Case Law Update - Chen v Canada (Cessation)

Case Citation: Chen v Canada (Citizenship and Immigration), 2024 FC 1099 (Chen)

Key words: Cessation, subjective knowledge, intent to reavail, immigration consequences

Why we’re reporting on this case: Some background is necessary here because this is a niche issue (and we at BLPC enjoy niche issues).

There’s a 2022 Federal Court of Appeal (FCA) case - Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 (Camayo) - that changed the legal landscape with respect to cessation of refugee protection. Camayo contains a list of factors that the Refugee Protection Division of the Immigration and Refugee Board (RPD) “should be considered” (to quote Camayo at paragraph 84) when determining whether a person “reavailed” of the protection of their country of origin.

For those new to the subject, we use the word “reavailed” because it’s the legal term in subsection 108(1)(a) of the Immigration and Refugee Protection Act (IRPA), and it’s the term that the United Nations uses.

Actions such as getting a new passport from the country of origin, using that passport to travel, or actually returning to the country of origin create a legal presumption that a person did “reavail”. In a cessation proceeding, it becomes the person’s responsibility to rebut (i.e., counteract) that presumption.

The case law is still developing with respect to that list of factors from Camayo.

Which brings us to Chen, a July 2024 Federal Court (FC, or Court) decision that deals with one of the more controversial Camayo factors: “state of the individual’s knowledge with respect to the cessation provisions” (in other words, whether the person subjectively understood that their actions could lead to the loss of refugee protection and permanent residence status).

Facts & Procedural History: The Applicant, a citizen of China, received refugee status in 2003 based on religious persecution. She received permanent residence status the same year. She then got a new passport from China, and travelled to China 7 times between 2006 and 2018.

In March 2014, when questioned by a border officer as to why she would claim fear of persecution from China but then return, the Applicant said that the situation in China was “much better now”. (This is the language from the RPD decision. It’s unclear from the Chen decision whether this was a direct quote.)

This cessation matter already went back to the RPD for redetermination once before.

On redetermination, in March 2023, the RPD ceased the Applicant’s refugee protection, finding:

“… [D]espite the [Applicant’s] limited education she cannot have been deaf to the officer’s comments. Therefore, the panel finds that the [Applicant] either knew or should have known, reasonably, that there could be serious immigration consequences from repeated returns to China.”

The Applicant challenged this decision, arguing that she did not intend to reavail herself of China’s protection.

Issue: Whether the RPD reasonably found that the Applicant intended to reavail.

Notable Finding: The RPD’s decision was not reasonable, in part because the RPD conflated (i.e., improperly combined) two separate issues: (a) whether the Applicant understood that she should not return to China due to a risk of persecution (i.e., whether she still had a subjective fear of persecution, since she told the border officer that the situation had improved); and, (b) whether she understood the Canadian immigration consequences of her actions.

The Court here makes a point of logic that the Applicant’s act of returning to China despite understanding the risk to her safety does not itself mean that she also understood that she could lose her refugee status in Canada (paragraph 15 of Chen).

Additional Analysis: Before making the above finding, the Court first found that the RPD unreasonably considered whether the Applicant “should have known” the immigration consequences of her actions rather than whether she actually understood the “immigration consequences of reavailment” (paragaph 12 of Chen). The Court here notes that the RPD made the same error as it did in Camayo (i.e., this is a point that we already had case law on).

The Court also takes care to note at paragraph 16 that an Applicant’s lack of knowledge of immigration consequences of their actions “may not be determinative” of intent to reavail, but it is a “key factual consideration that the RPD must examine”.

Outcome: Judicial review granted, matter sent back to the RPD for redetermination.

**TL;DR: Cessation matters are highly complex and can have potentially serious consequences. If the RPD finds that a refugee “reavailed” (IRPA, s. 108(1)(a)), those consequences include the loss of both refugee status and permanent residence status.

Chen deals with a narrow but notable part of the “intent to reavail” component of the larger three-part reavailment test (and just to be clear for those new to the subject, this post does not even come close to discussing the whole reavailment test).

One of the FC’s two findings was that it was unreasonable for the RPD to treat the following two Camayo factors as though they were one: (a) whether a refugee still has a subjective fear of persecution in their country of origin; and, (b) whether they subjectively understood the Canadian immigration consequences of their actions.

As a result of the Court’s findings, the Applicant in Chen will now get another chance to respond to the cessation application against her.

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