Refugee status cessation and PRs applying for citizenship
- Thread starter dpenabill
- Start date
Yes, indeed, this is an interesting case, on many levels.sopranotb said:
I have been on holiday, and really taking a holiday. Away from the Internet, by the water, in the trees, among family, getting some sleep . . . so I have some catching up to do.
For those who could face this issue, the disconcerting part is that it was this year and IRCC, under Minister McCallum (as in not CIC under Alexander and Harper), that this individual was given notice that his citizenship application was suspended pending cessation proceedings.
Bad news is twofold:
-- this suggests anyone already swept into the process for cessation will continue to be subject to the process (pending further appeal of the certified question)
-- which inherently suggests that under current leadership the government is still proceeding with cessation cases
However: the actual suspension of the Nilam's citizenship application was by CIC and occurred before last year's election, so we still do not know if IRCC under Minister McCallum is likewise approaching similar fact patterns, which is to identify those citizenship applicants for whom cessation proceedings might be brought and proceeding to in fact adjudicate the cessation of their protected person status, thus terminating their PR status as well, and thus rendering them ineligible for citizenship. Thus, the current government's general approach is still unknown.
For reference, quoting the decision:
see http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/169070/index.do
There is more to assess and analyze, but again I am just back from holiday and will have to revisit this.
Hello Members,
I have a question I hope you can answer: my mother who is now a protected person and a PR and has no intentions of going back to her home country but she got a job in the embassy of her home country that is present in the UAE and since UAE doesn't accept a travel document at the border she is considering to use her national passport to enter the country (Note: she didn't renew her national passport its still the old one since before she applied for refugee). Do you think she is taking a major risk by 1- traveling with her national document to a third country 2- Working for her home country government abroad?
I have a question I hope you can answer: my mother who is now a protected person and a PR and has no intentions of going back to her home country but she got a job in the embassy of her home country that is present in the UAE and since UAE doesn't accept a travel document at the border she is considering to use her national passport to enter the country (Note: she didn't renew her national passport its still the old one since before she applied for refugee). Do you think she is taking a major risk by 1- traveling with her national document to a third country 2- Working for her home country government abroad?
Yes, a big risk. Just using a passport from the old country risks being deemed to have availed oneself of the protection of that country. Indeed, obtaining or using the passport of any country (other than Canada) can be deemed to show the individual no longer needs protected person status.calgary_eagle said:
And obviously, working in that country's embassy suggests a relationship to that country which could readily support, if not in itself indicate, the proposition she has re-availed herself of that country's protection.
It needs to be emphasized, again, that just using the passport could lead to cessation of status proceedings, even if used to travel to other countries.
I am not a Canadian lawyer, or an immigration or refugee lawyer of any sort. So perhaps she wants to consult with a lawyer first. That said, even though the important change in law took place in 2012, which puts her PR status at risk, it appears that more than a few lawyers are still NOT up to speed about this.
Addendum:
The current issue, regarding which we have rather little information, is to what extent the current government is enforcing the changes in law in 2012. We really do not know to what extent the government is watching for reasons to take away protected person status (which automatically terminates PR status).
Until last fall, the provisions added in 2012, which allowed the government to commence cessation of protected person status proceedings against PRs (who became a PR as a refugee or protected person), and thereby also strip the person of PR status, were being aggressively enforced.
The current government has continued to advance some of those cases, so we know that the current government is not entirely backing off cessation of status for PRs. But, other indicators suggest that at the least the current government is not being nearly so aggressive about it.
Additionally, there is a private members Bill to repeal the provision affecting PRs. So far there has been no indication the Liberals will support that Bill.
Thus, any conduct which could be a basis for determining a protected person has reavailed themselves of the home country's protection, or has come under the protection of some other country, still risks cessation proceedings and the loss of PR status. Remember, most of what will factually support a cessation decision is specified by the UNHRC guidelines, not by Canadian laws or rules.
Thanks for your quick response dpenabill. In the unfortunate circumstance a person gets his/her status removed they will get a deportation order and have to leave Canada. I read that that person can still come to Canada if they apply for something called ARC plus being sponsored for PR by a spouse or a child. Is that true?
I am not an expert and there are many, many aspects of immigration I know rather little about, and some that I was following years ago I have not been following for quite a long while now. In particular, I tend to be focused on a few, relatively narrow issues.calgary_eagle said:
Which is to say, I am not a good resource for other general questions about things like visiting Canada as a Foreign National.
That noted, if a PR with protected person status is the subject of cessation proceedings, it is not as if the person is accused of any wrongdoing. The cessation of protected person status is basically a determination that the person no longer needs Canada's protection, no longer needs to take refuge in Canada. This has long been the law. A person who was a refugee, but who no longer would be in danger if he or she returned home, no longer needs to remain in Canada and thus could go home.
What was different was that prior to 2012, December 2012 in particular, the refugee or protected person who obtained PR status could continue to be a PR even if cessation proceedings took place and it was determined the individual was no longer in need of protection. So of course there were no cessation proceedings against such individuals, since they had status in Canada anyway. Then as of December 2012, pursuant to legislation adopted by the majority Conservative government (a Harper and Kenney agenda), any protected person with PR status, who lost protected status, automatically lost PR status. And, indeed, under Kenney, then Alexander, IRCC proceeded to, in effect, commence a purge of PRs with protected status who had acquired their home country passport, or who had traveled to the home country, and especially those who did both. But, again, while a home country passport, or a return to the home country, supports a presumption of re-availment, there are additional circumstances which can be grounds for finding the individual has re-availed himself or herself of the home country's protection, for which protected status may be adjudicated to have ceased, thereby automatically terminating PR status. Again, the grounds for finding re-availment are predominantly based on UNHRC guidelines.
In any event, the individual has done nothing wrong or illegal by re-availing himself or herself of the home country protection. So, the only consequence is that the individual loses status in Canada, and thus becomes a Foreign National. Once such a person is a Foreign National, they can apply for other visas and such, including tourist visitor visas.
As I understand things, only if the person fails to leave Canada timely after loss of status, and then after formal proceedings to actually deport the person they fail to leave timely, would such an individual need authorization to return to Canada. They may need a visa, depending on what passport they carry. But just like any other person who carries the same passport, they can apply for a visa to come to Canada if they qualify.
Regarding sponsorship for PR status, or for a SuperVisa, or such, such an individual should be in the same shoes as any other Foreign National from the same country . . . with, perhaps, a somewhat favourable mantle if they timely left Canada after losing status, suggesting they will comply with Canada's immigration laws. (Many FNs from countries which are not visa exempt, seeking a visitor's visa, face the hurdle of convincing IRCC they will properly leave . . . someone with a history of coming to Canada and timely leaving has a history which tends to say they will not overstay their visit.)
Some recent news re Tayeb Ali c. (Citizenship and Immigration)
http://decisions.fct-cf.gc.ca/fc-cf/decisions/fr/item/180677/index.do
The Tayeb Ali mandamus case is bad news for anyone who became a PR with Refugee Status, who has obtained a home country passport and has traveled to the home country, and who has a citizenshp application in process.
In this case the Minister's notice of cessation proceedings was before the Federal election in 2015, so the case does not necessarily reveal whether under Liberal leadership IRCC and CBSA are pursuing new cases against citizenship applicants. But, since this case went to hearing in June this year, it is clear that under Liberal leadership the government is at least continuing to pursue those which were started under the prior government, including suspending citizenship application processing pending cessation proceedings . . . and this is some indication of the current policy and practice.
Not a good indication for anyone who falls into this group, those who are a refugee and PR applying for citizenship, and who had obtained a home country passport, and traveled to the home country.
Indeed, Justice Bell distinguishes and, in effect, reaches a contrary conclusion, regarding some other Federal Court decisions which seemed to say that the citizenship application process could not be suspended while cessation proceedings were in process. Justice Bell bases this on changes to the Citizenship Act adopted by the Conservative government in 2014.
Note: lawyers, especially lawyers engaged in appeals, will say that bad facts make bad law. This is largely about choosing to appeal a case with favourable facts, declining to appeal a case with bad facts. It appears there was no lawyer for the applicants in this case. Apparently the applicants pursued mandamus pro se. This case is more complicated, more tangled, than merely being a citizenship application suspended after the Minister initiated cessation of refugee status proceedings. And it appears that the deserving-citizenship aspect of the case was not merely weak, but negative. Never helps.
One of the common threads seen in discussions about difficulties in the processing of citizenship applications is an aggressive application of favourable technicalities. Again and again, so many overlook the less technical, the intangible, aspects: credibility and whether or not the applicant appears to deserve citizenship. Yeah, the technicalities are what ultimately matter. But applying the technicalities depends on what facts are established. Way too many think their version of the facts is the only possible version of the facts. They way underestimate the impact of credibility and whether or not the applicant appears to deserve citizenship, which can have a huge impact on how CBSA or IRCC see the facts.
If and when there is any challenge, any contest, facts have to be proven to be the facts that matter. The burden of proof is on the applicant. If the applicant's credibility is compromised, or IRCC perceives reasons why the applicant might NOT deserve citizenship, it can be a lot more difficult to meet the burden of proving the necessary facts.
In any event, too bad this individual elected to prosecute this action for mandamus without a lawyer. The decision itself is now a clear basis for IRCC to pursue proceedings to deport such applicants for citizenship rather than grant citizenship. This decision by Justice Bell could signal the direction that IRCC is headed under the current leadership. I would note, in this regard, that the hearing in this case took place after Minister McCallum was encouraged to at least support if not sponsor legislation which would remove the provisions for terminating such a PR's status. That is, the position taken by the Minister in this case does not bode well for the Private Member's Bill to, in effect, protect settled PRs from cessation of refugee status proceedings.
This case suggests that those PRs who are such as a refugee should continue to avoid obtaining a home country passport, avoid travel to their home country, and if they have done either of these things, then to not apply for citizenship and to avoid using the passport, for at least the foreseeable future.
http://decisions.fct-cf.gc.ca/fc-cf/decisions/fr/item/180677/index.do
The Tayeb Ali mandamus case is bad news for anyone who became a PR with Refugee Status, who has obtained a home country passport and has traveled to the home country, and who has a citizenshp application in process.
In this case the Minister's notice of cessation proceedings was before the Federal election in 2015, so the case does not necessarily reveal whether under Liberal leadership IRCC and CBSA are pursuing new cases against citizenship applicants. But, since this case went to hearing in June this year, it is clear that under Liberal leadership the government is at least continuing to pursue those which were started under the prior government, including suspending citizenship application processing pending cessation proceedings . . . and this is some indication of the current policy and practice.
Not a good indication for anyone who falls into this group, those who are a refugee and PR applying for citizenship, and who had obtained a home country passport, and traveled to the home country.
Indeed, Justice Bell distinguishes and, in effect, reaches a contrary conclusion, regarding some other Federal Court decisions which seemed to say that the citizenship application process could not be suspended while cessation proceedings were in process. Justice Bell bases this on changes to the Citizenship Act adopted by the Conservative government in 2014.
Note: lawyers, especially lawyers engaged in appeals, will say that bad facts make bad law. This is largely about choosing to appeal a case with favourable facts, declining to appeal a case with bad facts. It appears there was no lawyer for the applicants in this case. Apparently the applicants pursued mandamus pro se. This case is more complicated, more tangled, than merely being a citizenship application suspended after the Minister initiated cessation of refugee status proceedings. And it appears that the deserving-citizenship aspect of the case was not merely weak, but negative. Never helps.
One of the common threads seen in discussions about difficulties in the processing of citizenship applications is an aggressive application of favourable technicalities. Again and again, so many overlook the less technical, the intangible, aspects: credibility and whether or not the applicant appears to deserve citizenship. Yeah, the technicalities are what ultimately matter. But applying the technicalities depends on what facts are established. Way too many think their version of the facts is the only possible version of the facts. They way underestimate the impact of credibility and whether or not the applicant appears to deserve citizenship, which can have a huge impact on how CBSA or IRCC see the facts.
If and when there is any challenge, any contest, facts have to be proven to be the facts that matter. The burden of proof is on the applicant. If the applicant's credibility is compromised, or IRCC perceives reasons why the applicant might NOT deserve citizenship, it can be a lot more difficult to meet the burden of proving the necessary facts.
In any event, too bad this individual elected to prosecute this action for mandamus without a lawyer. The decision itself is now a clear basis for IRCC to pursue proceedings to deport such applicants for citizenship rather than grant citizenship. This decision by Justice Bell could signal the direction that IRCC is headed under the current leadership. I would note, in this regard, that the hearing in this case took place after Minister McCallum was encouraged to at least support if not sponsor legislation which would remove the provisions for terminating such a PR's status. That is, the position taken by the Minister in this case does not bode well for the Private Member's Bill to, in effect, protect settled PRs from cessation of refugee status proceedings.
This case suggests that those PRs who are such as a refugee should continue to avoid obtaining a home country passport, avoid travel to their home country, and if they have done either of these things, then to not apply for citizenship and to avoid using the passport, for at least the foreseeable future.
Hi so I didnt want to share my story until I would become a Canadian citizen, today my journey ended and now I want to share my experience.
I came to Canada in july 2009 and got my pr as refugee, after so many years I decided to apply for citizenship on JULY 14 2016 did my test on September 14th and today October 17 I did my citizenship Oath.
BACKGROUND
I did 2 trips to my home country due to my parents being sick (Please dont judge if you dont know what is to be away from your main family since you were 15 years old like me)
I renewed my homeland passport and did travel home on that passport, during this citizenship process no information regarding those 2 trips was requested, no questions ask and everything went very smoothly. 3 months and 3 days took this whole process. I hope everyone who might have a similar story can have same luck as I did. And my city is Calgary if that matters. Thank you all for being helpful always God bless you.
I came to Canada in july 2009 and got my pr as refugee, after so many years I decided to apply for citizenship on JULY 14 2016 did my test on September 14th and today October 17 I did my citizenship Oath.
BACKGROUND
I did 2 trips to my home country due to my parents being sick (Please dont judge if you dont know what is to be away from your main family since you were 15 years old like me)
I renewed my homeland passport and did travel home on that passport, during this citizenship process no information regarding those 2 trips was requested, no questions ask and everything went very smoothly. 3 months and 3 days took this whole process. I hope everyone who might have a similar story can have same luck as I did. And my city is Calgary if that matters. Thank you all for being helpful always God bless you.
Congratulations.Lola93 said:
And thank you for the report . . . it is at least good to know that not every person with refugee status who visited the home country and/or obtained a home country passport is targeted for cessation of status.
Unfortunately, given recent cases indicating that Canada is still proceeding with some cessation cases for PRs with a citizenship application pending, there is no guarantee how IRCC will handle individual cases.
My guess is that the minimal travel to home country really helps. More travel home probably elevates the risks.
Maqbool v. Canada (Citizenship and Immigration)
http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/181203/index.do
A little more than a week ago Justice Tremblay-Lamer issued another decision in a cessation case, upholding the cessation of status for a refugee-PR based on obtaining and using a home country passport, and visiting the home country multiple times. The refugee-PR in this case had not applied for citizenship, but was a Permanent Resident. Purpose of the travel to home country was clearly to attend to his family which was still in the home country waiting for their status to be determined so they could join him in Canada.
While this cessation proceeding was commenced under the Harper government, the RPD's decision to terminate status was in March this year (under current government).
The Minister of IRCC (technically Minister McCallum, but in practice the Minister's legal representation in the court proceedings) overtly argued that cessation applies to permanent residents.
Negative factors which may have invited the cessation process included:
-- how soon after acquiring PR status the refugee applied for and obtained a home country passport
-- three trips to home country, one for approximately 4 months, one for two months, and the other for nearly three weeks
-- use of the home country passport in traveling to other countries in addition to home country
-- all this in a relatively short period of time, in the first two years after being granted PR status
Still hard to generalize what will trigger cessation proceedings going forward. Clearly IRCC advanced the position that refugee-PRs are still subject to cessation of status (which automatically terminates their PR status). But is IRCC currently actively commencing cessation proceedings? We do not yet know. And assuming they are (IRCC has a legal obligation to enforce the current law as it is), the question is what will trigger such proceedings.
The report above by Lola93 appears to indicate that NOT ALL potential cessation cases (cases where the refugee-PR has obtained a home country passport and used it, especially if used to travel to the home country) are being pursued. As I suggest above, in this recent decision by Justice Tremblay-Lamer it is clear that the refugee-PR obtained a home country passport soon after becoming a PR and then proceeded to travel quite lot to the home country. So it is hard to say what the take-away is here, although at the least there is clear indication that IRCC will finish pursuing any cessation cases already in process.
But overall, it still seems that prudent refugee-PRs will avoid obtaining, renewing, or using a home country passport, and refrain from travel to the home country if at all possible, at least until the Liberal government reveals more about its ongoing policies and practices and future plans.
http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/181203/index.do
A little more than a week ago Justice Tremblay-Lamer issued another decision in a cessation case, upholding the cessation of status for a refugee-PR based on obtaining and using a home country passport, and visiting the home country multiple times. The refugee-PR in this case had not applied for citizenship, but was a Permanent Resident. Purpose of the travel to home country was clearly to attend to his family which was still in the home country waiting for their status to be determined so they could join him in Canada.
While this cessation proceeding was commenced under the Harper government, the RPD's decision to terminate status was in March this year (under current government).
The Minister of IRCC (technically Minister McCallum, but in practice the Minister's legal representation in the court proceedings) overtly argued that cessation applies to permanent residents.
Negative factors which may have invited the cessation process included:
-- how soon after acquiring PR status the refugee applied for and obtained a home country passport
-- three trips to home country, one for approximately 4 months, one for two months, and the other for nearly three weeks
-- use of the home country passport in traveling to other countries in addition to home country
-- all this in a relatively short period of time, in the first two years after being granted PR status
Still hard to generalize what will trigger cessation proceedings going forward. Clearly IRCC advanced the position that refugee-PRs are still subject to cessation of status (which automatically terminates their PR status). But is IRCC currently actively commencing cessation proceedings? We do not yet know. And assuming they are (IRCC has a legal obligation to enforce the current law as it is), the question is what will trigger such proceedings.
The report above by Lola93 appears to indicate that NOT ALL potential cessation cases (cases where the refugee-PR has obtained a home country passport and used it, especially if used to travel to the home country) are being pursued. As I suggest above, in this recent decision by Justice Tremblay-Lamer it is clear that the refugee-PR obtained a home country passport soon after becoming a PR and then proceeded to travel quite lot to the home country. So it is hard to say what the take-away is here, although at the least there is clear indication that IRCC will finish pursuing any cessation cases already in process.
But overall, it still seems that prudent refugee-PRs will avoid obtaining, renewing, or using a home country passport, and refrain from travel to the home country if at all possible, at least until the Liberal government reveals more about its ongoing policies and practices and future plans.
Hello evryone,
I am in need of legal advice regarding the possibility of "cessation".
I have become a permanent resident over 6 months ago by my arrival to Canada via "one-year window of opportunity" program. I am planning to visit my family in my home country for two weeks in January. I have already purchased my ticket, However, I just found out about the risk of "cessation" which applies to all the permanent residents with refugee status.
Family members acquire their status from their principle applicant, therefore It is obvious that I was given a refugee status, even though I was living freely in my home country while I was waiting for my visa and I have never claimed that I cannot go back to my home country in any part of my application. My refugee status (CR-1) was derived from my common-law partner's status as Convention Refugee (CR-1). To give you a better perspective I can say that my case is somehow similar to Ms.Esfand's case (Canada (Citizenship and Immigration) v. Esfand, 2015 FC 1190). In conclusion, after doing my research, I decided to get legal advice before I proceed with my travel plans. So my questions are as follows:
1-Could the federal court decision on Ms.Esfand's case,be considered as the precedent case to any similar cases?
2-All the federal cases regarding "cessation" are now discontinued, what does that mean?
3-Based on my situation and the precedent case would I still face the risk of "Cessation" by traveling to my home country?
4-If the answer is no, would I face any delay in my citizenship application due to a possible "cessation" order? Or as there is a precedent case, CIC finds it unreasonable or impractical to go after similar cases?
5-If the CIC issue a cessation order, how long the courts usually last? How much time and money (for legal assistance) I might need to consider?
6-Is it possible to sue the government for the incomprehensive law which gave me a refugee status which I didn't ask for and neither I was eligible in the first place! All I wanted was reunition with my partner.
7-If the only thing that matters in "Cessation" cases, is the status not how it was obtained. What precautions I must take as a person with refugee status?
8-As I did not consider myself a refugee by definition, I paid for my plane ticket and medical exam myself, and I did not ask for government assistance when I arrived, I simply find it unethical to exploit the government’s generosity while I am not a person in need. But why I have to be treated the same as a refugee without benefiting from anything? This incomprehensive law just makes no sense! I don't want to give up my home country passport in order to get a Travel Document.
I am in need of legal advice regarding the possibility of "cessation".
I have become a permanent resident over 6 months ago by my arrival to Canada via "one-year window of opportunity" program. I am planning to visit my family in my home country for two weeks in January. I have already purchased my ticket, However, I just found out about the risk of "cessation" which applies to all the permanent residents with refugee status.
Family members acquire their status from their principle applicant, therefore It is obvious that I was given a refugee status, even though I was living freely in my home country while I was waiting for my visa and I have never claimed that I cannot go back to my home country in any part of my application. My refugee status (CR-1) was derived from my common-law partner's status as Convention Refugee (CR-1). To give you a better perspective I can say that my case is somehow similar to Ms.Esfand's case (Canada (Citizenship and Immigration) v. Esfand, 2015 FC 1190). In conclusion, after doing my research, I decided to get legal advice before I proceed with my travel plans. So my questions are as follows:
1-Could the federal court decision on Ms.Esfand's case,be considered as the precedent case to any similar cases?
2-All the federal cases regarding "cessation" are now discontinued, what does that mean?
3-Based on my situation and the precedent case would I still face the risk of "Cessation" by traveling to my home country?
4-If the answer is no, would I face any delay in my citizenship application due to a possible "cessation" order? Or as there is a precedent case, CIC finds it unreasonable or impractical to go after similar cases?
5-If the CIC issue a cessation order, how long the courts usually last? How much time and money (for legal assistance) I might need to consider?
6-Is it possible to sue the government for the incomprehensive law which gave me a refugee status which I didn't ask for and neither I was eligible in the first place! All I wanted was reunition with my partner.
7-If the only thing that matters in "Cessation" cases, is the status not how it was obtained. What precautions I must take as a person with refugee status?
8-As I did not consider myself a refugee by definition, I paid for my plane ticket and medical exam myself, and I did not ask for government assistance when I arrived, I simply find it unethical to exploit the government’s generosity while I am not a person in need. But why I have to be treated the same as a refugee without benefiting from anything? This incomprehensive law just makes no sense! I don't want to give up my home country passport in order to get a Travel Document.
I concur in getting legal advice.OYW said:
This forum cannot provide that. (While the sponsors of the website which hosts this forum are lawyers, there is little indication they are active in the forum and the forum itself does not provide legal advice.)
Be aware, regarding this issue, my sense is that relatively few lawyers are up-to-speed about it, so it may be difficult to find a qualified lawyer with actual expertise in this area.
My guess is that in one important respect, you are right to focus on the issue about whether or not the cessation process even applies to you. As you appear to be aware, the Esfand, 2015 FC 1190 case distinguishes dependents of persons who are Convention Refugees, as NOT themselves being Convention Refugees, and therefore not subject to the cessation provisions in IRPA.
A similar decision was made in the Heidari Gezik, 2015 FC 1268 case.
See these decisions, respectively, at:
http://canlii.ca/t/glrm0 (Esfand)
http://canlii.ca/t/gm3b8 (Gezik)
Essentially the same question was certified in both cases. I do not know what has become of any further appeal in the Gezik case. We know that the Esfand case, the government's appeal was dismissed, apparently the government withdrawing the appeal, but we do not know what, if any, terms were attached to that.
I do not have the time to revisit previous research, but my vague recollection is that there may be other Federal Court decisions which could support a contrary conclusion. Unless and until there is an actual ruling by the Federal Court of Appeal, on the certified question, the Federal Court decisions only indicate what those two Justices have decided, and that is not necessarily binding in other cases.
This is something to be discussed with a lawyer before relying on these decisions.
Even though these decisions are not binding precedent, the good news is that these two cases arose from the RPD (Refugee Protection Division) decisions that it had NO jurisdiction to consider a cessation application against such individuals (dependents of the primary applicant for refugee status), suggesting that is the approach the RPD takes.
There is no hint that the current IRCC is pushing otherwise.
That said, there is little indication as to just what IRCC's current policy or approach is in the area of cessation generally, or in these kinds of cases in particular.
In this regard:
This is not true. As I cited less than a week ago, the government followed through with the cessation of a PR in the Maqbool v. Canada (Citizenship and Immigration) caseOYW said:
see http://canlii.ca/t/gv6gq
The hearing in that case was September 29, barely a month ago, and the Minister (the Minister's delegate) argued that the Federal Court should uphold the cessation decision made in that case.
So anyone for whom the cessation provision could apply should be cautious.
But the cessation provision might not apply to you, as a dependent.
Personally, I concur in obtaining legal advice from a qualified lawyer, and, in particular, one who is familiar with the current provisions governing not just cessation but the effect of cessation automatically terminating PR status. That is, be sure the lawyer is familiar with Sections 46(1)(c.1) and Section 108 in IRPA . . . especially with Section 46(1)(c.1), which is the provision that automatically terminates PR status if there is a cessation of protected status pursuant to Section 108(2) for a reason prescribed in 108(1)(a) to 108(1)(d).
The rest of your questions are indeed better posed to a qualified lawyer, again one who is familiar with with Section 46(1)(c.1) (as added to IRPA in December 2012) and with the cessation process based on reasons prescribed in 108(1)(a) to 108(1)(d) in IRPA (the Immigration and Refugee Protection Act).
Hello. All the cases are related to getting a new passport from home country. My case is different. I am PR and my home country passport is withing Passport Canada as I got a Travel Document 2 years ago (The Travel Document is expired now). My home country passport won't expire till late 2018.
Many countries don't need visa if I travel using my passport + PR. However, I will need to obtain visa if using Travel Document. Getting the Travel Document is more hassle and expenses for me at the moment.
Any chance using my home country passport can cause me problems? I recently moved to a new city and even don't even have a guarantor for my application if have to apply for Travel Document.
Thank you,
Many countries don't need visa if I travel using my passport + PR. However, I will need to obtain visa if using Travel Document. Getting the Travel Document is more hassle and expenses for me at the moment.
Any chance using my home country passport can cause me problems? I recently moved to a new city and even don't even have a guarantor for my application if have to apply for Travel Document.
Thank you,
Overriding notes:
The extent to which a refugee-PR will suffer inconvenience by not using a home country passport is NOT relevant.
What matters is whether having or using the home country passport constitutes reavailment of home country protection, and if it does, then the Canadian government may determine there has been a cessation of protected person status, which in turn will automatically terminate PR status.
A key question is whether or not the individual himself or herself has the protected person status which is subject to the cessation provisions. If the answer to this is yes, then using a home country passport could lead to loss of protected person status and loss of PR status . . . that is, loss of status to live in Canada.
Best approach: to travel abroad, obtain and use the special Travel Document which Canada will issue refugees. Even if costly and inconvenient. this is the better approach for any refugee whose status could be subject to cessation proceedings.
Consult with lawyer before doing otherwise.
Since you are a refugee with PR status, it appears that yes, there is a chance that using your home country passport can cause you problems.
To be clear, the "problems" could be the cessation of protected person status and, consequently (automatically) the termination of your PR status.
In other words, using your home country passport could lead to losing status to live in Canada.
That is the current law.
Whether or not you are specifically at risk may depend on other factors. Moreover, we do not know the Canadian government's current policy regarding enforcement. The current law has been strongly criticized. The current Minister of IRCC has expressed some reservations about the current law. But so far there has been no definitive indication that the government is not enforcing the current law.
And under current law, using the home country passport can be a basis for finding a refugee has reavailed himself or herself of the home country's protection, and that is a reason which may lead to cessation of refugee protection, which in turn automatically would terminate PR status.
Thus, either do not use your home country passport, or before using your home country passport, best to consult with a licensed, experienced LAWYER, not a consultant, but a licensed immigration attorney. Moreover, there are indications many lawyers are not that familiar with the changes in law implemented by the Harper government. It is important, critically important, that the lawyer be familiar with IRPA Sections 95, 108, and 46 (c.1). Especially 46(c.1), which is the relatively new (albeit nearly 4 years old now) provision which automatically terminates PR status if there is cessation of refugee protection pursuant to IRPA Section 108(1)(a) to 108(1)(d).
Again, best to consult with an experienced immigration attorney/lawyer who is familiar with loss of refugee AND PR status based on reavailment of home country protection.
Otherwise, the best approach to keeping status in Canada:
-- Avoid using home country passport
-- Do not apply to renew home country passport
-- Do not travel to home country
References:
For section 108 IRPA see http://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html#sec108subsec1_smooth
For section 46 IRPA see http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-10.html#h-27
For the UNHCR handbook, see http://www.refworld.org/docid/4f33c8d92.html or google
It is Section 108(2) IRPA which explicitly provides that the Refugee Protection Division may determine that refugee protection has ceased based on any reason prescribed in 108(1).
The provision which looms large in this context is IRPA subsection 108(1)(a) which states:
". . . a person is not [a person in need of protection if] . . . the person has voluntarily reavailed themself of the protection of their country of nationality"
The UNHCR, in turn, provides that it may be presumed that a person has voluntarily reavailed themself of the protection of their home country if the person has been issued a home country passport, let alone been issued and actually has used a home country passport.
Examples of official decisions referencing that issuance or use of home country passport supports a presumption of reavailment:
See paragraph 12 in Yuan v. Canada (Citizenship and Immigration), 2015 FC 923 http://canlii.ca/t/gkfq5
See paragraph 11 in Li v. Canada (Citizenship and Immigration), 2015 FC 459 http://canlii.ca/t/gh849
See paragraph 16 in Abadi v. Canada (Citizenship and Immigration), 2016 FC 29 http://canlii.ca/t/gn0cx
In the latter, Justice Fothergill states:
"When a refugee applies for and obtains a passport from his country of nationality, it is presumed that he intended to re-avail himself of the diplomatic protection of that country (Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees at para 121 [Refugee Handbook] . . .
The presumption of re-availment is particularly strong where a refugee uses his national passport to travel to his country of nationality. It has even been suggested that this is conclusive."
These are just some isolated examples. The presumption (which, again, is evoked by just obtaining a home country passport, let alone using it) may be rebutted. This has led to a lot of focus on actually using the passport, and especially using it to travel to the home country. What this means, in practical terms, is that just having a home country passport constitutes a risk (a "chance") of problems, while actually using the passport probably has significantly higher risks, and using the passport to travel to one's home country definitely involves a high risk (perhaps very high risk).
Overall: as I have said before, unless and until the current government definitively establishes a different policy, the prudent refugee-PR should avoid obtaining or using a home country passport, and especially avoid any travel to the home country.
Those who think they might do differently should, at the very least, first consult with a reputable, licensed immigration lawyer with particular expertise in this specific area, the law regarding reavailment of home country protection and loss of status based on that.
The extent to which a refugee-PR will suffer inconvenience by not using a home country passport is NOT relevant.
What matters is whether having or using the home country passport constitutes reavailment of home country protection, and if it does, then the Canadian government may determine there has been a cessation of protected person status, which in turn will automatically terminate PR status.
A key question is whether or not the individual himself or herself has the protected person status which is subject to the cessation provisions. If the answer to this is yes, then using a home country passport could lead to loss of protected person status and loss of PR status . . . that is, loss of status to live in Canada.
Best approach: to travel abroad, obtain and use the special Travel Document which Canada will issue refugees. Even if costly and inconvenient. this is the better approach for any refugee whose status could be subject to cessation proceedings.
Consult with lawyer before doing otherwise.
I do not follow what is different about your case compared to other refugee PRs.LoveCanada10 said:
Since you are a refugee with PR status, it appears that yes, there is a chance that using your home country passport can cause you problems.
To be clear, the "problems" could be the cessation of protected person status and, consequently (automatically) the termination of your PR status.
In other words, using your home country passport could lead to losing status to live in Canada.
That is the current law.
Whether or not you are specifically at risk may depend on other factors. Moreover, we do not know the Canadian government's current policy regarding enforcement. The current law has been strongly criticized. The current Minister of IRCC has expressed some reservations about the current law. But so far there has been no definitive indication that the government is not enforcing the current law.
And under current law, using the home country passport can be a basis for finding a refugee has reavailed himself or herself of the home country's protection, and that is a reason which may lead to cessation of refugee protection, which in turn automatically would terminate PR status.
Thus, either do not use your home country passport, or before using your home country passport, best to consult with a licensed, experienced LAWYER, not a consultant, but a licensed immigration attorney. Moreover, there are indications many lawyers are not that familiar with the changes in law implemented by the Harper government. It is important, critically important, that the lawyer be familiar with IRPA Sections 95, 108, and 46 (c.1). Especially 46(c.1), which is the relatively new (albeit nearly 4 years old now) provision which automatically terminates PR status if there is cessation of refugee protection pursuant to IRPA Section 108(1)(a) to 108(1)(d).
Again, best to consult with an experienced immigration attorney/lawyer who is familiar with loss of refugee AND PR status based on reavailment of home country protection.
Otherwise, the best approach to keeping status in Canada:
-- Avoid using home country passport
-- Do not apply to renew home country passport
-- Do not travel to home country
References:
For section 108 IRPA see http://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html#sec108subsec1_smooth
For section 46 IRPA see http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-10.html#h-27
For the UNHCR handbook, see http://www.refworld.org/docid/4f33c8d92.html or google
It is Section 108(2) IRPA which explicitly provides that the Refugee Protection Division may determine that refugee protection has ceased based on any reason prescribed in 108(1).
The provision which looms large in this context is IRPA subsection 108(1)(a) which states:
". . . a person is not [a person in need of protection if] . . . the person has voluntarily reavailed themself of the protection of their country of nationality"
The UNHCR, in turn, provides that it may be presumed that a person has voluntarily reavailed themself of the protection of their home country if the person has been issued a home country passport, let alone been issued and actually has used a home country passport.
Examples of official decisions referencing that issuance or use of home country passport supports a presumption of reavailment:
See paragraph 12 in Yuan v. Canada (Citizenship and Immigration), 2015 FC 923 http://canlii.ca/t/gkfq5
See paragraph 11 in Li v. Canada (Citizenship and Immigration), 2015 FC 459 http://canlii.ca/t/gh849
See paragraph 16 in Abadi v. Canada (Citizenship and Immigration), 2016 FC 29 http://canlii.ca/t/gn0cx
In the latter, Justice Fothergill states:
"When a refugee applies for and obtains a passport from his country of nationality, it is presumed that he intended to re-avail himself of the diplomatic protection of that country (Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees at para 121 [Refugee Handbook] . . .
The presumption of re-availment is particularly strong where a refugee uses his national passport to travel to his country of nationality. It has even been suggested that this is conclusive."
These are just some isolated examples. The presumption (which, again, is evoked by just obtaining a home country passport, let alone using it) may be rebutted. This has led to a lot of focus on actually using the passport, and especially using it to travel to the home country. What this means, in practical terms, is that just having a home country passport constitutes a risk (a "chance") of problems, while actually using the passport probably has significantly higher risks, and using the passport to travel to one's home country definitely involves a high risk (perhaps very high risk).
Overall: as I have said before, unless and until the current government definitively establishes a different policy, the prudent refugee-PR should avoid obtaining or using a home country passport, and especially avoid any travel to the home country.
Those who think they might do differently should, at the very least, first consult with a reputable, licensed immigration lawyer with particular expertise in this specific area, the law regarding reavailment of home country protection and loss of status based on that.
Just want to find out how will I find out if there is cessation proceeding against me as I was stopped and questioned at length by border agent while coming back from US last month. I'm a PR and I've the home country passport and have traveled there as well in the past. So my questions are:
1: the fact that I was questioned means that the process has started already?
2: how long before I get any notice from CBSA or IRCC or any other concerned agency?
3: I did get an email since that interview by IRCC stating that there records show that I"m PR and should have proper docs for travelling to and from Canada
4: when should I hire a lawyer by which I mean should I wait until I get that notice for a CBSA interview?
5: what exactly and how long this whole process is going to take if I choose to fight if they initiated cessation proceedings against me?
6: Is it possible that IRCC wont go through with CBSA request for cessation under current policy as I've been reading on this forum.
I would really appreciate help with this situation.
Thanks
1: the fact that I was questioned means that the process has started already?
2: how long before I get any notice from CBSA or IRCC or any other concerned agency?
3: I did get an email since that interview by IRCC stating that there records show that I"m PR and should have proper docs for travelling to and from Canada
4: when should I hire a lawyer by which I mean should I wait until I get that notice for a CBSA interview?
5: what exactly and how long this whole process is going to take if I choose to fight if they initiated cessation proceedings against me?
6: Is it possible that IRCC wont go through with CBSA request for cessation under current policy as I've been reading on this forum.
I would really appreciate help with this situation.
Thanks