By Sukhram Ramkissoon
I have in the past warned a number of persons who were granted Convention Refugee Protection, especially from the Caribbean, that their status may be revoked if they return to the country from where the claimed persecution.
Most were of the opinion that they can return as they knew a person who was in similar circumstances and he visited his homeland and returned without any problems. That may be so, but recently CBSA has accelerated enforcement proceedings for persons who have been caught.
For clarification let us examine a recently concluded matter for a person who was in similar circumstances. I will refer to her as Jane.
She is a citizen of a country in the Middle East and was granted refugee status in 2008 on the basis of her status as a Christian. She arrived in Canada as a permanent resident in December 2008.
In 2010, she applied for a passport from her country which was issued to her in early April 2010. She traveled to her country in late April 2010 to visit her grandmother and underwent foot surgery during her visit, which lasted approximately six months.
She again returned to her country in July 2013 and stayed 34 days, visiting an uncle who was being treated for colon cancer and she had surgery to her nose and major work done on her teeth. Upon her return she informed CBSA that she returned to her country for plastic surgery.
The minister then took steps before the Immigration and Refugee Board for cessation of her status on the grounds that she had reavailed herself of the protection of her country of nationality.
The criteria in the UN High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status says three requirements must be shown in determining if refugee protection ceases to apply on grounds of reavailment: that the refugee has acted voluntarily; that the refugee has shown an intention to reavail; and that the refugee has actually obtained the protection of his or her country of nationality.
The board found that Jane failed to rebut the presumption of reavailment because she had the intention to voluntarily reavail herself of the protection of her country by applying for a passport and then using that document to travel to her country as a national of that country.
She sought judicial review of the decision and argued that the board committed a reviewable error by misinterpreting Article 1C(1) of the UN Convention Relating to the Status of Refugees. She further argued that the board failed to properly address the third element of the reavailment test, that is, whether she actually received protection from her country.
The court in its reasons stated the sole question for determination was whether the board’s decision was reasonable. The decision met that standard as the board considered all the evidence and reasonably concluded the minister had met the three factors for reavailment and that Jane had failed to give a compelling explanation for her return to her country of nationality, the court ruled.
Her application for judicial review was dismissed.
The decision of the board was confirmed and Jane’s status as a protected person in Canada was revoked. She will now be removed from Canada. She can submit an appeal on her fear of returning to her country as she will be entitled to a Pre-Removal Risk Application.
So you see all persons who were granted protection face the risk of having their status revoked if they visit the country from which they claimed persecution.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.