The Constitutionality of the PRRA Bar

The Federal Court has certified numerous questions regarding the constitutionality of  s. 112(2)(b.1) of the Immigration and Refugee Protection Act, which in essence provides that a person may not apply for a Pre-Removal Risk Assessment (“PRRA”) if they were previously a refugee claimant until 12 months have passed since their refugee hearing, or 36 months in the case of people from designated countries of origin.

In Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, Justice Annis certified the following two questions:

Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 12 months have passed since the claim for refugee protection was last rejected infringe section 7 of the Charter?

If not, does the present removals process, employed within 12 months of a refugee claim being last rejected, when determining whether to defer removal at the request of an unsuccessful refugee claimant for the purpose of permitting a Pre-Removal Risk Assessment application to be advanced, infringe section 7 of the Charter?

In  Atawnah v. Canada (Public Safety and Emergency Preparedness), 2015 FC 774, Madam Justice Mactavish certified the following additional question:

Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate section 7 of the Charter?

Section 7 of the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In both instances the Federal Court found that it does not.  As soon as the Federal Court of Appeal decides on the matter, I shall post its decision here.

[UPDATE] – May 9, 2016

The Federal Court of Appeal has agreed with the Federal Court.

The main issues that the appellants raised was the possibility of removal. However, the Federal Court of Appeal noted that refused applicants  may challenge an enforcement officer’s refusal to defer removal by way of an application for leave and judicial review in the Federal Court, and may bring a motion for a stay of removal pending the outcome of their application for judicial review. It cited several cases where stays of removal were given so that the applicants would remain in Canada until they could submit their Pre-Removal Risk Assessments.  As such, Justice Dawson wrote:

In my view, this jurisprudence demonstrates that the supervisory role of the Federal Court, together with the ability of the Minister to exempt an applicant from the application of paragraph 112(2)(b.1) of the Act, acts as a “safety valve” such that the PRRA bar under review is not overbroad, arbitrary or grossly disproportionate.


Evidence that Can be Used at a PRRA

A Pre-Removal Risk Assessment (“PRRA“) application by a refused refugee claimant is not an appeal or reconsideration of the decision of the Refugee Protection Division to the failed refugee claim.

Section 113(a) of the Immigration and Refugee Protection Act (“IRPA“) provides that an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the failed refugee claimant could not reasonably have been expected in the circumstances of the refugee claim to have presented.  Specifically, IRPA s. 113(a) states:

 Consideration of an application for [a PRRA] shall be as follows:

(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

Accordingly, as the Federal Court of Appeal noted in Raza v. Canada (Citizenship and Immigration), PRRA officers must respect the negative refugee determination unless there is new evidence of facts that might have affected the outcome of the Refugee Protection Division hearing.

There are numerous factors that PRRA officers must consider when determining whether to admit new evidence.  These include:

  1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered.
  2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.
  3. Newness: Is the evidence new in the sense that it is capable of:
    1. proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the Refugee Protection Division, or
    2. proving a fact that was unknown to the refugee claimant at the time of the Refugee Protection Division hearing, or
    3. contradicting a finding of fact by the Refugee Protection Division (including a credibility finding)? If not, the evidence need not be considered.
  4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the Refugee Protection Division? If not, the evidence need not be considered.
  5. Express statutory conditions:
    1. If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the Refugee Protection Division hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the Refugee Protection Division hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the Refugee Protection Division hearing? If not, the evidence need not be considered.
    2. If the evidence is capable of proving an event that occurred or circumstances that arose after the Refugee Protection Division hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).

PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds above.


US War Deserters – Immigrating to Canada

In a decision that has received much media attention, the Federal Court of Appeal (“FCA“) on July 6, 2010, released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war”.  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“H&C“) grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  The appellant sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding Immigration Officers that PRRA and H&C applications require different tests.

The Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the  Officer had to apply the appropriate test.

Operational Bulletin 202

As a result of the Hinzman decision, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 202, which states:

This operational bulletin provides immigration officers in Canada with instructions on processing cases involving military deserters.

Background

Some individuals who may have deserted the military or who may have committed an offence equivalent to desertion of the military in their country of origin have sought refuge in Canada. Desertion is an offence in Canada under the National Defence Act (NDA). The maximum punishment for desertion under section 88 of the NDA is life imprisonment, if the person committed the offence on active service or under orders for active service. Consequently, persons who have deserted the military in their country of origin may be inadmissible to Canada under section 36(1)(b) or 36(1)(c) of the Immigration and Refugee Protection Act.

The current inventory of military deserter cases is comprised primarily of members of the United States armed forces who have claimed refugee protection in Canada. Desertion from the armed forces is described as an offence pursuant to section 85 of the United States Uniform Code of Military Justice.

Many of the persons in our current case inventory have had their refugee claims heard and have subsequently applied for permanent residence in Canada based on humanitarian and compassionate considerations. Some have also applied for permanent residence in Canada as members of the spouse or common-law partner in Canada class. Others have filed Pre-removal Risk Assessment (PRRA) applications when faced with removal from Canada. These applications are at various stages of processing either in the regions or at CPC-Vegreville.

All cases which have come to the attention of the Case Management Branch (CMB) have been identified in FOSS via a non-computer based entry.

General guidelines
Processing applications for permanent residence in Canada

Given the complexity of equating either a conviction for desertion or the commission of an act constituting an offence of desertion under a foreign law with an offence under an Act of Parliament (the National Defence Act), officers are instructed to contact their Regional Program Advisor (RPA) for guidance when processing applications for permanent residence in Canada made by military deserters. Officers are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

Processing claims for refugee protection in Canada

Notification of all new claims for refugee protection by military deserters and any updates to these refugee claims including PRRA applications must be provided to CMB using the existing guidelines on processing high profile, contentious and sensitive cases (OP 1, section 15).

CPC-Vegreville

In accordance with current instructions with respect to cases where a personal interview or an in-depth investigation may be required, CPC-Vegreville is asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

Through Access to Information Act requests we have also obtained what appear to be two internal directives to CIC officers that will be helpful to anyone with clients whose refugee claims are at least partially based on desertion.  They include research sources, factors that officers should consider, and possible interview questions.


Overview of PRRA Changes

The purpose of this blog post is to provide an overview of the changes to Pre-Removal Risk Assessments (“PRRAs“) resulting from Bill C-31 which are now in effect.  A PRRA is a paper application in which individuals can submit that they would be at risk of persecution, risk to life, or risk of cruel and unusual treatment or punishment if returned to their countries of origin.  For most applicants, a positive determination results in the granting of refugee protection and the opportunity to apply for permanent residence as a protected person.  Bill C-31, the Protecting Canada’s Immigration System Act, introduced several restrictions on the ability of people to apply for PRRA.

One Year Bar

A person may not apply for a PRRA if less than 12 months have passed since the Immigration and Refugee Board (“IRB“) rejected their refugee claim, or determined the claim to be abandoned or withdrawn.

A person may also no longer apply for a PRRA if less than 12 months have passed since Citizenship and Immigration Canada (“CIC“) rejected the individuals previous PRRA application, or determined it to be withdrawn or abandoned.

The above bars apply retroactively to PRRAs currently being processed.

Applicants from certain countries are exempted from the one year bar.  These countries include the Central African Republic, Egypt, Guinea-Bissau, Libya, Mali, Somalia, Sudan, and Syria.  Nationals from these countries are exempt from the 12-month bar only if their IRB or PRRA decision (rejected, abandoned or withdrawn) was rendered between August 15, 2011 and August 14, 2012.  There are no exemptions to the 12-month bar for cases decided by the IRB or CIC from August 15, 2012, onward.

Designated Countries Of Origin

Rejected refugee claimants from a Designated Country of Origin are not eligible to apply for PRRA for 36 months after the date of their final decision at the IRB.  This change applies only to PRRAs submitted after December 15, 2012.

Vacation of a Refugee Claim, Articles E and F

The above 12 and 36 month PRRA bars do not apply to individuals whose refugee claim has been vacated or was rejected on the basis of section E or F of Article 1 of the Refugee Convention.

(A refugee claim may be vacated if the IRB, on an application by the government, determines that a positive refugee decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts.  Article 1E provides that an individual cannot obtain refugee status if they have taken residency in a third country and have the rights and obligations which are attached to the possession of nationality of that country.  Article 1F provides that an individual cannot be a refugee if the person has committed a serious non-political crime outside of the country in which the person is claiming refugee status.)

Consequently, such individuals will be able to make an application for a PRRA and will not be subject to the 12- or 36-month bar.

Serious Criminality and PRRA

PRRA applicants who have been determined to be inadmissible to Canada on grounds of serious criminality whose applications are approved will not receive protected person status.

Previously, protected person status would only be denied if the individual was punished in Canada by a term of imprisonment of at least two years.  Now, PRRA applicants who are inadmissible due to an in-Canada conviction punishable by at least 10 years imprisonment will not receive protected person status.  Instead, their removal order will simply be stayed.

PRRA applicants who are inadmissible due to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence punishable by at least 10 years imprisonment will continue to receive only a stay of removal if the PRRA is approved.

In each of the above cases the risk factors that applicants may claim in a PRRA have been broadened.


When Will a Hearing be Necessary at a PRRA Review

On August 4, 2010, the Federal Court released its decision in Sayed v. Canada (Citizenship and Immigration), 2010 FC 796 (“Sayed“) The decision involved a discussion of many Pre-Removal Risk Assessment (“PRRA“) issues, including when a PRRA officer will be required to call a hearing.

The PRRA is based on the principle of non-refoulement, and provides that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment.  Approved applications generally result in the same refugee protection afforded to persons whose refugee claims are approved by the Immigration and Refugee Board.

PRRA is generally carried out through a paper review process. However, officers have the discretion to hold an oral hearing in certain cases, as outlined in s. 167 of the Regulations. This section states that:

Hearing — prescribed factors

167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:

(a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act;

(b) whether the evidence is central to the decision with respect to the application for protection; and

(c) whether the evidence, if accepted, would justify allowing the application for protection.

In Sayed, Justice Zinn noted that in the context of PRRA applications following negative refugee determinations, the test of whether to hold an oral interview is that where the testimony of the applicant, if believed, would adequately address the determinative issues raised by the Board in rejecting the applicant’s refugee claim, then an officer must convoke an oral review to determine the credibility of the evidence (unless the officer accepts the evidence on its face).

It follows from this that if an applicant’s PRRA affidavit does not address all of the determinative issues found by the Board, then the Applicant will not have a right to an oral hearing.

It is therefore important for claimants to ensure that their PRRA affidavit does not simply reiterate the allegations made during the refugee hearing. Rather, they must present further evidence and testimony to address the issues that caused their refugee claim to fail.


Military Deserters Immigrating to Canada: New Rule

On July 22, 2010, Citizenship and Immigration Canada released Operational Bulletin 202 – “Instruction to Immigration Officers in Canada on processing cases involving military deserters”.

The timing of the bulletin suggests that it is likely a response to the high profile Hinzman decision, previously commented on in this blog.

According to the bulletin, immigration officers have been instructed to contact their Regional Program Adviser for guidance when processing applications for permanent residence in Canada made by military deserts. They are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

CPC-Vegreville has been asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

All new claims for refugee status and any updates to existing refugee claims or PRRA applications are to also be provided to CMB.


PRRA Officer Did not Consider Important Country Report

On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused.

The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.

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