Learning moments – Minister’s Application for Cessation of Refugee Protection

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Hello fellow practitioners! This week’s question deals with what the options are for a client served by the Minister with an Application for Cessation of Refugee Protection.

My client received An Application for Cessation of Refugee Protection from the Minister of Citizenship and Immigration Canada. The Application has been filed at the RPD, but no hearing has yet been set. Why did this happen and what can my client do to keep his refugee status?

A cessation order will be made to Refugee and Permanent Residents, where the Minister or the Board has decided that the individual does not need the protection of Canada any longer.

Prior to 2012, cessation only affected your refugee protection. But on 15 December 2012, the Protecting Canada’s Immigration System Act (PCISA) came into effect. The PCISA changed the law so that when your refugee protection is ceased you also lose your Permanent Residence.

Ceased refugees also become inadmissible. An inadmissible person is supposed to leave Canada. Their future applications to stay in Canada or return to Canada will normally be refused, unless they get special permission to get around their inadmissibility. There is no guarantee that they can get that special permission. Further, ceased refugees cannot ask for that special permission for at least one year following the cessation of protection. (Unless removal would subject them to a risk to their life caused by inability to obtain adequate health or medical care, or removal would have a direct, adverse effect on the best interests of a child).

Ceased refugees cannot make new refugee claims at the Immigration and Refugee Board.

For one year after cessation, they also cannot apply for discretionary Temporary Resident Permits, nor Pre-Removal Risk Assessments – unless their protection was ceased because of reason (5), in which case there is currently a policy allowing them to apply for a Pre-Removal Risk Assessment before one year passes, with certain exceptions beyond the scope of this post.

The framework for when protection may lawfully cease is set out in s. 108 of the Immigration and Refugee Protection Act. S. 108 provides as follows:

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 re-availed themselves 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.

(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).

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

(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.

The leading case, Nsende v Canada (MCI) 2008 FC 531, [2009] 1 FCR 49, established 3 criteria for assessing cessation on a refugee. They are

This case stemmed from paragraph 119 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees

“if a refugee applies for and obtains a national passport or its renewal, it 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”[1]

“The cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status”[2]

This is the first requirement that the courts look at. This means that the applicant must not have been coerced to reavail. Despite the presumption of reavailment with returning to a home country or applying for a passport, there are occasions that may mitigate the voluntariness of these actions. In Mayell v. Canada (Citizenship and Immigration), 2018 FC 139 the court held:

“In my view, the RPD failed to properly consider that Mr. Mayell travelled to Afghanistan only because he had received advice from legal counsel that obtaining an Afghani passport would not jeopardize his Canadian status – it would be “okay”. It is clear from reading the record that had he received proper advice that obtaining the passport and travelling to Afghanistan would put his status in Canada at risk, he would not have obtained the passport and therefore would not have been in a position to travel to Afghanistan. Faced with that reality, it is most likely that he would have examined other options to marry and bring his wife to Canada to join him”

For the second requirement the refugee must intend to reavil themselves of the protection of the country of their nationality. In Chandrakumar v Canada (Minister of Employment and Immigration), the Federal Court held that the Convention Refugee Determination Division had erred by “failing to explore the prinicipal applicant’s motivations in applying to renew his Sri Lankan passport while in Germany. The court held that just simply renewing a passport without indication of the requisite intent to avail of the protection of the state was insufficient to constitute reavilament.

Abadi v Canada (Citizenship and Immigration), 2016 FC 29 (CanLII) found that the presumption that if a claimant applies for and obtains a passport, then in the absence of proof, there is a strong contention that the claimant intends to avail themselves, if they use that national passport to return to their home country.

The last requirement the courts consider is reavailment, where the refugee must actually obtain the protection of their home country. A refugee requesting protection from the authorities of the country of his nationality has only ‘re-availed’ himself of that protection when his request has actually be granted. In Yuan v. Canada (Citizenship and Immigration), 2015 FC 923 the court held

“The RPD’s conclusion that the Applicant had actually re-availed himself of China’s protection contradicted its other factual findings and, therefore, was not reasonable. On the one hand, the RPD accepted that the Applicant was hiding from the Public Security Bureau [PSB] by living at his cousin’s house and seeing only relatives, that the PSB had been looking for him on the day of his mother’s funeral, and that he had avoided attending his mother’s funeral out of fear that the PSB would find him there; but, on the other, it found that he had re-availed himself of China’s protection because he remained in the same general area and received visitors. Whether he was hiding perfectly, however, the fact of the matter is that he was still hiding.[35]”

The burden of proof is on the minister to show that the protection should cease. Under the Refugee Protection Division Rules the minister must apply in writing to the RPD to hold a cessation hearing and must disclose any evidence to the refugee. If the RPD made an order for cessation of refugee status or protection, then the principle of non-refoulement would no longer apply.

“When an application is made pursuant to … 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. MCI 1999 CanLII 7709 (FC), par. 22.

Section 108(4) of the IRPA states that even if the reasons for refugee protection have ceased, a person can retain refugee status when:

“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 was interpreted in Obstoj to include “those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them” (Canada (MEI) v Obstoj, [1992] 2 FCR 739 at para 19, [1992] FCJ No 422).

However, “compelling reasons” must be considered on a case by case basis, each on its own merit, based on the totality of the evidence, so there can be no rigid test (Suleiman v Canada (MCI), 2004 FC 1125 at para 16).

The compelling reasons exception only applies to those who would have been entitled to refugee protection, but the reasons for that refugee claim have since ceased to exist (Nadjat v Canada (MCI), 2006 FC 302 at para 50). The Court has affirmed that a compelling reasons analysis does not need to be undertaken where the Board has determined that an applicant did not qualify as a refugee at any point (JKM v Canada (MCI), 2013 FC 1060). It is not sufficient to find that the applicant had been persecuted at any point (Henry v Canada (MCI), 2014 FC 1017).

However, where a claimant experienced previous torture or persecution, the Board is required to consider subsection 108(4), whether or not the claimant raised the issue: Yamba v Canada (MCI) (2000), 254 NR 388 at para 6, [2000] FCJ No 457; Kumarasamy v Canada (MCI), 2012 FC 290; Sivapathasuntharam v Canada (MCI), 2012 FC 486 at paras 25. The Board cannot avoid its statutory obligation to consider compelling reasons by not addressing the question of past persecution: Buterwa v Canada (MCI), 2011 FC 1181 at para 11.

Note: Cessation matters before the RPD are assessed on a case by case basis and if a matter is brought before the Federal Court for Judicial Review the case law have shown that the court will weigh two main factors:

1) Did the Applicant/Refugee sufficiently rebut the presumption of re-availment based on the grounds of voluntariness, intention, and seeking state protection; or

2) Was the RPD’s decision reasonable

[1] Nsende v Canada (MCI) 2008 FC 531, [2009] 1 FCR 49, para 13

[2] Ibid, para 14