Pre-removal Risk Assessments and Refoulement

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 360-392

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CHAPTER 11

PRE-REMOVAL RISK

ASSESSMENTS AND

REFOULEMENT

A. INTRODUCTION

The principle of non-refoulement prohibits states from returning a per-

son to a country where that person would face specif‌ied risks. This

precept has been codif‌ied in both the Refugee Convention1 and the Con-

vention against Torture.2 Canada’s obligation to uphold this principle is

incorporated into domestic law via the Immigration and Refugee Protec-

tion Act (IRPA), section 115(1), 3 which not only expresses adherence to

the two conventions but also aims to meet the obligation to protect the

life, liberty, and security of the person guaranteed in section 7 of the

Charter of Rights and Freedoms.4 Section 115(1) provides that a Conven-

tion refugee or a protected person cannot be removed from Canada

to a country where he would be at risk of persecution for enumerated

reasons or at risk of torture, death, or cruel and unusual punishment.5

In order to meet these international commitments and constitu-

tional guarantees, Canada has established the pre-removal risk as-

1 Convention Relating to t he Status of Refugees, 28 July 1951, 189 UNTS 150 (en-

tered into force 22 Apri l 1954), art 33 [Refugee Conven tion].

2 Convention against Torture and Othe r Cruel, Inhuman or Degrading Treatment

or Punishment, 10 Decemb er 1984, 14 65 UNTS 85 (entered into force 26 June

1987), art 3 [Convention against Torture].

3 Immigration and Refugee Protect ion Act,SC 2001, c 27, s 115(1) [IRPA].

4 Canadian Char ter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982,

being Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Charter].

5 IRPA, abovenote 3.

Pre-removal Ri sk Assessments and Re foulement361

sessment (PRRA). The assessment is designed to operate as a fail-safe

mechanism to ensure that individuals who are denied access to pro-

tected status through other means are not removed without considera-

tion of the risks they may face.

Foreign nationals may be removed from Canada when their author-

ization to remain as temporary residents expires,6 or when they have

been found to be inadmissible.7 Permanent residents may also lose

their status and be forced to leave Canada if their status was condi-

tional and they failed to meet a condition,8 if their status was gained

through fraud or misrepresentation,9 if they fail to meet the residency

obligation,10 or if they are found to be inadmissible on grounds of se-

curity, human rights violations, or serious criminality.11 Further, cer-

tain Canadian citizens may have their Canadian citizenship stripped

and f‌ind themselves subject to removal to a country where they may

hold another nationality.12

In general, when a person has been identif‌ied as removable, a pre-

removal risk assessment will usually be made available prior to the re-

moval. This application is often the last t hat an individual may make in

a bid to stay in Canada. It can trigger a regulatory stay of removal that

will remain in effect until the application has been rejected.13

While article 3 of the Convention against Torture expresses the

principle ofnon-refoulement as an absolute principle, both the Refu-

gee Convention and section 115(2) of the IR PA admit exceptions to the

principle and def‌ine circumstances where persons may be returned to

face torture and other risks.14 This qualif‌ied stance has been upheld

6 Immigration and Refugee Protection Regulations, SOR/2002-227, s 183(2) [Regulations].

See Chapter 4 for more in formation on temporary stat us.

7 IRPA, abo venote 3, s 45(d). See Chapter 14 for more information on inadm is-

sibility.

8 See, for example, Regulations, abovenote 6, s 72.1, which outl ines conditions of

permanent r esidency for spouses who come under th e family class. Those who

do not complete the two-yea r conditional residency requ irement may be subject

to removal.

9 IRPA, abovenote 3, s 40.

10Ibid, s 28.

11Ibid, ss 34 –41.

12Citizenship Act,RSC 1985, c C-29, s 10, which provides the legisl ative framework

for revoking citiz enship and parameters or cond itions surrounding revoc ation.

13 Regulations, abovenote 6, s 232. See als o ss 165–66: Howeve r, w here a person

applies at a port of entr y, it will not tr igger a stay (s 166). Similarly, no stay w ill

be trigger ed when the person reapplies for a PRR A having already b een rejected

(s 165). Thi s matter will be dis cussed further below.

14Ref ugee Convention, ab ovenote 1, arts 1F and 33(2); IRPA, abovenote 3, s 115(2).

Unlike the Convent ion against Tor ture, abovenote 2,the Ref ugee Convention,

arts 1F and 33(2),and the IRPA, s 115(2), recog nize exceptions to the pr inciple

IMMIGRATIO N LAW362

by the Supreme Court of Canada. In Suresh,15 the Court held that there

could be exceptional circumst ances that may justify a return to tor ture.16

It therefore declined to hold that section 115(2) was unconstitutional.

In addition, and equally troubling, there are cases where Canadian

law permits the removal of individuals from Canada without any in-

quiry into the risks that they may face. The right to apply for a pre-

removal risk assessment is not granted to every person who is being

removed. As outlined below, an assessment is made available only to

individuals in specif‌ied categories, including persons found ineligible

to make a refugee claim before the Immigration and Refugee Board

(IRB) because of inadmissibility on a serious ground and persons sub-

ject to security certif‌icates.17 It is also made available to some indi-

viduals whose refugee claim before the IRB has already been rejected,

although severe restrictions are applied in such cases.

After a positive assessment, some applicants will be granted refu-

gee or protected person status and will be offered the opportunity to

apply for permanent residence. However, those who have previously

been found to be inadmissible on the most serious grounds will re-

ceive a temporary reprieve in the form of a further stay of removal. Of

course, a negative pre-removal risk asses sment leads to a resumption of

removal arrangements.

When the IRPAf‌irst came into force in 2002, the PRRA application

was promoted as an effective protection device because it instituted a

risk assessment immediately prior to the execution of a removal order.

The previous risk determination processes had assessed similar risks

but had incorporated a problematic time lapse between the assessment

and actual removal, during which country conditions could change.18

However, over the years the effectiveness of the pre-removal risk as-

sessment has been called into question and has induced serious skep-

ticism. Few individuals have received a positive PRRA evaluation. At

best, only about 3 percent of persons are granted either a temporary

stay or protected status through the assessment.19 The Canadian Council

of non-refoulement where pers ons may be denied protection despit e a risk of

torture or other cr uel and unusual punish ment, including death.

15Suresh v Canada (Minister of Citizen ship and Immigration),2002 SCC 1 [Suresh].

16Ibid at para 76.

17IRPA, abovenote 3, s s 34–37.

18Mart in Jones & Sasha Baglay, Refuge e Law (Toronto: Irwin Law, 2007) at 332.

19See, for exa mple, Nalliah v Canada (Solicitor General), 2004 FC 1649 [Nalliah],

where Snider J commented t hat of all the applications pro cessed, only about

3 percent of all PRR A decisions were favourable. See a lso Kristina D ragaitis,

“PRRA Bar O utline” (Presented at the 22nd Annu al Immigration Law Sum mit

of the Law Societ y of Upper Canada, 20 November 2014) at Appendix A, which