Last Updated on July 6, 2015 by Steven Meurrens
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.