At the risk of being overly cautious, but given the risk of very harsh consequences . . .
. . . these observations involve a number of matters regarding which "I do NOT know" looms large. So why, if I do not know, why am I posting?
The thing is, the underlying issue, who is subject to the cessation of status provisions in Section 108 IRPA
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-13.html#h-275708 is something that not only involves confusion and uncertainty, it is a subject regarding which many have gotten this and that wrong, sometimes way wrong. In contrast, the potential consequences for getting it wrong can be devastating.
I would not be posting EXCEPT to make a mistake regarding this could mean loss of status in Canada for which there is no H&C relief.
My family and i just got our PR and am planning to renew my passport. I initially applied for refugee but was refused my daughters were granted.I later apply for H&C and was granted PR.
Now i just got my passport back and it has expired but i want to renew and also travel to my home country will it be wise to do that since i initially apply for refugee and was refused. Please i need advis
Again, at the risk of being overly cautious . . .
I do not know the answer but I do know that given the profoundly severe consequences if cessation of protected person status provisions apply, this is a question for which an individual really needs a
For-Sure, NO DOUBT answer BEFORE applying to the home country for a passport or to renew their passport,
and BEFORE traveling on any such passport let alone traveling to the home country. A key question is whether the PR obtained status through a pathway that renders them a person in need of protection.
If there is any possibility you could be considered a person in need of protection, it will be best to get advice from a competent, reputable lawyer with experience in immigration law related to protected persons and H&C PR.
Leading To Some Longer, More In-depth Observations:
Thus, for example, I am not sure that
@sohaib1's conclusion is wrong, but the premise (the reasoning) is flawed.
yes since you were refused as refugee you can renew and go back
In particular, cessation provisions have been applied to PRs who were refused as a refugee, so the fact of having been denied refugee status does NOT mean you can renew the passport and go back. In fact, cessation provisions have also been applied to PRs who withdrew their refugee claim in order to meet the requirements to be granted PR status under separate provisions which nonetheless was a pathway to obtain PR status in Canada as a protected person.
I am trying to be clear but that is difficult for an issue like this.
The odds are probably good that @sohaib1's conclusion is correct. BUT if status to live in Canada is important to you, those odds are NOT good enough. It's like playing Russian Roulette. The odds are very good the gun just clicks when you pull the trigger, five to one odds against getting a bullet in the head. But that is not just an utterly stupid gamble, it is considered a suicidal gamble. Make the favourable odds twenty to one (randomly selecting the round to go in the revolver from a bag with only one live round and three dummy rounds), it would still be a stupid, suicidal gamble. It is about the severity of the consequences in conjunction with even a relatively small chance of a bad outcome; how bad the potentially bad outcome is makes a huge difference.
THUS . . . if there is ANY chance that your PR status means you have been determined to be a person in need of protection . . . BEFORE renewing your passport, and absolutely BEFORE traveling to the home country, get a reputable, competent immigration lawyer's advice. At the least.
The issue of precisely WHO may be subject to the loss of status, the cessation of status, for reavailment, has been extensively addressed in regards to determining the grounds for cessation. BUT even this, still, is nonetheless an issue subject to much uncertainty, and still being wrestled with by the courts.
But so far as I have seen, there has been no clear delineation of WHO does or does not fall under section 95(1)(a) IRPA which provides that a refugee
includes a person in similar circumstances to a person determined to be a Convention refugee, as determined "
under a visa application" and who thus "
becomes a permanent resident under the visa." While there are a few court cases somewhat dealing with this issue, so far it appears this issue is largely skirted or left unaddressed by the courts.
In regards to WHO is a protected person, the most relevant case I am familiar with is the Siddiqui v. Canada case, 2016 FCA 134, [2017] 1 FCR 56,
https://canlii.ca/t/grsb2 which is a Federal Court of Appeal decision (thus binding precedent) in the appeal of Siddiqui v. Canada (Citizenship and Immigration), 2015 FC 329 (CanLII), [2015] 4 FCR 409,
https://canlii.ca/t/gh67g
A key statement in the FCA decision is that "
subsection 95(2) makes clear that section 108, the cessation provision, applies to protected persons, regardless of the route or mechanism by which they obtain status as a protected person."
But Siddiqui is specifically about a PR in the "country of asylum or re-settlement class" and does not otherwise clearly delineate the scope of who are protected persons subject to section 108 cessation provisions. However, IRCC has published a summary of the case (see
https://canliiconnects.org/en/summaries/61836 ) stating "
There is no reason why the principle of reavailment and its associated criteria should vary according to the route by which status as a protected person is originally obtained."
That noted, in contrast H&C applications for PR appear to be a separate class, within the general "humanitarian classes" for obtaining PR status in Canada. This suggests those granted H&C PR are not in a "protected persons" class (which includes asylum and re-settlement classes in ADDITION to convention refugees), and thus PROBABLY do not fall within the scope of Section 95 IRPA even if the underlying situation is about Canada providing protection to persons fleeing their home country.
But a Question: is anyone certain that the outcome of a H&C application for PR will not, for sure will not, confer protected person status, recognizing that the H&C application is, of course, a "visa application" pursuant to which the individual "becomes a PR under the visa," and which specifically includes consideration of the risks a person faces if returned to their home country? Certain enough to gamble their status on it?
Again, the H&C path to PR PROBABLY does not fall within the scope of Section 95 IRPA even if the underlying situation is about Canada providing protection to a person fleeing their home country.
PROBABLY. As in probably OK.
But there is a lot riding on those odds.
Some Further Observations and Sources:
Also see Camayo v. Canada (Citizenship and Immigration), 2020 FC 213 (CanLII), [2020] 2 FCR 575,
https://canlii.ca/t/j54n9 and note that a motion to intervene in the Federal Court of Appeals case (see:
https://canlii.ca/t/jjhdl ) was denied parties seeking to advise the court in regards to whether dependents should be excluded from the scope of cessation provisions.
There has been some recent discussion related to this in the topic titled "Pathway to permanent residency recognizes exceptional service of asylum claimants on front lines of COVID-19 pandemic," here:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/pathway-to-permanent-residency-recognizes-exceptional-service-of-asylum-claimants-on-front-lines-of-covid-19-pandemic.698291/page-204#post-9906668
As you can see in the posts there, there is more than a little confusion and quite a lot of uncertainty regarding this subject. Also see
https://www.canadavisa.com/canada-immigration-discussion-board/threads/pathway-to-permanent-residency-recognizes-exceptional-service-of-asylum-claimants-on-front-lines-of-covid-19-pandemic.698291/page-142#post-9662286
It warrants noting that not only has this forum often been very wrong about the impact of the 2012 changes in law extending cessation of status to PRs, but many other sources have been as well, including help centre telephone agents.
Also warrants noting that anecdotal reports about this subject have been notoriously unreliable. There are, for example, scores of reports in forums like this by individuals who returned to the home country stating that this has not caused them any problem. Many of them should add "
NOT YET" to those reports and recognize that some of the actual cases involve PRs whose trip to the home country was YEARS before CBSA initiated cessation proceedings against them. Indeed, for a significant number of those against whom the government has proceeded with cessation, it was not until they applied for citizenship, leading to a more thorough review of their travel history in conjunction with a detailed examination of their status in Canada, that IRCC identified a potential cessation issue and referred the PR to CBSA for investigation. See
https://www.canadavisa.com/canada-immigration-discussion-board/threads/refugee-status-cessation-and-prs-applying-for-citizenship.333455/
