Cessation of Refugee Status | Meurren’s Law

There are 2 ways that refugee protection can be removed:

1) A person can cease to hold their refugee status if, for example, they voluntarily reavail themselves of the protection of their country of nationality or obtain protection from another country.

2) They can also have their refugee status vacated if they obtained that status by directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:

Rejection

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of Decision

(3) If the application is allowed, the claim of the person is deemed to be rejected.

Exception

(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

As previously noted on this blog:

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  However, as a result of changes to Canada’s refugee system in 2012, when the RPD ceases a permanent resident’s refugee status for any of the first four reasons above, then the individual also automatically loses their permanent resident status, and is inadmissible to Canada. (Note: a permanent resident who loses his or her refugee protection for the fifth reason will not lose his or her permanent residence status.)

There is no time limit on when the CBSA can initiate cessation proceedings, and there have been cases where cessation proceedings occurred 14 years after the refugee became a permanent resident.

It is important to note that cessation is not based on fraud on the part of the refugee; it is based on a change in circumstances or decision by the refugee to travel.  One simply has to question the fairness of this, especially in light of the fact that the CBSA has a quota to initiate cessation and vacating proceedings.

Advice to refugees

The resolute manner with which CBSA is initiating refugee cessation applications means that there are several things that refugees should note.  First, it is important that refugees apply for and acquire permanent residency so that a change in conditions in their home country will not result in them losing their refugee status and being removed.

The number of cessation applications has since increased dramatically.

Balouch v. Canada (Public Safety and Emergency Preparedness), 2015 FC 765

Question:

“When deciding whether to allow an application by the Minister for cessation of refugee status pursuant to s. 108(1)(a) of the Immigration and Refugee Protection Act based on past actions, can the Board allow the Minister’s application without addressing whether the person is at risk of persecution upon return to their country of nationality at the time of the cessation hearing?”

PRG-2015-07
There have been numerous Federal Court decisions on the issue of cessation, many of which have led to certified questions.  In this post, I hope to reproduce all of the questions and answers as they become available in this extremely contentious area of immigration law.

Federal Court:

Although the Applicant submits that the Board erred in not considering the issue of a continuing risk at the time of the cessation hearing, no authority was cited to support this argument. While I acknowledge that the existence of risk is a primary concern when protection is sought, I am not persuaded that the issue of risk is relevant in a cessation hearing.

Pursuant to section 96 of the Act, Convention refugee status is conferred on individuals who, by reason of a well-founded fear of persecution, are unwilling or unable to avail themselves of the protection of their country of nationality. A refugee claimant’s voluntary reavailment indicates that the individual is no longer either unable or unwilling to avail himself or herself of the protection of their country of nationality.”

Federal Court of Appeal:

“Awaiting decision.”

PRG-2015-07
There have been numerous Federal Court decisions on the issue of cessation, many of which have led to certified questions.  In this post I hope to reproduce all of the questions and answers as they become available in this extremely contentious area of immigration law.

 

Federal Court:

Although the Applicant submits that the Board erred in not considering the issue of a continuing risk at the time of the cessation hearing, no authority was cited to support this argument. While I acknowledge that the existence of risk is a primary concern when protection is sought, I am not persuaded that the issue of risk is relevant in a cessation hearing.

Pursuant to section 96 of the Act, Convention refugee status is conferred on individuals who, by reason of a well-founded fear of persecution, are unwilling or unable to avail themselves of the protection of their country of nationality. A refugee claimant’s voluntary reavailment indicates that the individual is no longer either unable or unwilling to avail himself or herself of the protection of their country of nationality.

Federal Court of Appeal:

“Awaiting decision.”

Bermudez v. Canada (Citizenship and Immigration), 2015 FC 639 

Question:

“Does the CBSA hearings officer, or the hearings officer as the Minister’s delegate, have the discretion to consider factors other than those set out in s. 108(1), including humanitarian & compassionate considerations and the best interests of a child, when deciding whether to make a cessation application pursuant to s. 108(2) in respect of a permanent resident?”

Federal Court:

“The manual contemplates that a cessation application need not be pursued if the individual in question is a permanent resident. Even where the individual is not a permanent resident, the Officer is directed to consider factors of an H&C nature such as establishment. Evidence from the Olvera Romano case introduced in these proceedings indicates that the manual was a still valid direction and was still found on the CBSA website at the relevant time. There is no indication that these factors were taken into consideration by the Hearings Officer in making the decision to apply for cessation in the present matter. In particular, the applicant’s submissions with respect to the presence of a spouse and children who benefit from status in Canada and the evidence of his settlement in Canada were highly relevant to the question of whether he had voluntarily reavailed himself of the protection of his former country under paragraph 108(1)(a).”

“In my view, a Hearings Officer retains the discretion not to make a cessation application when she is of the view that the evidence before her does not support a reavailment determination under section 108. To arrive at that determination, she must have regard to the submissions of the individual concerned and not simply to their travel history. The Officer in this instance failed to consider relevant submissions and for that reason the application must be granted and the matter remitted for reconsideration by another Officer.”

Federal Court of Appeal:

No.

The Federal Court of Appeal rephrased the question to read, “Does the CBSA Hearings Officer, or the Hearings Officer as the Minister’s delegate, have the discretion to consider H&C factors and the best interests of a child, when deciding whether to make a cessation application pursuant to subsection 108(2) in respect of a permanent resident?”

The Federal Court of Appeal stated that the Federal Court’s interpretation is unreasonable as it injects considerations into section 108 of the IRPA which were not intended by Parliament. Furthermore, section 25 of the IRPA includes specific delegations of the Minister’s authority to a limited class of individuals to exercise H&C discretion under clearly and expressly defined circumstances. It follows that non-citizens, whether they be foreign nationals or permanent residents, do not have the right to have H&C considerations imported and read into every provision of the IRPA, the application of which could jeopardize their status.  H&C factors have simply not been deemed by Parliament to be of relevance within the cessation context. On what basis can a Hearings Officer be deemed to have discretion to consider H&C factors when all agree that the RPD, a quasi-judicial body, does not?

It is open for Parliament to amend the IRPA such that permanent residence status not be lost in the event of a favourable cessation application, or that H&C factors be considered by Hearings Officer prior to making the application under subsection 108(2) or, more generally, that the situation ante the 2012 amendments prevail. Courts, however, must respect the policy choices of Parliament and apply the law as it stands.

Question:

In a cessation application pursuant to paragraph 108(1)(a) of IRPA, do the same or substantially the same legal considerations, precedents, and analysis apply to persons found to be Convention refugees as to persons found to be in need of protection as members of the Country of asylum class?

Federal Court:

The definition of a Convention refugee differs from the definition of a refugee in the Country of asylum class. That being said, reading IRPA as a whole, I find that a person categorized in the Country of asylum class is “a person in similar circumstances” as a Convention refugee, as defined in subsection 12(3) and paragraph 95(1)(a) of IRPA. Moreover, the Applicant has himself stated that he is a “person in similar circumstances” as defined under subsection 95(1) of IRPA (Applicant’s Further Memorandum of Arguments (AFMA) page 6 at para 12). He was issued a permanent resident visa in October 2010 and became a permanent resident in January 2011 (AR page 28). Subsection 108(2) of IRPA, the cessation clause, specifically refers to subsection 95(1) of IRPA. Thus, again, the cessation clauses are applicable to the Applicant.

Federal Court of Appeal:

Yes. A reading of IRPA leads to the unequivocal conclusion that the cessation provisions of section 108 apply to both Convention refugees and country of asylum or re-settlement class. Section 95 provides protection to both Convention refugees and members of the county of asylum class. What ceases under section 108 is the protection that is conferred under section 95 and Parliament expressly crafted section 108 so as to apply the cessation provisions to “protected persons,” regardless of the means by which protection is granted.

I see no reason why the principle of reavailment and its associated criteria should vary according to the route by which status as a protected person is originally obtained. It must be remembered that all refugee protection is surrogate protection, the presumption at international law being that a person’s country of nationality will protect its nationals. The application of the principle of reavailment to country of asylum class refugees is consistent with this principle.

Canada (Public Safety and Emergency Preparedness) v. Bashir, 2015 FC 51

Question:

Does applying for and obtaining a passport from one’s country of nationality with the intention to use it to travel outside Canada, but not in one’s country of nationality, constitute, in all circumstances, irrefutable proof that the refugee had the intention of reavailing himself of the protection of his country of nationality?

Does applying for and obtaining a passport from one’s country of nationality with the intention to use it to travel outside Canada, but not in one’s country of nationality constitute, in all circumstances, a circumstance that can never serve to rebut the presumption created at paragraph 121 of the UNHCR Handbook?

Federal Court:

It is difficult to see how the renewal of a national passport for the purpose of submitting it to CIC to finalize the permanent residency process can be seen as indicating an intention on the part of the respondent to reavail himself of the protection of his country of nationality.

..

Paragraph 121 of the UNHCR Handbook creates a presumption of intention of reavailment of the protection of a refugee’s country of nationality when the refugee applies for and obtains a national passport or its renewal. In this case, the presumption applied to the respondent. However, paragraph 121 also expressly mentions that this presumption can be rebutted with “proof to the contrary”, that is to say, if the refugee shows that he did not request a passport with the intention of reavailing himself of the protection of his country of nationality.

..

According to this paragraph, in the absence of proof to the contrary, by obtaining a national passport for the purpose of returning to his country of nationality, a refugee is deemed to have obtained the protection of his country of nationality, and thus, he satisfies the third requirement for reavailment. However, the presumption is refutable and only operates where the refugee’s motivation for obtaining a passport is to return to his country of nationality. If a refugee obtains a national passport with no intention of returning to his country of nationality, he will not be deemed to have had obtained the protection of his country of nationality. A parallel can be drawn from this principle in relation to the requirement dealing with the refugee’s intention as there is a link between having the intention of reavailing oneself of the protection of one’s country of nationality and actually obtaining such protection.

Canada (Citizenship and Immigration) v. Esfand, 2015 FC 1190

Question:

Where a person has become a permanent resident under a visa application in the overseas Refugee and Humanitarian Resettlement Program by virtue of a member of the person’s family listed in the visa application having been determined to be a Convention refugee (though the person was not themselves assessed as a Convention refugee), is that person a Convention refugee as contemplated in paragraph 95(1)(a) of the IRPA who is subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA?

Federal Court:

   In my view, (the argument that can accompanying family member is a Convention refugee who is subject to cessation) does not outweigh the following important points:

1. It makes no sense for the respondent to face negative consequences for visiting Iran, where she never claimed to be at risk;
2. The applicable statutory and regulatory provisions (read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the IRPA, the object of the IRPA, and the intention of Parliament) do not support the applicant’s position; and
3. The applicant’s position would work against the clearly stated policy of family unity.

Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50

The Federal Court of Appeal stated that in cessation cases the Refugee Protection Division should have regard to the following factors, at a minimum, which may assist in rebutting the presumption of reavailment. No individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment.

• The provisions of subsection 108(1) of IRPA, which operate as a constraint on the RPD in arriving at a reasonable decision: Vavilov SCC, above at paras. 115-124;
• The provisions of international conventions such as the Refugee Convention and guidelines such as the Refugee Handbook, as international law operates as an important constraint on administrative decision makers such as the RPD. Legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with … the values and principles of customary and conventional international law”: Vavilov SCC, above at para. 114, citing R. v. Hape, 2007 SCC 26 at para. 53; R. v. Appulonappa, 2015 SCC 59 at para. 40; see also IRPA, paragraph 3(3)(f).
• The severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above at paras. 133-135;
• The submissions of the parties. The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully engage with the central issues and the concerns raised by the parties: Vavilov SCC, above at paras. 127-128;
• The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions;
• The personal attributes of the individual such as her age, education and level of sophistication;
• The identity of the agent of persecution. That is, does the individual fear the government of her country of nationality or does she claim to fear a non-state actor? Evidence that a person who claims to fear the government of her country of nationality nevertheless discloses her whereabouts to that same government by applying for a passport or entering the country may be interpreted differently than evidence with respect to individuals seeking passports who fear non-state actors. In this latter situation, applying for a passport or entering the country will not necessarily expose the individual to their agent of persecution. This may be especially so when all the individual has done is apply for a passport: applying for a passport may have little bearing on the risk faced by a victim of domestic violence, for example, or her level of subjective fear;
• Whether the obtaining of a passport from the country of origin is done voluntarily;
• Whether the individual actually used the passport for travel purposes. If so, was there travel to the individual’s country of nationality or to third countries? Travel to the individual’s country of nationality may, in some cases, be found to have a different significance than travel to a third country;
• What was the purpose of the travel? The RPD may consider travel to the country of nationality for a compelling reason such as the serious illness of a family member to have a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends;
• What the individual did while in the country in question;
• Whether the individual took any precautionary measures while she was in her country of nationality. Evidence that an individual took steps to conceal her return, such as remaining sequestered in a home or hotel throughout the visit or engaging private security while in the country of origin, may be viewed differently than evidence that the individual moved about freely and openly while in her country of nationality;
• Whether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required;
• Any other factors relevant to the question of whether the particular individual has rebutted the presumption of reavailment in a given case; and
• The frequency and duration of the travel.

In Hamid v. Canada (Citizenship and Immigration), 2022 FC 1541, the absence of any analysis with respect to several of the key factors in Camayao will render a decision unreasonable.

Statistics

 

CBSA Operational Bulletin PRG-2015-07 guides Hearings Officers regarding Procedures for Filing a Cessation Application at the Refugee Protection Division. It states: