Refugee status cessation and PRs applying for citizenship

[dpenabill]

Additional Decisions Regarding Cessation.

Ahmad v. Canada (Citizenship and Immigration), 2023 FC 8 https://canlii.ca/t/jts56
Appeal allowed and cessation decision set aside

Cerna v. Canada (Citizenship and Immigration), 2021 FC 973 https://canlii.ca/t/jjctb
Appeal dismissed; cessation decision upheld

First: Ahmad v. Canada (Citizenship and Immigration), 2023 FC 8

The Ahmad decision, Ahmad v. Canada (Citizenship and Immigration), 2023 FC 8 https://canlii.ca/t/jts56
by Federal Court Justice Peter Pamel sets aside a RPD decision granting the application to cease the refugee status of Rauf Ahmad. Have not seen many of these for a long while.

This does not guarantee that Rauf Ahmad's status is protected. The cessation determination will be decided, now, by another RPD panel. In particular, the outcome favourable to Ahmad, here, is based on the RPD's failure to properly consider and weigh certain evidence as to Ahmad's subjective intentions and credibility. It is entirely feasible that upon assessing such evidence, and following the prescription articulated in the Camayo Federal Court of Appeal decision (discussed at length in previous pages here), a different RPD will reach the same conclusions as to Ahmad's voluntary reavailment of Pakistan's protection, and lose his refugee and PR status.

Note for example the many separate cases involving Ms. Tung, discussed at some length by me above. She had initially succeeded in an appeal, in which a cessation decision was set aside, but eventually another RPD cessation decision was upheld, leading to subsequent proceedings and appeals relating to the process of actually deporting her.

Another individual whose cases I have previously discussed is Davis William Lezama Cerna. It appears I overlooked the most recent installment in his saga, the decision back in 2021, which dismissed Cerna's appeal of the RPD cessation decision. Leading to

Cerna v. Canada (Citizenship and Immigration), 2021 FC 973

As noted at the outset of this post, the decision in Cerna v. Canada (Citizenship and Immigration), 2021 FC 973 https://canlii.ca/t/jjctb upheld the RPD's cessation of Cerna's status.

Remember that way back in 2015, in a case I have discussed previously in this thread (see Cerna 2015 FC 1074 http://canlii.ca/t/gl76g ), Justice O'Reilly had allowed Cerna's appeal of a cessation decision and returned the case to another panel . . . just as Justice Pamel has recently done for Ahmad.

In Cerna's situation, in the meantime, there was the intervening case involving the suspension of his application for citizenship. The decision in that case, Lezama Cerna v. Canada (Citizenship and Immigration), 2019 FC 756 https://canlii.ca/t/j0qwh dismissed Cerna's application for mandamus.

In the last installment of the Cerna saga (which, again, is Cerna v. Canada (Citizenship and Immigration), 2021 FC 973 https://canlii.ca/t/jjctb ), it was also Justice Shirzad Ahmed (see discussion about Singh case in previous post) who rejected Cerna's appeal and upheld the RPD's cessation determination.

Summary:

While the outcome for Ahmad is a positive one, that does not offer a lot of assurance. Where the reasons for setting aside the RPD's cessation are based on the lack of fairness in the procedure, it is clear there remains a very substantial risk that another RPD will still proceed with cessation . . . as has happened in regards to Tung and Cerna, not withstanding how things went for Camayo.

Overall, it is clear that the government is proceeding with cessation cases and those with refugee status should totally avoid obtaining a home country passport, avoid using a home country passport, and avoid travel to the home country. Those who face a compelling need to do otherwise, should exercise the utmost caution in doing so, and be cognizant of the risks involved.

 

[Acdc]

hi please help.
I became a refugee in 2015 and received pr 2016 I obtained my home country passport in 2018 and never used that passport until last year in 2020 to visitt
home country and stayed there for 5 months to get married
Am I at any risk if I apply for spousal sponsorship to bring my husband here or should I apply for citizenship first

Hey everyone updating you on this
I applied for my citizenship myself
I also got my pr renewed
Travelled once again and stayed four months
I got my citizenship and sponsored my husband who arrived in Canada last
My advice to everyone is just apply for citizenship if it gets cessation get a lawyer
I did not withhold any info
After my first visit I was questioned if it was safe for me to travel I said yes as my grandparents had passed away
Second time I went I had already applied for my citizenship and my husbands sponsorship on the way back I wasn’t questioned just asked you have citizenship application in progress and reason for visit was just to visit my husband because I missed him

 

[Acdc]

I became citizen last year
Normal routine processing time one year

 

[Acdc]

To make it clear I obtained my home country passport in 2019
2020 visit stayed 5 months
Applied citizenship
Second visit 2021 four months

 

[Acdc]

Good luck to everyone
If I can help in anyway let me know I will
I understand the anxiety and stress
And I really went through it until I got my citizenship safely
I was so unsure even after receiving my oath ceremony letter and doing my oath
I was stressed until the day I got my citizenship certificate

 

[scylla]

Good luck to everyone
If I can help in anyway let me know I will
I understand the anxiety and stress
And I really went through it until I got my citizenship safely
I was so unsure even after receiving my oath ceremony letter and doing my oath
I was stressed until the day I got my citizenship certificate

Congrats and thanks for sharing your story here!

 

[dpenabill]

To make it clear I obtained my home country passport in 2019
2020 visit stayed 5 months
Applied citizenship
Second visit 2021 four months

Yes, congratulations and relating your story is appreciated.

It is worth cautioning others, however, that given the trips to the home country and obtaining a passport, there was indeed good reason for anxiety. We do not know much about when or why CBSA or IRCC initiates cessation proceedings in some of these cases but not in others. The fact that it is safe to return to the home country is no defense to cessation brought on reavailment grounds. It is great this went well for you, but the only safe approach is to NOT go to the home country and to NOT obtain a home country passport, until AFTER citizenship is actually obtained.

 

[scylla]

Another recent cessation case: https://www.canlii.org/en/ca/fct/doc/2023/2023fc383/2023fc383.html

 

[dpenabill]

Another recent cessation case: https://www.canlii.org/en/ca/fct/doc/2023/2023fc383/2023fc383.html

At first glance this decision, this case, Ali v. Canada (Citizenship and Immigration), 2023 FC 383, https://canlii.ca/t/jwbhn does not offer any clarification or further illumination of the cessation process. It does go into depth restating much of the governing law, and thus is one more case which cites and confirms principles like:

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.​

In doing this, this decision references and cites, and links, many of the decisions that together state the law governing cessation on reavailment grounds, and many of the procedural and standard of review cases that govern the process. So Judge Henry Brown provides a fairly extensive roadmap of the underlying law governing these cases.

But several other cases, which have been oft cited above, do a better job of that. I'd suggest going to and relying on them rather than this decision (will elaborate why below).

There is one relatively novel issue raised in the case, regarding the nature of the "diplomatic protection" afforded by obtaining and using a country's passport. Ali's lawyer cites a treatise (not any Canadian law) which, it appears, makes a distinction between the "legal fiction" of diplomatic protection versus substantive, actually afforded diplomatic protection. It's a weedy, and frankly at best a flawed, very weak argument, which Judge Brown summarily rejects, so not really worth addressing in detail. There is no doubt, in Canadian law for sure, that any use of a country's passport, including for example using it to travel to other countries, is considered to be obtaining and reavailing oneself of the diplomatic protection of that country. And thus supports a determination of reavailment as grounds for cessation.

Meanwhile, there is scant information about when, why, or how cessation proceedings against Tilal Habib Abdalla Ali were brought. This does not, here, raise questions about why he was subject to cessation. Rather, the question looming large here is why cessation did not occur sooner. This is someone who, going back to at least 2006, obtained and renewed his home country passport several times, used it to travel to his home country many times, used it to travel to other countries, and over the years spent extensive periods of time in his home country . . .

. . . the Applicant has obtained three Sudanese passports, renewed the validity of one of the passports four times, used his Sudanese passports to travel to multiple third countries, and returned to Sudan approximately 15 times between 2006 and 2020. He has spent 3.5 years in Sudan out of the 15 years or so before his hearing at the RPD.​

Which is to say this decision does not invite any second-guessing (under current, applicable law) the outcome of the decision.

But the decision invites some head scratching. The underlying procedural facts are only minimally addressed, and they do not add up:

Applicant granted refugee status on March 22, 2001 (paragraph 2)​

Applicant became a permanent resident of Canada on March 21, 2022 (paragraph 2)​

RPD decision dated February 28, 2022 (paragraph 1)​

I am fairly confident there is a typo error here. It is not likely Ali became a PR three weeks AFTER the RPD cessation decision as to his refugee status. Moreover, there are multiple references in the decision indicating (1) Ali did not understand his PR status was at risk by going to the home country, and (2) that Ali believed his PR status in Canada was sufficient protection while traveling to the home country . . . that PR status will facilitate a return to Canada for protection.

Best guess is that Ali became a PR in 2002. But there is nothing in the decision to corroborate that. It's just obvious it was not in 2022.

Ordinarily I would not focus much on an isolated typo error like this, but it is a glaring one, right up front at the beginning of the decision, and it makes me think it is not my tired brain but rather some sloppy exposition that makes it difficult to follow Judge Brown's reasoning in several aspects of his decision. Does not affect the outcome. The outcome makes plenty enough sense.

All of which is to say, it is an OK decision to find citations and links to the cessation cases that matter. For analysis, however, I'd suggest referring to those other cases, NOT this one.

 

[scylla]

@dpenabill - Another one. This time reavailement with judicial review allowed.

https://www.canlii.org/en/ca/fct/doc/2023/2023fc443/2023fc443.html

 

[dpenabill]

@dpenabill - Another one. This time reavailement with judicial review allowed.

https://www.canlii.org/en/ca/fct/doc/2023/2023fc443/2023fc443.html

Thank you for these. Really helps to keep up. And this is actually a rather interesting decision, but unfortunately mostly because of the questions it leaves unanswered.

This case, Malik v. Canada, 2023 FC 443, https://canlii.ca/t/jwg5x appears to be remarkably the opposite of the previous one discussed above, the Ali v. Canada (Citizenship and Immigration), 2023 FC 383, https://canlii.ca/t/jwbhn case.

On their face, the facts in Malik are very much at the opposite end of the spectrum of those in Ali. The facts (as they appear, as referenced in the decision) in Malik invite a lot of head scratching as to why the government initiated and pursued cessation, and especially so in regards to the three who were minors at the time of the travel to the home country. In contrast, as previously discussed, the facts in Ali invite scratching one's head to understand why the government was not a lot more aggressive in pursuing cessation.

But there needs to be some real emphasis here on "appears." These decisions often leave out a lot of details, and this one clearly leaves out important details. In regards to the primary individual involved, Aisha Afzal Malik, and her three children, all also parties to this proceeding, there is just a general reference to the fact that they became permanent residents. No indication of when.

Technically under the current law the date they became PRs does not matter. That is because CBSA, IRCC, and the courts have all applied the 2012 changes in the law to conduct by PRs prior to the change in the law.

But in terms of equities, and many (me included) believe in terms of fair procedure and justice, there is a huge difference in applying the 2012 change in law to a PR for what the PR did prior to those changes, when not only reavailment in particular had no consequences for a refugee once they became a PR, but cessation in general did NOT apply to PRs.

Reminder: prior to 2012 cessation did not apply to PRs. A PR's use of home country passport and travel to home country had NO effect on the PR's status as a PR. Then the Harper government implemented provisions which not only applied cessation provisions to PRs who obtained or used a home country passport, or who traveled to the home country, or who otherwise reavailed themselves of home country protection, BUT under the change in law these things also constituted grounds for cessation for having done those things before the law changed, for doing those things when there was nothing in the law that in anyway indicated doing those things would have any effect on their status in Canada, and no hint it could result in the loss of status in Canada.

This decision refers to only two trips made by Ms. Malik and her three children. Both were well before the change in law in 2012, before the change in law had even been proposed as an amendment.

And concluding that as minors, when those trips were made, they had the intent to reavail themselves of home country protection flies in the face of reasonableness. This includes the child who has intellectual disabilities and other medical issues.

On one hand the fact that the Federal Court set aside the RPD cessation decision suggests this decision illustrates an example of the government going too far, being too strict. But this decision means the case goes back to be heard by another RPD panel and does not represent a decision finding that cessation in these circumstances in not applicable; that is, the outcome still remains to be seen.

But it does illustrate that CBSA/Minister of Public Safety will, apparently, pursue cessation more than SEVEN YEARS later for just two trips to the home country, one of which the RPD found to have NOT been a basis for cessation, and still be actively prosecuting cessation more than a decade later . . . and, apparently, even against refugee-PRs who only traveled to their home country as minors taken there by a parent.

I suspect, but do not know, there may be, almost must be, something more about the facts that was an incentive for the government to push this case. The sketchiness of the facts set out in the decision leave that question open.

 

[Pindimurree]

Is there any example of someone using his home country’s passport once to travel to a third country (not home country) and a cessation was started?

 

[dpenabill]

Is there any example of someone using his home country’s passport once to travel to a third country (not home country) and a cessation was started?

We do not know, of course, since we only see a narrow slice of actual cases, largely limited to those cases which reach the Federal Court for judicial review plus isolated, and typically sketchy anecdotal reports. I have not seen, in either the actual cases referenced in published decisions or in anecdotal reports here, cessation proceedings fully pursued against a PR-refugee based solely on use of a home country passport for travel to countries other than the home country or country from which they otherwise left to seek asylum.

That in no way suggests it is OK. Not close.

Short Version of Necessary Observations About This:

For those who have done this, no need to panic. Probably no need to worry much. Otherwise, going forward, NOT a good idea to do this. Best to NOT do this.

Reminder: PR-refugees should NOT apply for, obtain, or renew a home country passport. Doing so creates a presumption of reavailment. Whether it is actually used for any purpose or not.


Longer Explanation:

Make No Mistake #1: There are many Federal Court decisions which reiterate that ANY USE of a home country passport is grounds for cessation based on reavailment. (Many cited and linked in this topic.)

Moreover, it is very likely that refugees who have not yet obtained PR status have in fact lost their status as a protected person following a border examination in which CBSA determines the refugee has a home country passport and has used it to travel to another country, even though we have yet to see reports of this involving those who have become Canadians, that is those who have been granted PR status (once the PR-refugee is granted citizenship there is no risk of losing status in Canada due to reavailment or other grounds for cessation, recognizing that just becoming a citizen of Canada does result in cessation of protect person status, but that does not affect their citizenship status).

And perhaps the biggest reason for exercising caution, and restraint (as in NOT traveling internationally using a home country passport), is that at the very least doing so puts the PR-refugee at risk for cessation-related investigation. As the last two cases discussed above illustrate, it can take MANY YEARS for CBSA to actually initiate the formal cessation procedures, during which the PR's status can be more or less on hold. It appears that Malik, for example, last returned to Canada from a trip using her home country passport nearly EIGHT YEARS before the cessation proceedings were initiated. It is almost certain she was to some extent under investigation for cessation for many years priors to the formal process. She would have had NO WAY to learn about that since such investigations are totally behind the confidential (as in secrecy) curtain, even if, for example, it was that investigation holding up processing a citizenship application.

Leading to . . .

Make No Mistake #2: There is a big difference between having already used a home country passport to travel to another country, not the home country, VERSUS deciding whether to engage in such travel. For those who already have, they probably do not need to worry much; it seems at least fairly likely this is not going to lead to cessation and loss of status. BUT for those who are contemplating future travel abroad, there is NO DOUBT, NONE, there is enough risk to make it an easy decision: DO NOT DO IT. Unless keeping status in Canada is a lower priority than the reason to travel.

I am no expert. I am not a Canadian lawyer. But I have enough background and experience to confidently say that any Canadian lawyer reasonably informed about cessation will strongly advise AGAINST using the home country passport for ANY international travel. No cause to worry much, no cause for alarm, if you already have, but going forward, there is no doubt, best to NOT do it.

In terms of risk assessment, there is some distinction between those who apply for or otherwise obtain a home country passport, or renew a home country passport, VERSUS those who have a passport returned to them in the course of the process of obtaining status in Canada. Just having a passport returned to the refugee, and using it for things like identification, is not a basis to find reavailment, so this is not grounds for cessation. IN CONTRAST, obtaining a home country passport creates a PRESUMPTION of reavailment, shifting the burden to the refugee to prove NO intent to reavail themselves of home country and that they have not actually obtained home country protection.

In either case, using the home country passport to travel internationally is evidence of actually obtaining home country protection. But it readily appears, in the various cases discussed, cited, and linked in this topic, that a lot of emphasis is placed on the act of obtaining or renewing a home country passport. So, for those who have reason to travel worth taking some risk, in calculating their personal risk, and deciding if the reason to travel is worth taking the risk, there is probably significantly less risk for those who have a passport issued before they applied for refugee or protected person status. Still NOT a good idea but life gets complicated, sometimes we must deal with tough decisions and take some risks.

SUMMARY:

For those who have, probably no need to worry. Otherwise, going forward, best to NOT do it.

 

[Gosh]

Hi I have the same worry.
i sumbit my citizen application on June 3 by Canada post.the cic received it by June 05, since then i didn't hear any respond.I didn't receive Aor.

I m pr with refugee status, 2 yrs ago,my father experienced heart attack back home.I searched online,it's said go back to mother country for a short visit is resonable.as long as keep it shorter than one month.
I certainly understand it has risk.i went to the embassy apply a new passport.planing pay a visit to my dad.but thing happens too quick.when I get the passport.my dad ' surgery has been done successfully.so i didn't Travle back to my home country.

But I was using the passport grab the US visa and Travle to Cuba once.

I was not aware of the cessation due to the applying passport since i start preparing the citizenship application this feb.Acutually there is no related and official article explaining it well before .When I claimed as refugee. I had been told the passport would be back to me when i became to a Pr by my case manager.but the date becoming pr,i kept asking the officer where is the passport.they simply answered "I don't know,call cic call center".I also called the cic.they told me they have no idea.I also received a letter regarding to seized passport.i fax the seized form i had 5 years ago and get no respond.

Before I sent the application out,I met the settlement worker on march 2015,they told me do not worry about the citizenship application leads to cessation,I have also been told it's not necessary to hire a Lawer unless you like to waste money.they have helped a lot of people who has the same situation filled up the application form in their office,none of them are rejected.a lot of them Travle back to their homeland.as long as the visit is medical reason and you can prove it.

Unfortunately,I didn't receive any Respond from Cic,I check the excel sheet everyday.i saw most of the status turn green which gets me streesed.

I can't stop thinking if i get deported.the life i build up here from the past 5 year is ruined.I do have fear go back my mother country, but I also wanna visit my dying grandma and sick Parant who can't take airplane.so crazy. Who can tell me what can i do? So sad,so worry.

But back to the reality,the worry and the anxious are useless,there is no direct answer untill i cross the bridge.

I know a lot of people hates refugee,most of them think refugee could have the welfare from the govement easily.they don't work and they are lazy.I knew some of them did this,but i also believe there are a lot of refugee appreciate the kindness from the canda gorvement who will never abuse this system. Like me,i only apply welfare for 2.5 month before I had my working visa.When I need help,the Canada gorvement helps me,I don't wanna make her dispointed.I believe a lot of refugee also feel the same.A chance is deserved.

In the past five year,since i worked so hard,i Learnt a lot thing about Canada.
Canadian is also human being,as human nature,they always use their own way to seek the shortcut to the success.except the welfare, there is a lot of benifit the Canadian shares in commen.EI,insurance benifit,low income family benifit,Odsp.To save some tax or money,people always can find a loophole to filled them in. I don't think people has a elegant Pr status are better than refugee.Stop hating.

English is not my first language,and Its my first time express myself in a forum like this.pleae
Forgive my grammar and spelling.i remembered years ago when i post some question on some immigration forum in my mother language here.i have never had a chance to get a answer except insult.

This time I just expect people has the same worry as me who read this could feel some connection.

Hi there, please how did it go? I am going through the same thing right now.

 

[zak86]

somehow, the chance is there they will keep notes and there will be a calm until you apply for citizenship. usually I saw people advising that apply for your citizenship after 5 years of this travel so that you don't need to give this travel history. But still there is a chance that CBSA can call an interview to know the reasons for this travel. Please make sure to prepare notes with best memory what the family told to the officer at arrival time because they may not only ask the questions from your reason given at the airport but they will also ask questions from the BOC (Basic of Claim) which means the actual statement which was given at the time of refugee claim.

anything can be expected. They may or may not make an issue of it. Someone else more expert in this can also help you to give idea but in my case, I arrived at airport after a 20 days trip to my back home and even the officer gave me benefit of doubt coz none of my IDs were renewed or used other than the passport which was already valid for a longer period. Officer told me the same that never go again and he clearly mentioned that he gave me benefit of doubt but still CBSA called me for an interview and still after my interview there is no response. My citizenship application is on hold due to this. Let see what happens and hope for the best

what are the updates at your end?