Chapter 12 - Applications to Cease Refugee Protection

12.2.1. Reforms to Cessation regime - 2012

The law related to cessation was significantly amended on December 15, 2012. On that date, the IRPA was amended by the Protecting Canada’s Immigration System Act.^{Note 3}The amendments added sections 40.1 and 46(1)(c.1) to the IRPA. While the amendments did not change the substantive elements of cessation in section 108, the consequences became more severe.

Prior to the amendments, a protected person did not lose permanent resident status if he or she had been granted that status. The amendments changed this for four of the five grounds of cessation, meaning that with the exception of the one ground over which the protected person has no control, namely the reason for seeking protection no longer exists, a permanent resident now loses his or her permanent resident status and becomes inadmissible upon a successful application to cease refugee status by the Minister.

The impact on the number of Minister’s applications to cease made to the RPD was immediate. The result is that almost the entire body of Canadian jurisprudence on applications to cease refugee status has been developed since 2012.

12.2.2. Overview of Cessation Provisions in IRPA

Subsection 108(1) of the IRPA sets out five grounds for cessation of refugee protection, while subsection (4) sets out an exception to the application of paragraph 108(1)(e) – commonly referred to as change of circumstances:

Subsection 108(2) of the IRPA allows the Minister to make an application to the RPD to declare that refugee protection has ceased for any of the grounds set out in subsection 108(1):

On a successful application to cease refugee protection, subsections 40.1(1), 46(1)(c.1), and 108(3) of the IRPA have the combined effect of (i) rendering the protected person inadmissible to Canada;^{Note 4}; (ii) removing permanent resident status, if they had it; and (iii) deeming the claim of the protected person rejected. In other words, the person becomes an inadmissible foreign national.

There is an exception to becoming inadmissible and losing permanent resident status where the protected person had become a permanent resident and the only ground of cessation is paragraph 108(1)(e) - the reasons the person sought protection have ceased to exist, colloquially referred to as a change of circumstances:

Finally, paragraph 110(2)(e) of the IRPA provides that neither the Minister nor the protected person who is the subject of a cessation application has the right to appeal to the Refugee Appeal Division from a decision of the RPD to allow or reject an application. Rather, the way to contest such a decision is by making an application for leave and judicial review before the Federal Court:

12.4.1. Responsible Minister

Subsection 4(1) of the IRPA provides that the Minister of Citizenship and Immigration (CIC)^{Note 13} is responsible for the administration of the Act except as otherwise provided in the section. Since section 4 does not indicate another Minister is responsible for applications under section 108, and the Governor in Council has not made an order pursuant to subsection 4(3) which would designate another Minister for the purpose of subsection 108(2), the responsible Minister making applications to cease refugee protection is the Minister of CIC.^{Note 14}

12.4.2. How an Application is Made

The process for making an application is set out in the Refugee Protection Division Rules (RPD Rules).^{Note 15}

RPD Rule 64 provides that an application to cease refugee protection must be in writing and include the following information:

• The contact information of the protected person and their counsel, if any;
• The identification number given by the department;
• The date and file number of any decision with respect to the protected person;
• 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;
• The decision that the Minister wants the Division to make; and
• The reason why the Division should make that decision.

Rule 64(3) requires the Minister to provide a copy of the application to the protected person and the original to the Division, together with a written statement indicating how and when a copy was provided 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.^{Note 16}

In some circumstances, the Minister may not be able to locate the protected person to serve a copy of the application. 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. In determining applications under rule 40, the RPD has considered such factors as the Minister’s efforts to search internet databases, searches in the Canadian Police Information Centre database, personal attendance at the last known address, attempts to reach the protected person at the last known telephone number, and the relative quality of the Minister’s evidence on the merits of the application to cease.^{Note 18}

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.

12.4.3. Order of Questioning

At the hearing of a cessation application, RPD Rule 10(4) provides that the Minister’s counsel will begin questioning any witness, including the protected person, followed by the presiding member and then the protected person’s counsel. RPD Rule 10(5) provides that the order of questioning may be varied in exceptional circumstances, including to accommodate a vulnerable person.

12.4.4. Language of Proceedings

RPD Rule 18 provides that the Minister must make an application to cease in the same language as was used in the original refugee claim proceedings. The protected person may then change this language upon notice in writing no later than 10 days before the day fixed for the next proceeding.

12.5.1. Burden and Standard of Proof

The burden of proof in an application to cease refugee status rests with the Minister on a balance of probabilities.^{Note 20}

12.5.2. General Principles

Paragraphs 111-116 of the UNHCR Handbook^{Note 21} provide some general guidance on the interpretation of the cessation clauses which have been cited in Canadian jurisprudence.

In particular, paragraph 111 explains the rationale for the cessation provisions, being that refugee protection is no longer necessary or justified. However, paragraph 112 cautions against an overly broad application of the cessation clauses because refugees need assurance that their status will not be subject to constant review.

Paragraphs 113-115 set out the cessation clauses with reference to Article 1 C of the 1951 Convention.

Paragraph 116 of the Handbook states that the cessation provisions are exhaustive and “should be interpreted restrictively.”

The Federal Court in Bashir^{Note 22} cited these interpretative principles with approval and applied the “strict” approach in rejecting the Minister’s more expansive interpretation of the presumption that applies from obtaining a passport from the country of persecution.^{Note 24} Likewise, in Gezik,^{Note 25} the Court stated that it was applying the “restrictive and well-balanced approach” that should be adopted in interpreting the cessation provisions.

12.5.3. Paragraph 108(1)(a) - Reavailment^{Note 26}

Paragraph 108(1)(a) of the IRPA provides, in effect, that a protected person’s refugee protection ceases if he or she “has voluntarily reavailed themselves of the protection of their country of nationality.” This ground of cessation is the one most often invoked in applications to cease; therefore, most of the Canadian jurisprudence on cessation relates to this provision.

In Kuoch,^{Note 27} the Court stated that although the UNHCR handbook is not formally binding, it provides authoritative guidance as to the meaning of “reavailment.” In general, Canadian jurisprudence has adopted the analytical framework for reavailment that is set out in paragraph 119 of the UNHCR Handbook:

119. This cessation clause implies three requirements:

1. voluntariness: the refugee must act voluntarily;
2. intention: the refugee must intend by his action to re-avail himself of the protection of the country of his nationality;
3. re-availment: the refugee must actually obtain such protection.

In Bashir,^{Note 28} the Court held that the three elements are cumulative, such that once the RPD found in that case that the protected person had no intention to reavail himself of the protection of his country of nationality, it was not an error to decline to examine the third element – actual reavailment – before dismissing the Minister’s application. However, in order for an application under paragraph 108(1)(a) to be granted, the Minister must satisfy their burden of establishing all three elements of reavailment.

Following is a discussion of the three elements. While each have been described under a separate heading for the purposes of this chapter, the analysis in the jurisprudence does not always make a clear distinction. In particular, the issues of whether or not a person had the intention to reavail and actually reavailed sometimes appear as one analysis.

12.5.4. Paragraph 108(1)(b) - Voluntary acquisition of nationality

Paragraph 108(1)(b) provides, in effect, that a person’s refugee protection ceases if they re-acquire their citizenship.

Paragraph 126 of the UNHCR Handbook indicates that this clause applies when a refugee, having lost the nationality of the country in respect of which he was recognized as having a well-founded fear of persecution, voluntarily re-acquires such nationality.

This ground has not been substantially considered in Canadian jurisprudence. Generally, a protected person in Canada would retain their original citizenship after becoming a protected person, at least until they are granted Canadian citizenship. For this reason, it would be very unlikely for this ground to be raised in an application to cease. A similar point is made in footnote 17 of paragraph 127 of the UNHCR Handbook about the non-applicability of this clause in most refugee cases.

In Starovic,^{Note 61} the protected person had claimed refugee status as a citizen of Yugoslavia of Croatian ethnicity. She later returned to Serbia. The RPD found that she had not reacquired her nationality as she had never lost it in the first place because Serbia is a successor state to Yugoslavia. This aspect of the decision was noted, but not otherwise commented upon, by the Federal Court as the decision was upheld on other grounds.

12.5.5. Paragraph 108(1)(c) - Acquisition of a new nationality

Paragraph 108(1)(c) provides, in effect, that a person’s refugee protection ceases if they acquire a new nationality and enjoy the protection of that nationality.

Only one Canadian court decision has considered this provision. In Khalifa,^{Note 62} the RPD had granted the claimant, a citizen of Egypt, refugee status in 2004. He was granted United States citizenship in 2012. The Minister filed an application to cease refugee protection, arguing that both paragraphs 108(1)(a) and (c) applied. The RPD allowed the application under paragraph 108(1)(c).

The protected person raised several arguments on judicial review regarding abuse of process and the RPD’s jurisdiction, which are discussed more fully below; however, with respect to the RPD’s conclusion on paragraph 108(1)(c), the Court stated:

[49] It is also reasonable that Parliament would terminate the privileged status of an applicant who no longer needs the protection of Canada because he has obtained citizenship in another safe country prior to becoming a citizen of Canada. Mr. Khalifa is now, by choice, a U.S. citizen who enjoys the protection of another country, and thus no longer needs protection from Canada. It is not the intention of refugee protection legislation under the IRPA that Canada become a country of convenience for those who wish to acquire protection in any number of countries. This determination is entirely independent of a determination that the reasons for refugee protection no longer exist in his country of origin.

In Starovic,^{Note 63} the protected person had claimed refugee status as a citizen of Yugoslavia of Croatian ethnicity. She later returned to Serbia on a Serbian passport. The Board found that she had not acquired a new nationality because Serbia is a successor state to Yugoslavia. This aspect of the decision was noted, but not otherwise commented upon, by the Federal Court as the decision was upheld on other grounds.

In Zaric,^{Note 64} the Federal Court, in the context of an application to vacate under section 109 of the IRPA, briefly discussed the effect of the acquisition of Canadian citizenship on cessation. It stated that while Mr. Zaric automatically ceased to be a refugee for the purposes of the Convention the moment he acquired Canadian citizenship, this did not have the effect of revoking his protected person status under IRPA. That could only be accomplished by an application under subsection 108(2).

12.5.6. Paragraph 108(1)(d) - Re-establishment^{Note 65}

Paragraph 108(1)(d) provides, in effect, that a person’s refugee status ceases if they voluntarily become re-established in the country in respect of which the person claimed refugee protection in Canada.

There is limited Canadian jurisprudence on the re-establishment provision in paragraph 108(1)(d). Two cases have touched on this ground of cessation.

In Starovic,^{Note 66} the Court upheld the RPD’s decision in which it found that the protected person’s refugee status had ceased under both paragraphs 108(1)(a) and (d). She had returned to Serbia, her country of nationality, when her husband had a heart attack. She stayed for several years before attempting to return to Canada. She was denied a visa, so her cessation hearing was heard by telephone.^{Note 67} The RPD found that her testimony by telephone was generally credible and that she was unable to return to Canada because she was denied a visa. However, it was unreasonable that she and her husband had not made any efforts to resettle in another country, as would be expected if they genuinely feared persecution. The Court upheld the decision, finding that although her initial return to Serbia could be seen as involuntary, it became voluntary over her lengthy stay. It was reasonable to conclude that a genuine refugee would have sought to resettle in another country rather than remaining in Serbia while the issue of her return to Canada was sorted out.

In Cadena,^{Note 68} the RPD found the protected person’s refugee protection had ceased under both paragraphs 108(1)(a) and (d). She had returned to Mexico shortly after having been granted status and stayed four years. Her explanation was that she was trying to bring her husband to Canada. While most of the Federal Court decision focuses on the analysis under paragraph (a), it did make the point that no presumption of reavailment or re-establishment arises from the acquisition of a passport when the person is already in their country of nationality. Because of the weight the RPD put on this passport acquisition, the Court stated that it should have elaborated its reasoning under paragraph 108(1)(d). However, the Court still upheld the decision under paragraph (a).

12.5.7. Paragraph 108(1)(e) - Change of Circumstances

Paragraph 108(1)(e) provides, in effect, that a person’s refugee protection ceases if the reasons for which the person sought refugee protection have ceased to exist. This is also colloquially referred to as a change of circumstances. While the other grounds of cessation relate to actions the protected person has taken, this ground relates to circumstances over which the protected person generally has no control.

Please refer to the discussion of this topic in chapter 7 regarding the interpretation of this section. However, the interplay of paragraph (e) with the other paragraphs of subsection 108(1) are discussed in the next section.

12.6.1. Discretion to consider which grounds apply

An issue which has been discussed in the jurisprudence is whether, and to what degree, the RPD has discretion to apply grounds not raised in the Minister’s application or to select which ground(s) to apply from among those raised. The issue usually arises in the context where the protected person argues that the RPD should allow the application only under paragraph 108(1)(e) due to a change of circumstances, rather than the other paragraphs of subsection 108(1). This argument is made because a person will lose their permanent resident status where their refugee protection is found to have ceased under paragraphs (a) to (d).

This issue has been considered in three decisions. In Al-Obeidi^{Note 69} the protected person was granted refugee status in 2002, fearing the regime of Saddam Hussein in Iraq. Following the fall of the Hussein regime, he travelled back to Iraq on six occasions. When he applied for citizenship, his travels became known to the Minister and they made an application to cease his refugee protection pursuant to paragraph 108(1)(a), arguing that he had reavailed himself of the protection of Iraq.

At the hearing, the RPD raised, on its own initiative, the possibility of deciding the application under paragraph 108(1)(e), since the country conditions in Iraq had changed. The Minister argued that the RPD must consider the grounds raised by the Minister in the application. The RPD declined to do so, and allowed the application to cease, but only under paragraph 108(1)(e).

Before the Court, the Minister argued the member had erred in adopting this approach. The Court disagreed. It held that IRPA gives the Board broad discretion in cessation matters. The fact that the Minister did not achieve the ultimate objective of the cessation application under paragraph 108(1)(a) does not justify a finding that the Board’s approach was unreasonable. The Court held that had Parliament wished to impose a duty on the Board to consider the specific ground raised in the Minister’s application, it clearly could have done so.

The Minister also argued that the RPD’s decision in Al-Obeidi was inconsistent with at least one previous RPD decision which had gone on to decide the cessation application under grounds other than paragraph 108(1)(e), despite a concession by the protected person that his status had ceased under paragraph (e). The court rejected this argument and stated:

[21] The Minister also contends that the Board’s decision in this case is inconsistent with the decision of another Board member (TB3-05609, 12 August 2014). There, the Board found that the respondent’s concession that her refugee status had ceased under s 108(1)(e) did not deprive the Board of jurisdiction to consider other potential grounds of cessation. Again, I do not see a contradiction. As mentioned, IRPA permits the Board to consider any grounds of cessation set out in s 108(1). A respondent’s concession that one ground has been satisfied would not prevent the Board from considering another. In the circumstances of that case, the Board felt obliged to consider other grounds of cessation that had been put forward by the Minister. The fact that the Board considered those other grounds does not suggest that the Board erred in not doing so in this case.

[22] In sum, on a cessation application by the Minister, the Board can consider any ground set out in s 108(1) of IRPA. If the respondent refugee persuades the Board, or concedes, that his or her status has ceased by virtue of a change of country conditions (s 108(1)(e)), the Board has discretion to consider other grounds. It is neither compelled to do so, nor prevented from doing so. However, where there is uncontradicted and undisputed evidence that the refugee’s status has ceased under another ground (e.g., acquisition of citizenship in a country capable of protection), the Board should consider it.

The Court in Tung,^{Note 70} cited Al-Obeidi with approval while dealing with a similar argument. However, in this case, the Minister and the protected person had provided joint submissions to the RPD that the application should have been allowed under paragraph 108(1)(e), but the RPD decided to allow the application under both paragraphs (a) and (e).

In that case, the protected person was granted refugee status in 2002 on the basis of her practise of Falun Gong and became a permanent resident in 2004. She applied for two Chinese passports and travelled to China twelve times between 2004 and 2014 for one month each time. She alleged that the reasons for which she claimed refugee status had ceased because she had stopped practising Falun Gong.

The RPD informed the parties before the hearing that it would be considering grounds not raised by the parties (i.e. paragraph 108(1)(a)). It found that the actions of applying for a Chinese passport, renewing the passport, voluntarily travelling to China twelve times for extended periods, and her interactions with Chinese authorities at the border and at her husband’s detention facility did not rebut the presumption that she intended to reavail herself of Chinese protection. With respect to the changed circumstances, the RPD agreed that it applied, but that it was unclear when the protected person stopped practising Falun Gong. As such, the RPD concluded that it could consider any of the cessation grounds.

The Court found that even though the protected person conceded that refugee status had ceased due to a change of circumstances, the RPD was within its discretion to consider other applicable grounds. The RPD did not err not following the joint recommendation. The discretion in IRPA cannot be fettered or controlled by the submission of parties. In addition, the RPD did not reject the joint submissions, but exercised its prerogative to consider other grounds and gave notice in advance of the hearing of its intent to do so. This was a reasonable approach. The Court stated:

[24] The Applicant argues that the RPD was required to make a definitive finding on when cessation occurred because, she contends, cessation can only occur once. However, this argument is not supported by the wording of section 108(1), which contemplates various circumstances that can give rise to cessation. In essence, what the Applicant is arguing is that the RPD cannot find more than one ground of cessation. For the reasons outlined below, this argument is without merit.
…

[28] Prior to the hearing, the RPD advised the parties that despite the conceded cessation ground, it would consider any other applicable cessation grounds. This approach is in keeping with the broad discretion the RPD has under the IRPA as noted by Justice O’Reilly in Canada (Citizenship and Immigration) v Al-Obeidi, 2015 FC 1041 at paragraphs 21 and 22 as follows:
…

[29] Similarly, although the Applicant conceded cessation of refugee status under the singular ground of changed circumstances, the RPD was within its discretion to consider other applicable grounds of cessation. The fact that the RPD also considered the ground of re-availment does not suggest that the RPD failed to consider the change of circumstances.

[30] As noted, the Applicant does not take issue with the RPD finding of cessation on the basis of changed circumstances. Presumably, the Applicant assumed that by conceding this ground and having the agreement of the Minister, the RPD would restrict its consideration to the conceded ground. However, that is not how the RPD approached its assessment, nor was it compelled to do so. The Applicant further argues that the RPD erred by not providing its reasons for not following the joint submission of counsel.

[31] In my view, the argument that the RPD did not follow counsels joint submission is without merit and fails to acknowledge the discretion afforded to the RPD under the IRPA. It cannot be presumed that the drafters of the IRPA intended to allow the delegated discretion to be fettered or controlled by the submissions of parties or their legal counsel. I agree with the comment of Justice Zinn in Fong v Canada (Sécurité publique et Protection civile), 2010 CF 1134 [Fong] where he states at paragraph 31, “… the IAD is entitled to reject a joint submission so long as it provides reasons for so doing [citations omitted].” While the facts in Fong are different the principle applies.

[32] However here the RPD did not reject the joint submissions, but instead exercised its prerogative to consider other grounds of cessation under section 108(1) of the IRPA. Further, the RPD advised the parties in advance of the hearing that it would consider additional grounds of cessation and by doing so the RPD provided the necessary reasons for going beyond recommendations of legal counsel.

[33] Overall, the RPD’s assessment of cessation was reasonable and the RPD did not err in its approach to considering cessation under section 108(1).

The Federal Court decision in Khalifa,^{Note 71} was issued approximately one month after Al-Obeidi, but did not cite that decision. The RPD found the protected person’s refugee protection had ceased pursuant to paragraph 108(1)(c) [acquisition of a new nationality – United States] despite also finding that it had ceased pursuant to paragraph (e) [change of circumstances]. The protected person argued before the RPD that the application should only be allowed pursuant to paragraph 108(1)(e). He argued that the RPD exceeded its jurisdiction by determining that his status had ceased under paragraph (c) once the Board had already determined his protection had ceased pursuant to paragraph (e). The reasoning of this argument was that (i) it was contrary to the intention of Parliament when they created an exemption to the loss of permanent residence for a change in circumstances and (ii) it would lead to absurd results.

The Court disagreed. It found that the protected person’s interpretation contradicted the mandatory language of subsection 108(1). Also, it is reasonable that Parliament would terminate the privileged status of an applicant who no longer needs the protection of Canada because he has obtained citizenship in another safe country. This determination is entirely independent of a determination that the reasons for refugee protection no longer exist in the applicant’s country of origin. The Court concluded as follows on this issue:

[48] I disagree. This interpretation contradicts the clear mandatory language of the section that “a claim for refugee protection shall be rejected … in any of the following circumstances” [paragraphs (a) to (e)]. Mr. Khalifa offers no jurisprudence or citations from texts on interpretive principles to support his argument limiting the discretion of the Minister under section 108.

[49] It is also reasonable that Parliament would terminate the privileged status of an applicant who no longer needs the protection of Canada because he has obtained citizenship in another safe country prior to becoming a citizen of Canada. Mr. Khalifa is now, by choice, a U.S. citizen who enjoys the protection of another country, and thus no longer needs protection from Canada. It is not the intention of refugee protection legislation under the IRPA that Canada become a country of convenience for those who wish to acquire protection in any number of countries. This determination is entirely independent of a determination that the reasons for refugee protection no longer exist in his country of origin.

The Court declined to certify a question of general importance in any of these cases, which precluded the possibility of an appeal to the Federal Court of Appeal. However, the issue was briefly dealt with by the Court of Appeal in Siddiqui,^{Note 72} where the protected person argued that the RPD erred by not considering whether it could have made its decision under paragraph 108(1)(e). The Court noted that the issue was not raised before the RPD, and declined to consider the argument, only stating that “no error arises in the decision of the RPD not to entertain a ground of cessation which was neither advanced by the Minister or the appellant.”

12.6.2. Relevance of future risk

When examining cessation under paragraph 108(1)(e), a change in circumstances is examined to determine if there is a current risk of return to the protected person. However, is the risk of return relevant when assessing cessation under paragraphs (a) to (d) of subsection 108(1)? The Court has found that the answer to this question is “no”.

In Balouch,^{Note 73} the protected person, a citizen of Iran, was granted refugee status in 2008 on the basis of risk due to her religion, being a Christian. She applied for an Iranian passport in 2010 and travelled to Iran that year to visit her grandmother. She stayed six months. In 2013, she returned to Iran for 34 days. During both visits, she received medical care. The RPD granted the Minister’s application to cease, finding that she had reavailed herself of the protection of Iran within the meaning of paragraph 108(1)(a) of the IRPA. The Court rejected the argument that the RPD should have examined the issue of continuing risk at the time of the cessation hearing. It stated:

[19] Although the Applicant submits that the Board erred in not considering the issue of a continuing risk at the time of the cessation hearing, no authority was cited to support this argument. While I acknowledge that the existence of risk is a primary concern when protection is sought, I am not persuaded that the issue of risk is relevant in a cessation hearing.

[20] Pursuant to section 96 of the Act, Convention refugee status is conferred on individuals who, by reason of a well-founded fear of persecution, are unwilling or unable to avail themselves of the protection of their country of nationality. A refugee claimant’s voluntary reavailment indicates that the individual is no longer either unable or unwilling to avail himself or herself of the protection of their country of nationality.

[21] In any event, the issue of risk will be assessed if the Applicant seeks a Pre-Removal Risk Assessment (“PRRA”) pursuant to section 112 of the Act. The fact that a PRRA is subject to certain temporal limits does not mean that a PRRA is unavailable.

The Court in Yuan,^{Note 74} came to a similar conclusion. It explained that the rationale for this is that once the conditions are present and paragraphs (a) to (d) apply, the element of subjective fear no longer exists such that it is appropriate that refugee protection should then expire. Any concerns about refoulement due to future risk can be addressed by other processes, such as seeking deferral of removal or an application for a PRRA.

12.6.3. Relevance of humanitarian and compassionate considerations

In Abadi,^{Note 76} the protected person argued that the RPD should have considered humanitarian and compassionate (H&C) factors such as his degree of establishment in Canada and the best interests of his Canadian-born children. The Court held that “I cannot fault the RPD for declining to consider H&C factors in this case. In my opinion, these factors are properly the subject of a separate application under s. 25 of the IRPA.”^{Note 78}

In Seid,^{Note 79} the RPD ruled in 2018 that it was not bound by an Immigration Appeal Division (IAD) decision from 2011 in which the IAD had allowed the respondent’s residency obligation appeal. The IAD had found that there were compelling reasons for the respondent to have returned to Chad. The Court agreed with the RPD. The analytical framework used by the IAD was different than that imposed on the RPD in the context of cessation. The RPD had no jurisdiction to consider H&C factors.

The Federal Court of Appeal has also confirmed that humanitarian and compassionate considerations are not relevant in cessation proceedings in the context of an officer’s decision to make an application. In Bermudez,^{Note 80} the Court of Appeal was examining the question of whether a CIC hearings officer, in deciding whether an application should be filed with the RPD, has the discretion to consider circumstances or factors that are not explicitly listed in section 108 such as H&C factors and the best interests of the child. The Federal Court had granted the judicial review, finding that the hearings officer had some discretion to consider H&C factors and to not make a cessation application for these reasons.

The Federal Court of Appeal allowed the appeal, finding that the officer had no discretion to consider H&C factors. The Court held that H&C is considered principally under section 25 of the IRPA, and there is a limited class of individuals to which the Minister has delegated authority to consider H&C applications. Further, Parliament's intent, as reflected in section 108 of the IRPA, is clear and unambiguous in that a claim for refugee protection shall be rejected if one or more of the circumstances in section 108 occur. There is little room for discretion in terms of the circumstances that trigger the application of section 108.^{Note 81}

12.6.4. Abuse of process and similar arguments

In Khalifa,^{Note 82} the respondent before the RPD argued that the cessation application was an abuse of process because the Minister had exceeded his powers by suspending his citizenship application pending the outcome of the cessation application. The RPD declined to consider if the suspension of the citizenship application was an abuse of process. The Court agreed with the RPD. It found that the appropriate venue to challenge the Minister’s suspension of the respondent’s citizenship application was through an application in the nature of mandamus.^{Note 83} Therefore, the RPD did not err in refusing to determine whether the Minister engaged in an abuse of process by suspending Mr. Khalifa’s citizenship application.^{Note 84}

Several arguments were raised in Li,^{Note 85} concerning the legality of the proceedings. First, the protected person argued that since a visa officer overseas had issued him a travel document and permanent resident card to return to Canada, the issue of cessation had already been decided (res judicata). Alternatively, he argued that the Minister had waived the opportunity to bring the cessation application. The Court rejected these arguments, finding the issue of cessation had not been decided nor had the Minister waived the opportunity to make a cessation application. While there were common factual issues between the decision to issue a permanent resident card and the question of cessation, the two issues were legally distinct.

Another argument in Li, was that the cessation application constituted an abuse of process due to delay and the fact the cessation provisions were being applied retroactively in an effort to remove the claimant because of his criminality. The Court rejected these arguments. There was no evidence of prejudice due to the delay. The provisions were not being applied retroactively and there was nothing improper about the Minister pursuing admissibility proceedings and cessation proceedings concurrently.

A different abuse of process argument was raised in Abadi.^{Note 86} It concerned the fact that the claimant’s original refugee claim file had been destroyed according to the applicable retention and disposal authority. In light of this, the protected person argued that the cessation application was an abuse of process because of the uncertainty around why he was granted refugee status almost 20 years earlier, which would result in difficulty assessing whether country conditions had changed or if he took reasonable precautions when he returned to Iran. The Court rejected this argument since there was no serious dispute that he obtained refugee status as a child based on his mother’s gender-based persecution. The Court held that the protected person failed to demonstrate that the disposal of the original refugee determination file compromised his ability to respond to the application, or that it was one of the clearest of cases justifying a stay of proceedings.

In Seid,^{Note 87} the protected person argued that the application to cease constituted an abuse of process because the Minister knew since 2009 that he had returned to Chad, but only made the application to cease in 2016. The Court rejected this argument. It held that in assessing whether there was an abuse of process, the RPD could only consider the delay related to the administrative procedures before the RPD. The delay of approximately two years between the filing of the application with the RPD and the RPD’s decision did not constitute an abuse of process.

Finally in Maqbool,^{Note 88} the RPD rejected an abuse of process argument even though it found the protected person had been questioned beyond the scope allowed by legislation at the port of entry and that he should have been informed of his right to counsel. The RPD found that although the interviews were problematic, they did not amount to an abuse of process and the situation was remedied by excluding the interview notes from evidence. The Court noted this issue but did not comment on it; however, it did uphold the RPD decision.

12.6.5. Constitutionality of Cessation Provisions

The constitutionality of the cessation regime, and in particular the automatic loss of permanent resident status set out in paragraph 46(1)(c.1) of the IRPA, has been the subject of litigation. The constitutional validity of this section was first raised in Yuan,^{Note 89} however, the Court declined to entertain the constitutional arguments as they had not been first raised before the RPD. The Court stated that even though the RPD may not have jurisdiction to decide this issue, and in fact had declined jurisdiction in other decisions, this did not relieve the party contesting the validity of the section from raising it before the RPD.

In Norouzi,^{Note 90} the Federal Court did address the question of whether the cumulative effect of the cessation provisions breached sections 7, 12, and 15 of the Charter. The questions had been raised before the RPD, but the RPD held that it did not have jurisdiction to decide this constitutional question. The Court did not comment on the jurisdictional question, but did examine the merits of the constitutional arguments.

With respect to the application of section 7 of the Charter (the right to life, liberty, and security of the person) and section 12 (the right not to be subjected to cruel and unusual treatment or punishment), the Court found that both of these arguments were premature and that neither section was engaged. At the cessation stage, even though the consequence was loss of permanent resident status and inadmissibility, no removal order would be issued until an officer prepared a section 44 report and it was determined to be well-founded. In addition, there were other avenues open to the person, including seeking a deferral of removal.

With respect to section 15 (equality before the law; equal protection and equal benefit of the law), the Court held that the cessation provisions did not create a distinction based on one of the enumerated characteristics, or an analogous characteristic. Since this was a requirement to find a breach of this section, the constitutional arguments failed.