A law that leaves refugees forever at risk of losing their permanent residency must continue to be tested before the courts, says a B.C. lawyer who fell short on Thursday in his efforts to have the Supreme Court examine the issue.
The top court declined to hear lawyer Douglas Cannon's case, which involved a refugee hoping to obtain Canadian citizenship but would have touched on a much larger debate about the principles underpinning Canada's asylum system.
A refugee's status can be revoked, but until 2012, such a development wouldn't have impacted their permanent resident status and so the process, known as cessation, was rarely used.
But that year, the Conservative government of the day changed the law and turned the revocation of permanent residency into a consequence of cessation, saying the intent was to go after immigration fraud.
One thing that would prompt a second look at a file would be a trip to the person's home country – a journey some do take for any number of reasons – but the government argued was a sign that maybe the person didn't need refugee status in Canada.
Now, however, that's led to hundreds of people facing cessation proceedings and their cases are stuck in an already clogged system with little chance of a hearing any time soon, Mr. Cannon said.
"This stuff isn't going away," Mr. Cannon said.
"It will have to be litigated until the government changes its mind because it can't afford to keep doing this."
Mr. Cannon's client, Nisreen Nilam, won asylum in Canada in 2009 and permanent residency in 2011. Mr. Nilam later travelled back to his home country of Sri Lanka for two lengthy visits, using a Sri Lankan passport he'd applied for and then renewed.
The immigration minister tried to remove Mr. Nilam's refugee status; he in turn argued he was there to visit a sick mother and get married. The government initially lost, but the Immigration and Refugee Board was forced by the courts to reconsider.
In the meantime, Mr. Nilam applied for Canadian citizenship. As a permanent resident, he'd met all the qualifications. That's how the matter nearly ended up before the Supreme Court: since his permanent residency status was under review, the minister halted the citizenship application. Mr. Nilam sued, arguing that he met all the criteria for citizenship and that nowhere in citizenship law did it say cessation proceedings could interfere.
A lower court sided with him, but the Federal Court of Appeal overturned that decision, agreeing with the government that if Mr. Nilam's permanent residency was suspect, then he could not be considered for citizenship.
While Cannon sought to test that legislative question before the Supreme Court, the broader one was that when a person becomes a permanent resident, that should then be the grounds of their status in Canada, not their refugee status.
"Canada changed the fundamental basis of refugee protection when it decided to now make it conditional for all refugees, even if you are a permanent resident," he said.
"For people like Mr. Nilam who are hard-working, law-abiding, making contributions, raising families … it is a complete waste of resources and it is a complete waste of life to say, 'Out you go, because we can,' and there isn't much basis to this."
NDP immigration critic Jenny Kwan said both elements – that the government can suspend the citizenship process for people who've met all the requirements, and the existence of cessation proceedings – are equally absurd.
"The Liberals like to say 'A Canadian is a Canadian,'" she said, alluding to a phrase the Liberals have used in their recent legislation to make it easier for many others to obtain and keep Canadian citizenship.
"Well, by extension, a permanent resident is a permanent resident and so why doesn't that apply to refugees?"
A spokesman for Immigration Minister Ahmed Hussen referred questions about the issue to department, which said on Thursday it was unable to comment.