Canadian Refugee Procedure/RPD Rule 64 - Applications to Vacate or to Cease Refugee Protection

IRPA Section 108: Cessation of Refugee Protection

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.

Section 108(1) provides that a claim for refugee protection shall be rejected in the specified circumstances, but this provision is not self-executing

Subsection 108(1) of the Act, which is titled “Rejection”, states that “[a] claim for refugee protection shall be rejected” (emphasis added) by the Board on the grounds for cessation listed. This provision can operate only before the Board has made a determination of refugee status, because its scope is limited to the “rejection” of a refugee claim. There is nothing in the provision that could reasonably be described as self-executing or automatic, particularly after the Board has made its determination. The provision simply compels the Board to reject a refugee claim that has not yet been determined if one of the enumerated grounds for cessation is established.

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

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.

Section 108(3): If the application is allowed, the claim of the person is deemed to be rejected

Section 108(3) of the IRPA provides that if an application is allowed, the claim of the person is deemed to be rejected. However, a finding under s. 108(1)(e) does not result in a loss of permanent residence status: paragraph 46(1)(c.1) of IRPA: Canadian Refugee Procedure/44-53 - Loss of Status and Removal#IRPA Section 46: Loss of Status. A finding made under paragraph 108(1)(e) results in the loss of protected person status. Subsection 108(3) explains that the effect of a cessation decision on any ground listed in 108(1) is for “the claim of the person is deemed to be rejected”. It is not correct to say that this determination carries with it no consequences for those who retain their permanent resident status because s. 108(1)(e) applies to them. The principle of non-refoulement applies to protected persons and generally “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations”. For example, in the event that a person lost their permanent residence status, those who have protected person status are afforded a further process before they can be removed from Canada: Canadian Refugee Procedure/115-116 - Principle of Non-refoulement.

The Board must consider "compelling reasons" under s. 108(4) when determining whether an individual qualifies as a refugee

In every case in which the Board concludes that a claimant has suffered past persecution, but there has been a change of country conditions, the Board is obligated under s. 108(4) to consider whether the evidence presented establishes that there are "compelling reasons" as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes this subsection. That being said, the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection.

IRPA Section 109: Applications to Vacate

Section 109 of the Immigration and Refugee Protection Act reads:

Applications to Vacate
Vacation of refugee protection

109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Rejection of application
(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

Allowance of application
(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

History of this provision

Prior to the enactment of the IRPA, the vacation of a decision granting Convention refugee protection was dealt with under sections 69.2 and 69.3 of the Immigration Act, RSC 1985, c I-2 (as amended). Broadly speaking, subsection 69.2(2) of the Immigration Act corresponded to what is now subsection 109(1) of the IRPA and subsection 69.3(5) of the Immigration Act corresponded to what is now subsection 109(2) of the IRPA. Subsection 69.3(5) of the Immigration Act stated:

The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based.

This provision applies even to those who have become Canadian citizens

It is true that, for the purposes of the Refugee Convention, an individual automatically ceases to be a refugee the moment they acquire Canadian citizenship. There is nothing in the language of section 109 to suggest that an application by the Minister to vacate refugee protection cannot be made if the claimant has subsequently become a citizen of Canada. Furthermore, subsection 108(1) of the IRPA, which deals only with the rejection of a claim before it has been determined, does not cause refugee status to disappear the moment one becomes a Canadian citizen.

See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The objective of this Act is to offer safe haven to specified persons and this is an enduring commitment unless an asylee's status ceases.

New evidence is allowed for the assessment of s. 109(1), but not s. 109(2)

At the vacation hearing, both the Minister and claimant may adduce new evidence relating to alleged misrepresentation at the determination hearing. While new evidence is not permitted under s.109(2) to uphold the original determination, it is permitted under s.109(1) on the issue of misrepresentation. For example, in Bhuchung v. Canada, the court held that in precluding a refugee from relying on new evidence capable of confirming his identity and rebutting the Minister’s allegations of misrepresentation, the RPD erroneously applied the restrictions applicable to s.109(2) to s.109(1). This error both undermined the reasonableness of the RPD's decision as a whole and effectively deprived the refugee of procedural fairness in not being afforded a meaningful opportunity to answer the Minister’s case.

109(3): If the application is allowed, the claim of the person is deemed to be rejected

Section 109(3) of the Act provides that if the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. An applicant's status thus does not revert to that of a refugee claimant following such a decision, but instead a claimant whose claim has been rejected. Subsections 40(1)(c), 40(2)(a), 46(1)(d) of the IRPA cross-reference a final determination under subsection 109(3) of the IRPA removing permanent resident status if they had it, and rendering the protected person inadmissible to Canada for a period of five (5) years. See: Canadian Refugee Procedure/33-43 - Inadmissibility and Canadian Refugee Procedure/44-53 - Loss of Status and Removal#IRPA Section 46: Loss of Status.

RPD Rule 64

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.

History

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, but 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. The leave requirement was eventually eliminated and one-person panels instead 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). Then, in 2012, the legislation was modified such that cessation proceedings would revoke a refugee's PR status per the Protecting Canada’s Immigration System Act. In 2013-14 the CBSA identified cessation and vacation applications as a priority and set itself an internal annual target of 875 applications. 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 withdrawn

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. 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 person

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. 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 Canada

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, videoconference, or other appropriate means. The fact that a protected person is located outside of Canada thus does not relieve the Minister of their service obligation.

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

At times 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."

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 and Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Abuse of process and actions of parties and the Board.