Applications by the Minister for Cessation Under IRPA s. 108(1)(a) to (d) and the loss of permanent residence under IRPA s. 40.

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1 It s The New Cessation Applications by the Minister for Cessation Under IRPA s. 108(1)(a) to (d) and the loss of permanent residence under IRPA s. 40.1(2) Canadian Bar Association National Immigration Law Conference, May 9-11, Introduction: This paper discusses the right of the Minister of Citizenship & Immigration to apply to the Immigration & Refugee Board - Refugee Protection Division (RPD) for cessation of refugee protection under the Immigration & Refugee Protection Act (IRPA) s. 108(1)(a) to (d) and the amendments which became law in 2012, providing for the automatic loss of permanent resident status under IRPA s. 46(1)(c.1) if the Minister s application under (a) to (d) is successful. Note that this paper does not deal with IRPA s. 115 removals where the Minister issues an opinion that a protected person is a danger to the public or to the security of Canada, or with IRPA s. 109 applications by the Minister for vacation of refugee protection. Cessation v. Vacation: An application under IRPA s. 108 for cessation of refugee protection is something completely different from a vacation application under s A vacation application under can only be made after refugee status has been granted, and only where the refugee has misrepresented or withheld facts relating to a relevant matter. Unlike cessation, claimants who have had their refugee status vacated under s. 109(3), are not subject to the 1-year bar on applying for a Pre- Removal Risk Assessment (PRRA), under IRPA s. 112(2)(b.1). Cessation has to do with the issues listed in S. 108(1), not misrepresentation. It may be raised by the Minister or the RPD at the refugee hearing, or the Minister may apply to the RPD under S. 108(2) after refugee protection has been granted, for a determination that refugee protection has ceased for any of the reasons in S. 108(1). Cessation of refugee protection under IRPA s. 108 can happen in one of three ways: a) At the refugee hearing before refugee status is granted (commonly where there is a change in country conditions for the better). b) After refugee protection has been granted, the Minister can apply to the RPD for a cessation hearing under one or more of the grounds in s. 108(1). As a result

2 of the 2012 amendments to IRPA, there are serious consequences for your client if the Minister s application is successful, as your client will be subject to the 1- year bar on applying for PRRA, under IRPA s. 112(2)(b.1). c) After refugee protection and permanent residence have been granted, the Minister can apply to the RPD for a cessation hearing under one or more of the grounds in s. 108(1). The focus of this paper is on s. 108(1)(a) to (d), as a successful application on any of these grounds now results in automatic loss of permanent resident status under s. 46(1)(c.1), as well as the 1-year bar on applying for PRRA. A successful application under s. 108(1)(e), change of circumstances, does not result in automatic loss of permanent residence. 2. Cessation under IRPA s. 108(1)(a) to (d) after Permanent Residence: Formerly, such applications were uncommon, because a determination of cessation by the RPD after permanent residence resulted in loss of refugee status but not loss of permanent residence. But since the 2012 amendments to IRPA took effect, a Convention refugee or protected person loses permanent resident status under IRPA s. 46(1)(c.1) on a determination of cessation by the RPD under any of the grounds in s. 108(1)(a) to (d). Grounds for Cessation: IRPA Section 108(1) - Rejection 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 themself of the protection of their country of nationality; (b) the person has voluntarily re-aquired 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; (commonly referred to as change of circumstances ) When can the Minister apply for Cessation? 1. At an IRB refugee hearing. 2. Any time after a successful refugee hearing, including after permanent residence has been granted, the Minister can apply to the IRB under Section 108(2) for a determination that refugee protection has ceased for any of the reasons in Section 108(1).

3 Practice Note: Bear in mind that under IRPA s. 101, no second refugee claims are allowed, so a determination of cessation at a refugee hearing or after a successful refugee hearing means your client will not be able to get refugee or protected person status in Canada except by a PRRA application, (unless they can get the RPD to reopen the cessation hearing on the grounds of a breach of natural justice). Your client will be subject to the 1-year bar on applying for PRRA, under IRPA s. 112(2)(b.1). Note that under IRPA s. 110(2)(e), if cessation is granted, there is no appeal to the Refugee Appeal Division (RAD). The only remedy is to apply for judicial review in Federal Court. Once the Federal Court has made a final determination, IRPA s provides that the RPD does not have the jurisdiction to reopen the case on any ground, including a failure to observe a principle of natural justice. IRPA Section 108(2) Cessation of refugee protection: On application by the Minister, the RPD may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection 108(1). IRPA s The Refugee Protection Division, in any proceeding before it: (b) must hold a hearing; (e) must give the person and the Minister a reasonable opportunity to present evidence, cross-examine witnesses and make representations; Burden of Proof at a Cessation Hearing: 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. Examples of successful cessation applications by the Minister under IRPA s. 108(1)(a) voluntary reavailment of the protection of the home country, and (d) voluntary re-establishment in the home country: Starovic v. MCI 2012 FC 827: The applicant was a citizen of Yugoslavia, of Croatian ethnicity. In 1999 she was found to be a refugee, based on her mixed marriage to a Serb, who was still in Serbia. She applied for permanent residence for herself and her husband. He was deemed inadmissible and her application for PR was not processed. She returned to Serbia in 2002 to visit her husband. She applied for a new Serbian passport and returned to Canada in January In June 2009 she returned to Serbia and remained there. The Minister applied to the RPD successfully for cessation in 2010, under s. 108(1)(a) & (d), and the Court upheld the RPD s decision.

4 X v. IRB, 2001 CanLII (IRB) : The respondent had been determined to be a Convention refugee 10 years ago. The Minister brought an application for a declaration that the respondent had ceased to be a Convention refugee as he had voluntarily re-availed himself of the protection of Sri Lanka [IPRA s. 108(1)(a)] and re-established himself there [IRPA s. 108(1)(d)]. The respondent had returned to SL on his own passport, spending almost two years there, got married, had children, and his wife and children were still living there. He had registered his marriage and the birth of his children, and was employed as a teacher in SL. He was able to obtain a variety of services from the Sri Lankan state. The IRB allowed the application for cessation. What happens if the Minister applies for cessation of refugee protection under IRPA s. 108(1)(e) after Permanent Residence has been granted? I am only aware of one (unreported) case (from a Toronto lawyer) of the Minister actually doing this. The refugee had returned to her home country after obtaining PR in Canada. She remained in her home country for a few years and also acquired a passport from a third country before returning to Canada. She had an interview with CBSA to see if there were H&C grounds to recommend not proceeding to the IRB. The Minister then applied to the RPD for cessation, and also to the IAD because the refugee had failed to comply with the residency requirement. Apparently the IAD's policy is to suspend the IAD proceeding pending the outcome of the RPD hearing on cessation, so the RPD hearing was held first. The refugee returned again to her country before the RPD hearing, and her explanation for why she would not return for her hearing was not helpful to her case. The RPD allowed the Minister's application for cessation of refugee protection. Next the IAD held a hearing regarding her PR status and her failure to comply with the residency requirement. So even if the Minister is successful in applying to the RPD for cessation per IRPA s. 108(1)(e) change of circumstances, after PR has been granted, the Minister still has to do another application to the IRB on other grounds such as failure to comply with the 2-year residency requirement, in order to take away PR and remove the ex-refugee from Canada. A successful s. 108(1)(e) cessation application after PR does not mean loss of PR status, only loss of refugee status. There must be other, separate grounds to take away PR. Similarly, if the Minister was able to first apply for removal of PR status, the refugee/protected person could still not be removed from Canada until their refugee status has been taken away by a cessation (or vacation) application. Unlike s. 109 vacation applications or cessation applications under s. 108(1)(a) to (d), a cessation application under s. 108(1)(e) does not by itself result in loss of PR status.

5 However, as pointed out above, refugees/protected persons lose their permanent resident status on a determination of cessation by the RPD under s. 108(1)(a) to (d). There is no appeal to the RAD. There is a 1-year bar to applying for PRRA. 3. Grounds for Cessation: Section 108(1)(a) to (d) of IRPA IRPA Section 108(1)(a) Voluntarily Re-availed: A refugee claimant's conduct with regard to her home country may be relevant to determining credibility, or well-founded fear of persecution, or cessation at the refugee hearing. The refugee s conduct may also be relevant to determining cessation, after refugee status has been granted. Note the word voluntarily. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, par. 119: Re-availment requires voluntariness (the refugee must act voluntarily), intention (the refugee must intend to re-avail himself of the protection of his country), and re-availment (the refugee must actually obtain the protection of his country). There are numerous examples of possible re-availment. The most obvious one is making a trip back to the home country after coming to Canada and making a refugee claim. In practice, if the refugee gives satisfactory reasons why she returned to her country, and states that she did not intend to re-avail and has a subjective fear, and is found to be credible, there is unlikely to be a finding of re-availment. The UNHCR Handbook par. 125 points out that visiting an old or sick parent in the home country is different from returning for a holiday or to establish business relations. Re-availment is sometimes an issue at refugee hearings. Re-availment has also been used by the Minister to apply for cessation where a refugee returns to his country for a lengthy time after refugee status has been granted (e.g. X v. IRB, 2001 CanLII 26945, above). In Cadena v. MPSEP 2012 FC 67, the refugee and her minor son returned to Mexico for a 4-year period a few weeks after obtaining refugee status. They travelled on their Mexican passports, which they had obtained back from the Canadian authorities after they were granted refugee status. The court upheld the RPD s determination of cessation under s. 108(1)(a) because of re-availment. The court noted that UNHCR Handbook par. 121 states:

6 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 his country of nationality. [emphasis added] By contrast, in CRDD M , the Refugee Division dismissed the Minister s application. The refugee returned to Iran with her terminally ill husband who wanted to see his eldest son before dying. She remained for 9.5 months, staying with family after her husband s funeral. She applied for an Iranian passport, which required a bribe and the assistance of intermediaries who take advantage of a long-established system of corruption. (Note that this decision was overturned by the Federal Court on the ground of a breach of procedural fairness, and sent back to the IRB for a new hearing: MCI v. Mirani 1998 CanLII 7406). In X (Re), 2007 CanLII (IRB), the RPD allowed the Minister s application, noting that the respondent, a DRC citizen, had voluntarily applied for and obtained a DRC passport to help out a friend. Section 108(1)(b) Voluntarily re-aquired their nationality: UNHCR Handbook paragraphs I am not aware of any reported cases on subsection (b) in Canada. This applies only to a narrow set of refugees. It does not apply to persons who currently have citizenship in a country, or persons who are stateless from birth, but only to those who have at some point been denationalized or who have successfully renounced their citizenship, and who then go on to have their status as citizens reinstated. Section 108(1)(c) Acquired a new nationality and enjoys the protection of the country: UNHCR Handbook paragraphs This is different from the situation where a person claiming refugee status has more than one nationality at the time of their refugee hearing, in which case the person must prove their case against all countries where they have nationality. An example of new nationality would be in the case of East Timor which has obtained independence from Indonesia. Refugees from East Timor who were born in East Timor presumably acquire East Timorese citizenship and can return there. The refugee must be able to enter her new state of citizenship, reside there with protection against deportation or expulsion, and enjoy a reasonable expectation that her basic human rights will be fully respected. There is at least one reported IRB decision on s. 108(1)(c): X(Re), 2009 CanLII (IRB). The country of origin is not mentioned in the reasons. The Minister was successful in a cessation application 14 years after refugee status was

7 granted. The RPD at the cessation hearing found that the refugee and her 3 children had acquired German citizenship, and that at their refugee hearing in 1995 they had falsified the information about their stay in Germany, their permanent resident status there, and their application for German citizenship. Section 108(1)(d) Voluntarily become re-established in the country: UNHCR Handbook paragraphs This subsection involved returning to the country of nationality with a view to permanently residing there. The UN Convention requires freely-chosen reestablishment, not mere return, before cessation applies. In one REFLEX case, CRDD C , the Minister applied unsuccessfully under subsection (d) for a declaration that the respondent had ceased to be a refugee. The IRB found that the respondent had returned temporarily to El Salvador to care for her sick mother and remained as a result of her father's illness, so she had not willingly resettled in El Salvador. However, the Minister was successful under subsection (1)(e). But in a later case, X v. IRB, 2001 CanLII (the Sri Lankan case, above), the Minister was successful on both re-availment 108(1)(a) and re-establishment 108(1)(d). In a more recent case, X (Re), 2004 CanLII (IRB), the respondent was granted refugee status in the mid-1990 s. He returned to Russia for a number of years, traveling on his own passport. He obtained several Russian governmentissued ID documents. He was self-employed there. His testimony was inconsistent and contradictory and he was found not to be a credible witness. The Minister applied for cessation successfully under IRPA 108(1)(a) and 108(1)(d) (re-availment and re-establishment). The Minister was similarly successful on both grounds in a 2005 Columbian case, X (Re), 2005 CanLII (IRB), and a 2007 Nigerian case, X (Re), 2007 CanLII (IRB). In the Nigerian case, the Respondent was granted refugee status in He returned to his home country in 2002 for his father s funeral, using a false Canadian passport. He remained there for over 5 years. Conclusion: It remains to be seen whether the changes to the cessation provisions in IRPA will result in more applications for cessation by the Minister. But cessation has certainly become much more important. Lawyers, in my view, have a duty to: 1. Advise clients who have obtained refugee/protected person status to apply for permanent residence as soon as possible, even though there is no longer a 6 month time limit. Clients should also be advised not to travel to their home

8 country, or apply for passports from their home country (unless directed to do so by CIC for purposes of identification for obtaining permanent resident status in Canada), as this may prompt a cessation application by the Minister. 2. Advise clients who have obtained refugee/protected person status and permanent residence, that their status is not permanent. The Minister may apply to the RPD at any time (prior to Canadian citizenship) for cessation under s. 108(1)(a) to (d). A successful application will result in automatic loss of permanent residence. Removal proceedings may be initiated by the Minister, as there is a 1-year bar to applying for PRRA. 3. Advise clients to avoid taking any steps that might result in a cessation application by the Minister, such as visiting their home country, before obtaining Canadian citizenship. There is no time limit on the Minister s right to apply for cessation, and the Minister has applied years after refugee status. 5. Advise clients to apply for Canadian citizenship as soon as eligible, even if this means loss of citizenship in another country. List of some reported cessation cases under IRPA s. 108(1)(a) to (d) Starovic v. MCI 2012 FC 827 Yugoslavia Cadena v. MPSEP 2012 FC 67 Mexico X (Re), 2009 CanLII (IRB) Germany/unknown X (Re), 2007 CanLII (IRB) DRC X (Re), 2007 CanLII (IRB) Nigeria X (Re), 2005 CanLII (IRB) Columbia X (Re), 2004 CanLII (IRB) Russia X (Re), 2003 CanLII (IRB) Ukraine X v. IRB, 2001 CanLII (IRB) Sri Lanka CRDD C (REFLEX) El Salvador CRDD M (REFLEX) Iran Daniel K. McLeod Preston Clark McLeod Lawyers & Notaries Public Granville Street Vancouver, BC V6H 3H , ext. 308 April 12, 2013