About a decade ago, stakeholders noticed a marked increase in applications to cessate the status of those granted protection in Canada. The Canadian Council for Refugees discussed this at length in an article published in 2014.[1] CBSA had a quota to reach and thus began a modern era of enforcement against those that had succeeded in their refugee claims and had even obtained Permanent Residence status.
It is true that refugee [protected person] status is a “transitory phenomenon” under the Convention and that there are “various situations in which refugee protection may come to an end”.[2] The Convention and our own IRPA allow for the cessation of such status triggered where there is evidence of re-availment to the state of origin/country of reference, by re-acquisition of its nationality or re-establishment.[3] This is one of the more complex areas of refugee practice. As Professor Hathaway notes:
…difficult conceptual issues can … arise. For example, what types of action amount to formal “re-availment” … or re-acquisition of its citizenship? Is every return … tantamount to “re-establishment” there …[4]
For years, such applications were triggered by return trips (as disclosed or determined at the POE, PR card renewal applications and other immigration applications, and citizenship applications) or the renewal of a passport from the country of origin.
CBSA seemed to take a strict liability approach.
Simple return = re-availment/re-establishment. The act of renewing a passport = re-acquisition.
Counsel were at a distinct disadvantage in cessate proceedings. Many long-term residents of Canada lost status.
Enter the FCA decision in Galindo Camayo.
Galindo Camayo is a significant development in refugee jurisprudence as it introduces subjective intent into the framework of analysis.
The facts: Ms. Galindo was granted protection by Canada as a child due to threats against her mother. After becoming a permanent resident, she made several trips to her country of nationality between the ages of 17 and 21 to visit her ill father and also help impoverished children. In 2017, the Canada Border Services Agency (CBSA) filed an application seeking to cessate protection on the grounds of reavailment, claiming that her trips were not sufficiently necessary or compelling.
The Immigration and Refugee Board (IRB) agreed with this assessment, stating that her ignorance of the laws/her lack of knowledge that her return trips could endanger her status was not a valid argument.
The matter was reviewed by the Federal Court and thereafter by the Federal Court of Appeal. In March 2022, the FCA found that the IRB had misunderstood the concept of intent to reavail and erred by only considering what Ms. Galindo objectively should have known instead of what she subjectively intended. The IRB also conflated intent to reavail with voluntariness.
My thoughts:
- Old habits die hard. I’m not sure Galindo Camayo will change CBSA’s approach. It will take time. I doubt they will give up this bone quickly or easily.
- The list of factors is set out in the FCA decision. I leave it to counsel to understand and appreciate that subjective intent matters and determine the steps they need to take at the hearing to adduce sufficient credible evidence to establish same.
My most recent cessate case had a number of commonalities with Galindo Camayo; in this case, the person concerned returned to Cuba on an emergency, short term basis to attend her mother's funeral and travelled a second time to tend to her father after a life threatening surgery. We had provided up front submissions in the hopes that Minister's counsel might see fit to withdraw the application. To no avail. The decision is pending and we feel confident with our chances given the particular facts of the case and the positive development in the jurisprudence.
[1] Canadian Council for Refugees. (2014, May). Cessation: stripping refugees of their status in Canada. Retrieved April 18, 2023, from https://ccrweb.ca/en/cessation-stripping-refugees-their-status-canada
[2] Hathaway, J. C., & Foster, M. (2014). The Law of Refugee Status (2nd ed.). Cambridge, UK: Cambridge University Press, page 462.
[3] Ibid, page 463.
[4] Ibid.
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