Loss of Permanent Residency for Refugees: Myth or Fact?

Since 2011 when Bill C-31 was created with the goal of modifying the laws of refugees in Canada, there have been a lot of questions regarding the loss of the Canadian permanent residency for people that immigrated to Canada as refugee claimants.

The Law, in the section of protection for refugees, since many years back has had the opportunity to take away the permanent residency to people that do not require the protection of Canada any longer. Bill C-31 only confirms this section and to inform that now more than ever, people need to know that the Canadian government has this option.

“Re-availment” is defined as the voluntary surrender of the protection of their country of origin. If is understandable that a person has subdued to the protection of their country of origin after having lost and obtained Canada’s protection, obtain their passport and return to their country of origin; or when the conditions of the country of origin have changed and now you can obtain the protection that was not available before.

Returning to a country of origin is the most discussed topic in Canadian courts and lately there has been talks about even passport request to respective governments being an issue for quitting permanent residency, this last thing does not necessarily has to be this way and it can be prevented by obtaining a travel document that is offered by the government of Canada, and in this way, it is not necessary for the applicant to have a passport of their nationality. In this sense, the court has defined the following:

“In Chandrakumar, the Court held that Board erred in drawing the inference that the applicant re-availed himself of his country’s protection from the mere fact that he renewed his passport. More evidence was required, particularly concerning the claimant’s motivations in renewing his passport, namely whether his intention was to re-avail himself of Sri Lanka’s protection.”

It is important to know that the fact of obtaining a passport from your country of origin and physically returning (both things) can result in a proceeding of ceasing your permanent residency. In Chandrakumar, the Court determined that the mere fact of obtaining a passport is not the only factor to consider to determine if a person has solicited the protection of their country of origin.

Unfortunately, there are no special permits of force majeure, whether it be ill family members, among others. However, considering particular circumstances of each case is up to the immigration officers and judges at the beginning of the revocation of permanent residency process.

“In Caballero, where the claimant testified that he went back to Honduras intending to stay a year in order to sell his land, the Court agreed with the Refugee Division that his behavior was inconsistent with a well-founded fear of persecution.”

The Council of Refugees and the Court took a similar stand in another case, when the applicant went back to Cuba to transfer his house and prevent the government from confiscating it.

Even if the reason to go back to your country of origin is urgent, the analysis of all circumstances can result in something negative to determine if there is real fear and necessity for protection.

“In Arayo, the principal claimant had returned to Chile and remained there for some nine weeks while she obtained the permission of the father of her child to remove the child from Chile. While the evidence regading re-availment clearly indicated that it was for the sole purpose of allowing the mother to bring her son to Canada with her, the evidence did not go so far as to establish that other arrangements could not have been made so that the two claimants could have left Chile together when the mother first left.”

Based on the presented information, it is advisable to NOT go back to your country of origin if you have obtained the protection of the government of Canada and later having obtained the permanent residency. It is also advised that you obtain a Travel Document instead of your passport.

It is also advisable that at the time of applying for your Canadian citizenship, as soon as you are eligible, with the purpose of being protected by the Canadian Charter of Rights and Freedoms that contemplate the constitutional guarantees in Canada. Particularly, I close this article with section 6 of the Canadian Charter of Rights and Freedoms.

Section 6 (1) Every Citizen of Canada has the right to enter, remain in and leave Canada.