Author: Joel Sandaluk
In a word: yes. But only in limited circumstances, and only at the conclusion of lengthy and complex legal proceedings.
It is important to recognise that Convention refugee protection is not, in and of itself, a type of status in Canada. It is best understood as protection from removal, or “refoulement,” to a refugee’s country of nationality or former habitual residence. That protection, though significant, is not absolute. It can be lost, and when it is, deportation from Canada becomes possible.
A Convention refugee can be removed from Canada if either the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB) issues an order removing refugee protection, or, the Minister’s delegate in Ottawa determines that the person is a danger to the Canadian public.
Both processes are time-consuming, evidence-intensive, and often highly contested.
Loss of Refugee Status: Vacation and Cessation
When refugee protection is removed by the RPD, it happens through one of two distinct legal proceedings, both of which are initiated by the Canada Border Services Agency (CBSA): an application to vacate refugee protection, or an application for cessation of refugee protection. They serve different purposes and carry different consequences.
Vacation applies where a refugee claim was based on fraud, misrepresentation, or the concealment of a material fact. If the RPD finds that the original decision granting protection would have been different had the true facts been known, it can vacate that protection retroactively unless other, untainted evidence from the original proceeding is sufficient to justify the protection granted.
I once represented a client who had failed to disclose a criminal record he had acquired in a third country before arriving in Canada and claiming refugee protection. At the conclusion of the proceeding, the RPD issued an order vacating his refugee protection, on the basis that disclosure of the record prior to his original claim may have affected the outcome. Our only defence was to argue, unsuccessfully, in the end that the offences were not equivalent to offences in Canada and therefore immaterial. The case is a cautionary reminder of how important it is to be open and honest with immigration authorities at every stage.
An order vacating refugee protection does more than simply remove protection from removal. It also results in a finding that the person is inadmissible to Canada for misrepresentation, triggering an exclusion order carrying a five-year bar from Canada.
Rather than looking back at how protection was obtained, a cessation hearing asks whether, once a refugee returns to their country, the need for that protection still exists.
A cessation application alleges that the person has voluntarily availed themselves of the protection of their country of nationality or former habitual residence, and therefore no longer requires Canada’s protection. Under section 108(1)(a) of the Immigration and Refugee Protection Act, the CBSA must establish three elements:
- that the person’s return to their home country was voluntary;
- that they intended to re-avail themselves of that country’s protection, and;
- that they in fact reavailed themselves of that protection.
As the Federal Court confirmed in Camayo v. Canada, a person’s understanding of the legal consequences of travel to their home country (or lack thereof) is a relevant factor in assessing intention.
If the RPD is satisfied that the CBSA has met this burden, it will issue an order ceasing refugee protection. That order has the same legal effect as if the original claim had been refused at the time it was made.
Loss of Permanent Resident Status
Whether refugee protection is lost through an order of vacation or cessation, the result is the same in one important respect: it also strips the person of their permanent resident status in Canada (if they hold that status) without a right of appeal pursuant to s. 46(1) of IRPA. This is what makes both proceedings so consequential, and why they are so often fought vigorously at the RPD and on judicial review in Federal Court.
Loss of Refugee Protection with a “Danger Opinion”
Vacation and cessation proceedings are not the only ways a Convention refugee can be deported from Canada.
The other way a refugee can be deported from Canada is if the Minister’s delegate is of the opinion that the person represents a danger to the Canadian public, pursuant to section 115(2) of the Immigration and Refugee Protection Act. Section 115(1) codifies Canada’s obligation of non-refoulement, meaning that a protected person cannot be removed to a country where they would face persecution, torture, or cruel and unusual treatment.
Section 115(2) includes two exceptions to that protection; one for serious criminality, and another for security grounds, human or international rights violations, or organized criminality. In either scenario, removal depends upon the opinion of a delegate of the Minister that the person constitutes a danger to the public, or should not be allowed to remain in Canada because of the nature and severity of the acts committed or the danger they pose to Canada’s security.
This process only begins after a person has been ordered deported after an admissibility hearing before Immigration Division of the IRB, and where there is an ongoing danger to members of the Canadian public.
The process is initiated by the CBSA with a formal notice to the person concerned, who then has an opportunity to respond and establish not only that they do not represent a danger to the Canadian public, but also that the risk they needed protection from remains a serious and ongoing threat to safety. The materials are then sent to the Minister’s delegate at National Headquarters (NHQ) in Ottawa for further review and the preparation of additional reports, on which the person concerned will also have an opportunity to comment before a final decision is rendered.
In my experience, when a person is at liberty, this process can take years. It can proceed far more quickly, however, if the person concerned is in custody (for example, if they are serving a sentence in a federal penitentiary).
Facing a Vacation, Cessation, or Danger Opinion Proceeding?
These proceedings can sometimes move slowly, but the stakes could not be higher. If CBSA has initiated, or threatened to initiate, a vacation or cessation application, or if you or someone you know has received notice that the Minister intends to seek a Danger Opinion, the time to act to protect your rights is now.
Mamann Sandaluk LLP has decades of experience fighting to defend refugees in threats to their protected status in proceedings before CBSA, the IRB and the Federal Court.
FAQ
Does it matter if I returned to my home country in secret and avoided the places where I was previously in danger?
Yes. Actual re-availment of your country’s protection is part of the legal test, but returning to your home country (even discreetly, and even if you avoided the specific location where you faced danger) can still put your refugee protection at risk. Canadian immigration authorities may treat a voluntary return as evidence that you no longer require Canada’s protection, regardless of how carefully the trip was conducted.
What if I returned to my home country for an urgent reason, such as the serious illness or death of a family member?
The reason for your return can serve as a defence, but only if the trip was genuinely involuntary. A strong cultural or moral obligation to attend to a dying relative, for example, is not the same as a lack of voluntariness in the eyes of the law. This is a nuanced and fact-specific area of cessation law, and it is essential to speak with an experienced refugee lawyer before any return travel, and immediately afterward if a trip has already taken place.
What if I misrepresented facts in my original refugee claim, but conditions in my home country have significantly worsened since then, due to civil war or a foreign invasion, for instance?
In a vacation proceeding, the Refugee Protection Division can only consider the evidence that was before the original panel at the time your claim was accepted. Subsequent changes in country conditions are not relevant to whether your protection should be vacated. This is a critical distinction: a vacation application focuses on whether your original claim involved misrepresentation, not on whether you would qualify for protection today.
What if I received a notice of intention from the Minister to seek a Danger Opinion, and my response was not as complete as it should have been?
You still have an opportunity to supplement your evidence and submissions at any point before a decision is rendered. If you have received a notice of intention regarding a Danger Opinion, you should speak with a lawyer immediately about filing additional material with the Minister’s Delegate before a final decision is made.
Can I appeal if my refugee protection has been vacated or cessated, or if I have been found to be a danger to the public?
There is no right of appeal from any of these decisions. However, you may apply for leave for judicial review at the Federal Court. Judicial review deadlines are short and strictly enforced, so it is critical to consult a lawyer as soon as you receive a negative decision.
Can a Danger Opinion still be issued against me even if the Minister accepts that I remain at risk in my home country?
Yes. The Minister can issue a Danger Opinion even where they accept that you continue to face risk if returned. However, the danger you are found to pose to the Canadian public must be extremely compelling and significant to justify removal despite that ongoing risk.
Can psychological evidence be used in cessation, vacation, or Danger Opinion proceedings?
Yes, and this is worth exploring with your lawyer. A psychological or psychiatric assessment can form a critical part of the documentary record, helping to explain past conduct or decision-making, including questions of voluntariness in re-availment cases. Psychological evidence can also provide meaningful insight to risk of recidivism, which is often central to Danger Opinion proceedings.