Transcript Options for Immigration: Hardship, Persecution, Risk to Life

Changes and Challenges to PRRA Availability
Refugee Lawyers Group, CBA BC
Laura Best, Lawyer
Outline
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Limitations on PRRA (and exceptions)
PRRA and Criminality
Deferral requests
Stays and the constitutionality of the PRRA
ban
Limits on PRRAs
Section 112(b.1)
• Bar on applying:
– 12 months from date of refusal (RPD or RAD) for
“normal” claims
– 36 months from date of refusal for DCOs
• Exceptions:
– Claim rejected under section 109(3) of IRPA
(vacate refugee status)
– Claim rejected on basis of section 1E or 1F of
Refugee Convention
Country Exemptions
Section 112(2.1)
• Cancellation of PRRAs (August 15, 2012) for
which bar applies (OB 440-E)
– Minister can make exemptions: Central African
Republic, Egypt, Guinea-Bissau, Libya, Mali, Somalia,
Sudan and Syria
– Only exempt from 12 month PRRA bar if the previous
refugee or PRRA decision was rendered between
August 15, 2011 and August 14, 2012. Nationals from
these countries who have a refugee or PRRA decision
after August 15, 2012 are subject to the 12 month
PRRA bar.
Subsequent PRRAs
Section 112(c)
• May not apply for PRRA if less than 12
months from prior PRRA
• In DCOs, 36 months (edit to paper)
PRRA and Criminality
• In Canada conviction punishable by at least 10 years
imprisonment or foreign conviction equivalent:
– Analyzed under 96 and 97
– Stay of removal only
• In-Canada criminality punished by two or more year’s
imprisonment, or inadmissibility on grounds of security, violating
human or international rights or organized criminality:
– Only factor 97 assessed
– In the case of in-Canada criminality, whether they are a danger to the
public
– In other cases, the nature and severity of the acts committed or the
danger the applicant poses to the security of Canada
– Stay of removal only
Request for deferral of removal
• IRPA, s. 48(2): “If a removal order is
enforceable, the foreign national against
whom it was made must leave Canada
immediately and it must be enforced as
soon as is possible.”
• Used to be “as soon as is reasonably
practicable.”
Deferrals for Risk to Life
• Power to defer is limited:
…deferral should be reserved for those applications
where failure to defer will expose the applicant to the
risk of death, extreme sanction or inhumane
treatment. With respect to H&C applications, absent
special considerations, such applications will not justify
deferral unless based upon a threat to personal
safety.
Baron v. Canada (MPSEP), 2009 FCA 81,
citing Wang v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 148
Issues with Deferrals
• Different tests?
– Higher threshold than PRRA (“death, extreme sanction
or inhumane treatment”)?
– Different test for H&C deferral (“threat to personal
safety)?
– Baron and Wang did not involve risk (obiter?)
• Minimal reasons:
– “..any reasons requirement was fulfilled in the decision
letter… where the officer indicated that she had
received and reviewed the applicants'
submissions, and her decision was not to defer
removal.” (Boniowski v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1161)
Stay of Removal - Federal Court
• Tripartite test:
– Serious issue
– Irreparable harm
– Balance of convenience
• Higher threshold on “serious issue” if
judicially reviewing a request to defer removal
Constitutionality of PRRA Ban
• Toth v. Canada (Public Safety and Emergency
Preparedness), 2012 FC 1051, Justice Zinn
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Roma claimant whose claim denied on state protection
No new evidence of risk filed in deferral request
Country condition evidence filed late at Federal Court
No prima facie case of risk made out
Ability to apply for deferral of removal based on risk, and to
seek judicial review of a refusal to defer, suggests that the
PRRA bar was constitutionally valid. Suresh simply states
that a risk assessment is required; it does not set out the
manner of assessment
– Constitutionality of PRRA ban not a serious issue
Constitutionality of PRRA Ban
• Balasingam v Canada (MSPEP), IMM-12732-12,
Justice Hughes
– Failed refugee claimant with H&C pending
– Officer conducted limited risk analysis in deferral refusal
– “They are asking removals officers, in effect, to conduct such
an assessment or to defer removal until some other,
unidentified person conducts such an assessment. They
may be asking that the Court itself, on motions such as this,
conduct such an assessment. It is not the function of the
Court to conduct such an assessment. Nonetheless, it
remains an open question as to whether some other person
should make such an assessment and whether Charter
rights would be violated if such an assessment were not
made.”
– Removal stayed on undertaking to expedite
• Srignanavel v. Canada (MSPEP), IMM-13055-12,
Constitutionality of PRRA Ban
• Srignanavel v. Canada (MSPEP), IMM-13055-12,
Justice O’Reilly
– Prepared to accept that constitutionality of PRRA was
“serious issue and irreparable harm” based on Balasingam
• Nagarajah v. v. Canada (MSPEP), IMM-3-12, Justice
O’Keefe
– Serious issue: “…in light of the new evidence with respect to
risk to the applicant, should the enforcement officer have
deferred the applicant's removal until the new evidence of
risk had been properly assessed by a person competent to
assess the risk?”
Constitutionality of PRRA Ban
• Aguilar v. Minister of Public Safety and Emergency
Preparedness, IMM-478-12, January 21, 2013,
Justice Harrington
– Refugee claim denied on generalized risk
– New evidence that Mara 18 continued to look for claimant
– Higher onus on removals officers for reasons with PRRA
ban?
Constitutionality of PRRA Ban
• Selvarathinam v. Canada (Minster of Public Safety
and Emergency Preparedness), Justice Gleason
– Removals officers can assess risk
– No probative evidence before removals officer or Court that
Applicant fit profile of those at risk in Sri Lanka
– No serious issue
Risk Assessments and s. 7
A timely risk assessment is Canada’s safeguard against
deportation to torture or similar treatment. Indeed, the
performance of a risk assessment before removal is
the mechanism by which effect is given to section
7 of the Charter and various international human rights
instruments to which Canada is a party.
Ragupathy v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 1370
Section 7 analysis
1. Is there a possibility for a deprivation of life, liberty or
security of the person?
2. Is this deprivation in accordance with principles of
fundamental justice?
3. If a violation of section 7 is established, can it be
saved under section 1 of the Charter?
Deprivation of life, liberty or security
of the person
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New evidence of risk
Changed country conditions
Generalized risk
Medical risk
Principles of fundamental justice
• If the refugee establishes that torture is a real possibility,
the Minister must provide the refugee with all the relevant
information and advice she intends to rely on, provide the
refugee an opportunity to address that evidence in writing,
and after considering all the relevant information, issue
responsive written reasons. This is the minimum
required to meet the duty of fairness and fulfill the
requirements of fundamental justice under s. 7 of the
Charter. (Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1)
• Oral hearing required if credibility issues (Kaberuka v.
Canada (Minister of Citizenship and Immigration), [1995]
F.C.J. No. 1093)
Does process meet principles of
fundamental justice?
• Transparent legislative scheme (knowing the
case to be met)
– What is the standard of proof and threshold of
risk?
– What test for new evidence?
– Is there an objective balanced against risk of
return?
• No hearing if credibility concerns
• No fulsome reasons
Contact
Laura Best
Lawyer, Embarkation Law Group
(604) 662-7404, ext. 106
[email protected]