Catching up . . .
As I have acknowledged, I have been lax following new cessation cases. There have been numerous cessation and cessation-related decisions within the last six months or so which have not been mentioned here in the forum. I will get to citing and linking several of them, with some commentary about them, but again that requires time and effort.
These include at least five cases in the last six months in which a Federal Court has set aside the RPD cessation decision for PR-refugees (and cessation was set aside for at least one refugee who did not have PR status). And in another case a former PR-refugee, whose status was ceased, has had the decision that denied their H&C PR application set aside.
There is much in these recent decisions that might appear to signal what is arguable based on Camayo (which now is also arguable based on these recent decisions) may be offering a way to avoid the strict and often harsh imposition of cessation.
In my previous post, in contrast, I more or less warned against relying on what's arguable based on Camayo.
The difference is context, which is the difference in what decision is being made and when, and who is making the decision. What a PR-refugee might argue with a lawyer's help (or otherwise engaging in lawyer-level advocacy if not represented by counsel), when they are facing cessation proceedings, is very different from what a PR-refugee needs to consider before making a decision to go home.
For a PR-refugee considering travel to their home country, whether that is to be at the side of a dying parent, to aid a sibling in trouble, or to rescue their child, they need to recognize that despite their reasons, the act of going home is explicitly considered an act of reavailment, and that is grounds for cessation of status. And, it is very, very important to also understand the risk the government will pursue cessation is high, while in contrast the odds of success (saving Canadian status) are not good . . . and even if they are eventually successful saving their status, the road getting through the process is likely to be damn long (from years to many years) and a very difficult haul.
So, in regards to what PR-refugees need to know and consider: don't go home unless it's worth losing Canadian status. (Yes, I am being repetitive.)
For those who do go home, if there is any movement toward the initiation of cessation proceedings, lawyer-up and let the lawyers sort through the facts and the reasons, let the lawyers wrestle with what is arguable based on Camayo, and very importantly, how to present that . . . first to the RPD, and if not successful there, to the Federal Court on appeal.
Note: I do not know to what extent a lawyer would (or pursuant to law or professional ethics could) assist a PR-refugee planning a trip to the home country. My sense is the better lawyers will draw the line at advising a PR-refugee to not go . . . but if you do go, call me when there's any sign of cessation proceedings.
Yes . . .
. . . unless the reason to go is more compelling than the need or desire to retain status in Canada. Life can throw some damn difficult choices at us, more so for some (acknowledging I have had it rather easy).
In particular, travel to the home country itself is considered to be an act of reavailment. And based on what we see in published decisions, travel to the home country is the main factor in regards to what triggers reavailment proceedings, and the frequency and duration of travel to the home country is the main factor considered in determining whether protected status has ceased.
Any use of a home country passport for international travel is likewise considered to be an act of reavailment, even if not used to travel to the home country. I have not reviewed every PR cessation case but enough to say it appears, nonetheless, it is the travel to the home country that tips the scales, at least in terms of negative outcomes. (Note that I have not followed cases involving cessation as applied to refugees who do not have PR status.)
Which, in regards to Yilmaz, brings up . . .
Mr. Yilmaz renewed his home country passport during a three week trip there in 2022. This is noted in paragraph 8 of that decision. Yilmaz also obtained, previously, a one-way travel document from the home country and used it to travel there, which in regards to reavailment is essentially equivalent to obtaining and using a home country passport.
But, to be clear, renewing the home country passport, even without using it, is considered to be an act of reavailment.
And, again, just using a home country passport (sometimes their passport is returned to refugees) for any international travel is considered to be an act of reavailment, let alone using it to travel to the home country.
Overriding all this is the fact that the combination of using the home country passport with travel to the home country establishes a very strong presumption of reavailment. This is such a strong presumption, again as a practical matter (that is, despite what is arguable based on Camayo), that making the choice to go is effectively deciding the reason to go is more important than keeping PR status.
Caveat: this should not be taken to suggest that absent travel to the home country there is little risk involved in obtaining or using a home country passport. In particular, for any PR-refugee assessing the risks, in terms of employing game theory (probability mapping, gambler stuff) in their decision making, the mechanics may be a lot like being in a real hurry to make it somewhere on time and deciding how fast to go over the speed limit, but quantifying the risks of cessation is more difficult and there is a lot more on the line, a lot, lot more at stake.
What is arguable . . . before the RPD versus before the Federal Court:
I hesitate to wrestle with this here or now, because it is intensely weedy, but I feel compelled to at least note, or warn, that not only what is arguable based on Camayo a matter for lawyers to sort out, but to caution where that goes (what are the better arguments to make) will likely vary considerably depending on whether the case is before the RPD (which is more or less the trial phase) or before a Federal Court on appeal (which reviews the decision, not for whether the outcome is wrong but for errors in the RPD's analysis and reasoning).
The objective before the RPD is to persuade the panel there are reasons to find in favour of the PR-refugee based on the Camayo factors. That argument carries little if any weight before the FC. Even if the FC totally disagrees with the conclusions reached by the RPD, and even if the FC totally buys that the decision should have gone the other way, that is not enough to win in the FC, not anywhere near enough.
Understanding this is key to appellate advocacy, which is very different from trial advocacy (even though in regards to matters adjudicated administratively, like cessation, many lawyers do both).
As I have acknowledged, I have been lax following new cessation cases. There have been numerous cessation and cessation-related decisions within the last six months or so which have not been mentioned here in the forum. I will get to citing and linking several of them, with some commentary about them, but again that requires time and effort.
These include at least five cases in the last six months in which a Federal Court has set aside the RPD cessation decision for PR-refugees (and cessation was set aside for at least one refugee who did not have PR status). And in another case a former PR-refugee, whose status was ceased, has had the decision that denied their H&C PR application set aside.
There is much in these recent decisions that might appear to signal what is arguable based on Camayo (which now is also arguable based on these recent decisions) may be offering a way to avoid the strict and often harsh imposition of cessation.
In my previous post, in contrast, I more or less warned against relying on what's arguable based on Camayo.
The difference is context, which is the difference in what decision is being made and when, and who is making the decision. What a PR-refugee might argue with a lawyer's help (or otherwise engaging in lawyer-level advocacy if not represented by counsel), when they are facing cessation proceedings, is very different from what a PR-refugee needs to consider before making a decision to go home.
For a PR-refugee considering travel to their home country, whether that is to be at the side of a dying parent, to aid a sibling in trouble, or to rescue their child, they need to recognize that despite their reasons, the act of going home is explicitly considered an act of reavailment, and that is grounds for cessation of status. And, it is very, very important to also understand the risk the government will pursue cessation is high, while in contrast the odds of success (saving Canadian status) are not good . . . and even if they are eventually successful saving their status, the road getting through the process is likely to be damn long (from years to many years) and a very difficult haul.
So, in regards to what PR-refugees need to know and consider: don't go home unless it's worth losing Canadian status. (Yes, I am being repetitive.)
For those who do go home, if there is any movement toward the initiation of cessation proceedings, lawyer-up and let the lawyers sort through the facts and the reasons, let the lawyers wrestle with what is arguable based on Camayo, and very importantly, how to present that . . . first to the RPD, and if not successful there, to the Federal Court on appeal.
Note: I do not know to what extent a lawyer would (or pursuant to law or professional ethics could) assist a PR-refugee planning a trip to the home country. My sense is the better lawyers will draw the line at advising a PR-refugee to not go . . . but if you do go, call me when there's any sign of cessation proceedings.
Yes . . .
. . . unless the reason to go is more compelling than the need or desire to retain status in Canada. Life can throw some damn difficult choices at us, more so for some (acknowledging I have had it rather easy).
In particular, travel to the home country itself is considered to be an act of reavailment. And based on what we see in published decisions, travel to the home country is the main factor in regards to what triggers reavailment proceedings, and the frequency and duration of travel to the home country is the main factor considered in determining whether protected status has ceased.
Any use of a home country passport for international travel is likewise considered to be an act of reavailment, even if not used to travel to the home country. I have not reviewed every PR cessation case but enough to say it appears, nonetheless, it is the travel to the home country that tips the scales, at least in terms of negative outcomes. (Note that I have not followed cases involving cessation as applied to refugees who do not have PR status.)
Which, in regards to Yilmaz, brings up . . .
Mr. Yilmaz renewed his home country passport during a three week trip there in 2022. This is noted in paragraph 8 of that decision. Yilmaz also obtained, previously, a one-way travel document from the home country and used it to travel there, which in regards to reavailment is essentially equivalent to obtaining and using a home country passport.
But, to be clear, renewing the home country passport, even without using it, is considered to be an act of reavailment.
And, again, just using a home country passport (sometimes their passport is returned to refugees) for any international travel is considered to be an act of reavailment, let alone using it to travel to the home country.
Overriding all this is the fact that the combination of using the home country passport with travel to the home country establishes a very strong presumption of reavailment. This is such a strong presumption, again as a practical matter (that is, despite what is arguable based on Camayo), that making the choice to go is effectively deciding the reason to go is more important than keeping PR status.
Caveat: this should not be taken to suggest that absent travel to the home country there is little risk involved in obtaining or using a home country passport. In particular, for any PR-refugee assessing the risks, in terms of employing game theory (probability mapping, gambler stuff) in their decision making, the mechanics may be a lot like being in a real hurry to make it somewhere on time and deciding how fast to go over the speed limit, but quantifying the risks of cessation is more difficult and there is a lot more on the line, a lot, lot more at stake.
What is arguable . . . before the RPD versus before the Federal Court:
I hesitate to wrestle with this here or now, because it is intensely weedy, but I feel compelled to at least note, or warn, that not only what is arguable based on Camayo a matter for lawyers to sort out, but to caution where that goes (what are the better arguments to make) will likely vary considerably depending on whether the case is before the RPD (which is more or less the trial phase) or before a Federal Court on appeal (which reviews the decision, not for whether the outcome is wrong but for errors in the RPD's analysis and reasoning).
The objective before the RPD is to persuade the panel there are reasons to find in favour of the PR-refugee based on the Camayo factors. That argument carries little if any weight before the FC. Even if the FC totally disagrees with the conclusions reached by the RPD, and even if the FC totally buys that the decision should have gone the other way, that is not enough to win in the FC, not anywhere near enough.
Understanding this is key to appellate advocacy, which is very different from trial advocacy (even though in regards to matters adjudicated administratively, like cessation, many lawyers do both).
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