Certified Questions on Cessation

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.

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.

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Admitting New Evidence at the Refugee Appeal Division

Section 110(4) of the Immigration and Refugee Protection Act (“IRPA“) provides that at the Refugee Appeal Division (the “RAD“) a person may only present evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have expected in the circumstances to have presented, at the time of the rejection.

Specifically, it states:

Evidence that may be presented

(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.

Exception

(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.

Hearing

(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)

(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;

(b) that is central to the decision with respect to the refugee protection claim; and

(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.

2001, c. 27, s. 110; 2010, c. 8, s. 13; 2012, c. 17, ss. 36, 84.

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Standard of Review in Refugee Appeal Division Hearings

On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims.  According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are:

  • Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal.
  • You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record.
  • The Minister may choose to intervene at any point in the appeal.
  • The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held.

Almost immediately there was uncertainty over what the role of the RAD was.  The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals:

  • that deference is owed to RPD findings of fact and questions of mixed law and fact;
  • that deference is owed to the RPD where the issue in a claim is factual;
  • that the role of the RAD was to ensure a fair and efficient adjudication and that refugee protection be granted where appropriate. As such, the RAD can substitute the RPD’s determination with its own;
  • that in some cases the RAD, in order to bring finality to the refugee process, may be entitled to show less deference to the RPD;
  • that while both the RPD and the RAD are specialized tribunals, the RPD had advantages in fact finding (particularly on credibility) which suggests deference; and
  • that the failure to show deference to the RPD would undermine the RPD’s process.

In Huruglica v. Canada (Citizenship and Immigration Canada), 2014 FC 799 the Federal Court determined that this was an incorrect approach.

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DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]

The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions:

Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter?

If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter?

The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).

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Regulatory Changes to Private Sponsorship of Refugees

On June 9, 2012, the Government of Canada published regulatory changes in the Gazette regarding the Private Sponsorship of Refugees Program (“PRSP“).

Under the PRSP, there are three types of sponsors.  The first are Sponsorship Agreement Holders (“SAHs“).  SAHs are local, regional, and national incorporated organizations that have signed multi-year agreements with Citizenship and Immigration Canada for the purpose of submitting sponsorship cases on a regular basis.  The second are Groups of Five (“G5s“), which are five or more Canadian citizens or permanent residents who live in the applicant’s expected community of settlement who sponsor refugees.  They account for 40% of the PRSP.  The third are Community Sponsors (“CS“), which are organizations that have not signed formal agreements.

As of 2012, the PRSP has brought over 200,000 refugees and persons in refugee-like situations to Canada.  As the PRSP has grown, so too didthe backlog and the refusal rate.  Some missions abroad currently have waiting lists exceeding five years.  Excluding Iraq, the average G5 approval rate is only 37%.

The proposed changes to the PRSP were meant to address this.  The changes included requiring that the foreign national’s application for protection from abroad be submitted at the same time as the sponsor’s application.  As well, the proposed amendments would limit G5s and CSs to submitting applications for persons recognized by either the United Nations High Commissioner for Refugees (“UNHCR“) or a foreign state as a refugee.  An additional rationale for the changes to the PRSP to that in the Gazette can be found in the Memorandum to the Minister in which Citizenship and Immigration recommended the changes to Minister Kenney.

When the changes were announced, the Canadian Bar Association expressed concerns with the requirement that privately sponsored refugees had to be recognized as refugees by the UNHCR.  The Chair of the Immigration Section wrote:

Why Requiring UNHCR or Foreign State Recognition as a Refugee is Problematic

UNHCR processing goes through three stages: registration; determination and referral. Referral numbers are artificially small because the UNHCR has difficulties in placing refugees. The number and types of referrals are influenced by willingness of resettlement states to accept referrals. Many refugees needing resettlement are not referred by the UNHCR.

Malaysia is an example of the problems which arise by requiring referral for government assisted refugees. There, the UNHCR determines many Sri Lankan Tamils to be Convention refugees, but refers almost none of them. This group is direly in need of resettlement, because Malaysia treats them as illegals, harasses them, detains them, does not allow the children to go to school, does not allow them to work, denies them medical care and so on. The UNHCR, realizing the limited global willingness to accept referrals, does not, with few exceptions, refer this population for resettlement.

This practice of non-referral plus the cap creates a dire situation for Sri Lankan Tamils, driving them into the hands of smugglers. The proposed regulation would make matters worse. The proposed regulation works at cross purposes with Bill C-31: it cuts off a legal means available to those without UNHCR or foreign state recognition, named group of five or community private sponsorship. It will accordingly increase the likelihood of smuggling.

We accept the value of UNHCR and foreign state determination, although even those are not problem free. In many countries, UNHCR compounds are guarded by local police who exact heavy bribes from foreign nationals to allow access. Many do not go through the UNHCR registration and determination process because they cannot afford to pay the bribes. This problem is even more acute with foreign state determinations in corrupt states.

The Government of Canada is concerned with its own processing delays. However, in many countries with massive refugee influxes, UNHCR or foreign state processing delays are far worse.

No artificial devices are available to avoid these delays. Families of refugees in Canada would be better off awaiting Canadian processing delays than UNHCR or foreign state processing delays. Neither UNHCR nor Canadian refugee determinations are flawless. The Canadian system recognizes the fallibility of UNHCR and foreign state determinations by doing its own determination, even with a positive UNHCR or foreign state determination. The Government of Canada acts inconsistently by rejecting positive determinations as invariably correct and then refusing to process group of five or community sponsor cases with negative UNHCR or foreign state determinations.

If the positive UNHCR or foreign state determinations can be wrong, so, surely, can negative determinations. The proposed regulation assumes that either UNHCR or foreign state refugee determinations are available. However, in some states, neither is possible. For instance, Sri Lankan Tamil or Tibetan asylum seekers in India can not be determined to be refugees either by the UNHCR or by the Government of India.

In 2015, the image of a drowned Syrian child migrant, Aylan Kurdi, shocked the world.

A Turkish police officer carries a young drowned boy
As was reported in several media outlets, Mr. Kurdi and his family were refused refugee status under the PRSP because they were not registered under the UNHCR.  It is apparently very difficult, if not impossible, for Kurdish refugees to be registered with the UNHCR.  The tragedy highlighted one of the negative consequences of requiring UNHCR registration for privately sponsored refugees.
Indeed, a chart contained in Citizenship and Immigration Canada’s 2013 Q3 Book of Basics on the number of applications to sponsor refugees appears to confirm that the 2012 regulatory changes caused the number of applications to plummet.  This, of course, was the intent.
Refugee Intake

 


Canada Lists Designated Countries of Origin (Updated October 24, 2014)

The Government of Canada has published a list of the first Designated Countries of Origin (“DCO“).

The initial list of DCOs covers 27 countries, 25 of which are in the European Union (edit: see below for a list of additional countries that have been added):

  • Austria
  • Belgium
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Ireland
  • Italy
  • Latvia
  • Lithuania
  • Luxembourg
  • Malta
  • Netherlands
  • Poland
  • Portugal
  • Slovak Republic
  • Slovenia
  • Spain
  • Sweden
  • United Kingdom
  • United States of America

In September, 2010, I predicted ten countries that I thought would likely be designated.  Nine of them are on the above list, I assume Hong Kong will be added in the near future.

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Does Refugee Protection Cease when a Convention Refugee Becomes a Canadian Citizen?

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Zaric, 2015 FC 837, has certified the following question:

Does refugee protection conferred pursuant to s 95(1) of the Immigration and Refugee Protection Act automatically cease by operation of s 108(1)(c) when a Convention refugee becomes a Canadian citizen, thereby preventing the Minister of Public Safety and Emergency Preparedness from applying to the Immigration and Refugee Board pursuant to s 109(1) to vacate the Board’s previous decision to confer refugee protection?

When the Federal Court of Appeal answers the question, it shall be posted here.