Understanding Refugee Cessation in Canada

Anna, a Slovenian 29-year-old woman, filed for refugee status six years ago in Canada. Her claim was accepted, and she was granted asylum. permanent resident. After becoming a PR, she travelled to Slovenia for three months to care for her ailing mother. However, the CBSA filed a cessation request upon her return to Canada, leading to a Refugee Protection Division hearing. Confused and worried, Anna wants to know what is happening following refugee cessation and her options. She fears the consequences if she loses this hearing.

Introduction to the Refugee Cessation

Cessation of refugee status involves revoking a person’s refugee protection. This process follows strict legal frameworks. The Immigration and Refugee Protection Act (IRPA) governs the requirements and outlines specific grounds for cessation, including voluntary revealment of national protection and reacquisition of nationality. Additionally, the Immigration and Refugee Protection Regulations (IRPR) detail procedures for cessation. The Refugee Protection Division (RPD) oversees cessation hearings.

Cessation can have serious consequences for refugees, including loss of status and removal orders. Therefore, understanding the cessation process is crucial for affected individuals. Furthermore, recent reforms and court cases have shaped the current practices. This article will explore these aspects comprehensively, aiming to clarify the cessation of refugee status in Canada.

Legislative Framework and Key Reforms

Understanding the cessation of refugee status requires examining the legislative framework and key reforms. Section 108 of IRPA forms the foundation. Additionally, significant reforms in 2012 reshaped the cessation regime.

2012 Reforms to the Cessation Regime

In 2012, the Protecting Canada’s Immigration System Act significantly amended the IRPA’s cessation provisions. These amendments added sections 40.1 (inadmissibility because of cessation) and 46(1)(c.1) (loss of PR status because of cessation). While the grounds for cessation in section 108 remained unchanged, the consequences became more severe (e.g., R228 added removal orders without a hearing). Previously, protected persons retained their permanent resident status even after cessation. Post-2012, a successful cessation application now leads to losing permanent resident status and inadmissibility for four of the five cessation grounds. This change prompted a substantial increase in cessation applications and influenced Canadian jurisprudence. Moreover, as we see later in this article, the affected individual may not appeal the RPD’s decision.

Overview of Cessation Provisions in IRPA

The IRPA outlines specific provisions for the cessation of refugee status. Section 108 lists the grounds for cessation, which include:

1. The person has voluntarily reavailed themself of the protection of their country of nationality.
2. The protected person has voluntarily reacquired their nationality.
3. The person has acquired a new nationality and enjoys the protection of that new country.
4. The protected person has voluntarily re-established in the country they left or stayed outside of when they claimed refugee protection in Canada.
5. The reasons for which the person sought refugee protection have ceased to exist.

1. Voluntary Reavailment of Protection

A person’s refugee status may cease if they voluntarily reavail themselves of their country’s protection. This means engaging with their country’s authorities, such as renewing a passport or seeking consular services. In Bashir v. Canada, the court emphasized that voluntariness and intention are crucial in determining reavailment. In that case, Bashir obtained his Pakistani passport but wanted to travel to Dubai, not Pakistan. Therefore, the RPD rejected the Minister’s application to cease. Moreover, consider the following principles.

1. Voluntariness: The refugee must act voluntarily without coercion, such as renewing a passport on their own accord. In El Kaissi v. Canada, the Court indicated that reavailment should not be deemed voluntary when the claimant returns to their country due to unavoidable reasons. However, returning for a holiday or business exploration would be considered voluntary.
2. Intention: Refugees must intend to reavail themselves of their country’s protection. This involves examining the context and reasons behind their actions. As we mentioned earlier, the case Bashir v. Canada discussed the importance of intention, particularly when renewing passports or travelling back to the country of nationality.
3. Actual Reavailment: The refugee must receive protection from their country. Abechkhrishvili v. Canada highlighted how extended stays and interactions with national authorities can demonstrate actual reavailment.

2. Voluntary Reacquisition of Nationality

Refugee status ceases if the protected person voluntarily reacquires their nationality. This occurs when an individual takes steps to regain citizenship, demonstrating an intention to resume national ties. This provision is less common as most refugees retain their original nationality until acquiring Canadian citizenship.

3. Acquisition of a New Nationality

Cessation applies if a person acquires a new nationality and enjoys the protection of that new country. For instance, in Khalifa v. Canada, the court upheld cessation because the individual, originally an Egyptian citizen, had become a U.S. citizen, thus no longer requiring Canadian protection.

4. Voluntary Re-establishment in Home Country

If the protected person voluntarily re-establishes themselves in their home country, their refugee status ceases. This involves returning and settling back in the country they fled. In Starovic v. Canada, the court ruled that the individual’s lengthy stay in Serbia indicated voluntary re-establishment, justifying cessation.

5. Change of Circumstances

Refugee protection ceases if the reasons for seeking it no longer exist. This ground applies when conditions in the home country improve significantly, removing the original threat. In Al-Obeidi v. Canada, the protected person had been granted refugee status due to fear of Saddam Hussein’s regime in Iraq. After Hussein’s regime fell, he travelled back to Iraq multiple times. When he applied for Canadian citizenship, the Minister initiated cessation proceedings, arguing that these travels indicated the reavailment of Iraq’s protection. However, the RPD decided to cease his refugee protection under paragraph 108(1)(e) due to improved conditions in Iraq.

The Minister can apply for a cessation hearing, which the Refugee Protection Division (RPD) conducts. Understanding these provisions is crucial for comprehending the cessation process.

Interpretation of the Grounds for Cessation

Understanding the grounds for ceasing refugee status is crucial for legal professionals. The IRB guidelines provide a comprehensive framework for interpreting these grounds, emphasizing the importance of a fair and thorough process. This section delves into the burden and standard of proof, general principles, and a detailed analysis of reavailment, all critical for navigating cessation cases effectively.

Burden of Proof

In cessation cases, the burden of proof rests with the Minister.

[22] When an application is made pursuant to subsection 69.2(1) of the Immigration Act for a determination of cessation of refugee status, the burden to show that there is a cessation of refugee status rests on the Minister…

Youssef v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 7709 (FC), https://canlii.ca/t/4857, retrieved on 2024-06-17

Please note that Youssef v. Canada is a 1999. Therefore, it refers to the sections of the Immigration Act of 1978.

Standard of Proof

The Minister must demonstrate that cessation grounds are met on a balance of probabilities. This means the evidence must show it is more likely than not that the cessation criteria apply.

[42] 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…

Li v. Canada (Citizenship and Immigration), 2015 FC 459 (CanLII), https://canlii.ca/t/gh849, retrieved on 2024-06-17

General Principles

Chapter 12 of the IRB guidelines underscores the importance of restricting cessation provisions. This approach ensures that protection is only withdrawn when justified, preventing arbitrary reassessments. The guidelines emphasize stability for those needing protection, aligning with refugee law’s humanitarian principles.

Ministerial Application for Cessation

Under IRPA Section 108(2), the Minister can apply to cease refugee protection. This process ensures that refugee protection is only maintained when necessary.

A108(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).

The Refugee Protection Division (RPD) handles these applications.

Responsible Minister and Application Procedure

The Minister of Citizenship and Immigration (IRCC) initiates cessation applications. Delegated officers from the Canada Border Services Agency (CBSA) often act on the Minister’s behalf. The application must be in writing and include the protected person’s contact information and relevant details about their case. The application procedure follows the Refugee Protection Division Rules, ensuring transparency and consistency.

Order of Questioning and Language of Proceedings

During cessation hearings, the order of questioning follows Rule 10 of the RPD Rules:

1. Order of Questioning in Ministerial Application to Cease Refugee Protection (Rule 10(4)):
   • The Minister’s counsel questions first.
   • The Division questions second.
   • The protected person’s counsel questions last.
2. Variation of Order of Questioning (Rule 10(5)):
   • The Division must not vary the order unless there are exceptional circumstances, such as accommodating a vulnerable person.

The language of the proceedings must match that used in the original refugee claim. The protected person can request a written language change no later than ten days before the next proceeding. This ensures fairness and clarity in the hearing process.

The Exception to Cessation Provisions

IRPA Section 108(4) outlines an important exception to the cessation provisions described in paragraph 108(1)(e).

A108(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.

This exception applies to individuals who can demonstrate compelling reasons for not availing themselves of the protection of their country of origin due to previous persecution, torture, treatment, or punishment.

Compelling Reasons Exception

A protected person who suffered severe past persecution, torture, or cruel treatment may not lose their refugee status even if the conditions in their home country have improved. This provision recognizes the lasting impact of such trauma, ensuring that individuals are not forced to return to a country where they previously experienced extreme suffering.

Relevant Court Cases

Here are four court cases involving section A108(4) of IRPA from Chapter 7 of the IRB guidelines:

1. Obstoj (Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.), at 746): This case involved the Federal Court of Appeal’s consideration of the applicability of the compelling reasons exception under the former Immigration Act (subsection 2(3)), which is analogous to section 108(4) of IRPA. It established that this exception applies even if the claimant no longer has a reason to fear future persecution due to the severity of past persecution.
2. Isacko (Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890): The Federal Court ruled that the jurisprudence developed under the former Immigration Act’s compelling reasons provision could guide the interpretation of section 108(4) of IRPA. This case reiterated the principle from Obstoj and emphasized the similarity in the language of the two statutes.
3. Nadjat (Najdat, Parviz v. M.C.I. (F.C., no. IMM-3995-05), Russell, March 9, 2006; 2006 FC 302): The Court rejected that section 108(4) applies only if refugee protection has been previously conferred. Instead, it ruled that claimants must show they once had a well-founded fear of persecution, not necessarily that they had been granted refugee protection.
4. Ismail (Ismail v. Canada, 2016 FC 650 (CanLII) at para 13): This case further clarified that the provision does not require claimants to establish that they had been granted refugee protection based on past persecution. Instead, claimants must demonstrate that they previously had a well-founded fear of persecution.

These cases collectively illustrate how Canadian courts have interpreted and applied section 108(4) of IRPA, focusing on the compelling reasons for exceptions related to past persecution, torture, or severe mistreatment.

Impact of Cessation Decision

The cessation of refugee protection carries significant consequences for the individual involved. The cessation decision impacts the individual’s status in Canada, leading to loss of refugee status and potentially triggering removal orders.

Loss of Refugee Status

Under IRPA Section 108(3), a successful cessation application results in the individual losing their refugee status. This provision ensures that individuals who no longer need protection or have engaged in activities that contradict their need for protection are no longer considered refugees.

A108(3) If the application is allowed, the claim of the person is deemed to be rejected.

It is noteworthy that the person could also lose their PR status under section 46 of IRPA:

46 (1) (c.1) A person loses permanent resident status on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d).

As you can see, this section only covers the first four reasons for rejecting refugee protection. However, permanent residents do not lose their PR status if refugee protection ceases under IRPA Section 108(1)(e). Section 46(1)(c.1) specifies that PR status is lost only if cessation occurs under Sections 108(1)(a) to (d). Therefore, a change of circumstances, as outlined in 108(1)(e), does not affect PR status.

Issuance of Removal Orders

When a protected person loses a cessation hearing, they become inadmissible to Canada under subsection 40.1(1) or IRPA. The same fate is waiting for those permanent residents who lose their PR status because of the first four reasons for cessation under A40.1(2). Consequently, these two groups are subject to a removal order. Such removal orders fall under IRPR Section 228(1)(b.1).

R228(1) (b.1) If the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order.

This section mandates issuing a departure order for individuals whose refugee protection has ceased. There is a little bit of confusion about R228(1)(b. 1) as it only covers A40.1 (1), not A40.1 (2). The latter concerns permanent residents. However, my understanding of Cano Granda v. Canada (2021 FC 1471 (CanLII)) is that since permanent residents become foreign nationals under A46(1)(c.1), they are subject to the same provision for removal orders.

Are Canadian Citizens Immune to Cessation Hearings?

Upon reviewing the Citizenship Act, IRPA, and IRPR, I could not find any sections directly addressing the cessation of refugee status for Canadian citizens. Additionally, no case law involves refugee cessation for Canadian citizens. The closest decisions, Canada v. Zaric and Canaj v. Canada indicate that citizenship does not automatically lead to the loss of refugee status, potentially leading to the rejection of cessation hearings at the RPD. However, both cases focus on vacation or loss of refugee status due to misrepresentation. Therefore, Canadian citizens may be immune to cessation hearings, though this is an observation based on the current information.

The Right to Appeal and Judicial Review

IRPA takes away the right to appeal the RPD decision in cessation hearings.

A110()(e) No appeal may be made in respect of any of the following a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased.

It is imperative to know that this restriction applies both to the claimant and the Minister. However, the Minister and claimant may apply for leave and judicial review before the Federal Court under section 72 of the Act.

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