A refugee struggles to regain permanent status

Amos (not his real name) was granted refugee protection in Canada approximately eleven years ago because of his fear of persecution in Sri Lanka.

Sukhram Ramkissoon

 But in 2020, the Minister of Public Safety and Emergency Preparedness applied for a determination that his refugee protection had ceased because he voluntarily re-availed himself of the protection of Sri Lanka. The minister’s application was based on Amos’s travel to Sri Lanka on a Sri Lankan passport in 2016 and 2019 after he obtained permanent residence in Canada, as a Convention Refugee.

In June 2022, the Refugee Protection Division (RPD) granted the Minister’s cessation application which resulted in severe consequences for Amos. As a result, he lost both his refugee status and his permanent resident status. He was not happy with the decision, and he challenged it by applying for judicial review to the Federal Court of Canada.

Amos argued in his Federal Court application that the RPD’s reasoning runs contrary to the Federal Court of Appeal’s recent guidance in a recent case. The learned judge stated he agreed

and found that the RPD failed to consider Amos’s knowledge of the immigration consequences of his actions in obtaining and relying on a Sri Lankan passport to return to Sri Lanka.

Further, contrary to the recent case, the RPD conflated two distinct inquiries, relying on its finding that Amos voluntarily obtained and travelled on a Sri Lankan passport and that he therefore intended to re-avail himself Sri Lanka’s protection.

The learned judge also found, and argued by Amos, that the RPD unreasonably dismissed the precautionary measures he took as implausible.

The recent case law relied upon by Amos, involves a protected person who obtained and relied on a passport from the country of nationality to travel to that country. When an application to cease a protected person’s status on cessation is based on these same circumstances, there is a presumption that the protected persons intended to avail themselves of their country of nationality’s protection.

The onus is on the protected person to rebut the presumption and the RPD must conduct an individualized assessment of the evidence, including “any evidence relating to the protected person’s subjective intent in obtaining, relying on a passport and/or traveling to their country of nationality.

The learned judge in Amos’s Federal Court application found the RPD’s analysis of Amos’ actual knowledge of the immigration consequences is limited to only noting that it is a relevant consideration but not necessarily determinative. Amos lacked the intention to re-avail, by reference to the case law. He alleged his lack of awareness of the consequences of his actions, which is a relevant consideration when assessing intention but is not necessarily determinative.

The Minister argued that while the RPD could have done a better job in their reasons, specifically, maintaining the distinction between its analysis of voluntariness and intention, this is not a serious shortcoming when considering the reasoning as a whole. The learned judge did not agree.

Lastly, the RPD’s treatment of the evidence of the precautions taken by Amos when traveling back to Sri Lanka is perfunctory. The RPD found it was implausible that the priest escorted him on all his outings. In making this finding, the RPD did not explain whether it believed that the priest escorted him on some of his outings, how many times Amos left his accommodation during his stay, or why this could not have occurred. As part of the evidence in the record, the priest provided a letter.

The learned judge found, given what was at stake for Amos, the RPD’s cursory dismissal of his evidence was found implausible and therefore irrelevant to the RPD’s analysis, and this did notprovide sufficient justification on the core issue.

The application was allowed and the decision was set aside and sent back for redetermination by a different member of the RPD.

Good luck Amos.

SUKHRAM RAMKISSOON is a member of CICC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario.