Refugee status cessation and PRs applying for citizenship

[dpenabill]

For Reference, 21 Years And Still Pending

I have previously cited and referenced court proceedings involving a Canadian PR/Refugee, Mahmoud Sharafaldin, applying for citizenship subject to cessation proceedings.

Earlier this year there was yet another Federal Court decision involving Mr. Sharafaldin which still has NOT resolved the case against him seeking cessation of his PR status and has not resolved his application for Mandamus to compel IRCC to make a decision on his application for citizenship.

Mr. Sharafaldin applied for Canadian citizenship in 1999. Yes, 1999. And yes, that application is still pending . . . 21 years and still pending.

This last Federal Court decision only deals with whether certain parts of the CTR (Certified Tribunal Record) should remain redacted. Thus, the decision itself illuminates little or nothing about the underlying cases, nothing in particular about the merits of the Mandamus application seeking an order compelling the Minister to make a decision in regards to the application for citizenship, which has been pending now for more than 21 years, and nothing about the merits of the cessation proceedings (which have been suspended pending the outcome of the citizenship application).

The recent decision, issued January 6, 2021, is here: Canada v. Sharafaldin, 2021 FC 22 https://canlii.ca/t/jcftr

The previous Federal Court decision I have elsewhere cited and linked is here: Canada (Public Safety and Emergency Preparedness) v. Sharafaldin, 2019 FC 1168 https://canlii.ca/t/j2cx1

Some observations:

The fact the cessation case was suspended pending the outcome of the citizenship application is the OPPOSITE of how these cases usually work. Typically the citizenship application will be suspended or on hold pending the outcome of the cessation application. Why this case is different, the subject of the 2019 decision cited and linked above, is mostly about the fact that it is a particularly exceptional situation, the citizenship application had already been pending a decade and a half before the cessation proceeding was commenced, and in consideration of the particular manner in which the case had, to that point, proceeded. The key takeaway is that any other PR/Refugee applying for citizenship can expect the OPPOSITE approach; that is, if cessation proceedings are commenced, processing the citizenship application will be suspended and the cessation case decided . . . which, if it results in cessation of Protected Person status, that will in turn result in termination of PR status, and render the individual ineligible for citizenship . . . thus the citizenship application would be denied.

The timeline here also demands emphatic notice. Citizenship application pending 21 years, and still NOT resolved. Cessation investigation pending since at least August 2014, the formal cessation action commenced in June 2015 but for some reason not actually served on Mr. Sharafaldin until April 2018.

The application for Mandamus in regards to the citizenship application was filed in January 2019. It is still not resolved. This last decision simply clarifies Sharafaldin's access to information in the CTR so that his counsel can prepare to make submissions to the court.

A long, long, long road.

 

[XoticMtl]

Hi Everyone
I need advise about my Cessation case please.
i got Refugee status in 2001. Became PR in 2003. Applied for citizenship in 2015. After the test and interview in 2016, no response from CIC for 5 years. Call center reply typical...nothing...after 5 years I receive a letter from CBSA for cessation proceedings due to my acquiring passports from my country and several visits. I guess a lot of people are in for the same trap.
i need advise because of my peculiar situation. Here is the summary.
My country had martial law due to which i became a refugee. I didnt visit my country till 2008 and began visiting ONLY after the martial law was lifted as there was no more fear of persecution. I am for all purposes settled in Canada and CBSA has made this case entirely from the dates of my visits on my citizenship application. I have not misrepresented any details.
My contention is that.... my case falls under 1 (e) change of circumstances beyond my control. I began visiting ONLY after the lifting of martial law.
Therefor even if my refugee status is to be ceased, it should be under 1 e.
i solicit your opinion about the correctness of my stance and plea.
I have not yet received and letter from IRB for the hearing.
Thanks

 

[dpenabill]

Hi Everyone
I need advise about my Cessation case please.
i got Refugee status in 2001. Became PR in 2003. Applied for citizenship in 2015. After the test and interview in 2016, no response from CIC for 5 years. Call center reply typical...nothing...after 5 years I receive a letter from CBSA for cessation proceedings due to my acquiring passports from my country and several visits. I guess a lot of people are in for the same trap.
i need advise because of my peculiar situation. Here is the summary.
My country had martial law due to which i became a refugee. I didnt visit my country till 2008 and began visiting ONLY after the martial law was lifted as there was no more fear of persecution. I am for all purposes settled in Canada and CBSA has made this case entirely from the dates of my visits on my citizenship application. I have not misrepresented any details.
My contention is that.... my case falls under 1 (e) change of circumstances beyond my control. I began visiting ONLY after the lifting of martial law.
Therefor even if my refugee status is to be ceased, it should be under 1 e.
i solicit your opinion about the correctness of my stance and plea.
I have not yet received and letter from IRB for the hearing.
Thanks

LAWYER-UP. LAWYER-UP. LAWYER-UP.

I addressed a critical distinction affecting situations similar to this above, just a couple months ago. See post February 1 above.

In particular

The thing about 108(1)(e) is that it is itself a separate ground for revoking or terminating the individual's protected person status. That is, if the underlying reason the person needed protected person status no longer exists, that is a separate ground for denying protected status or terminating the person's status as such . . . subject to the exception described in 108(4).

But as best I understand it, that does NOT change how 108(1)(a) can apply . . . that is, if 108(1)(a) applies because the individual has obtained a home country passport, or the person has traveled to the home country, or especially both, that is itself grounds for revoking or terminating the individual's protected person status.

To be clear, I am NO expert.

But to be clear, CBSA and IRCC officials are experts. It appears they have scrutinized your situation and have concluded your protected status has ceased . . . the only question is under which provision they are proceeding to formally adjudicate that. It appears they are proceeding pursuant to a section 108(2) determination for reasons prescribed by section 108(1)(a).

Similar to what I discussed back the first of February, as I understand things, the fact that your protected status could have been deemed ceased because the lifting of martial law might fit IRPA section 108(1)(e) (which states a person is not covered if "the reasons for which the person sought refugee protection have ceased to exist") does NOT preclude a determination that you have otherwise reavailed yourself of the home country's protection, and thus you are still subject to cessation of status under IRPA section 108(1)(a) . . . which under the applicable UNHCR guidelines is evidenced by either obtaining a passport from the home country or returning to the home country, and of course doing BOTH, let alone repeatedly, tends to make their case a lot stronger.

That is, if IRCC/CBSA proceeded to terminate your refugee status based on the fact that the reason why you became a refugee in the first place no longer poses the danger you fled from, that would not affect your PR status. Cessation under section 108(1)(e) does not result in the loss of PR status. Not likely that the proceedings against you are based on reasons stated in 108(1)(e).

In contrast, IRPA section 46(1)(c.1) provides for the automatic termination of PR status when it is determined, under subsection 108(2), that the PR's "refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d)." And if you have obtained the home country passport and traveled to the home country, the UNHCR guidelines, which Canada follows in these matters, provide that evidences reavailment of your home country's protection, pursuant to which cessation of your refugee status may be determined, pursuant to subsection 108(2), for the reason described in 108(1)(a).

Basically the fact that it was, in effect, safe for you to reavail yourself of your home country's protection (reavailment evidenced by obtaining a passport from it, and further evidenced by traveling there), does not excuse you from the consequences for having done so.

Not sure why you have not lawyered-up before now. But now that you are facing a process in which you may actually lose refugee status, which if that happens automatically terminates your PR status, and thus in turn makes you NOT eligible for citizenship, the need for a competent, experienced lawyer is NOW, immediate.

So, again, sorry, but it is time to LAWYER-UP. Lawyer-up!

Statutory References:
Section 46(1)(c.1) see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-10.html#h-274847
Section 108(1) see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-20.html#h-275708

Additional Caution: I am less familiar with the actual Removal process, but my impression is that individuals who lose refugee status under these procedures have very limited recourse to avoid deportation. For example, I believe that H&C relief is very limited if at all available. This really is seriously a time to lawyer-up business.

 

[XoticMtl]

Thanks for your time and comments. Appreciated

Why I didn't get a lawyer before is because I got the letter from CBSA just last week.

You have rightly pointed out the fine distinction..

My concern is that although CBSA have asked for cessation on 1 a and b....but CBSA doesn't have any information about my original claim. CBSA asked Montreal IRB office for my case documents to which they got a reply that the case of 2001 is so old that they have destroyed all the such documents according to the policy.
So my plea is that CBSA just picked up my dates from the citizenship application and made the case. They didn't even bother to interview me.
So CBSAs contention, though not incorrect in essence, is technically erroneous as my case falls under 1 e.
That is the line of defense I intend to take.
Thanks

 

[dpenabill]

Thanks for your time and comments. Appreciated

Why I didn't get a lawyer before is because I got the letter from CBSA just last week.

You have rightly pointed out the fine distinction..

My concern is that although CBSA have asked for cessation on 1 a and b....but CBSA doesn't have any information about my original claim. CBSA asked Montreal IRB office for my case documents to which they got a reply that the case of 2001 is so old that they have destroyed all the such documents according to the policy.
So my plea is that CBSA just picked up my dates from the citizenship application and made the case. They didn't even bother to interview me.
So CBSAs contention, though not incorrect in essence, is technically erroneous as my case falls under 1 e.
That is the line of defense I intend to take.
Thanks

Just to be clear, you really need a lawyer for this.

Just obtaining the country's passport is not merely evidence of reavailment, it creates a PRESUMPTION of reavailment.

You might want to consider the possibility that a defense based on 108(1)(e) might actually hurt your case. That could be interpreted to show you felt safe to rely on your home country, safe enough to reavail yourself of that country's protection.

In the back pages here I have cited and linked a number of official accounts of actual cases. Without revisiting them my recall is that one or more directly dealt with this issue. You could go through the back pages here and look at the cases cited for yourself (most should have links) . . . BUT the BETTER APPROACH will be to get LAWYERED-UP SOON.

Remember, it is primarily the reavailment of home country protection that is grounds for cessation the government's case is based on, and those grounds fall under subsection 46(1)(c.1). I am very reluctant to suggest strategies, or defenses, since you really need a lawyer's help in this . . . BUT as I understand things, the main defense, perhaps the only defense, is that regardless what you have done, you did not intend to reavail yourself of the home country's protection. In contrast, I apprehend making the case that the country is safe for you now could hurt more than help. But again, how to deal with this really requires an experienced lawyer.

Many are well aware how unjust this can be. NDP MP Jenny Kwan initiated efforts to get the Liberal government to address the injustice five years ago, but that effort has not gained much traction. (This aspect of cessation, used against refugees who have become PRs, was among a number of draconian measures adopted by the Harper government; during Trudeau's first term as PM, when the Liberals had a majority government, many of those draconian measures were repealed. But unfortunately not this one.)

 

[XoticMtl]

Just to be clear, you really need a lawyer for this.

Just obtaining the country's passport is not merely evidence of reavailment, it creates a PRESUMPTION of reavailment.

You might want to consider the possibility that a defense based on 108(1)(e) might actually hurt your case. That could be interpreted to show you felt safe to rely on your home country, safe enough to reavail yourself of that country's protection.

In the back pages here I have cited and linked a number of official accounts of actual cases. Without revisiting them my recall is that one or more directly dealt with this issue. You could go through the back pages here and look at the cases cited for yourself (most should have links) . . . BUT the BETTER APPROACH will be to get LAWYERED-UP SOON.

Remember, it is primarily the reavailment of home country protection that is grounds for cessation the government's case is based on, and those grounds fall under subsection 46(1)(c.1). I am very reluctant to suggest strategies, or defenses, since you really need a lawyer's help in this . . . BUT as I understand things, the main defense, perhaps the only defense, is that regardless what you have done, you did not intend to reavail yourself of the home country's protection. In contrast, I apprehend making the case that the country is safe for you now could hurt more than help. But again, how to deal with this really requires an experienced lawyer.

Many are well aware how unjust this can be. NDP MP Jenny Kwan initiated efforts to get the Liberal government to address the injustice five years ago, but that effort has not gained much traction. (This aspect of cessation, used against refugees who have become PRs, was among a number of draconian measures adopted by the Harper government; during Trudeau's first term as PM, when the Liberals had a majority government, many of those draconian measures were repealed. But unfortunately not this one.)

Appreciated. Will update with any new development.

Any idea as to the time line of how long it takes for the hearing after receiving notice from CBSA, please.

 

[Fallen_Warrior]

Appreciated. Will update with any new development.

Any idea as to the time line of how long it takes for the hearing after receiving notice from CBSA, please.

I am very sorry to hear regarding your situation.

As our experienced friend @dpenabill said, you immediately need a lawyer. This case would goto Federal Court perhaps and you must be ready to deal with it. Lawyer is now very important.

 

[XoticMtl]

I need information to this aspect plz.
If a refugee becomes a permanent resident, is he required to inform the CIC, IRB or CBSA if the circumstances under which he sought refuge had changed and that he no more required the refugee protection?
If someone has any link or relevant rule/regulation information in this regard, please let me know.
Thanks

 

[canuck78]

I need information to this aspect plz.
If a refugee becomes a permanent resident, is he required to inform the CIC, IRB or CBSA if the circumstances under which he sought refuge had changed and that he no more required the refugee protection?
If someone has any link or relevant rule/regulation information in this regard, please let me know.
Thanks

No once you receive PR there is no need to update IRCC if the reasons for seeking protection have changed. Changing conditions still doesn't allow you to renew your home country passport or travel to your home country until you become a Canadian citizen.

 

[XoticMtl]

Need this information please..
1. Is IRB open for hearing ? Are the hearings being held on Zoom or in person?
2. My status on citizenship application still shows as In Process. Is it ok?
3. If the IRB decides in favor of Cessation application by CBSA and one goes to Federal court, is one allowed to travel outside Canada before the appeal is heard or not please.

 

[dpenabill]

@XoticMtl

Cannot emphasize enough, the time to see a lawyer about this stuff is AS SOON AS YOU CAN DO IT.

For better information about what you are dealing with you really need to see a qualified lawyer. SOON.

You need a lawyer who has actual experience in this subject. I expect the number of such lawyers to be limited if not quite small.

Even without taking into account the extent to which Covid-19 has disrupted and skewered CBSA and IRCC processing, even before the Pandemic, this forum only had a few, isolated reports about the particular procedures taking place in regards to cessation proceedings. What we know derives mostly from what is described in the Federal Court cases I have cited and linked in the past here, most of which are now years old (and thus before Covid). You can go follow those links and read those cases for yourself and then you will know just about EVERYTHING I and others here know. Which, frankly, is not a whole lot beyond recognizing what the law is and what it means for those who lose protected status under its provisions.

If you have not found a lawyer yet, which appears to be your current situation, another reason to go into the older pages in this topic to find links to actual cases is that you will be able to find the names of the lawyers involved in those cases. Again, I apprehend that the number of lawyers who are experienced with this is a small number. You really need someone with experience in this subject.

We can offer observations and comments in regards to the questions you are asking, but you REALLY, REALLY NEED to be ASKING a LAWYER. And by that I mean one of those lawyers who is already engaged in these kinds of cases.

Historical note:

When I started this particular topic (summer 2015), to spread the alarm about this pitfall for PRs whose status derived from being a refugee, that was YEARS AFTER the Harper government had adopted the change in law, which itself was in 2012, and had begun enforcing it against PRs applying for citizenship. Back then I was reading every single Federal Court case involving citizenship applicants and took notice of how the cessation process was slamming the door shut to a life in Canada for many who had actually been advised to obtain a home country passport before applying for Canadian citizenship . . . which was the most common response to questions about needing a passport, including the conventional wisdom in this forum, and often the advice given by the CIC helpline, and more than a few lawyers.

Problem was that it took time, years, for those cases to reach the stage where the Federal Court made and published decisions. And for whatever damn reason, the word was not getting out. Then I noticed what was happening in the Federal Court.

Matters related to refugees was not on my radar, not a subject I engaged in, but I got involved in this because I saw the injustice and it appeared that no one else was paying attention and refugee-PRs who had, in the past, obtained a home country passport or traveled to the home country were still applying for citizenship, still being told by many to obtain a home country passport before applying for citizenship, unaware that the application for citizenship could trigger a review leading to a referral to CBSA and the commencement of a cessation investigation. Indeed, even after 2012 some refugee PRs were unaware they should not obtain a home country passport or travel to the home country (let alone both, which tends to make the reavailment case tough to beat).

I mention this history because this subject still appears to not get the attention it deserves, and I apprehend that, unless they have had direct experience in the refugee side of things, even many lawyers among those who do immigration work tend to be under-informed. That is, find a lawyer who knows this stuff.

Any idea as to the time line of how long it takes for the hearing after receiving notice from CBSA, please.

We do not know.

Again, even before Covid skewered things, the timeline for these things varied widely and ranged from rather lengthy timelines to crazy-long timelines. Just recently I referenced a case which had been in process for MANY years (and the citizenship application has now been pending more than two decades). The Federal Court decisions involve cases that took from a year or so to three, four, or more years, with some going much longer.

Except for the impact of Covid, however, my impression is that CBSA has been in the process of getting more efficient, so but for Covid most of those affected might anticipate things moving faster than they did in the past.

Note the timeline already in your case. It appears likely that CBSA began their investigation of you in regard to cessation several YEARS AGO.

If a refugee becomes a permanent resident, is he required to inform the CIC, IRB or CBSA if the circumstances under which he sought refuge had changed and that he no more required the refugee protection?
If someone has any link or relevant rule/regulation information in this regard, please let me know.

I know of none. Probably not.

Not relevant to the PR's status, after all, since once a refugee becomes a PR even if the reason for protected status ceases that has NO impact on the PR's status in Canada. This is the subsection 108(1)(e) situation; which has no impact on the status of Canadians (remembering that in Canadian immigration law, both PRs and citizens are Canadians).

For Canadians who are refugees what changed was the law adopted by the Harper government in 2012, that is the addition of subsection 46(1)(c.1) which automatically terminates the PR status of a refugee for whom protected status has been terminated based on cessation pursuant to 108(2) on any of the grounds prescribed in 108(1)(a) to 108(1)(d). Cessation still has no impact on Canadian citizens even though under UNHCR guidelines their "protected" status has ceased (actually, the act of becoming a Canadian citizen constitutes grounds for cessation under 108(1)(b) but of course that does not matter since the individual is a Canadian citizen).

Need this information please..
1. Is IRB open for hearing ? Are the hearings being held on Zoom or in person?
2. My status on citizenship application still shows as In Process. Is it ok?
3. If the IRB decides in favor of Cessation application by CBSA and one goes to Federal court, is one allowed to travel outside Canada before the appeal is heard or not please.

For current procedures regarding refugees and the IRB, best source is, again, a qualified lawyer. Otherwise, perhaps the part of the forum for refugees has ongoing discussions which can illuminate more about current procedures.

Citizenship application status: Not sure what you are asking, in terms of whether "In Process" is OK? It is almost certain that processing your citizenship application will not proceed UNTIL the cessation matter is resolved, one way or the other. If CBSA proceeds with the cessation case, the outcome of that will determine what happens to your citizenship application.

-- If your refugee status is determined to have ceased, that automatically terminates PR status, makes you ineligible to take the oath of citizenship, and thus the application for citizenship will be denied.​

-- If the outcome of the cessation proceeding does not result in the cessation of your refugee status, THEN (only then) will IRCC proceed to complete the application process; you will still need to meet citizenship requirements for that to result in a grant of citizenship . . . meaning you would still need to pass background screening related to criminality and security, for example, and of course you would need to still be in compliance with the PR Residency Obligation.​

In regards to Travel pending Federal Court Review: Canada does NOT restrict the international travel of PRs let alone Foreign Nationals (FNs). Whether or not, and to what extent, a PR or FN can travel "outside" Canada depends on what Travel Documents the individual carries and the laws and rules of the countries to which one might travel.

I suspect you are asking whether the individual can RETURN to Canada if he or she travels abroad. I do not know the status of a refugee-PR pending the pursuit of judicial review after a cessation determination by the IRB. I know it is NOT the same as a PR appealing an inadmissibility determination, where I believe (but I am not certain) generally a Removal Order is not enforceable pending review (definitely not enforceable pending review before the IAD; just not so certain about pending applications for leave beyond that). It warrants noting, CAUTIONING, that the changes the Harper government adopted have generally, dramatically curtailed avenues of relief for the refugee-PR whose status is determined terminated under the cessation provisions.

Once again: LAWYER! LAWYER! LAWYER! See a lawyer. A good one.

 

[XoticMtl]

Thanks Dpenable...Appreciated. You are a great help and source of inspiration for your selfless devotion of time and efforts.

 

[Kambs16]

Hey everyone
Just a quick update. I still haven't received any communication from IRCC since my interview and test in February 2019. 2 years and 3 months.
I really have no idea what they are investigating. The only update I got through my MP in November was that security and criminal checks were done and it was only immigration(residence) pending.

Brief recap: at my interview, I was grilled about my travel back home as a refugee. The CO took notes and all and said I would hear from them soon.to date nothing. How would one explain that

 

[XoticMtl]

Short of Mandamus, you can't do a thing and your time is not long for that. Obviously there is something going on. No amount of calls or inquiries will ever tell you anything about your case unless they decide to let you know. Get GCMS to see if by any chance you may come across some useful information. Keep reading these forums to remain updated about similar cases.
If they grilled you right at the interview, expect a negative outcome.

 

[canuck78]

Hey everyone
Just a quick update. I still haven't received any communication from IRCC since my interview and test in February 2019. 2 years and 3 months.
I really have no idea what they are investigating. The only update I got through my MP in November was that security and criminal checks were done and it was only immigration(residence) pending.

Brief recap: at my interview, I was grilled about my travel back home as a refugee. The CO took notes and all and said I would hear from them soon.to date nothing. How would one explain that

Assume lawyers are considering what to do an further research has been done to determine if you have entered your home country more than 3 times. IRCC is aware that people visit their home countries this way to try to conceal their travels. In your case you were upfront about your visits but they will still need to ensure there were no other visits. In one of your posts it indicates that you were asked whether you visited your home country while visiting the neighbouring country and you had to also sign something indicating that you have told the truth about your travels. If you did enter you home country while visiting the neighbouring country I would speak to your lawyer about whether you should disclose that information. Assume there is a decent chance they are persuing cessation but this may also be a partial delay due to covid. All you can do is keep working hard at your job, doing volunteer work and generally being an active person in your community so you are viewed as an assett to Canada. It is very important that you not go to your home country or use your home country passport for any reason.