returning to country of origin after H&C

[dpenabill]

I entered Canada with a valid PR card (not expired) but it had less than a year till the expiry date. the first CBSA officer wrote a section 44(1) Report against me. the report had an application# and UCI on top of it and after few weeks I got an invitation from CBSA to attend a ministers delegate review session at a later time, in the final session, I brought my H&C reasons and at the end officer considered my H&C but noticed some things.
1- if I apply for a new PR card before meeting my residency obligation my case will be reviewed again
2- if I go back to **** (my home country) this matter can come up again AND at the end, he/she handed over my passport to me!!

There are still aspects of your situation which are not entirely clear. In particular, as to:

-- when was the interview/hearing with the officer who reviewed the 44(1) Report, and​

-- what was the decision made, as precisely as you understand it​

That said, there is ZERO indication that rules applicable to individuals with refugee or protected person status have anything at all to do with you.

And, as noted previously, if the 44(1) Report and interview/hearing to review it were back in 2018, and you were NOT issued a Departure Order, or a Removal Order, that is almost sure to be a done deal. It is part of your immigration history, but it should have no direct effect on your current status. What matters now is being in RO compliance, and that is based on counting days IN Canada within the previous five years . . . as of any day that count is done (like the day you return to Canada after a trip abroad or the day you make a PR card application or the date you make a PR Travel Document application while abroad).

As I otherwise cautioned, the dates and precise outcome of the PoE initiated Report event are not entirely clear to me, HOWEVER what you report, including about what lawyers have said, strongly suggests that event was years ago and resulted in a decision to set aside the Report based on H&C reasons, which is further supported by no indication there was a Departure Order or Removal Order. So again, that is most likely history, not a problem.

In particular, if you reviewed the facts and events with a lawyer, let alone two, and the only "RISK" implicated was related to "not meeting residency obligation again," that is entirely consistent with exactly what I (more clumsily) said in my previous post . . . and am reassuring you now . . . meaning, again, as long as you are now and you continue to stay in compliance with the RO, there should be no concerns about traveling abroad in regards to your status in Canada (but apart from other risks, like home country dangers). Of course you will need either a valid PR card or a PR Travel Document to board a flight to return to Canada, unless you can travel via the U.S.

I do not understand why you apprehend Mexico seizing your home country passport, or Mexico deporting you to your home country. If that concern is related to refugee status, as previously noted there is ZERO indication that rules applicable to individuals with refugee or protected person status have anything at all to do with you.

Of course any Canadian PR traveling outside Canada must be traveling on whatever passport they carry, and are subject to the laws and governing practices of both the country that issued the passport and whatever country the PR is in. Unlike Canadian citizens, Canadian PRs traveling abroad are not under the protection of Canada. But this is how it works for all PRs and moreover proceedings in regards to your status in Canada (like the Report and MD's review) have NO effect . . . what happens in other countries is entirely between whatever country the traveler is in and whatever passport they are carrying and have used to travel there.

So if Mexico had some reason, under its laws, to seize your passport and deport you, that would likely be to your home country. But even if that happened, so far as Canada is concerned you can return to Canada . . . but of course you would need a passport, and Canada has no role in that, as that is up to country in which you are eligible for a passport.

The fact that rules regarding refugees has NOTHING to do with your Canadian status brings up the unfortunate fact that YES there is more than some disagreement with a particular source here, who is absolutely NOT a reliable or credible source.

The comments in regards to refugees, for example, illustrate just how utterly ignorant (and I do mean ignorant) but willing to spew unfounded comments and, more dangerously, erroneous propositions. Note, for example, yes CBSA does prosecute "cessation" of status cases against refugees for reavailment of home country protection based on using a home country passport to travel to their home country, and this not only includes those refugees granted PR status, but even those who have in the meantime otherwise met the qualifications for a grant of Canadian citizenship (but not after they have been granted citizenship). That is a totally off-topic issue for you. (Noting again, for emphasis: the consideration of hardship and danger if returned to your home country, as H&C reasons for granting you relief from a breach of the PR RO, does NOT in any way make you a refugee subject to section 108 in IRPA, the statutory provision prescribing grounds for cessation of refugee protection.)

While that is a totally off-topic tangent here, I will document just how dangerously wrong those comments are because this is not a one-off, not an incidental mistake (we all make those, and yeah I have made at least my share of them), but is a persistent pattern. And, moreover, if relied on could have devastating consequences for the individual. So, my apologies for further commenting in regards to this off-topic tangent, but this needs to be noted.

I will do that in another post . . . but just to skim the surface of the RISK a refugee in Canada takes if they travel to their home country, see the topic "Refugee status cessation and PRs applying for citizenship" in the citizenship forum where MANY ACTUAL cases are cited and linked, cases in which PRs applying for citizenship found themselves, instead, facing cessation of status proceedings leading to the loss of PR status, no grant of citizenship. Note, it is a very complicated subject full of nuances and complex tangents, not the least because it is well-recognized that the consequences are severe, often exceedingly harsh, and numerous decision makers including Federal Court Justices have gone the extra mile to find cause to avoid cessation if there is any way to do that.

BUT MAKE NO MISTAKE . . . PRs who obtained status as a refugee or protected person are subject to cessation of refugee status, which automatically terminates their PR status, if they travel to their home country. Not all who do this encounter enforcement, but just the published official IAD decisions alone represent scores and scores who have, noting that not all such cases result in published decisions so the number is undoubtedly much higher.

 

[dpenabill]

Cessation of Refugee or Protected Person Status Based on Home Country Travel:

Again, this is a totally off-topic tangent here. There is NOTHING about this subject applicable to the OP @andy_smith.

While this is a totally off-topic tangent here, there is a need to document just how dangerously wrong some comments about this subject above are because, again, this is not a one-off, not an incidental mistake (we all make those, and yeah I have made at least my share of them), but is a persistent pattern. And again, moreover, if relied on could have devastating consequences for the individual affected. So, my apologies for further commenting in regards to this off-topic tangent, but this needs to be noted.

This is just a part of what has been said:

A lot of refugees and asylees do return back to their country of origin, some spend holidays and summers there and benefit from low cost of life. This is such a widely spread occurrence worldwide that articles on this subject appear from time to time in various countries (including the one I linked). But despite wide spread of this occurrence (and immigration officials are well aware of it), I have yet to see anyone to be prosecuted and deported for it. Perhaps it does happen somewhere to someone, I just never heard of it.​

To be clear, there is NO shortage of cessation cases in which refugees in Canada have had their claims dismissed on the grounds of reavailment based on EITHER obtaining a home country passport OR traveling to the home country.

There are also numerous cases in which Canadian Permanent Residents who obtained their PR status as a refugee, protected person, or dependent of a refugee, have been subject to cessation proceedings brought on the grounds of reavailment, which likewise can be based on EITHER obtaining a home country passport OR traveling to the home country.

It is worth noting that obtaining a home country passport creates a PRESUMPTION of reavailment, but most of the cases tend to involve BOTH obtaining the home country passport and travel to the home country. While the cases brought against those refugees who have been granted PR status typically involve BOTH and either multiple trips to the home country or at least a relatively lengthy stay in the home country, a statement by Federal Court Justice Fothergill, in a decision where the justice concluded that "the RPD reasonably found that Mr. Shamsi had re-availed himself of Iran’s diplomatic protection by acquiring an Iranian passport and travelling to Iran on two occasions" . . . is telling:

"It is only in “exceptional circumstances” that a refugee’s travel to his country of nationality on a passport issued by that country will not result in the termination of refugee status."​

See http://canlii.ca/t/gn0cx (Sajjad Shamsi Kazem Abadi)

Since 2012 Canadian law provides that the cessation of protected person status for a PR/refugee AUTOMATICALLY terminates that individual's PR status. This has been a trap for many PR/refugees when applying for citizenship, in which they present a copy of their passport and provide a travel history to the home country, more or less making the cessation case for the government.

Again, there are scores and scores of sad cases regarding this. Here is just one example: https://canlii.ca/t/jcjmc Like many of these cases, the name of the individual is redacted for their protection, but they nonetheless lose status to stay in Canada. Panel's decision echoes scores of others:

She was issued an Iranian passport in 2011, after she was granted protection and permanent residence in Canada. She traveled to Iran twice on that passport. In so doing, she received the “diplomatic protection” of Iran enabling her to travel as a citizen of Iran. . . . Accordingly, I find that the respondent has actually obtained protection from Iran merely by travelling there on an Iranian passport and accepting the protection of the Iranian authorities throughout her time there.​

I cite this one in particular because it further reflects the recognition of how severe the consequences are, the Panel concluding:

This result will be very distressing for the respondent – particularly, because she strikes me as an honest person who has lived under the Sword of Damocles since 2014. . . . but the law affords me no jurisdiction to consider such grounds for relief in this proceeding.​

That IAD panel more or less encouraged the individual to obtain legal counsel to pursue the possibility of other options; that in turn, in the meantime, brings up one of the more widely known (albeit not by the willfully ignorant) actual cases, re Galindo Camayo, 2022 FCA 50 https://canlii.ca/t/jndkg and 2020 FC 213 https://canlii.ca/t/j54n9

Camayo v. Canada is a significant case because just this last month (March 29, 2022) the Federal Court of Appeal upheld Federal Court Justice Fuhrer's decision to remand to the RPD to determine the PR/refugee's "intent" and the FCA answered the certified questions related to that. Camayo had actually obtained multiple passports, used them multiple times, and returned to the home country five times, and while the RPD proceeded with cessation and the IAD upheld cessation of status (I believe that IAD decision is here https://canlii.ca/t/j69pj . . . caveat, I am not absolutely certain, since the names are redacted, like most of these kinds of cases in the IAD, but I am quite sure this is the official IAD decision in the Camayo case).

The IAD had concluded:

. . . the culmination of the travel to Colombia on numerous occasions to visit her sick father and for a humanitarian mission, as well as her use of her Colombian passport to travel for vacation purposes to other countries, demonstrates the voluntariness, intent, and actual re-availment for this Respondent.​

Among multiple factors that Justice Fuhrer cited the IAD failed to consider, as relevant to determining whether Camayo's actions constituted "voluntarily" reavailing herself of home country's protection, was in regards to her subjective understanding and knowledge, in regards which the FCA ruled:

Yes it is . . . "reasonable for the RPD to rely upon evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection."​

PR/refugees should NOT take much if any comfort from the Camayo decision. While it appears likely she will not lose her PR status (her actual fate still to be decided upon remand for reconsideration), her case illustrates the extent to which cessation can be and is prosecuted DESPITE a ton of equitable factors in her favour (not the least of which were the reasons for her trips to the home country, to visit and assist a sick parent and another time as part of a humanitarian project to provide help to children in need there).

MORE REPRESENTATIVE of the typical cessation case, another decision from just last month, is here Iqbal v. Canada, 2022 FC 387 https://canlii.ca/t/jndjd or https://www.canlii.org/en/ca/fct/doc/2022/2022fc387/2022fc387.html. . . another case triggered by a citizenship application. And it was indeed Ms. Iqbal's citizenship application which gave the government the evidence she had traveled to the home country, triggering the referral to CBSA, and in turn resulting in the cessation of her protected person status, automatically terminating her PR status, and rendering her ineligible for citizenship, AND NOW SUBJECT to DEPORTATION.

Again, this is not really relevant in the OP's situation. It is nonetheless a real issue with potentially devastating consequences for those whose PR status in Canada derives from refugee or protected person status . . . somewhere in the forty pages of discussion about this subject, in the topic referenced and linked in the previous post (specifically about cessation and citizenship applicants), I and others discuss some government sourced statistical data about the number of cessation cases pending and decided in Canada for a particular time period. Clue: hundreds affected.

I will not attempt to recite the scores of cases here, but for those interested in this subject one more warrants citing: Siddiqui v. Canada case, 2016 FCA 134, [2017] 1 FCR 56, https://canlii.ca/t/grsb2 and FC decision: https://canlii.ca/t/gh67g . . . because it includes a Federal Court of Appeals decision and between both, the FCA and FC decisions, provides links to many additional sources regarding this subject.