Al Atawnah et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al., 2016 FCA 144

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Dawson, Near and Boivin, JJ.A.
• Citation: 2016 FCA 144,(2016), 483 N.R. 219 (FCA)
• Date: 11 April 2016

Al Atawnah v. Can. (2016), 483 N.R. 219 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. MY.018

Yasmen Al Atawnah, Diana Elatawna, Karam Elatawna and Retal Aisha Elatawna (appellants) v. The Minister of Public Safety and Emergency Preparedness and The Minister of Citizenship and Immigration (respondents)

(A-322-15; 2016 FCA 144)

Indexed As: Al Atawnah et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al.

Federal Court of Appeal

Dawson, Near and Boivin, JJ.A.

May 9, 2016.

Summary:

Al Atawnah and three of her children sought refugee protection in Canada, claiming to fear persecution in Israel at the hands of family members. Al Atawnah claimed that her brothers wanted to kill her because she was involved in reporting the honour killing of her sister by her brothers to the Israeli police. The merits of the family's refugee claims were never decided, as the Refugee Protection Division (RPD) of the Immigration and Refugee Board declared the claims to have been abandoned. The applicants said that they did not intend to abandon their refugee claims, and that it happened as a result of Al Atawnah's limited English language skills, her unfamiliarity with the refugee process and her lack of legal representation. The applicants were unable to obtain a Pre-removal Risk Assessment (PRRA) before their removal from Canada as a result of s. 112(2)(b.1) of the Immigration and Refugee Protection Act, a new provision which denied access to the PRRA process to individuals from Designated Countries of Origin who had abandoned their refugee claims if less than 36 months had passed since their application for refugee protection was determined to have been abandoned by the RPD. The applicants applied for judicial review, asserting that their rights under s. 7 of the Canadian Charter of Rights and Freedoms were breached because they were removed from Canada without a fulsome assessment of the risks they claimed to face in Israel ever having been carried out by a competent decision- maker; a declaration that s. 112(2)(b.1) was of no force and effect in their case as it breached their s. 7 Charter rights; and an order of mandamus compelling the Minister to return them to Canada at the Minister's expense.

The Federal Court, in a decision reported at (2015), 483 F.T.R. 174, dismissed the application, holding that the applicants had not established a breach of their s. 7 Charter rights. The court certified the following 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?"

The Federal Court of Appeal answered the question in the negative.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - The Federal Court of Appeal held that 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 had passed since the claim for refugee protection was abandoned, did not violate s. 7 of the Charter - The court stated 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." - See paragraphs 6 to 23.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - Al Atawnah and three of her children sought refugee protection in Canada, claiming to fear persecution in Israel at the hands of family members - Al Atawnah claimed that her brothers wanted to kill her because she was involved in reporting the honour killing of her sister by her brothers to the Israeli police - The merits of the family's refugee claims were never decided, as the Refugee Protection Division (RPD) of the Immigration and Refugee Board declared the claims to have been abandoned - The applicants said that they did not intend to abandon their refugee claims, and that it happened as a result of Al Atawnah's limited English language skills, her unfamiliarity with the refugee process and her lack of legal representation - The applicants were unable to obtain a Pre-removal Risk Assessment (PRRA) before their removal from Canada as a result of s. 112(2)(b.1) of the Immigration and Refugee Protection Act, a new provision which denied access to the PRRA process to individuals from Designated Countries of Origin who had abandoned their refugee claims if less than 36 months had passed since their application for refugee protection was determined to have been abandoned by the RPD - The applicants applied for judicial review, arguing that both their removal from Canada without a full risk assessment being conducted by a competent decision-maker in accordance with the principles of fundamental justice and s. 112(2)(b.1) of the Act violated their s. 7 Charter rights - The Federal Court rejected the argument - On appeal, the applicants argued that "It is a principle of fundamental justice that prior to removing an individual from Canada, a decision-maker empowered to assess risk must conduct an assessment of that risk that conforms to the basic principles of fairness, including the ability to convene an oral hearing if credibility is in issue." - The Federal Court of Appeal rejected this argument - The court stated that "The appellants have failed to demonstrate that the alleged principle is a fundamental principle of justice because, contrary to the appellants' submission, it articulates a process whereby a single decision-maker is required to assess risk (as opposed to a different process such as one where, as now, an enforcement officer assesses the sufficiency of the evidence of risk, and if satisfied the evidence is sufficient, defers removal and refers the risk assessment to another decision-maker). It follows that the asserted principle runs contrary to the jurisprudence of the Supreme Court that section 7 does not require a particular type of process; it requires a fair process having regard to the nature of the proceedings and the interest at stake ..." - See paragraphs 24, 26 and 27.

Aliens - Topic 1589

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - When hearing required (IRPA, s. 113(b)) - The Federal Court of Appeal stated that "In view of the decision of the Supreme Court in Singh (1985 SCC), an enforcement officer cannot reasonably make credibility findings in the absence of an interview." - The court noted that "... nothing precludes an enforcement officer from interviewing a person who has requested that their removal be deferred, and officers do so from time to time." - See paragraphs 31 to 33.

Aliens - Topic 1589

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - When hearing required (IRPA, s. 113(b)) - [See second Aliens - Topic 1583 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - [See both Aliens - Topic 1583 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - [See first Aliens - Topic 1583 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See second Aliens - Topic 1583 ].

Civil Rights - Topic 8316

Canadian Charter of Rights and Freedoms - General - Application - Proportionality test - [See first Aliens - Topic 1583 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice - [See second Aliens - Topic 1583 ].

Counsel:

Samuel E. Plett, for the appellants;

Catherine Vasileros and Aleksandra Lipska, for the respondents.

Solicitors of Record:

Desloges Law Group Professional Corporation, Toronto, Ontario, for the appellants;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard at Toronto, Ontario, on April 11, 2016, by Dawson, Near and Boivin, JJ.A., of the Federal Court of Appeal. Dawson, J.A., delivered the following decision for the court on May 9, 2016.