Changes and Challenges to PRRA Availability Refugee Lawyers Group, CBA BC

1. Changes and Challenges to PRRA AvailabilityRefugee Lawyers Group, CBA BC Laura Best, Lawyer

2. Outline • Limitations on PRRA (and exceptions) • PRRA and Criminality • Deferral requests • Stays and the constitutionality of the PRRA ban

3. 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

4. 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.

5. 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)

6. 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

7. 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.”

8. 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

9. 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)

10. 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

11. Constitutionality of PRRA Ban • Toth v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1051, Justice Zinn • 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

12. 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, Justice O’Reilly • Prepared to accept that constitutionality of PRRA was “serious issue and irreparable harm”

13. 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?”

14. 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?

15. 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

16. 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 section7 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

17. Section 7 analysis • Is there a possibility for a deprivation of life, liberty or security of the person? • Is this deprivation in accordance with principles of fundamental justice? • If a violation of section 7 is established, can it be saved under section 1 of the Charter?

18. Deprivation of life, liberty or security of the person • New evidence of risk • Changed country conditions • Generalized risk • Medical risk

19. 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)

20. 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

21. Contact Laura Best Lawyer, Embarkation Law Group (604) 662-7404, ext. 106 laura@elgcanada.com