Refugee status cessation and PRs applying for citizenship

[scylla]

Another one: https://www.canlii.org/en/ca/fct/doc/2022/2022fc1626/2022fc1626.html

Frequent travel to COP. JD dismissed.

 

[dpenabill]

Another one: https://www.canlii.org/en/ca/fct/doc/2022/2022fc1626/2022fc1626.html

Frequent travel to COP. JD dismissed.

Similar to most of the more recent cessation cases, there is little or nothing new in the decision by Federal Court Justice Sadrehashemi in Ati v. Canada (Citizenship and Immigration), 2022 FC 1626, https://canlii.ca/t/jt97p

What is perhaps notable is how long it took for the Minister of Public Safety to initiate cessation proceedings following a referral to CBSA regarding travel indicating that Muthana Abdulza Ati had reavailed himself of home country protection. The referral took place in 2014. The cessation proceedings were initiated in 2020.

The referral was initiated by IRCC in the course of processing an application for a new PR card. It warrants noting that IRCC did in fact issue and deliver a new PR card, but also informed Mr. Ati that his case had been transferred for "review for possible cessation." Again, that was in 2014.

Mr. Ati subsequently applied for citizenship, in April 2015. Add his to the long list of citizenship applications with extra-ordinary processing timelines. Seven and a half years. Now facing deportation, no citizenship.

It is readily apparent Mr. Ati was less than honest in disclosing travel history in his PR card and citizenship applications, perhaps not as to travel dates but as to destination or location while abroad, not disclosing his travel to Iraq. It appears that there were no overt allegations of misrepresentation (by omission), but it is readily apparent this had a significant impact on the government's perception of Mr. Ati's credibility and it appears this may have been a significant factor in the outcome. Thus, while the number of trips, and their duration, was a big factor, the credibility element looms large as well.

Couple additional notes:

-- this decision is a good example of applying the Camayo decision (cited and discussed at length in previous posts above)​

​

-- this and other recent decisions appear to indicate that the RPD and the Federal Courts are finally getting around to processing a backlog of cases, the backlog from delays due to the impact of Covid and, it seems, cases that were on hold pending the outcome of the Camayo case in the Federal Court of Appeal​

 

[scylla]

Another one. Similar to some of the previous, renewal of home country passport and numerous trips to home country.

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1633/2022fc1633.html

 

[dpenabill]

Another one. Similar to some of the previous, renewal of home country passport and numerous trips to home country.

https://www.canlii.org/en/ca/fct/doc/2022/2022fc1633/2022fc1633.html

As always, these citations of decisions relevant to cessation are appreciated. This one is particularly appreciated since it opens a window into many aspects of cessation, especially post-cessation proceedings. I will cite and link the various decisions in the lengthy saga of Ms. Tung's loss of status and her deportation proceedings in the following discussion, but will also list them below.

This one, which is Justice Zinn's decision in Tung v. Canada (Citizenship and Immigration), 2022 FC 1633, https://canlii.ca/t/jt9wt , is an example of a PR-refugee subject to cessation, but is not itself a decision reviewing the cessation. It briefly recounts the history of her cessation case, culminating in an appeal of the RPD cessation decision that was dismissed in a previous case, in December 2018. I have previously cited and linked that case:

. . . EVEN when the Minister's Counsel agreed before the RPD that the refugee's status should be assessed pursuant to only 108(1)(e), the RPD nonetheless concluded the individual reavailed herself of home country protection under 108(1)(a), and FC Justice McDonald upheld the RPD's decision. See the Tung decision, 2018 FC 1224 https://canlii.ca/t/hwgr8

There are some interesting aspects in that Tung decision, 2018 FC 1224 https://canlii.ca/t/hwgr8 which I will try to address further. Moreover, that was not her first appeal of a cessation decision by the RPD; she previously appealed an earlier RPD cessation decision, and won (on procedural unfairness grounds, as the RPD had unfairly denied a request to reschedule a hearing). That case is here: Tung v. Canada (Public Safety and Emergency Preparedness), 2022 FC 141, https://canlii.ca/t/jm62z

Meanwhile, this more recent November 2022 decision, by Justice Zinn, is actually a review of the Pre-Removal Risk Assessment [PRRA] decision, in a continuing effort by Ms. Tung to avoid deportation due to, the claim is, the risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to China. As such the decision offers a glimpse of post-cessation proceedings, illustrating (among other things) just how long it can take to physically deport a former PR.

It also illustrates the seriousness of cessation. While Ms. Tung returned to China on around a dozen occasions, that was over the course of more than a dozen years, and apparently the last time was more than eight years ago. So this is a woman in the later years of life (66 years old as of February this year), who has been living in Canada for more than two decades, who has not been in China for more than eight years, who now is very likely going to be deported to China. The risks and difficulties she will encounter may not rise to a level precluding her deportation (as Justice Zinn ruled), but they will undoubtedly be substantial difficulties if not quite severe. Many may note that this is at least to some extent due to choices she made, if not largely so, but that does not diminish the impact on her or alleviate the hardship. It warrants emphasizing, repeatedly, for PRs potentially subject to cessation (those who are refugees or protected persons), the risks they take when engaging in actions that could constitute reavailment of home country protection leading to cessation of status, those risks are real and potentially very serious, if not devastating.

Ms. Tung's journey is further addressed in another Federal Court decision by Justice Pamel, who earlier this year reviewed and upheld the Departure Order issued against Ms. Tung in 2020. That Departure Order was based on Section 40.1 IRPA, which I discussed briefly just a week ago. I will not dive into the details here, now, but there is an informative discussion of the various statutory provisions governing loss of status and inadmissibility, including Sections 40.1, as to both subsections (1) and (2), which provide that an individual who has lost status due to cessation is inadmissible, and Section 46(1)(c.1), which is the provision that automatically terminates PR status upon cessation of refugee or protected person status pursuant to Sections 108(1)(a) to 108(d). This decision is Tung v. Canada (Public Safety and Emergency Preparedness), 2022 FC 141, https://canlii.ca/t/jm62z

However, Ms. Tung had successfully appealed a previous Removal Order, in the Tung v. Canada (Public Safety and Emergency Preparedness), 2019 FC 917, https://canlii.ca/t/j1gc0 decision by Justice Brown. This decision was based on the failure of the Minister's Delegate, who was reviewing the Inadmissibility Report, to sufficiently state reasons for the decision.

I noted that there are some interesting aspects in the 2018 Tung FC decision which upheld the RPD cessation decision. This is the Tung v. Canada (Citizenship and Immigration), 2018 FC 1224, https://canlii.ca/t/hwgr8 decision by Justice McDonald. Not sure why I did not address this one further in this thread (my previous reference to and discussion of the case was in the forum for Refugees and Asylum, in a thread about getting passports back), since it is one of the decisions which specifically addresses the situation where cessation could also be based on Section 108(1)(e). If cessation of a PR-refugee's protected person status is based on Section 108(1)(e) (that is, based on the reasons for seeking protected status have ceased to exist), that does NOT terminate their PR status. This Tung decision is one of multiple decisions which in effect ruled that a cessation decision can be based on other grounds (Subsections 108(1)(a) to 108(1)(d) IRPA), including reavailment in particular, EVEN if cessation could also be pursuant to Section 108(1)(e) . . . here, for example, Ms. Tung was no longer practicing Falun Gong, so the threat of persecution she faced as a practicing member of Falun Gong no longer existed. If her protected person status was determined to have ceased on this ground, that would not cause her to lose PR status. But the Minister sought and the RPD determined cessation based on reavailment, Section 108(1)(a) IRPA, and the Federal Court (and in other cases as well) upheld the cessation of protected person status and it resulting in the loss of PR status.

In other words, if it is safe to return to the home country, that is grounds for cessation, but that does not result in the loss of PR status. However, if it is safe to return to the home country and the PR has engaged in actions constituting reavailment, the government can elect to proceed with cessation based on reavailment, leading to cessation of protected person status and loss of PR status.



The Tung Federal Court Saga; a Case List:

Tung v. Canada (Citizenship and Immigration), 2015 FC 1296, https://canlii.ca/t/gm6lf (successfully appealed RPD cessation on procedural fairness grounds; decision by Justice O'Reilly)
Tung v. Canada (Citizenship and Immigration), 2018 FC 1224, https://canlii.ca/t/hwgr8 (RPD cessation decision upheld in appeal; decision by Justice McDonald)
Tung v. Canada (Public Safety and Emergency Preparedness), 2019 FC 917, https://canlii.ca/t/j1gc0 (successfully appealed inadmissibility report and Removal Order; decision by Justice Brown)
Tung v. Canada (Public Safety and Emergency Preparedness), 2022 FC 141, https://canlii.ca/t/jm62z (inadmissibility report and Departure Order upheld in appeal; decision by Justice Pamel)
Tung v. Canada (Citizenship and Immigration), 2022 FC 1633, https://canlii.ca/t/jt9wt (negative PRRA decision, clearing way for deportation, upheld in appeal; decision by Justice Zinn)

 

[zak86]

Hello everyone needs to know one of my friends was a conventional refugee and granted PR his family visited the home country for some emergency reasons and back after 3 weeks however he wasn't with them.. but CBSA stopped them at the airport to ask about the visit and advice never to visit the home country you aren't allowed to visit and let them go so is it all ok or they can send a letter or anything else? as they took their id pr and passport copies?

 

[Blind Dolphin]

Hello everyone needs to know one of my friends was a conventional refugee and granted PR his family visited the home country for some emergency reasons and back after 3 weeks however he wasn't with him.. but CBSA stopped them at the airport to ask about the visit and advice never to visit the home country you arent allowed to visit and let them go so is it all ok or they can send a letter or anything else? as they took their id pr and passport copies?

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

 

[dpenabill]

Hello everyone needs to know one of my friends was a conventional refugee and granted PR his family visited the home country for some emergency reasons and back after 3 weeks however he wasn't with him.. but CBSA stopped them at the airport to ask about the visit and advice never to visit the home country you arent allowed to visit and let them go so is it all ok or they can send a letter or anything else? as they took their id pr and passport copies?

Note: also see observations near end of post regarding Vacation of protected person status under Section 109(1) IRPA, for misrepresentation.

For Sure: The affected PR-refugees should NOT use their home country passport for any travel, none at all, and absolutely NOT return to the home country again. (Probably understood, but it demands repetition and emphasis.)

Beyond that . . . from what we have seen it does not appear that CBSA proceeds with cessation proceedings (the prosecution of cessation) based on a single and relatively brief trip to the home country, BUT this comes with a huge caveat: we do NOT KNOW much at all about how CBSA is approaching these matters; we know very little about internal CBSA practice in regards to assessing potential cessation cases, let alone what triggers an investigation or the commencement of cessation proceedings. And this is always subject to change, change without notice.

I doubt there is anything for them to do about the situation now other than, again, NOT use their home country passports AND NOT travel to the home country. Safest approach would be to consult with a reputable immigration lawyer with experience handling refugee cases.

But most PR-refugees in this situation will probably just wait and see, hoping they will not see anything come of it.

My sense is that a single trip like this will not, not usually anyway, trigger CBSA action . . . that the measures border officials took at the Port-of-Entry were largely to document the facts, to make a record. And the hope, with some sense it is fairly likely (with the caveat we do not know anywhere near for sure), nothing comes of it unless there are other instances.

That said, I concur in this:

. . . 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.

. . . with some clarification: There is more than a "chance" CBSA will keep notes. That is for sure. They obviously made a record of this PoE transaction which is noted in the PR's GCMS file.

. . . and some emphasis: The potential scope of questioning if there is a follow-up, that @Blind Dolphin describes, is a very good and potentially important observation.


Some Observations Regarding Context:

One big problem, perhaps the biggest problem, is we know very little about the practical parameters in enforcing cessation. And these are always subject to change, change without notice (it is like local law enforcement does not give notice they are implementing speed enforcement before setting up radar and issuing tickets to motorists speeding through school zones). We do not know what actually triggers an investigation (which can drag on for a long time and interfere with processing a citizenship application even if no cessation proceedings are commenced), let alone what will trigger the commencement of cessation proceedings. We know what can lead to cessation, and yes it appears these PR-refugees have crossed that line. But there are scores of others who have obviously crossed that line without suffering cessation investigation let alone prosecution.

Another big problem is that the affected PR-refugee has limited access (very limited access) to information about their own status in regards to whether CBSA is investigating, the state of an investigation if CBSA is engaged in one, and virtually zero information about prospective timelines. Basically, unless the affected PR encounters collateral delays in other processing, like having their citizenship application stalled beyond what others are encountering, the affected PR is not likely to know of or see anything that reveals what CBSA is doing unless (and not until) actual cessation proceedings are commenced. That is, even if CBSA is conducting a full investigation, the affected PR has no way of knowing about it other than making inferences based on other information, such as delays encountered in the processing of their citizenship application.

What we do know:

-- Assuming the PR-refugees used their home country passport, just a single use of that constitutes a presumption of reavailment, grounds for cessation.​

-- Travel to the home country is evidence of reavailment, and is clearly the sort of evidence of reavailment that carries a lot of weight in reavailment --> cessation proceedings.​

-- Most of the actual cases we know about involve multiple trips to the home country, with either many trips or some trips for a relatively extended period of time; again the caveat that this does NOT necessarily mean CBSA is not currently employing more strict criteria.​

CAUTION with EMPHASIS:

There have been a significant number of posts in this thread, and in related threads, minimizing the risk of using the home country passport. The context for this is typically about using a returned passport, not a renewed one, and using it OTHER than to travel to the home country. This is largely based on a combination of personal experience and the number of others reporting no cessation related consequences.

Make no mistake, using the home country passport to travel to ANY country (not just the home country) constitutes an act availing oneself of the diplomatic protection of the country that issued the passport (covered in dozens of posts in the pages above), and thus is at the very least evidence which can support a cessation action. The absence of reporting that this alone has been triggering cessation actions may reasonably assuage concerns among those who have done this without traveling to the home country, but it should not be construed or applied to suggest that the risk is low enough to do this going forward.

But the reason I bring this up again is that in the context here, PR-refugees who have traveled to the home country and who have been at least subject to notation of potential reavailment activity in their records, it is really, really important to STOP doing anything that could be evidence of an act of reavailment or evidence of an intent to reavail. Put the home country passport in a safe place under lock and key and DO NOT USE it.

. . . 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.

Your reporting is the first example of just one trip to the home country triggering anything near this level of inquiry, and in conjunction with the report underlying the query here by @zak86, likewise regarding a PoE transaction illustrating CBSA attention to this issue, it warrants further cautioning that it is quite possible that CBSA has adopted a more strict approach to potential cessation.

THERE IS ANOTHER POSSIBILITY -- Action to VACATE the Decision Allowing Claim for Refugee Protection:

This thread has been focused on CESSATION of protected person status, which will automatically terminate a PR-refugee's PR status. Grounds for cessation are prescribed in Subsections 108(1)(a) to 108(1)(e) IRPA, noting that cessation based on grounds in 108(1)(e) does not terminate PR status.

It should not be overlooked, however, that a PR-refugee's travel to the home country might suggest there was misrepresentation as to the basis for the refugee's claim, the reason for fear. This would involve an investigation and proceedings pursuant to Section 109(1) to vacate the decision allowing protection. This has been grounds for automatic termination of PR status from long before the changes in law making cessation an event automatically terminating PR status.

And, indeed, if the follow-up interview was in significant part focused on the basis for the refugee claim itself, that might very well indicate a vacation for misrepresentation investigation rather than cessation.

If there is a significant prospect that misrepresentation is the issue, that really is LAWYER-UP country.

 

[scylla]

You know why I am here:

https://www.canlii.org/en/ca/fct/doc/2023/2023fc123/2023fc123.html

 

[dpenabill]

Key Take-Away -- A Single Home Country Trip Triggered Cessation

In the Kaya v. Canada, 2023 FC 123, https://canlii.ca/t/jv4nf case linked above by @scylla, IRCC commenced cessation soon after the PR-refugee's FIRST trip to the home country.

And it turns out this is NOT an outlier. Just this past November (2022) another Federal Court also upheld the cessation of refugee status which was commenced following a PR-refugee's first and ONLY trip to their home country. See Kovacs v. Canada, 2022 FC 1532, https://canlii.ca/t/jt4xm

Edit: Label "PR-refugee" may be an error; while Kovacs had refugee status for many years, it is not clear Kovacs was a Permanent Resident. Justice Gascon refers to being mindful that cessation leads to the loss of Permanent Resident status, but the decision does not explicitly indicate whether Kovacs had PR status or not.

You know why I am here:

https://www.canlii.org/en/ca/fct/doc/2023/2023fc123/2023fc123.html

Even though each of these new decisions trickling out of the Federal Court recently only add incrementally to what we know about cessation of refugee status (at this stage we know how this works), these incremental bits help to paint a more complete picture, help to reaffirm our understanding of certain elements, and, importantly, can illuminate some of the enforcement practices.

Here, in regards to enforcement practices for example, in this case, Kaya v. Canada, 2023 FC 123, https://canlii.ca/t/jv4nf , it was the PR-refugee's FIRST TRIP to the home country that triggered cessation proceedings. Just one trip, and it did not take long: the cessation application was made just a little over three months after Kaya returned to Canada from that first trip.

Likewise in the Kovacs v. Canada, 2022 FC 1532, https://canlii.ca/t/jt4xm a cessation action was commenced within months following Kovacs return from a single trip to her home country, spending only three weeks in the home country.

In the Kaya v. Canada, 2023 FC 123, https://canlii.ca/t/jv4nf case a second trip AFTER cessation proceedings had been commenced plays a significant role in the decision, in conjunction with Kaya also obtaining a second home-country passport, more or less conclusively establishing the reavailment of home country protection was voluntary, done knowing the consequences.

But it is the fact that the cessation application was pursued based on just ONE TRIP that looms larger here. And, that this was back in 2018, nearly five years ago. It takes time for these cases to work their way through the system, so it can take time, years, for us to learn how IRCC and CBSA are approaching this. I do not recall for sure, but as best I can recall, this might be the first time we have seen a single trip to the home country trigger cessation; however, actually the the Kovacs v. Canada, 2022 FC 1532, https://canlii.ca/t/jt4xm case was decided before Kaya, and it too is a case where the cessation action was triggered by a single trip to the home country.

These cases make it clear that just returning to the home country at all, just once, is risking cessation.

Compare this with something I said just this past fall, in response to a scenario reported by @Blind Dolphin, which as I recall involved only one trip to the home country:

That appears to fit with examples of no-cessation proceedings, meaning it does not fit the pattern of most of the actual cases of cessation we have seen (typically involving either more lengthy stay in home country, or more stays in home country, and usually both).

So that now warrants a big asterisk. Both the Kaya and Kovacs cases are an example of just one trip triggering cessation.

Generally I will caution that one or two cases are not necessarily a good example of parameters in enforcement practices, and in regards to cessation in particular, in contrast, there have been many indications that IRCC and CBSA have not pursued cessation of PR-refugees following single home-country trips.

Moreover, there are some circumstances which might explain a more aggressive approach in these two cases.

In the Kaya case the first trip to the home country took place just months after he obtained PR status as a refugee, and was for a significant period of time, approximately three months.

In the Kovacs case the trip was fairly short (around three weeks) but while in her home country see obtained a passport and national identity card from her home country, and upon returning to Canada, in the PoE interview, she "lied about her return" to her home country. And it appears she might not have yet obtained PR status (having refugee status in Canada, but not yet a PR).

Nonetheless, these cases demand recognizing that a single home-country trip can be enough to trigger cessation.

For emphasis, in the Kaya case Justice Favel TWICE states:

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.​

This does not signal those who have taken isolated trips to their home country should be alarmed . . . but they should be cognizant of the risk of cessation, and probably obtain the advice of a reputable lawyer before making an application for citizenship.

This does signal that PR-refugees should NOT travel to their home country. Not even once for a short visit. And yeah, for those with family still in the home country this can be an incredibly difficult thing.

 

[Kambs16]

Update for whoever has been following my case over the years. To date, still never heard a word from IRCC since my test and interview 4 years ago.
Following legal advise and with legal helpand guidance, I filed a mandamus. The first stage was application for judicial review or leave. IRCC through Department of Justice responded with a notice of intention to appear, therefore becoming respondents in this case.
Last week we submitted my applicants record and we have 30 days to await their argument and hope the judge grants leave. According to my lawyers, I stand a good chance. Better still, they could respond by asking us not to get to a hearing and finish making a decision on my file. I hope and pray for the best outcome. I will keep everybody updated.

 

[dpenabill]

Update for whoever has been following my case over the years. To date, still never heard a word from IRCC since my test and interview 4 years ago.
Following legal advise and with legal helpand guidance, I filed a mandamus. The first stage was application for judicial review or leave. IRCC through Department of Justice responded with a notice of intention to appear, therefore becoming respondents in this case.
Last week we submitted my applicants record and we have 30 days to await their argument and hope the judge grants leave. According to my lawyers, I stand a good chance. Better still, they could respond by asking us not to get to a hearing and finish making a decision on my file. I hope and pray for the best outcome. I will keep everybody updated.

Yeah, it's been awhile, a long while. I don't recall the details, but I have a vague recall there was an update at some point that seemed to offer real promise.

Keeping the forum updated is appreciated. There is such a wide, wide gap in what we know about enforcement practices, every little bit of real information helps.

I want to wish you best luck but of course luck does not have much to do with it. Bureaucracies are what bureaucracies do, and sometimes they seem to be all machine no heart, and other times the gears in the machine get off track and it seems nothing is working, let alone working well.

But I will wish you the best luck anyway. Hoping it goes well and much sooner than things have gone so far.

 

[ottRefugee]

Good afternoon, recently I faced a conundrum in regards to international travel and cessation risks, so I would appreciate any advice. A year ago, I became a protected person with my claim seeking refuge from Russia, during the RPD interview I was unexpectedly told that Turkey would also be a country of reference due to my father being a Turkish citizen when I was born. I had not claimed my Turkish citizenship nor do I even speak Turkish, so it was confusing since my father has also gave up his Turkish citizenship to obtain a Russian one, but alas, I was still given a positive decision. Until recently, I thought I was not allowed to visit Turkey due to what happened at the hearing, but when I recently received my Refugee Travel Document, I noticed that it only mentioned that it cannot be used for visits to Russia, nothing about Turkey at all. I tried calling CBSA and IRCC, but they were largely unhelpful as I suspect they cannot access this information to begin with, I think only Immigration officers at ports of entry can see this information to begin with. My question is - is it allowed to visit Turkey with RTD in my specific case? I did go through the IRPA and the major point of my confusion is what "voluntarily reavailing myself to the protection of my country of nationality" would mean. From my understanding, the meaning comes from the UNHCR Refugee Handbook where it says "Acquisition or renewal of a passport from the State of origin may raise questions about the refugee’s continued need for international protection", so basically acquisition of a new passport creates a presumption of reavailment to the state protection. In my case, my Canadian Refugee Travel Document only specifically states that I am unable to travel to Russia, so there would be no need in obtaining any other passports to travel to Turkey. After looking into case law, I cite, "This Court has confirmed that the three-part test for assessing re-availment considers: “(1) voluntariness, in that the refugee must not be coerced; (2) intention, meaning the refugee must intend by their actions to re-avail themselves of the protection of the country of their nationality; and (3) re-availment, in the sense that the refugee must actually obtain such protection” ". For my travel intent, I do not satisfy points number 2 and 3 since I would not travel to Turkey using Turkish passport nor would I interact in any way with the government (besides obtaining the visa). I need to travel to Turkey to visit my old and ill father, especially after the devastating earthquakes that impacted his Turkish side of the family, but I am largely unsure if its something I am even able to do without being reprimanded later. Would love to hear opinions on this matter, thank you so much in advance!

 

[dpenabill]

Good afternoon, recently I faced a conundrum in regards to international travel and cessation risks, so I would appreciate any advice. A year ago, I became a protected person with my claim seeking refuge from Russia, during the RPD interview I was unexpectedly told that Turkey would also be a country of reference due to my father being a Turkish citizen when I was born. I had not claimed my Turkish citizenship nor do I even speak Turkish, so it was confusing since my father has also gave up his Turkish citizenship to obtain a Russian one, but alas, I was still given a positive decision. Until recently, I thought I was not allowed to visit Turkey due to what happened at the hearing, but when I recently received my Refugee Travel Document, I noticed that it only mentioned that it cannot be used for visits to Russia, nothing about Turkey at all. I tried calling CBSA and IRCC, but they were largely unhelpful as I suspect they cannot access this information to begin with, I think only Immigration officers at ports of entry can see this information to begin with. My question is - is it allowed to visit Turkey with RTD in my specific case? I did go through the IRPA and the major point of my confusion is what "voluntarily reavailing myself to the protection of my country of nationality" would mean. From my understanding, the meaning comes from the UNHCR Refugee Handbook where it says "Acquisition or renewal of a passport from the State of origin may raise questions about the refugee’s continued need for international protection", so basically acquisition of a new passport creates a presumption of reavailment to the state protection. In my case, my Canadian Refugee Travel Document only specifically states that I am unable to travel to Russia, so there would be no need in obtaining any other passports to travel to Turkey. After looking into case law, I cite, "This Court has confirmed that the three-part test for assessing re-availment considers: “(1) voluntariness, in that the refugee must not be coerced; (2) intention, meaning the refugee must intend by their actions to re-avail themselves of the protection of the country of their nationality; and (3) re-availment, in the sense that the refugee must actually obtain such protection” ". For my travel intent, I do not satisfy points number 2 and 3 since I would not travel to Turkey using Turkish passport nor would I interact in any way with the government (besides obtaining the visa). I need to travel to Turkey to visit my old and ill father, especially after the devastating earthquakes that impacted his Turkish side of the family, but I am largely unsure if its something I am even able to do without being reprimanded later. Would love to hear opinions on this matter, thank you so much in advance!

This is potentially far too tricky for anyone in a forum like this to offer much except to suggest proceeding with great caution.

A Canadian lawyer's advice might help, but even that is not certain since it is Turkey's laws and enforcement practices that could be the dominant factor.

On its face, and assuming (which could be a big and not valid assumption) that Turkey allows you to travel into the country based on the RTD without any status in Turkey other than as a visitor, and your visit is relatively brief, it seems the odds of a problem should be low. But I highly doubt anyone here actually knows. I certainly do not.

The thing is, there are two elements in the risk assessment. One is the risk (the odds or probabilities) the trip triggers a cessation issue. Even if that risk is quite low, or very low, the other risk assessment element is about what's at stake. Cessation is NO mere "reprimand." If there is cessation of protected person status for many that would be devastating, depending on where they will be forced to go when deported from Canada.

So, if it is possible that Turkey will assert you are a citizen of Turkey, if you travel there, you could be faced with making some very, very difficult decisions.

Some Further Observations / Explanation:

Among the potentially tricky aspects of this, there is how and what Turkey does, or requires, and why. Which can be, and often is, complicated by differences in what the law prescribes and how it is actually enforced; and I do not know, but I suspect this is more murky terrain in regards to Turkey than many other countries.

Note, in particular, while some of the same elements similarly apply, there are other provisions prescribing grounds for cessation of protected person status in addition to 108(1)(a) IRPA, which states the reavailment grounds for cessation and which you reference. There are, for example, the additional grounds prescribed by 108(1)(b) and 108(1)(c) IRPA, relating to acquiring "nationality" in another country. If, for example, under Turkey's rules you were not allowed to enter Turkey except as a citizen of Turkey, and you did, that would be grounds for cessation of protected person status.

I have no idea what rules Turkey has in regards to an individual who had a parent, at the time of birth, who was a citizen of Turkey. I am not sure how to find out. I am even less sure (and, well, I do not even know how to find out) how Turkey actually applies its rules.

I am sure, however, that anecdotal reports based on how these things went for this or that other person are NOT a reliable source of information about what can happen let alone what will happen. This is a common form of reasoning in forums like this. It is a profoundly flawed approach, one which encompasses way too many got-away-with-it examples which offer no assurances that is how it will go for anyone else.

Even in regards to a country like the U.S., this could be a complicated situation. If, for example, a refugee had a parent who was a U.S. citizen at the time of their birth, but they never engaged in any transactions with the U.S. or any other country as a U.S. citizen, NONETHELESS, technically the U.S. will not allow them to enter the U.S. other than as a U.S. citizen. What happens in actual practice varies (I have a friend whose father was a U.S. citizen, and she travelled to the U.S. many times and was never challenged about entering the U.S. as a Canadian citizen, but others eventually had to do the paperwork to get a U.S. passport).

In any event, again, what looms large is how Turkey handles your travel into Turkey. If Turkey fully recognizes your status as a protected person and allows travel into the country based on the RTD, odds look good that travel there is OK. I'd just be very cautious about what source of information you trust in regards to finding out how Turkey will handle this.

Good luck and my condolences for difficulties the situation poses for you and family.

 

[scylla]

New case: https://www.canlii.org/en/ca/fct/doc/2023/2023fc239/2023fc239.html

 

[dpenabill]

New case: https://www.canlii.org/en/ca/fct/doc/2023/2023fc239/2023fc239.html

This is yet another procedural tangent and not itself a review of a cessation determination. Rather, it upholds a decision by the RPD to not declare the cessation proceeding against Baljeet Singh abandoned (even though the Minister did not appear for the scheduled hearing in the cessation proceedings following five years of failing to proceed with the case and the RPD explicitly declining to postpone the scheduled hearing for Singh).

Case citation: Singh v. Canada (Citizenship and Immigration), 2023 FC 239 https://canlii.ca/t/jvp5c

So, it appears that the cessation case against Baljeet Singh, originally initiated March 6, 2015, may now proceed . . . nearly eight years after it was commenced.

For the purposes of this thread, the main take-away from this case is that CBSA/IRCC can fail to proceed with a cessation case, leaving a PR in limbo for years and years, before eventually proceeding with cessation.


The Long Read -- Beyond That; Some Longer Observations Underscored by Questions:

Leaving a PR in limbo for years and years, with cessation of status hanging over their head, suspending processing for a family class sponsorship application, effectively barring obtaining citizenship, without explanation let alone justification, seems, to me, on its face, to be contrary to principles of fundamental justice. But Canada's courts have either ruled the principles of fundamental justice do not apply to delays in cessation proceedings, or that since a cessation proceeding does not (according to the cases) deprive a person of the "right to life, liberty and security of the person," the principles of fundamental justice allow such delays absent actual prejudice, with a very high bar for what constitutes sufficient prejudice to give a remedy for the delay.

Apart from how the law was interpreted and applied here, in regards to Baljeet Singh, that is in regards to what recourse PRs have when the government fails to proceed with a cessation case for a very lengthy period of time generally (other than in Singh's specific circumstances), that's a very complex issue, or actually a tangle of multiple complex issues, with Constitutional and Charter jurisprudence looming large. Stuff way, way beyond my typical stomping grounds.

But in regards to this case in particular, in regards to Baljeet Singh specifically, there's a lot there inviting, if not demanding, scrutiny. On its face it appears to be a firm application of principles articulated in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307, https://canlii.ca/t/525t as extended and applied in Ching v. Canada (Immigration, Refugees and Citizenship), 2018 FC 839 https://canlii.ca/t/htl6j

However, there are certain aspects of the ruling that are a bit jarring and, in reference to those, it is very difficult to unravel what really underlies this decision by Federal Court Justice Shirzad Ahmed, who came to Canada, himself, as a refugee nearly four decades ago, and is known to be a strong advocate defending human rights, with a background largely oriented to advocacy on behalf of immigrants and refugees.

A big part of the problem is that Blencoe was specifically about a case in which Canada's Supreme Court declared Charter rights as prescribed by Section 7 in the Charter, "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," were NOT implicated. And Ching quite definitively extends this, at the least, to administrative proceedings which will determine the status of a person in Canada, including inadmissibility, up to and including just about any proceeding short of actual deportation itself.

To my mind it is not just difficult but impossible to frame cessation proceedings falling outside the purview of Section 7 rights. But apparently I am just out and out wrong. Not the first time.

One part which I find jarring is that Justice Ahmed allows it was reasonable for the RPD to not consider the hardship imposed by the delay, despite it being clear, in Blencoe (which carries the weight of a Supreme Court decision) that the impact of the delay is one of the factors to consider. The rationale for this, that H&C factors are not considered in determining whether there are grounds for cessation of status, sounds like it was written by Joseph Heller, the author of Catch-22.

To be clear, the hardship imposed, the impact of the delay, is about whether the delay was so unfair as to be an abuse of process. Which, again, is one of the specific factors to be considered as dictated in Blencoe.

Another Catch-22 aspect of this decision is how Justice Ahmed considered Singh's submissions seeking an appeal of the RPD's decision, denying abandonment, to be a factor "that may undermine the evidence of hardship" imposed by the delay. Since when did seeking recourse, by legal means, for an allegedly wrong decision, constitute a basis for disputing or diminishing evidence the decision was wrong? That's more Catch-22 than any of the Catch-22 scenarios Heller described in his infamous novel about aviators during WW II.

Then, on top of all this, the RPD ignored THREE requests by the Federal Court for the RPD to produce reasons for its decision to deny the motion the cessation action be deemed abandoned. And when it finally did submit it's decision, it clearly showed it had NOT followed the guidelines for scheduling and changing the date of a proceeding.

So, clearly, apart from whether Justice Ahmed's reasons for upholding the RPD's decisions are sound and reasonable, within his discretion, there was plenty of room for Justice Ahmed to reach a contrary conclusion, likewise within his discretion. Which leads to some concerns Justice Ahmed expressed (at paragraph 43):

I do, however, find the RPD’s delay in these proceedings to be troublesome. It is difficult to justify why the hearing in the cessation application should take five years to schedule, or why the RPD should take 17 months to render its decision on the abandonment application. While it is reasonable to find that this does not amount to an abuse of process in this particular case, this should not be taken to mean that such unnecessary delays should be the norm and are expected.​

That is, concluding, there was NOT an abuse of process . . . "in this particular case."

Which in turn leads back to what MIGHT really be underlying this decision by Federal Court Justice Shirzad Ahmed. I do not know. Emphasis on what I do NOT know.

Perhaps the problem was how blatantly, apparently rather casually, Baljeet Singh continued to travel to the home country AFTER clearly being aware "he was not supposed to return to India given his refugee protection against India." It was following his second fairly lengthy trip, after being questioned upon his return after the first, that CBSA initiated the cessation proceedings. It is not clear when or if Singh returned to India during the following years, except he had for sure once again gone to India for many weeks just before the cessation matter was scheduled for a hearing in March 2020, and indeed, Singh asked that the hearing be rescheduled because he did not plan to return to Canada until just two days before the hearing, which would be an insufficient period of time to prepare for the hearing.

Singh's request to reschedule was denied and he was compelled to proceed to the scheduled hearing. But then it was the Minister who did not appear. The disparity is salient.

So, one has to wonder whether it was how blatantly Singh returned to India that tipped the scales against him. However, this was not cited as a reason to deny him relief.