, and Justice Bédard upheld this decision. She did, however, certify a question related to whether or not obtaining the passport with an intention to use it to travel outside Canada (but not to the home country) alone establishes reavailment.

A case which perhaps better illustrates the import of travel to one's home country, in conjunction with obtaining a passport from one's home country, is found in the Kuoch decision, where the PR traveled to her home country five times between when she became a protected person in Canada in 2005 and December 2013. Reasons for the visits included to visit her ill mother, then to attend her mother's funeral, and other trips related to her two sons engagements. The Board decided she reavailed herself of her home country's protection and that her protected person status had ceased. (As a result, her PR status would automatically terminate pursuant to Subsection 46.(1)(c.1) IRPA, as added in 2012.) Justice Shore upheld this without certifying any questions for further review.

Similarly, there is the Balouch decision, involving two trips to the home country some three years apart, one to visit a grandmother and during which the PR also had surgery, thus staying six months, and the other, more recent trip, was for 34 days to visit an ill uncle (undergoing chemotherapy) and also to get plastic surgery. Her status was deemed ceased. Justice Heneghan upheld this decision.

All these cases, and many others, have in common the concurrence of obtaining a home country passport plus travel to one's home country resulting in the cessation of protected person status. While none of the cases I just cited and linked involved an applicant for citizenship, many of the more recent cases do involve instances where in the course of processing an application for citizenship, CIC saw that the applicant had a home country passport and had traveled to the home country, and thus referred the matter to CBSA to pursue cessation proceedings.

The ultimate outcomes in the cases of citizenship applicants varies some due to other issues, ranging from unfair delays in processing the citizenship application, to either the Board or the Federal Court finding reason to distinguish the case. It appears that there has been some reluctance to strictly apply the cessation provisions against PRs if there is at least a technical ground for doing so.

That said, make no mistake, the current law prescribes that protected person status ceases, and PR status is thus terminated, if the person reavails himself or herself of the protection of the home country, and the combination of obtaining a home country passport plus travel to the home country is sufficient to show reavailment.

The Liberal government is likely to take a more flexible, if not lenient approach. But how much so is totally unknown.

Thus, as I had noted in a previous post, a person with protected status would be prudent to avoid obtaining a home country passport (that alone raises a presumption of reavailment) and to particularly avoid obtaining a home country passport and traveling to the home country. For those who have already done this, avoid applying for citizenship at the least until it is seen what changes, if any, are made by the Liberal government. . . . at the very least, consult with a lawyer before making an application!


Further note regarding combination of passport and home country travel:

The typical scenario involves the protected person obtaining the home country passport. A protected person who is a PR may obtain a Canadian Travel Document which authorizes travel to other countries, but this will specifically NOT authorize travel to the protected person's home country. For some reason, many refugees with PR status are not aware this Travel Document is available, so they will obtain a passport from their home country in order to travel outside Canada. This alone can constitute grounds for finding reavailment and the cessation of status, thus the automatic termination of PR status. Others specifically want to travel to their home country, so they obtain the home country passport to facilitate this.

I do not recall specific cases involving travel to the home country by a protected person who has not obtained a passport from the home country (recognizing this is actually unusual). At the least, however, this is the scenario in which the other ground for cessation may come into play, that is being re-established in the country from which refuge was obtained . . . thus, the scenario in which things like establishing a business or purchasing a home would be significant factors.


The main reason why there is so little recognition of the risks is that there was no risk for PRs until three years ago.

It was just in December 2012 that the Harper Conservatives amended IRPA to add Subsection 46.(1)(c.1) IRPA, which automatically terminates PR status upon a cessation determination. Prior to December 2012, then, those refugees who were PRs (many are granted PR status upon arrival in Canada) could obtain their home country passport and travel home without consequence. Technically their protected person status could be deemed to have ceased, but as Canadian PRs they were entitled to stay and live in Canada like any other PR.

Thus, many did. And indeed, many of the Federal Court cases involve refugee PRs who obtained their home country passport and traveled to the home country before December 2012. While at least one Federal Court has rejected the argument that this constitutes a post facto change in the law, without revisiting and doing more research my general sense is that this, in effect retroactive application, is being challenged. This issue may be one raised in the many cases in which a question has been certified.

But in any event, scores and scores of PRs who came to Canada as refugees have been caught quite unawares by the change made in December 2012.

The reason I started this topic was to alert those who are planning to apply for citizenship, to make them aware of this change, and that if they have indeed obtained the passport of their home country and have traveled to their home country, to be aware of the risks they face. Again, such individuals would be prudent to delay applying for citizenship or to at least consult with a lawyer before applying for citizenship.

 

[dpenabill]

Clarification about the retroactive application of IRPA Section 46.(1)(c.1):

To be clear, while cessation of protected person status is an issue that affects all protected persons (see paragraph 11 in the Xin Li Yuan decision for a summary of the rather severe consequences a cessation decision has), not just those who are also Canadian PRs, for purposes of discussion in this forum the importance of these issues lies in the provision adopted in 2012, IRPA Section 46.(1)(c.1) which is cited and linked above, which automatically terminates PR status upon a finding that protected person status has ceased.

Technically this does not include cessation based on a termination of the conditions leading to refugee status (Subsection 108.(1)(e) IRPA). It does apply to cessation based on either reavailment (Subsection 108.(1)(a) IRPA) or having re-established oneself (Subsection 108.(1)(d) IRPA).

Indeed, as I have noted, the particular reason for this topic is the potential impact on those who are applying for citizenship. To be granted citizenship the applicant must have valid PR status at the time of applying and maintain valid PR status right up to the actual oath itself. Thus, there are cases in which, during the course of processing the citizenship application, CIC identified grounds for which the applicant's status might be questioned, and has referred the applicant to CBSA for cessation proceedings. If those proceedings result in a cessation determination, the individual not only ceases to be a protected person but loses PR status as well, which in turn precludes eligibility for citizenship.

As also noted in my previous post, the actual outcomes in such cases has varied, but this has usually been due to collateral issues.


At this stage, the dark cloud looming over many refugee PRs is that prior to learning about the change in law, they obtained a passport from their home country, many of whom used that passport to travel to their home country.

Can these PRs lose PR status due to passports and travel PRIOR to the change in law?

As of December 2012, refugee PRs are in effect charged with being aware that they could suffer the consequences of cessation of protected person status, in having their PR status terminated, if they in effect reavail themselves of their home country's protection by obtaining a passport, especially if they also travel to their home country. That said, as a practical matter many, many PRs in this situation were not aware of the change in law, and it appears many continue to be unaware of this.

But what about those who obtained a passport and traveled prior to the change in the law?

I raised this question in my previous post. Can the change in law apply so as to be grounds for terminating PR status based on acts in the past, acts prior to the change in law?

For many this seems like an obvious instance where the principle precluding ex post facto laws should apply.

Technically, however, many court decisions indicate that it does not. The reason is illuminated in cases like the Peter Sum Li decision, in which Justice O'Reilly ruled that applying the consequences of section 46.(1)(c.1) does not constitute a retroactive application of the law. The operative provisions, in section 108, have long constituted grounds upon which protected person status is subject to cessation. The fact that the consequence of cessation has changed, per Section 46.(1)(c.1), does not amount to a retroactive application of Section 108 itself.

Personally I find this rationale to suffer from a sort of circuitous reasoning. I grasp it. I understand the logic. But laws are interpreted and applied in real world contexts and in context this amounts to a very punitive impact based on acts done prior to the adoption of the law imposing this impact. That, to me, goes to the essence of the prohibition against ex post facto laws.

While there are many cases in which the impact of Section 46.(1)(c.1) has applied to PRs whose acts constituting reavailment were prior to December, 2012 (prior to Section 46.(1)(c.1) becoming law), I cited the the Peter Sum Li decision in part because it is also Justice O'Reilly who, just a few months later, crafted what might be considered a rather creative sidestep regarding the retroactive application. In the Davis William Lezama Cerna decision Justice O'Reilly found that the Board's determination that Cerna had reavailed himself of his home country's protection was unreasonable.

In particular, Justice O'Reilly ruled (emphasis added):

"The Board failed to take account of Mr Cerna’s testimony that he travelled to Peru only on the strength of his belief that he enjoyed the security of having permanent residence in Canada, and the corresponding protection that his status carried with it. Further, he had no idea that he put his status at risk by travelling back to Peru. As the law stood at the time of his travels, cessation of refugee status did not affect permanent residence."

The nuance in this is tied to the requisite intention which underlies a voluntary reavailment. Justice O'Reilly further stated:

"Many Canadian permanent residents will assume that their status would allow them to turn to Canada for protection even when travelling to their countries of origin . . . the Board must take account of the refugees’ subjective intentions before concluding that they have availed themselves of the protection of their countries of origin.

In my view, the Board should have considered whether the evidence relating to Mr Cerna’s subjective understanding of the benefits of his permanent resident status rebutted the presumption that he had intended to obtain Peru’s protection by acquiring a Peruvian passport."

Note, Cerna is among those who were PRs applying for citizenship and during that process were referred for cessation proceedings.

We do not know the ultimate outcome, since another panel of the Board may nonetheless still conclude that Cerna's status ceased due to reavailment after considering evidence relating to Cerna's subjective understanding and intentions.

It is not at all clear whether any other Federal Court Justices will apply similar reasoning.

In any event, these cases illustrate the risks, and unless and until there is a strong indication the risks have been eliminated or greatly reduced, it remains prudent for refugee PRs to approach this issue cautiously, and in particular minimize further contacts with the country of origin, minimize or totally avoid further travel to the home country, and for those who have the home country passport, especially if they have traveled to their home country, to NOT apply for citizenship until after consulting with a lawyer.

 

[PMM]

Hi

Clarification about the retroactive application of IRPA Section 46.(1)(c.1):

To be clear, while cessation of protected person status is an issue that affects all protected persons (see paragraph 11 in the Xin Li Yuan decision for a summary of the rather severe consequences a cessation decision has), not just those who are also Canadian PRs, for purposes of discussion in this forum the importance of these issues lies in the provision adopted in 2012, IRPA Section 46.(1)(c.1) which is cited and linked above, which automatically terminates PR status upon a finding that protected person status has ceased.

Technically this does not include cessation based on a termination of the conditions leading to refugee status (Subsection 108.(1)(e) IRPA). It does apply to cessation based on either reavailment (Subsection 108.(1)(a) IRPA) or having re-established oneself (Subsection 108.(1)(d) IRPA).

Indeed, as I have noted, the particular reason for this topic is the potential impact on those who are applying for citizenship. To be granted citizenship the applicant must have valid PR status at the time of applying and maintain valid PR status right up to the actual oath itself. Thus, there are cases in which, during the course of processing the citizenship application, CIC identified grounds for which the applicant's status might be questioned, and has referred the applicant to CBSA for cessation proceedings. If those proceedings result in a cessation determination, the individual not only ceases to be a protected person but loses PR status as well, which in turn precludes eligibility for citizenship.

As also noted in my previous post, the actual outcomes in such cases has varied, but this has usually been due to collateral issues.


At this stage, the dark cloud looming over many refugee PRs is that prior to learning about the change in law, they obtained a passport from their home country, many of whom used that passport to travel to their home country.

Can these PRs lose PR status due to passports and travel PRIOR to the change in law?

As of December 2012, refugee PRs are in effect charged with being aware that they could suffer the consequences of cessation of protected person status, in having their PR status terminated, if they in effect reavail themselves of their home country's protection by obtaining a passport, especially if they also travel to their home country. That said, as a practical matter many, many PRs in this situation were not aware of the change in law, and it appears many continue to be unaware of this.

But what about those who obtained a passport and traveled prior to the change in the law?

I raised this question in my previous post. Can the change in law apply so as to be grounds for terminating PR status based on acts in the past, acts prior to the change in law?

For many this seems like an obvious instance where the principle precluding ex post facto laws should apply.

Technically, however, many court decisions indicate that it does not. The reason is illuminated in cases like the Peter Sum Li decision, in which Justice O'Reilly ruled that applying the consequences of section 46.(1)(c.1) does not constitute a retroactive application of the law. The operative provisions, in section 108, have long constituted grounds upon which protected person status is subject to cessation. The fact that the consequence of cessation has changed, per Section 46.(1)(c.1), does not amount to a retroactive application of Section 108 itself.

Personally I find this rationale to suffer from a sort of circuitous reasoning. I grasp it. I understand the logic. But laws are interpreted and applied in real world contexts and in context this amounts to a very punitive impact based on acts done prior to the adoption of the law imposing this impact. That, to me, goes to the essence of the prohibition against ex post facto laws.

While there are many cases in which the impact of Section 46.(1)(c.1) has applied to PRs whose acts constituting reavailment were prior to December, 2012 (prior to Section 46.(1)(c.1) becoming law), I cited the the Peter Sum Li decision in part because it is also Justice O'Reilly who, just a few months later, crafted what might be considered a rather creative sidestep regarding the retroactive application. In the Davis William Lezama Cerna decision Justice O'Reilly found that the Board's determination that Cerna had reavailed himself of his home country's protection was unreasonable.

In particular, Justice O'Reilly ruled (emphasis added):

"The Board failed to take account of Mr Cerna’s testimony that he travelled to Peru only on the strength of his belief that he enjoyed the security of having permanent residence in Canada, and the corresponding protection that his status carried with it. Further, he had no idea that he put his status at risk by travelling back to Peru. As the law stood at the time of his travels, cessation of refugee status did not affect permanent residence."

The nuance in this is tied to the requisite intention which underlies a voluntary reavailment. Justice O'Reilly further stated:

"Many Canadian permanent residents will assume that their status would allow them to turn to Canada for protection even when travelling to their countries of origin . . . the Board must take account of the refugees’ subjective intentions before concluding that they have availed themselves of the protection of their countries of origin.

In my view, the Board should have considered whether the evidence relating to Mr Cerna’s subjective understanding of the benefits of his permanent resident status rebutted the presumption that he had intended to obtain Peru’s protection by acquiring a Peruvian passport."

Note, Cerna is among those who were PRs applying for citizenship and during that process were referred for cessation proceedings.

We do not know the ultimate outcome, since another panel of the Board may nonetheless still conclude that Cerna's status ceased due to reavailment after considering evidence relating to Cerna's subjective understanding and intentions.

It is not at all clear whether any other Federal Court Justices will apply similar reasoning.

In any event, these cases illustrate the risks, and unless and until there is a strong indication the risks have been eliminated or greatly reduced, it remains prudent for refugee PRs to approach this issue cautiously, and in particular minimize further contacts with the country of origin, minimize or totally avoid further travel to the home country, and for those who have the home country passport, especially if they have traveled to their home country, to NOT apply for citizenship until after consulting with a lawyer.

1. Interesting Federal Court Case and ruling on Mandamus by J. Russell (usually rules against CIC in most cases) http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/110972/index.do It would appear that CIC has referred the citizenship application for a cessation investigation, but Russell seems to ignore that.

 

[dpenabill]

1. Interesting Federal Court Case and ruling on Mandamus by J. Russell (usually rules against CIC in most cases) http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/110972/index.do It would appear that CIC has referred the citizenship application for a cessation investigation, but Russell seems to ignore that.

The decision by Justice Russell in the Otto Raul Godinez Ovalle mandamus case is indeed an interesting one, and is among those I was alluding to in the earlier post when I said that:

"The ultimate outcomes in the cases of citizenship applicants varies some due to other issues, ranging from unfair delays in processing the citizenship application, to either the Board or the Federal Court finding reason to distinguish the case. It appears that there has been some reluctance to strictly apply the cessation provisions against PRs if there is at least a technical ground for doing so. "

I am not sure I agree that Justice Russell "usually" rules against CIC, at least not in reference to cases involving applications for citizenship (indeed, in fifteen decisions regarding grants of citizenship including adoption cases, between 2005 and the present, Justice Russell ruled in favour of CIC in 11 cases and against CIC in only four cases).

However, I strongly disagree with the the characterization of Justice Russell's decision:

"It would appear that CIC has referred the citizenship application for a cessation investigation, but Russell seems to ignore that."

On the contrary, much of the decision specifically addresses the fact that CIC had referred the applicant for citizenship for a cessation investigation.

In particular, the key to this case is that Justice Russell found that CIC's suspension of the citizenship application, for the purpose of the referral for a cessation investigation, constituted "a misplaced and abusive use" of the statutory authority to suspend processing a citizenship application.

Justice Russell found that there was no statutory authority for what CIC had done, which was to suspend the citizenship application process pending its referral of the applicant for cessation proceedings.

That is, Justice Russell does not ignore the referral, but rather rules the way in which CIC went about the referral was an abuse of process, and went out of his way to specify in the order that his findings, regarding CIC's abuse of process, be provided to the RPD (the "Board" which would decide a cessation proceeding) to be sure those would be taken into account if the RPD was to hear the cessation case prior to a final decision on the citizenship application, which Justice Russell ordered CIC to conclude and promptly refer to a Citizenship Judge.

It warrants emphasizing that the Ovalle mandamus action was in regards to a citizenship application, not a review of a cessation determination. There are many specific facts in the case which likely distinguish it from other cases involving individuals against whom cessation proceedings have been commenced. In particular, the equitable factors favouring Orvalle and weighing against CIC are many and compelling.

Indeed, among many observations Justice Russell made regarding what clearly constituted a draconian approach by CIC was that CIC's effort to deny this individual citizenship on the grounds of re-availment "seems inhumane to say the least." Again, "to say the least." Rather strong language.

It also warrants bearing in mind that there were strong indications that CIC was disingenuous, at the least not forthcoming, perhaps even deceptive.

In other words, the facts of the Orvalle case stand apart from what are likely to be the facts in most cases.

However, while the case itself involves unusual circumstances and Justice Russell's ruling does not establish a binding precedent, it is, again, among a number of cases this year (there have been many cessation cases decided in the last 18 months or so, since the blitzkrieg of cessation proceedings specially funded by the Conservatives following the adoption of Section 46.(1)(c.1) IRPA) which I was alluding to in my previous post when I said "there has been some reluctance to strictly apply the cessation provisions against PRs if there is at least a technical ground for doing so."

That reluctance, and the pending certified questions, and the as yet undecided (so far as I have seen) constitutional questions (regarding the validity of 46.(1)(c.1) itself), are all reason for refugee PRs who have obtained a passport from their country of origin to retain hope that they have not sabotaged their PR status . . . but again, it warrants repeating and emphasizing, for those who have indeed obtained a home country passport, and especially those who additionally have traveled home, it is time to be cautious, to minimize further contact with the home country, to avoid travel to the home country, and to at least consult with a lawyer before applying for citizenship.





For the record, Justice Russell's grant citizenship cases:

Decisions in favour of CIC: Wang 2008 FC 390; Sahota 2015 FC 756; Rahman 2013 FC 1274 (CIC appeal allowed); Sturabotti, 2009 FC 777 (appeal by CIC more than allowed; CJ's ruling quashed and citizenship application outright refused); Arastu, 2008 FC 1222 (CIC appeal allowed); Wang 2008 FC 391 (to be clear: different Wang than 2008 FC 390); Asad 2014 FC 921; Ayaz 2014 FC 701; Feerasta, 2009 FC 575 and Feerasta, 2009 FC 577 (CIC appeal allowed; two cases involving spouses); Cheshenchuk 2014 FC 33

Decisions against CIC: Pourzand 2008 FC 395; Eltom 2005 FC 1555; Zhao 2006 FC 1536; Raad 2011 FC 256

 

[sopranotb]

Changing the law around cessation will require legislative change, which takes time. So far all the signs from the current Minister indicate a desire to overturn a lot of the negative legislation that the former government brought in. Hopefully their list of reforms will include cessation – but so far that has not been their priority. That priority has been meeting their commitment to bring 25,000 Syrian refugees to Canada. Even if the law is not changed, there could be a change in attitude on the part of the CBSA who, under the former government, were keen to commence cessation proceedings against people. If the direction from the new government is to ease up on that initiative, it will be good news. But, again, it is too early to know what is happening in that regard.