Refugee claimants rarely able to go home

By Sukhram Ramkissoon 

I have been successful in representing a number of Caribbean clients who were successful in their claims for refugee protection in Canada.

Some have asked, can I return to my country from which I was granted protection in Canada? My answer to them is simple: No.

If you return you may end up having your landed status revoked. However, I told one recently that I will be addressing this topic in one of my columns.

For example, if a person is granted protection in Canada and returns to his country for a short visit, the minister under the Immigration and Refugee Protection Act (IRPA) may bring an application to determine that the refugee protection granted has ceased.

Here are some of the facts in a recent case in which the minister took proceedings before the Immigration and Refugee Board to have the refugee protection cease for a young Afghanistan citizen who was granted refugee protection in Canada.

After he obtained his permanent residence status in possession of a passport from the Afghanistan government he presented himself as a citizen of Afghanistan and traveled through London, Bahrain and Dubai to Afghanistan.

In this case, the minister argued before the board that once a passport has been successfully used to travel to the country of persecution, the intention is no longer rebuttable unless travel can be demonstrated to have been involuntary and meets the definition of re-availment.

With respect to when refugee protection ceases to apply to a person due to having re-availed of the protection of their country of nationality, the UN High Commissioner for Refugees (UNHCR) handbook, under the heading Cessation Clauses, provides three requirements as to when it can be considered that this has occurred: The refugee has acted voluntarily; he or she has exhibited an intention to re-avail; and the refugee has actually obtained such protection.

[19] The UNHCR handbook states:

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.

In this case the person testified before a panel, that his father experienced two strokes in 2012; that his concerns for his father had caused him to be unable to concentrate in his studies and he faced mounting pressure from his mother to visit his father, with whom he is particularly close and who he was told was in a condition of decline.

On the basis of this information, he testified he believed he might never see his father again if he did not travel to Afghanistan.

The panel considered the respondents’ age. At the time he was found to be a convention refugee he was 16. He became a permanent resident at 17 and when he planned and undertook his journey to Afghanistan he was 19.

Although he testified to a close relationship with his sole relative in Canada – an older brother – he does not live with him and testified that he did not tell him he was planning to travel home. This suggests either that the respondent ultimately acted on impulse in purchasing his ticket – which is not inconsistent with his youth – or that he does not look to his brother for guidance in important matters.

  The panel considered the circumstances under which he obtained refugee protection. The panel also gave considerable weight to his largely unchallenged testimony that he could not concentrate on his studies owing to concern for his father, was under persistent pressure from his mother to travel home to see his father and came to believe, not unreasonably, that if he did not travel to Afghanistan soon, he might never see his father again.

The panel ruled that the consequences for an individual whose refugee status is successfully cessated are very serious and there are few avenues for mitigation. In view of advice in the UNHCR refugee handbook and examples in case law indicating such cases should be judged on their individual merits as to the reason for return, and factoring in his age, his largely unchallenged reliability as a witness, the panel’s own observation of his disingenuous demeanour in giving testimony and the gist of that testimony that he perceived his travel to Afghanistan to see his father to be a relatively urgent situation, the panel concluded, on a balance of probabilities, that his actions were, effectively, involuntary.

The panel rejected the minister’s application and the young main retained his protection in Canada.

Sukhram Ramikissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Toronto. Phone 416-789-5756.

Sukhram Ramkissoon
Sukhram Ramkissoon