Returning Home as a Refugee
The Federal Courts have clarified the test for whether a Refugee has reavailed themselves of their country of nationality’s diplomatic protection. Reavailment in Canadian immigration law simply means that the refugee used or took advantage of the protection of the country they fled after they were granted refugee status in Canada.
In two recent decisions, the Courts have clarified that the proper interpretation of section 108 of the Immigration and Refugee Protection Act (IRPA) is a highly fact-specific and context driven inquiry into whether the refugee voluntarily and intentionally reavailed themselves of their home-country’s protection, and whether they actually received that protection.
Many Canadians are simply unaware of how many refugees have found safe haven in Canada. Refugees come from all over the world fleeing danger of all kinds. Refugees are not just those who are fleeing war. The complicated reasons why someone leaves their country of nationality mean that people may be tempted to return to their home country, even if it means facing the danger they originally fled from. For example, in extremely limited circumstances, a person who returns to their country of nationality to assist a dying relative may be deemed to have not reavailed themselves of their country’s diplomatic protection.
Newcomers who became permanent residents as refugees face tough choices that sometimes require them to return to the country they escaped from.
This may seem illogical on its face. How could someone who had to flee a place where their life and liberty were at risk, return to that country? Shouldn’t people who return to their country lose their refugee status? Imagine you were an LGBTQI+ individual who fled a regime where your identity made you the target of persecution. If one of your parents was extremely ill and needed care, it may be tempting to conceal your identity, return to your country of nationality and provide them that care, even if it means you will face great danger. This is the type of decision many refugees face, and the legal consequences of returning to their country of origin can be life-changing.
Section 108 of the IRPA states that a refugee’s claim for protection will cease if they reavail themselves of their country of nationality’s protection, resulting in a cancelation of their permanent residency, and they may face deportation if this is the case. The laws of Canada have incorporated the UN’s Convention on the Status of the Refugees, which creates a Presumption of Reavailment if a refugee takes actions such as obtaining a passport from their country of nationality or if they travel to the country. This is a rebuttable presumption if the claimant refugee can show that they:
Did not act voluntarily;
They did not have the intention to reavail themselves of their country of nationality’s protection; or
If they did not actually receive diplomatic protection.
In two recent Federal Court decisions, Camayo and Anvar, these three criteria were examined to create more factors to consider when determining if a refugee has in fact acted voluntarily, intentionally, and received protection. These new factors are a minimum standard that the administrative decision makers in Canada’s immigration system will have to consider when determining if a claimant has reavailed themselves of their country of nationality’s protection. No factor alone is determinative of a claim, and all of the evidence relating to these factors MUST be considered when deciding if a person voluntarily and intentionally reavailed themselves of their home-country’s protection. The new factors include:
Whether the claimant had knowledge of the legal consequences of their actions
The severity of the consequences of ceasing a person’s refugee protection
The identity of the agent of persecution
The personal characteristics of the claimant
Any other factors relevant to determining whether the particular claimant has actually reavailed themselves of their country of nationality’s diplomatic protection.
This means that administrative decision makers deciding whether to cease a refugee’s protection in Canada will have to consider ALL of the evidence a claimant presents regarding why they returned to their country of nationality in order to determine if their travel was voluntary, intentional, and if they actually received diplomatic protection.
What this does not mean is that refugees should attempt to return to their country of nationality. The Presumption of Reavailment still applies, and if you voluntarily or intentionally return to your country of nationality you face great risk of losing your refugee protection status in Canada. There are extremely limited circumstances where travel to your country of nationality will not be deemed to be a reavailment of diplomatic protection. If you are faced with a decision to return to your country of nationality while a refugee in Canada, it is imperative you seek legal advice. Call Camino Law Group’s office if you have any questions about immigration, or refugee protection in Canada.
This principle of reavailment applies to newcomers who are permanent residents, and who obtained their residency as refugee claimants, or other refugee categories.
Key Takeaways:
When a refugee obtains a passport from the country they fled or when they return to that country, there is a presumption that they reavailed themselves of that country’s protection.
The presumption is rebuttable on the evidence and based on factors the tribunal must consider.
The Camayo and Anvar decisions have clarified the test for rebutting the presumption of reavailment.
Refugees are discouraged from returning to their country of nationality.
Determining whether a refugee has reavailed themselves of their country of nationality’s diplomatic protection is highly fact-specific and depends on all of the factors of the individual claimant.
If you are a refugee and need to return to your country, we recommend seeking legal advise before doing so. Book a consultation with Camino Law Group, and obtain quality legal advice for your immigration concerns. (To book, follow this link)
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