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:
113. 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), 2007 FCA 385, 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:
- 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.
- 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.
- Newness: Is the evidence new in the sense that it is capable of:
- 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
- proving a fact that was unknown to the refugee claimant at the time of the Refugee Protection Division hearing, or
- contradicting a finding of fact by the Refugee Protection Division (including a credibility finding)? If not, the evidence need not be considered.
- 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.
- Express statutory conditions:
- 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.
- 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.