Failed refugee claimants, and some other types of inadmissible people within Canada, often submit both Pre-Removal Risk Assessment (PRRA) applications, as well as Humanitarian & Compassionate (H&C) ones.
War Deserters, Refugee Status and H&C
Being a war deserter does not in of itself mean that either a refugee claim or an application for permanent residency based on humanitarian & compassionate (“H&C“) grounds will succeed. Hinzman On July 6, 2010,the Federal Court of Appeal (the “FCA“) 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 was AWOL from the US army since his arrival in Canada. He originally claimed refugee status, a claim which was unsuccessful. Mr. Hinzman then filed a Pre-Removal Risk Assessment (“PRRA“) and an application for permanent residence based on 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. Mr. Hinzman did not seek leave to apply for judicial … Read More
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 … Read More
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 … Read More
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: 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 … Read More
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; … Read More
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.