sopranotb said:
What brings me relief about how the new government treat these cases (you correct me if I am wrong) is that there are no new cases of cessation at federal court website since almost 4 months now!! is not this a proof that new application cessations by new government have dramatically decreased?. before January 2016 and in 2015 and 2014 we were seeing a rate of at least 1 case per month at the federal court website.
That we do
NOT know warrants emphasis.
The law itself entails very harsh results if enforced on its face. There are at least some indicators enforcement has not abated let alone ceased.
The
shahbj report, in contrast, suggests good reason to hope that IRCC may no longer be targeting citizenship applicants, or at least not leaning toward enforcing a strict approach in applying the presumption of re-availment.
But again, how the current government is approaching PR-refugees who have obtained their home country passport, particularly if they have traveled to their home country, is largely unknown.
For a PR-refugee who has applied for citizenship and whose history is comparable to that reported by
shahbj, which is to say some travel to home country but not for extended time periods, not frequently, there is reason to hope. Waiting, and avoiding any international traveling while waiting, may be the best approach for such individuals.
My sense, my
guess, and really just a
guess, is that if an application for cessation has not yet been made, there is a very good chance the government will not initiate cessation proceedings (again, in the minimal travel home scenario) against a PR-refugee who already has a citizenship application pending. But I must emphasize this is just a
guess, just a
guess.
For any PR-refugee who does not already have a citizenship application pending, the safest course to take is to at least
wait for awhile, to wait until there are more definitive indicators about how this government is approaching this issue:
-- to wait before applying for citizenship;
-- to wait before applying for a new PR card (remember, as long as the PR remains in Canada, it is OK to let one's PR card expire and no need to obtain a new PR card);
-- to wait before traveling abroad again
-- to wait before renewing the home country passport
Otherwise, consult with an experienced lawyer, a lawyer experienced in
refugee law, and even then be sure the lawyer is familiar with the cessation cases resulting from the 2012 change in law.
In-depth Observations and Some Historical Background:
Inferences based on Federal Court decisions:
My sense is that it is too soon to discern trends based on the number of Federal Court decisions.
From the date of the RPD decision to the date of a Federal Court decision, these cases take many months, typically approaching a year, so any cases which might reach a conclusion in the last four months, or during the next several months, would still be RPD decisions made while Minister Alexander and Minister Blaney were, respectively, at the helms of CIC and Public Safety, and indeed many months prior to their departure. And that does not account for the timeline regarding
applications for cessation made under their watch, some of which may not have yet been concluded in the RPD let alone appealed (I do not know the cessation proceedings timeline, from application to decision by RPD).
That is to say, just because there have not been so many Federal Court decisions recently indicates little about how IRCC and Public Safety are approaching cessation issues since the Liberals formed the government.
Note too that several of the Federal Court decisions we have seen are not even about final RPD decisions: in the
Bermudez and other cases, for example, they challenge just the decision to make the application. So their cases have not even reached the RPD hearing and decision phase.
There is also the major hurdle that there is
NO right of appeal. Recourse is to make an application for judicial review: that is, the decision by the RPD is final unless the affected refugee asks
permission to appeal, and the Federal Court grants leave. Thus, many affected refugees may have lost and sought judicial review, but been denied without a hearing in the Federal Court. There will be no published Federal Court decisions for these cases.
Lack of Right of Appeal:
As I have stated elsewhere, more than a few times, rather emphatically on occasion, among the most important and severe, if not outright egregious changes to the law, as adopted and implemented by the Conservatives during the four years Harper had a majority government, was restricting and in some matters stripping the right of appeal. This has been especially draconian in the refugee law. It was also part of Bill C-24, pursuant to which applicants denied a grant of citizenship no longer have a right of appeal.
Thus, for example, prior to last year there was a steady stream of Federal Court decisions in citizenship cases, including thirty or forty a year for appeals filed by applicants denied citizenship. Not only did those cases provide important oversight and review for the individuals involved, they provided the public generally with real information about how CIC and Citizenship Judges were assessing and deciding citizenship applications.
Even though I was closely following developments related to Bill C-24, and reading almost every citizenship case published by the Federal Court (going back six or seven years now), and closely following all the criticisms published and posted about Bill C-24, I did not recognize the impact of new section 22.1 in the
Citizenship Act until the latter part of just last year, even though these provisions took effect August 1, 2014.
Critics seem to have been too busy railing nonsense about the
Intent to Reside clause to have noticed the real and profound impact of Section 22.1 in the
Citizenship Act. And my excuse is that I am not a Canadian lawyer and did not immediately recognize the difference between applications for leave to appeal versus a right of appeal.
In any event, suddenly the stream of Federal Court decisions in citizenship cases on appeal dwindled dramatically; but more than that, suddenly the ratio of appeals by the Minister outnumbered those by applicants by a huge margin, at least five to one. Previously the number of decisions published from appeals by applicants significantly outnumbered those for appeals by the Minister.
Initially I thought perhaps the Minister was simply being more aggressive in pursuing appeals when CJs approved applicants, but then I recognized the extent to which there were very few new decisions in cases brought by applicants,
and ONLY then did I realize the significance of the language in section 22.1(1), stating that an application for judicial review could be made
only with leave of the Court -- with a huge exception, per subsection 22.1(3), giving the Minister the right of appeal.
That is, after August 1, 2014 (when section 22.1 came into force), the Minister's objections to a CJ's decision still automatically get review, and unless the appeal is withdrawn there will be a formal, officially published decision by the Federal Court. In contrast, the majority, the vast majority of applicants' objections to a CJ's negative decision will be summarily denied, no hearing in the Federal Court, no formal, officially published decision to inform either the applicant or the public why.
This governs mandamus actions, and decisions by the Minister to terminate or deny citizenship for reasons other than residency, in addition to CJ decisions.
The Conservative government implemented even more draconian restrictions on the right of review in matters regarding refugees.
I have not followed refugee issues much at all. I glance at many of the Federal Court decisions, but usually only enough to confirm they are about refugee claims not PR or citizenship (week to week I review all the new Federal Court decisions in which the Minister of CIC/IRCC or the Minister of Public Safety, is a party; the vast majority of these are related to refugee claims, and again I just glance at these enough to see whether there are PR or citizenship issues involved). I only began following and researching cessation because of its impact in some citizenship cases. I am still just learning about the implications of the changes the Conservatives adopted. Frankly, some are jaw-dropping draconian if not simply inhumane.
I did not even realize that IRPA had expanded grounds for termination of PR status until last year. I had seen
NO one post anything about the change in any of the forums I follow. No media discussion about it. I was well familiar with Section 46 in IRPA and over the years had oft stated that a PR remained a PR unless and until they became a citizen or there was a formal final decision terminating their PR status. I often overlooked section 46(1)(d) in the version in force prior to December 2012, regarding the
vacating of refugee status, but when being more careful I
vaguely referenced this additional reason related to refugees.
Although I occasionally, but not always, added a vague, passing acknowledgement that there was the additional ground applicable for some refugees, I omitted this more often than I included reference to it. Overall, however, in restating the
only ways PR status was lost, over the course of many years (in posts I made here and in other forums), again
NO one clarified or corrected me. (I make mistakes, and I beg to be corrected, I appreciate being informed when I am wrong; the objective, after all, is to get it as right as we can.)
But then along came the
Ovalle mandamus decision. Which led me to start this topic back in early August last year, more than two years after the Conservative government had begun what really was, in many ways, a
purge ("purge" may be overstating it some, but not by a whole lot). And then, with a little analysis aided by some other Federal Court decisions, I ascertained the import of the addition of subsection 46(1)(c.1) to IRPA in December 2012. Only a little research was necessary to recognize the profound impact of this change in the law.
And it answered one of the more perplexing mysteries about long delays for some citizenship applicants who had not been issued RQ. More than a few of these were cases in which CIC put the citizenship application on the shelf while referring the applicant for potential cessation proceedings.
In the meantime, recourse for refugees in the event of a negative decision had been restricted and in some ways eliminated.
I am still unraveling this stuff. The importance of foreclosing any H&C consideration in the cessation process looms really large because any H&C application is apparently precluded for a full year after the cessation decision. Moreover, there is, apparently, no PRRA (Pre-Removal Risk Assessment) available. Thus, in turn, no administrative or judicial review of the PRRA, since there is no PRRA to review.
All this was done (so Harper and company asserted) so that those who managed to get their feet in Canada, and then commenced a refugee claim, could be physically deported upon their claim being denied without stalling their physical deportation for years and years of protracted litigation.
And apparently this truncated procedure applies to those whose status is ceased in cessation proceedings. No matter how long they have been in Canada, how many children or even grandchildren have been born to them in Canada, with no regard for what danger or hardships they will face upon being physically deported, no consideration for the extent to which they have become contributing members of the Canadian community.
And the CARL brief reveals that the Harper government set a target to deport at least 875 such individuals per year.
In regards to the need to get permission to appeal:
In retrospect it is not surprising we saw so many cessation decisions in the Federal Court last year: cessation of PRs was new, its applicability strict, and its consequences obviously severe, so the Federal Courts would have been remiss to not give permission, to give leave to appeal. But now many aspects of what the law is and how it is being applied have been decided, so there is no need or even a basis for the Federal Court to give leave to many of those affected unless a new legal issue is presented.
Additionally, it may be that given the number of cases in which the Federal Courts certified questions in the early batch of cessation cases decided, that further appeals are sitting in limbo waiting for there to be definitive decisions from the Federal Court of Appeal. So we are not seeing those cases finally decided, as yet. In this regard, any of those cases which might turn on whether H&C reasons can be considered in either deciding to make the cessation application or in the RPD's decision, might now be disposed of without a Federal Court hearing or published decision -- this assumes that indeed the Federal Court of Appeal has affirmed that there is no H&C consideration in cessation determinations (the article which references CARL's brief suggests this decision has been made, as you also said
sopranotb a few days ago; I still have not been able to put my cursor on the decision itself).
Ultimately we still do NOT know.
To clarify what we do not know:
We do not know:
-- whether or to what extent IRCC is screening PR-refugees looking for indications of re-availment
-- -- and if IRCC is still doing such screening, what criteria they are employing
-- -- or how aggressively they are pursuing cessation
-- how IRCC or the Minister of Public Safety is approaching RPD cessation decisions already made, either as to those for which appeal applications are pending or otherwise
-- how IRCC or the Minister of Public Safety is approaching applications for cessation commenced by the prior government but not yet decided by the RPD
And it is very difficult to guess how long it will be before there is any definitive indication how this is going to go in the near future.
