The Court concludes that a dependent family member who obtained a permanent resident status as an accompanying family member of a Convention refugee determined by a visa officer abroad will not lose her status because of returning to her country of origin or through apparent re-availment.
The respondent is a citizen of Iran and became a permanent resident of Canada upon arrival in Canada on June 13, 2006. Her husband became a convention refugee by a visa officer overseas and the respondent and their son became members of the Convention refugee Abroad (CR-1) class without assessment of risks to them.
The respondent returned to Iran since landing on two occasions. This prompted the Minister to seek cessation of her Convention status for re-availing herself. The questions for this judicial review is whether cessation only applies to someone who falls into the status of a Convention refugee under subsection 95(1) of the Immigration and Refugee Protection Act (“IRPA”).
The RPD found that the respondent was not a Convention refugee but a dependent of her husband. She did not become a Convention refugee by virtue of her husband’s accepted claim, per section 140 of the IRPA :
140. Family members of an applicant who is determined to be a member of a class under this Division are members of the applicant’s class.
Having found that the respondent was not a Convention refugee as contemplated in paragraph 95(1)(a) of the IRPA, the panel concluded that it did not have jurisdiction to consider the Minister’s application to cessate the refugee status of the respondent.
The Applicant argues that the respondent was deemed a Convention refugee by virtue of her husband’s acceptance as a Convention refugee. The Applicant also cites an affidavit from Jean-Marc Gionet, Director of the Resettlement Division of the Refugee Affairs Branch of CIC, as evidence that the respondent was deemed to be determined to be a Convention refugee. The Court found that it was just his opinion. He does not cite persuasive authorities to support his view.
On the other hand, certain provisions of the Immigration and Refugee Protection Regulation (“IRPR”) suggest that, though accompanying family members are members of the same class as the person who has been determined to be a Convention refugee, they are not thereby deemed to have been determined to be likewise Convention refugees.
For example, the preamble of subsection 139(1) of the IRPR provides that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][a] permanent resident visa shall be issued to a foreign national in need of refugee protection, and their accompanying family members, if following an examination it is established that […]”. This preamble is followed by a series of requirements concerning almost exclusively the foreign national rather than their accompanying family members. All of them receive a permanent resident visa, but no determination is made of the risks to the family members. Also, section 140 of the IRPR(quoted above) provides that family members are members of the same class as a person who is determined to be a refugee, but does not state that such family members are deemed to have been determined to be refugees.
The Court concludes that it does not make sense for the respondent to be stripped of her permanent residence because of re-availment since she was never a Convention refugee. This conclusion is supported by the Interpretation of the IRPA and IRPR.
The application is dismissed and the following question is certified:
Where a person has become a permanent resident under a visa application in the overseas Refugee and Humanitarian Resettlement Program by virtue of a member of the person’s family listed in the visa application having been determined to be a Convention refugee (though the person was not themselves assessed as a Convention refugee), is that person a Convention refugee as contemplated in paragraph 95(1)(a) of the IRPA who is subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA?