Al Atawnah v. Can., 2015 FC 774

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: April 09, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 774;(2015), 483 F.T.R. 174 (FC)

Al Atawnah v. Can. (2015), 483 F.T.R. 174 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JL.009

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

(IMM-343-14; 2015 FC 774)

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

Federal Court

Mactavish, J.

June 22, 2015.

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 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?"

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, asserting that their s. 7 Charter rights had been 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 - The Federal Court rejected the assertion - The court held, inter alia, that when regard was had to the totality of the processes that were available to these applicants under the IRPA's statutory scheme, the effect of the PRRA bar created by s. 112(2)(b.1) on them was not grossly disproportionate to the state interests that the legislation sought to protect - See paragraphs 63 to 103.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - [See both Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - [See Aliens - Topic 1583 and both Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - Section 112(2)(b.1) of the Immigration and Refugee Protection Act (IRPA) denied access to the pre-removal assessment (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 asserted that s. 112(2)(b.1) of the IRPA was, inter alia, overbroad, violating their s. 7 Charter rights - The Federal Court stated the applicants had conceded that delaying removals to allow for PRRAs to be carried out for individuals whose refugee claims had been deemed abandoned would inevitably delay the removals process - While the applicants submitted that these risk assessments could be done on very short timelines (thereby limiting delays in the removals process), it could not be said that the creation of the PRRA bar bore no relationship to Parliament's goals of expediting removals and simplifying the process - Therefore, the legislation was not overbroad - See paragraph 60.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - Section 112(2)(b.1) of the Immigration and Refugee Protection Act (IRPA) denied access to the pre-removal assessment (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 asserted that s. 112(2)(b.1) of the IRPA infringed their s. 7 Charter rights - The Federal Court rejected the argument - The court stated, inter alia, that "The applicants also say that the 36-month PRRA bar in paragraph 112(2)(b.1) of IRPA is arbitrary. According to the applicants, the rationale behind a 12- or 36-month PRRA bar is that country conditions that have already been assessed are unlikely to change during those timeframes. If no risk assessment has ever been carried out, however, then the conditions in an individual's country of origin are likely to be the same on the day after their refugee claim was declared to be abandoned as they will be 12 or 36 months hence. From this is it apparent that what the applicants take issue with is not the length of the PRRA bar, but the fact that there is a bar at all. There is clearly a rational connection between the imposition of a PRRA bar on individuals who have abandoned their refugee claims and the limits that paragraph 112(2)(b.1) of IRPA imposes on the section 7 rights of the applicants." - See paragraphs 61 and 62.

Cases Noticed:

Gonzalez v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 824; 2009 FC 1248, refd to. [para. 24].

Sarran v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 79; 2014 FC 62, refd to. [para. 24].

Erasmo v. Canada (Attorney General) (2015), 473 N.R. 245; 2015 FCA 129, refd to. [para. 47].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 47].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 48].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 48].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 50].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 50].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 51].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 51].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 303 C.C.C.(3d) 146; 2013 SCC 72, refd to. [para. 56].

Ragupathy v. Canada (Minister of Public Safety and Emergency Preparedness) (2006), 303 F.T.R. 178; 2006 FC 1370, refd to. [para. 65].

Toth v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 417 F.T.R. 279; 2012 FC 1051, refd to. [para. 66].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 66].

Harkat, Re, [2014] 2 S.C.R. 33; 458 N.R. 67; 2014 SCC 37, refd to. [para. 66].

Peter v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 467 F.T.R. 169; 2014 FC 1073, consd. [para. 72].

Shpati v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 423 N.R. 309; 2011 FCA 286, refd to. [para. 79].

Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682; 204 F.T.R. 5; 2001 FCT 148, refd to. [para. 79].

Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] 2 F.C.R. 311; 387 N.R. 278; 2009 FCA 81, refd to. [para. 80].

Etienne v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 477 F.T.R. 275; 2015 FC 415, refd to. [para. 81].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 93].

Varela v. Canada (Minister of Citizenship and Immigration), [2010] 1 F.C.R. 129; 391 N.R. 366; 2009 FCA 145, refd to. [para. 104].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 112(2)(b.1) [para. 3 et seq.].

Counsel:

Samuel Plett, for the applicants;

Catherine Vasilaros and Aleksandra Lipska, for the respondents.

Solicitors of Record:

Chantal Desloges Professional Corporation, Toronto, Ontario, for the applicants;

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

This application was heard at Toronto, Ontario, on April 9, 2015, by Mactavish, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on June 22, 2015.