Pre-removal Risk Assessments and Refoulement

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

360

CH AP TER 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 speci f‌ied risks. This

precept has been codif‌ied in both the Refugee Conventi on1 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 (IR PA), se ct ion 115(1), 3 which not only expresses ad herence 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 internationa l commitments and constitu-

tional guarantees, Canada has est ablished 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 , above note 3.

Pre-removal Ri sk Assessments and Re foulement 361

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

mechanism to ensure that individuals who are denied acce ss to pro-

tected status through other means are not removed without considera-

tion of the risks they m ay face.

Foreign nationals may be removed from Can ada when their author-

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

been found to be inadmissible.7 Per manent residents may also lose

their status and be forced to leave Can ada if their status was condi-

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

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

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

curity, human rights violations, or serious criminalit y.11 Fur ther, cer-

tain Canad ian citizens may have their Canadian citi zenship stripped

and f‌ind themselves subject to removal to a countr y where they may

hold another nationality.12

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

removal risk asse ssment 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 t rigger a regulatory stay of removal t hat

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

While article 3 of the Convention against Torture expresses the

principle of non-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 retur ned to

face torture and other risk s.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 I RPA, abo ve note 3, s 45(d). See Chapter 14 for more information on inadm is-

sibility.

8 See, for example, Regulations, above note 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 IR PA, above note 3, s 40.

10 Ibid, s 28.

11 Ibid, ss 34 –41.

12 Citizenship 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 Regulat ions, above note 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.

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

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

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

IMM IGRATIO N LAW362

by the Supreme Court of Canada. In Su resh,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) wa s unconstit utional.

In addition, and equally troubling, there are cases where Canadia n

law permits t he 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 asse ssment 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 inelig ible

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 cert if‌icates.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 asse ssment, some applicants will be gr anted 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 fur ther stay of removal. Of

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

removal arrangements.

When the I RPA f‌irst came into force in 2002, the PRRA application

was promoted as an effective protection device because it in stituted a

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

The previous risk determination processes had asses sed 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 c alled into question and has induced serious skep-

ticism. Few individual s have received a positive PRRA evaluation. At

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

stay or protected status through the as sessment.19 The Canadia n 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.

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

16 Ibid at para 76.

17 IR PA, above note 3, s s 34–37.

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

19 See, 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