The following is an article that I wrote for the May edition of The Canadian Immigrant.
In January 2014, the Canada Border Services Agency (CBSA) released Operational Bulletin: PRG-2013-59, which states that the CBSA has committed to referring a minimum of 875 refugee vacation or cessation cases per year to the Refugee Protection Division (RPD).
News of this bulletin, and the apparent resolve of CBSA to reach its quota, puts many in the refugee community at risk. It is important that all refugees who became permanent residents, and refugees who are not yet permanent residents, understand its implications.
Vacating versus cessation
The “vacating” of refugee status occurs when the RPD determines that a refugee claim was successful as a result of the claimant misrepresenting or withholding material facts. A person whose refugee status is vacated loses both their permanent resident status and their protected person status.
In contrast to vacating, “cessation” of a refugee’s status can occur without fraud, which is why it has attracted criticism. The RPD may determine that a person’s refugee status has ceased if:
- the person has voluntarily re-availed himself or herself of the protection of their country of nationality
- the person has voluntarily reacquired their nationality
- the person has acquired a new nationality and enjoys the protection of that new nationality
- the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada
- the reasons for which the person sought asylum in Canada have ceased to exist (for example, a country that previously persecuted an ethnic minority that a refugee belongs to no longer does)
The first four examples can include refugees who return to their country of origin for extended periods to visit relatives or establish business relations, or refugees who acquire or renew a passport from their home country. The CBSA will normally initiate cessation proceedings when it discovers that a refugee has returned to their country of origin for an extended period of time.
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.
Second, refugees who are permanent residents should apply for citizenship if eligible. If the refugee has spent extended periods of time in their country of nationality, they should seek advice before doing so.
Third, if a refugee does travel, they should use a Canadian Refugee Travel Document and not apply for a passport from their country of nationality. Finally, if a refugee must travel to their country of origin, they should ensure that it is for a short duration, and document their reasons.
As long as cessation and vacation proceedings are being driven by arbitrary quotas, it is important that all refugees understand their choices and the potential consequences.
The Minister has the burden of proving re-availment on the balance of probabilities. In doing so, the Minister is entitled to rely on the presumption of re-availment by proving that the refugee obtained or renewed a passport from his or her country of origin. Once that has been proved, the refugee has the burden of showing that that he or she did not actually seek re-availment. As stated in the UNHCR Handbook, where there is proof that a refugee has obtained or renewed a passport “[i]t will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality” (para 121).
The Minister of Public Safety and Emergency Preparedness (the “Minister”) starts cessation hearings by providing written notice to the individual, and the written notice must set out the reasons for cessation. In situations where the claimant cannot be contacted the Immigration and Refugee Board has a rule for substituted service. Generally, what will happen is that the Member will ensure that the Minister has made all efforts to contact the person. As such, counsel should ensure that the Minister made all efforts to contact someone.
On March 17, 2015, Justice Noel certified the following 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?