Canadian Refugee Procedure/Applications to Vacate or to Cease Refugee Protection

IRPA Section 108: Cessation of Refugee ProtectionEdit

Section 108 of the Immigration and Refugee Protection Act reads:

Cessation of Refugee Protection
Rejection

108 (1) 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 reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired 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.

Cessation of refugee protection
(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision
(3) If the application is allowed, the claim of the person is deemed to be rejected.

Exception
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

The responsible Minister for applications to cease refugee protection is the Minister of Citizenship and ImmigrationEdit

Section 108(2) of the IRPA provides that "on application by the Minister, the Refugee Protection Division may determine that refugee protection [has ceased]". The responsible Minister for section 108(2), cessation, is the Minister of Citizenship and Immigration. This is so as, per section 4(1) of the IRPA, the Minister of Citizenship and Immigration is responsible for the administration of the IRPA except as otherwise provided:Canadian Refugee Procedure/4-6 - Enabling Authority.

Section 6 of the IRPA provides that the Minister responsible may designate any person or class of person as officers to carry out any purpose of any provision of the IRPA: Canadian Refugee Procedure/4-6 - Enabling Authority. The Minister's authority for making cessation applications has been delegated to CBSA hearings officers and IRCC senior immigration officers.[1]

Rule 64Edit

The text of rule 64 reads:

Applications to Vacate or to Cease Refugee Protection

Form of application
64 (1) An application to vacate or to cease refugee protection made by the Minister must be in writing and made in accordance with this rule.

Content of application
(2) In the application, the Minister must include
(a) the contact information of the protected person and of their counsel, if any;
(b) the identification number given by the Department of Citizenship and Immigration to the protected person;
(c) the date and file number of any Division decision with respect to the protected person;
(d) in the case of a person whose application for protection was allowed abroad, the person’s file number, a copy of the decision and the location of the office;
(e) the decision that the Minister wants the Division to make; and
(f) the reasons why the Division should make that decision.

Providing application to protected person and Division
(3) The Minister must provide
(a) a copy of the application to the protected person; and
(b) the original of the application to the registry office that provided the notice of decision in the claim or to a registry office specified by the Division, together with a written statement indicating how and when a copy was provided to the protected person.

CommentaryEdit

HistoryEdit

The process for cessation and vacation applications has evolved over time. When the Convention Refugee Determination Division was founded, the Minister could make an application to it for cessation or vacation of a person’s refugee status. An application for vacation first required leave from the Chairperson. The Minister’s application for cessation, or for vacation (if leave was granted), would be heard and decided by a three-member panel of the CRDD, with the decision of the majority governing.[2] The leave requirement was eventually eliminated and one-person panels began to decide such applications. When the CBSA was created in the early 2000s, it took on the mandate for the cessation or vacation of refugee protection (see: Canadian Refugee Procedure/History of refugee procedure in Canada#Post-IRPA measures). More recently, in 2013-14 the CBSA identified cessation and vacation applications as a priority and set itself an internal annual target of 875 applications.[3] In January 2021, IRCC received the delegated authority to file cessation applications, in addition to CBSA.

Use of this rule where a previous application to cease or vacate protection has been withdrawnEdit

A question can arise about the interaction between this rule, which allows the Minister to commence an application to vacate or cease refugee protection, and Rule 61, which allows the Minister to reinstate a withdrawn application to vacate or to cease refugee protection: Canadian Refugee Procedure/Reinstating a Withdrawn Claim or Application#Rule 61 - Application to reinstate withdrawn application to vacate or to cease refugee protection. Where the Minister wishes to reinstate a previous application to vacate or cease refugee protection, they must use Rule 61. However, where the Minister wishes to make a new application based on new facts and allegations, then they may make a new application to cease or vacate refugee status, notwithstanding the existence of a previous withdrawn application for same that was based on different facts. This issue arose in Cohen v. Canada, a case in which a previous Minister's application to vacate refugee protection had been withdrawn by the Minister. The Minister then filed a subsequent application to vacate the applicant’s refugee status pursuant to Rule 64 of the Rules. The RPD found that the Minister’s vacation application filed pursuant to Rule 64 as a “new” application was filed in error and that the application should have been filed pursuant to Rule 61(1) as a reinstatement of the withdrawn application to vacate.[4] The answer as to whether Rule 61 or Rule 64 should be used in a particular case will be a factual one. If the application is substantially based on the previous allegations, or information which, while new to the Minister was obtainable with reasonable diligence, then the Minister should proceed by way of reinstatement. In contrast, where new events occur subsequent to the withdrawal of a previous application, for example a new act of reavailment of a country's protection, then this will point to the use of Rule 64 being appropriate for a new application. Any other result could lead to absurd consequences, for example tying the Minister's hands to bring a new application to cease protection even where a claimant has engaged in new, obvious, and high-profile instances of reavailment that could bring the refugee protection system into disrepute.

Rule 64(3): The Minister must provide a copy of the application to the protected personEdit

Rule 64(3) requires that the Minister provide a copy of the application to the protected person and that the Minister provide a written statement indicating how and when a copy was provided to the protected person. In some circumstances, the Minister may not be able to locate the protected person to serve a copy of the application.[5] In those circumstances, the Minister is required to make an application under RPD Rule 40 to vary or be excused from the service requirement. That rule also provides that the RPD must not allow such an application unless it is satisfied that reasonable efforts have been made to provide the document as required: Canadian Refugee Procedure/Documents#Rule 40 - Application if unable to provide document. This service issue is distinct from issues that arise where a protected person has been served with an application and then does not keep their contact information current with the IRB and Minister; once a protected person has been served with an application, pursuant to RPD Rule 12, the onus is on that person to notify the Division and Minister of any address changes for themselves or their counsel: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 12 - Supplying contact information after an Application to Vacate or to Cease Refugee Protection.

Rule 64(3): The Minister must provide a copy of the application to the protected person and this can be done even where the protected person is located outside of CanadaEdit

Rule 64(3) requires the Minister to provide a copy of the application to the protected person. Where the protected person is no longer in Canada, the Minister may be permitted to serve the protected person at an address outside Canada and the person may participate by telephone or other appropriate means.[5] The fact that a protected person is located outside of Canada thus does not relieve the Minister of their service obligation.[6]

Timeliness of the Minister making an application to cease or vacate protectionEdit

At time applicants have argued that the Minister engaged in an abuse of process by filing an application for cessation years after having known that the applicant had returned to their country of origin. This argument was rejected in Seid v. Canada, with Justice LeBlanc holding that for a delay to constitute an abuse of process, it “must have been part of an administrative or legal proceeding that was already under way.[7]

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#A party is entitled to a hearing without unreasonable delay that causes serious prejudice.

ReferencesEdit

  1. Department of Citizenship and Immigration, Instrument of Designation and Delegation, January 26 2021, <https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/il/il3-eng.pdf> (Accessed September 20, 2021).
  2. David Vinokur, 30 Years of Changes at the Immigration and Refugee Board of Canada, CIHS Bulletin, Issue #88, March 2019, <https://senate-gro.ca/wp-content/uploads/2019/03/Bulletin-88-Final.pdf> (Accessed May 13, 2021), page 7.
  3. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 922.
  4. Cohen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1101 (CanLII) <https://www.canlii.org/en/ca/fct/doc/2018/2018fc1101/2018fc1101.html>
  5. a b Immigration and Refugee Board of Canada, Legal Resources - Chapter 12 - Applications to Cease Refugee Protection, <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef12.aspx#n1242> (Accessed December 6, 2020).
  6. See, as an example, Seid, Faradj Mabrouk v. M.C.I. (F.C. no. IMM-2555-18), LeBlanc, November 21, 2018; 2018 FC 1167 at paragraph 16 (protected person served in Chad).
  7. Seid v Canada (Citizenship and Immigration), 2018 FC 1167.