Refugee status cessation and PRs applying for citizenship

[dpenabill]

A recent Federal Court decision illustrates how dramatically the cessation process has affected the lives of individuals who had NO REASON to apprehend there was anything at all wrong about traveling to their home country.

See http://canlii.ca/t/j0qwh for Justice Campbell's Cerna decision.

Cerna, who became a PR as a refugee, applied for Canadian citizenship in May 2012. In his application, he declared that he had traveled to Peru on multiple occasions in the four years prior to his application for citizenship.

At that time the fact a PR-refugee had traveled to his home country had NO legal significance.

Then in December 2012, more than six months AFTER Cerna applied for citizenship, Canada changed the law and made cessation of refugee status applicable to PRs.

Sometime after that CIC put Cerna's citizenship application on hold WITH NO STATUTORY authority to do so.

MORE than TWO years after Cerna made the citizenship application, Canada again changed the law so that CIC could legally put applications on hold for situations like while investigating whether the applicant might be subject to cessation of status and loss of PR.

Now, more than SEVEN YEARS after Cerna applied for citizenship, Justice Campbell has denied Cerna's application for mandamus.

And now Cerna will likely face the cessation process . . . based on travel to his home country BEFORE the change in law which implemented consequences for a refugee's travel to the home country.

How this is in any way at all fair baffles me.

For reference, there was an earlier Fed Court decision (see http://canlii.ca/t/gl76g ) which set aside an initial cessation determination against Cerna, but winning that appeal only resulted in it being sent back to the RPD to be reconsidered. In that decision Justice O'Reilly stated:

"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 . . ."

​

It warrants a reminder that these cases are NOT about fraud or misrepresentation. Misrepresentation in the process has long been a separate ground for revoking both refugee and PR status . . . even citizenship, even many decades later.

The Cerna case is not at all about fraud; it is about a PR traveling to his home country KNOWING, at the time, he could leave to return to Canada to avoid the dangers he had fled, and having NO REASON at all to apprehend that Canada would change the law and use those trips to justify not only denying citizenship but to strip him of status to continue living in Canada.

 

[Fallen_Warrior]

A recent Federal Court decision illustrates how dramatically the cessation process has affected the lives of individuals who had NO REASON to apprehend there was anything at all wrong about traveling to their home country.

See http://canlii.ca/t/j0qwh for Justice Campbell's Cerna decision.

Cerna, who became a PR as a refugee, applied for Canadian citizenship in May 2012. In his application, he declared that he had traveled to Peru on multiple occasions in the four years prior to his application for citizenship.

At that time the fact a PR-refugee had traveled to his home country had NO legal significance.

Then in December 2012, more than six months AFTER Cerna applied for citizenship, Canada changed the law and made cessation of refugee status applicable to PRs.

Sometime after that CIC put Cerna's citizenship application on hold WITH NO STATUTORY authority to do so.

MORE than TWO years after Cerna made the citizenship application, Canada again changed the law so that CIC could legally put applications on hold for situations like while investigating whether the applicant might be subject to cessation of status and loss of PR.

Now, more than SEVEN YEARS after Cerna applied for citizenship, Justice Campbell has denied Cerna's application for mandamus.

And now Cerna will likely face the cessation process . . . based on travel to his home country BEFORE the change in law which implemented consequences for a refugee's travel to the home country.

How this is in any way at all fair baffles me.

For reference, there was an earlier Fed Court decision (see http://canlii.ca/t/gl76g ) which set aside an initial cessation determination against Cerna, but winning that appeal only resulted in it being sent back to the RPD to be reconsidered. In that decision Justice O'Reilly stated:

"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 . . ."

​

It warrants a reminder that these cases are NOT about fraud or misrepresentation. Misrepresentation in the process has long been a separate ground for revoking both refugee and PR status . . . even citizenship, even many decades later.

The Cerna case is not at all about fraud; it is about a PR traveling to his home country KNOWING, at the time, he could leave to return to Canada to avoid the dangers he had fled, and having NO REASON at all to apprehend that Canada would change the law and use those trips to justify not only denying citizenship but to strip him of status to continue living in Canada.

I am disappointed after reading about this case. Even when liberals are in power they didn't really care regarding this issue. If I ever become Canadian citizen, I will never vote for them. Conservative and liberals are technically the same party.

 

[dpenabill]

I am disappointed after reading about this case. Even when liberals are in power they didn't really care regarding this issue. If I ever become Canadian citizen, I will never vote for them. Conservative and liberals are technically the same party.

The law that drives these cases was both implemented by the Harper Conservative government and then aggressively applied by that government, and as can be seen by this case, much of the backlog in still pending cessation cases still derives from what was a Kenney/Alexander crackdown, in significant part designed by Harper, Perrin probably the real architect, which was pursued, it seems, indiscriminately if not brutally. The illegal "hold" or "suspension" of Cerna's citizenship application was on Harper's watch. The change in law so that such holds would be legal was implemented on Harper's watch.

The liberals inherited this law. As long as it is the law they have a mandate, they are compelled to apply and enforce the law.

I agree they have not done enough to change the law, but there was a huge, huge amount of fixing that needed to be done, and they accomplished a lot. Including a real lot for refugees.

The suggestion that there is not a huge difference between the Liberals, in matters related to issues like this, let alone no difference, is unfounded. Way, way, way off.

I do not know if you were in Canada prior to the summer of 2015, but make no mistake, there was very good reason for scores of usual NDP supporters and more than a few Green supporters as well, to come together to engage in strategic voting to make sure the Liberal Party became not just the next government but with a sufficient majority to at least begin addressing all the damage done in nearly a DECADE of Harper government.

Remember, too, that even though Trudeau was able to push through big, big changes to the Citizenship Act, to fix the many severe provisions implemented during the Harper years, it ran into some serious resistance in the Senate . . . politically they probably did all they could manage.

I nonetheless voted NDP in 2015 but am very glad that many, many others voted more strategically . . . . my excuse for not voting strategically in that election is that my riding almost always goes NDP and I apprehended a so-called strategic vote for the Liberals here might split the vote and allow a Conservative to win the riding, especially since there was also a strong Green party candidate running in our riding, noting that other than Elizabeth May he was the only other Green Party MP at the time (albeit elected NDP and later defected), which could have split the anti-Harperman vote three ways. We now have a popular Liberal MP.

BUT we are again facing a tough Federal election this fall. These are precarious times. Strategic voting will be hugely important in this coming election, but it will also be rather difficult to determine just what the strategic vote will be.

Overall, though, I would urge exercising judicious caution before engaging in, let alone advocating, single-issue voting. There are often many factors and reasons underlying how a government has dealt with a particular issue. In contrast, there is ALWAYS a lot, lot more at stake. I say this recognizing the choices may be difficult. Many of us apprehend that environmental policies, including in particular matters related to energy and climate change, are perhaps not just the most important issues of the day but quite possibly truly EXISTENTIAL. But at this stage, with some rather extremist far-right elements surging throughout the world, including a rather ugly wave of anti-immigrant attitudes, this is NO TIME to TAKE CHANCES. Not a time to engage in single-issue voting.

As for this particular issue, which I do think is a profoundly important one (and I think the history of my observations shows this), unfortunately I have not seen a whole lot of support among MP Kwan's NDP colleagues for her calls to address and fix this. As one can see from the statistics about the number of cases, the cessation issue only affects hundreds of refugees, and I would expect many of the cessation cases involve refugees or protected persons who have not yet been given PR status. That said, the impact of this on those Canadians (PR-refugees) it does affect is, in so many cases, utterly and blatantly and egregiously NOT fair, so to my view this is a big and important issue even if the number affected is not large.

In any event, I understand the disappointment that the Liberals have not done better in addressing this issue, but to my view to conclude they are no better than the Conservatives is like saying a shoplifter and serial rapist are technically the same, both criminals. No, the differences are huge, and hugely important, in many ways.

 

[dpenabill]

This is largely to post a REMINDER of the risks.

Periodically queries are still coming up which essentially ask whether cessation proceedings will be brought against a particular PR-refugee in this or that situation, a PR-refugee who has . . . the particular circumstances vary, ranging from acquiring a home country passport alone, to having and using a home country passport but NOT for travel to the home country, to having and using a home country passport and traveling to the home country XX (with much variation in number of trips and duration of stays in the home country).

So, to be clear, so far as the most recent information I have seen reveals, the UNHCR guidelines are still the official guidelines for what constitutes reavailment . . . so there continues to be some RISK of cessation even if all the PR-refugee does is obtain a home country passport, even if that passport is never used for travel.

"SOME RISK" does not illuminate much at all about how much risk. Which of course is part why this issue is so frustrating for so many . . . what is done is done, but what will happen because of that is a huge UNKNOWN.

BUT we do know the potential consequences: cessation proceedings resulting in loss of status to stay in Canada. A big one. A consequence not to be trifled with.

Thus, some of the recent queries remind me how important the reason for the question is.

(Reminder: this discussion is about persons with refugee or protected person status; that is, persons whose status in Canada could be subject to cessation for any of the grounds set out in Section 108(1) IRPA . . . noting that this is mostly about 108(1)(a) which is cessation on the grounds of reavailment.)


First, then, a reminder that under the UNHCR guidelines, which Canada follows, obtaining the home country passport ALONE results in a PRESUMPTION of reavailment. The combination of obtaining the passport AND using it (for any purpose, including for travel to other countries) has been referenced as sufficient evidence of reavailment intent. So there is at least SOME RISK of a cessation proceeding resulting in loss of protected person status even if the PR-refugee never used it to travel to the home country.

We cannot quantify the risk. We know it varies. We know some of the factors. (Like using the passport to go to the home country is perhaps one of the biggest factors increasing the risk.) But just obtaining the home country passport alone triggers the UNHCR guideline for what constitutes reavailment, creates a PRESUMPTION of reavailment, and ANY use of the passport is a factor that increases the risk of cessation proceedings . . . but whether this is merely increasing a rather small risk to a somewhat larger but still fairly small risk, or if the risk is significantly greater than that, that is something I do NOT KNOW.

BUT again we do know the potential consequences: loss of protected person status and thus loss of status to stay in Canada.

Which brings up why-the-question matters. (Question: what will happen if the PR-refugee did XX? Answer: Why ask this? Why is important.)

If the question is asked by or for someone considering obtaining a home country passport but only to use to travel to other countries, that would be taking some risk, a real risk, even if we do not know how big a risk. Perhaps that is a rather small risk but it is nonetheless some risk. Best I can offer is that anyone considering this should consult with a reputable lawyer with experience in refugee cases (and preferably familiar with cessation in particular). Given the potential consequences.

If the question is asked by or for someone who has already done this, who already has obtained and used a home country passport, as outlined above there is no way to quantify the risk of enforcement proceedings . . . unless a lawyer with experience in this area can provide further information and insight. Additionally --

-- this individual should avoid any further use of the passport, or at least recognize the risks involved in doing so (the more the passport is used, of course, is a factor elevating risks of enforcement); better to consult with a competent, experienced refugee lawyer before engaging in any further use of the passport
-- if this individual is considering applying for citizenship, better to consult with a competent, experienced refugee lawyer before making the application (since the applicant MUST, absolutely MUST, disclose the passport and travel in the application, that basically delivers IRCC the grounds for cessation, which of course would increase the risk of cessation proceedings)​

If the question is asked by or for someone who has already done this, who already has obtained and used a home country passport, and already has a citizenship application in process, and the reason for the question is to get information or insight into what is going to happen in their case, this goes back to the observation that we simply cannot quantify the risk. Maybe a lawyer could offer more information or insight. So far as we have seen, absent travel to the home country this does not appear to derail the citizenship application, not usually anyway, but we see such a tiny slice of actual cases that falls way, way short of assurances. I'd offer this observation: if such a PR-refugee (having a home country passport or more) has a citizenship application pending, and the application appears to be stalled for a long while, that probably signals it is time to see a lawyer sooner rather than later.

Again, I am posting the above mostly as a reminder that all signs indicate there is still a risk of cessation if the PR-refugee has so much as only acquired a home country passport. Use of the passport increases the risk. Travel to the home country clearly increases the risks by a lot. How this affects the decisions any particular individual makes is very individual case specific.

 

[Copingwithlife]

I am disappointed after reading about this case. Even when liberals are in power they didn't really care regarding this issue. If I ever become Canadian citizen, I will never vote for them. Conservative and liberals are technically the same party.

You think the Conservatives & Liberals are the same ? Seriously? I think the Liberals have done more pro immigration changes then the Conservatives ever did, so many ,that immigration will be a focal point in the election.You obviously haven’t done much homework on the two parties. I’d buckle up if the Conservatives win the election....seriously

 

[Jayefrancine]

Hi have a question to ask. I applied for my citizenship it’s going 14 months now. I was asked to do finger printing which I did and everything came back good. I contacted cic to find out the status of my application and they told me back ground check and everything is done and I’m in que for writing my test. My brother died last week and I would love to go home for the funeral, is there anyway I could travel back home without this affecting my citizenship application.

 

[Copingwithlife]

Hi have a question to ask. I applied for my citizenship it’s going 14 months now. I was asked to do finger printing which I did and everything came back good. I contacted cic to find out the status of my application and they told me back ground check and everything is done and I’m in que for writing my test. My brother died last week and I would love to go home for the funeral, is there anyway I could travel back home without this affecting my citizenship application.

Already answered

https://www.canadavisa.com/canada-immigration-discussion-board/threads/travelling-to-homeland.637340/

 

[dpenabill]

Hi have a question to ask. I applied for my citizenship it’s going 14 months now. I was asked to do finger printing which I did and everything came back good. I contacted cic to find out the status of my application and they told me back ground check and everything is done and I’m in que for writing my test. My brother died last week and I would love to go home for the funeral, is there anyway I could travel back home without this affecting my citizenship application.

MAYBE, just maybe, a lawyer with refugee and cessation experience can give you advice about this.


OTHERWISE:

As far as we can discern, using your home country passport increases the risk of a referral for a cessation investigation.

As far as we can discern, travel to your home country increases the risk of a referral for a cessation investigation.

It is readily apparent that the combination of using the home country passport to travel to the home country significantly increases the risk of cessation proceedings.

As discussed at length in many posts above, it is impossible to more precisely quantify the risks.

And remember, when you appear for the test and interview it is absolutely imperative to present your passport (and it would be a very, very bad idea to conceal it).


BUT perhaps a lawyer with experience related to this can give you more definite advice.

Sorry I cannot offer anything more positive.

And I am sorry for your loss. (I very recently lost a younger sibling, the first of mine to go, and was able to make the trip, and it was a big deal, and very important to get together with family and old acquaintances.)

 

[Kambs16]

Hello. I haven't posted in a while because I have never recieved any communication to date from IRCC and i was advised on here that cases like mine even take years.
However out of curiosity, I decided to phone IRCC a few days ago about my case. I didnt want to probe too much. I asked if my case is routine or non routine to which the agent answered that it is routine and that I should expect to get a letter soon. I think I heard them say "for the ceremony" I didn't want to probe too much but I was told if it goes beyond a year i should phone them. What's your take @dpenbill

 

[dpenabill]

Hello. I haven't posted in a while because I have never recieved any communication to date from IRCC and i was advised on here that cases like mine even take years.
However out of curiosity, I decided to phone IRCC a few days ago about my case. I didnt want to probe too much. I asked if my case is routine or non routine to which the agent answered that it is routine and that I should expect to get a letter soon. I think I heard them say "for the ceremony" I didn't want to probe too much but I was told if it goes beyond a year i should phone them. What's your take @dpenbill

Sounds like good news. About time.

That said . . . the help centre call agents do not get a vote of confidence from me. They are one of the weaker links in the chain. There is a tendency to give stock answers, vague enough to avoid accountability, superficially sweet enough to satiate many callers, at least briefly.

If I recall, though, your circumstances were NOT very far, if much even, into elevated concern range. While we still do not know the practical criteria or probabilities, the signs still suggest that at least for now IRCC is not aggressively screening for less than regular or extensive travel to the home country.

Keep us advised . . . I know the suspense weighs heavily, but poking the beast is not going to calm the nerves. What will happen will happen when it happens.

 

[hanuz06]

It looks likes the majority of applications with long processing time are from permanent residents who obtained the status as a refugee.

 

[Kambs16]

True. I understand when you perfectly when you say the call center are the weakest link. Though I didn't probe as I said. I didnt give them a chance to have to say much. I just asked if my application is routine or non routine and I was told its routine. I guess if it was non routine they would at least tell me that. Even if just that. So this tells me, they could be done with their checks and investigations perhaps. The agent said somebody is about to make a decision on my file ‍ I will not call again unless it goes beyond one year..not far from now. I know it's a waiting game and I I'm no longer anxious about it. I believe if there was anything they needed, they would have at least got back to me. It's been 4.5 months. I will just hope and pray for the best

 

[Kambs16]

I would not think so. Not unless there is an issue.

 

[Kambs16]

@hanuz06 I wouldn't think so. Not unless there is an issue

 

[dragonista]

Hi everyone,

I have been following this thread in the background and really appreciate all the information herein from all of you - @dpneabill for your detailed and objective analysis (peeling the legal onion) and all the others who have shared your personal experiences.

I feel a debt of gratitude to this forum and I knew I had to share my experience as part of sharing anecdotal evidence of what is happening, in case it may be helpful to others - particularly seeing how opaque this process can be, confounded by varied outcomes.

My journey started when I got my PR as a refugee back in 2009 and shortly after I applied for a new passport from my country of citizenship since my seized passport had expired. Given that someone important in my family had terminal illness I wanted to go back to visit but I actually still had genuine fears for my life given the political situation and the reason why I claimed (threat from state actors). I had planned to sneak into the country through a third country but that option was ruled out because due to the remoteness of the border entry, I felt that if caught by state actors, they would be at liberty to do anything to me in the shadows as opposed to the at the bright lights of an international airport. After much thought, I felt a lot of anger because, despite being a “protected person” in Canada I felt that my oppressors still had a virtual stranglehold on me by virtue of my fear to travel there. I viewed this as a virtual prison that effectively alienated me from my family - not being able to visit with my dying family member. My anger and the "activist" in me led me to deciding to "take them head on" - take a risk to visit my loved one - to go as normal through the airport.

All this time I was not aware of the cessation clause or the fact that applying for my country's passport was not recommended. I was certainly aware that a visit back would be viewed suspiciously but given all the corroborating evidence that I could provide (safety measures, special arrangements, letters etc), I felt that I could explain my situation if challenged. In addition I thought of my PR status as a protective factor. If something happened in that country, I viewed PR status as giving me the option to escape somewhere.

Fast forward to 2014 or thereabouts when I was eligible to apply for citizenship, coincidentally this is around the time when I learned about cessation. I was so scared of what may come out of all this for me. I had a good career, was married with a family, had bought a house etc and the thought that all that could just be reset was sobering. I got into a self-imposed limbo with my citizenship application as I awaited for some miracle political winds of change to perhaps edit the law. Meanwhile I monitored the conversations here and weighed my options.

I ended up applying for citizenship early in 2018. I had researched lawyers just in case. My citizenship process went well without a hitch and I became a citizen on September 2018. You have no idea how relieved I was! After years of living in limbo/fear about what could happen to my life and family, it was finally over. I hugged my kids a little tighter that day, finally assured that barring anything else, there was no threat from my immigration status to separate us. It is worth mentioning that my citizenship case was pretty straightforward - no criminality, 1600+ days, less than four trips during the eligibility period, pretty conventional application I would say. I was worried that something was going to come up at the interview. I had prepared myself to address anything. Of all the times I entered Canada, I was not questioned at PoE.

The reason I am posting this is because I felt immense empathy for those on here who unfortunately have to face the prospect of cessation. I still feel, as many have already expressed, that this is such an unfair provision for many reasons. First, when we get refugee status, nothing is ever mentioned explicitly about the seemingly innocent act of renewing home country’s passport. There have been a few cases where people were told upfront, but by and large, it seems very ad hoc and I certainly did not get any warning or information about this. My view was that a passport is like an ID - a standard document that is nice to have hence could not foresee the legalities around reavailment and therefore how this action presents new risks to my PR status.

Secondly, my view was once I was a protected person, Canada had my back. Yes the country situation had changed a bit but I was still worried about the risks to my life that led to filing my claim. I went back (taking precautions) and being of the view that Canada was my fall back.

I absolutely understand the optics of going back to home country after claiming refugee status. I support the idea that the system should have rules in place to ensure integrity of the immigration system. My hope is that one day (soon) common sense will prevail and Canada can adopt a more reasonable, balanced approach that is humane while upholding immigration system integrity (e.g. explicitly informing claimants about the obscure expectations around passport renewal, putting a cap on how far back they can go with pursuing cases, open avenues for consideration of discretionary evidence on being established in Canada, etc.).

For those who live in fear of applying for citizenship, my only advice is, please seek legal help before applying. If you want to take the risk, make sure your case is super clear cut and avoid silly mistakes that may make your file be scrutinized more - e.g. complete application form and documentation. No overdue train tickets/speeding tickets that show up as a warrant for arrest (this may not prevent citizenship because it is not a criminal offence, but it may create unnecessary flags during security clearance or may trigger port-of-entry questioning).

For those who are ensnared in this issue, I sincerely hope everything will be resolved in your favour. All the best.