Peter v. Canada (Public Safety and Emergency Preparedness)

Peter v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2014-11-13
Neutral citation
2014 FC 1073
File numbers
IMM-12508-12
Notes
A correction was made on January 28, 2016
Reported Decision
Decision Content
Date: 20141113
Docket: IMM-12508-12
Citation: 2014 FC 1073
Ottawa, Ontario, November 13, 2014
PRESENT: The Honourable Mr. Justice Annis
BETWEEN:
EMILIAN PETER
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
and
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Intervener
JUDGMENT AND REASONS
TABLE OF CONTENTS
Paragraphs
I. INTRODUCTION
[1] to [7]
II. BACKGROUND
[8] to [13]
III. DECISION UNDER REVIEW
[14] to [24]
IV. PARTY PLEADINGS
[25] to [80]
A. Applicant
[25] to [46]
(1) The Minister’s Obligations under Section 7 of the Charter
[26] to [28]
(2) The Scope of the Risk
[29] to [33]
(3) The Illegality of the PRRA Bar
[34] to [35]
(4) Alternative Test
[36] to [39]
(5) Competent Decision Maker
[40] to [44]
(6) Arbitrariness
[45] to [46]
B. Respondent
[47] to [80]
(1) Automatic Right to the PRRA Process is Not a Foundational Norm
[47] to [62]
(2) The Absence of Consideration of Persecution in the Removals Test
[63] to [72]
(3) Competence and Bias of Removals Officers
[73] to [80]
V. ISSUES
[81]
VI. STANDARD OF REVIEW
[82] to [83]
VII. STATUTORY PROVISIONS
[84]
VIII. ANALYSIS
[85] to [316]
A. Section 7 Analysis
[85] to [309]
(1) Introduction
[85] to [94]
(2) Is the 12-Month PRRA Bar Unconstitutional?
[95] to [127]
(a) Is 12 Months an Arbitrary Limitation for the PRRA Bar?
[117] to [127]
(3) Is the Removals Process Unconstitutional?
[128] to [309]
(a) Overview
[128] to [131]
(b) Section 7 Charter Principles Applicable to the Removals Process
[132] to [148]
(i) Principles of Fundamental Justice
[132] to [148]
a. Vital or Fundamental Principle
[132] to [136]
b. Balancing the Fundamental Rights of the Individual with Societal Interests
[137] to [148]
(c) The Jurisprudence Establishing the Removal Test
[149] to [175]
(i) Removals Test – Wang
[151] to [160]
(ii) Baron
[161] to [163]
(iii) Shpati
[164] to [175]
(d) The Alleged Narrowness of the Removals Test for its Failure to Consider Persecution Risks
[176] to [225]
(i)The Parties’ Arguments
[176] to [184]
(ii) The Extent of “Residual” Risks Arising from Persecution Not Assessed by the Removals Test
[185] to [201]
a. Persecutory Discrimination versus Hardship Discrimination
[185] to [186]
b. The Need for a Threshold Definition of Persecutory Discrimination: Cheung v Canada (Minister of Employment & Immigration
[186] to [199]
c. The “Residual” or “Unassessed” Persecution Risk Factors
[200] to [202]
(iii) The Nature and Extent of the Risk on Removal Presented by the Applicants Peter and Savunthararasa
[203] to [213]
a. Personal Narratives
[203] to [205]
b. Country Conditions
[206] to [213]
(iv) Examples of Residual Persecution Risk Cases
[214] to [220]
(v) Conclusions on the Extent of the Unprotected Risk
[221] to [226]
(e) The Untested Scope of Cruel and Unusual or Inhumane Treatment
[227] to [235]
(f) Where Removal Might Result in the Order of the Removals Officer Inoperative
[236] to [238]
(g) No Previous History of Persecution as an Issue in Removal
[239] to [241]
(h) Standard of Assessment, Gatekeeping on a Lower Threshold, Assessing for Deferral to a PRRA or H & C Officer
[242] to [268]
(i) The test does not evaluate for the standard of demonstrating a well-founded fear; and
[245] to [259]
(ii) The test applies a more stringent test for deferral than that which is applied by the actual decision-maker.
[245] to [259]
(iii) There is no consistent standard articulated for the officer’s assessment of the evidence
[260] to [261]
(iv) The removals officer is not authorized to assess evidence
[262] to [264]
(v) Competency of the removals officer
[265] to [271]
(vi) The Oversight Function of the Federal Court
[272] to [274]
(i) The Availability of a Section 7 Remedy in the Federal Court
[275] to [277]
(j) The Applicant’s Proposed Removal Screening Test
[278] to [293]
(k) Why Not a Removals Test That Includes Persecution?
[294] to [296]
(l) Balancing the Interests of the Unsuccessful Refugee’s Removal Rights against Societal Interests Protecting the Refugee Protection Process
[297] to [313]
(m) Conclusion on the Constitutionality of the Removals Process
[314] to [315]
B. The Reasonableness of the Removals Officer’s Decision
[316] to [322]
IX. CONCLUSION
[323]
IX. CERTIFIED QUESTIONS
[324] to [328]
A. Proposed by the Applicant
[325]
B. Proposed by the Respondent
[326] - [327]
C. Those Certified
[328]
I. INTRODUCTION [1] This is an application for judicial review under section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA” or the “Act”) of a decision of the Canadian Border Services Agency (the “CBSA”) dated December 5, 2012 refusing to defer the execution of the removal order against Emilian Peter (the “applicant”), a Sri Lankan Tamil. The applicant seeks a mandamus order compelling the Minister of Public Safety and Emergency Preparedness (the “Minister”) to conduct an assessment of the risk that he will face upon return to Sri Lanka, or, in the alternative, that the CBSA’s decision be overturned and that the matter be remitted for reconsideration. The application was heard December 3, 2013, with supplementary oral submissions from parties following two directions from the Court at a hearing on June 2, 2014, and submissions on certified questions provided August 30, 2014. Upon consideration of the Applicant’s uncontested submissions regarding the applicability of subparagraph 20(2)(b) of the Official Languages Act, I agree that release of this judgment (and reasons) in both official languages would occasion a considerable delay prejudicial to the public interest, and I am therefore releasing it immediately in English and then in French at the earliest possible time.
[2] This Court heard Mr. Peter’s application together with the application in Savunthararasa v Canada (Minister of Citizenship and Immigration), 2014 FC 1074 [Savunthararasa]. Both Mr. Peter and Mr. Savunthararasa (together the “applicants”) were represented by the same counsel. In addition, Prothonotary Aalto granted leave to the Canadian Association of Refugee Lawyers (“CARL”) to intervene and to file a factum. I allowed CARL to make submissions in both matters on the issues raised by the parties.
[3] Central to both cases are two common issues. The first is whether section 112(2)(b.1) of the IRPA, as added by section 15(3) of the Balanced Refugee Reform Act, SC 2010, c 8, is unconstitutional for infringing section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”). Subject to ministerial exemptions based on class or country, the relevant portion of section 112(2)(b.1) of the IRPA prohibits a Pre-removal Risk Assessment Protection (“PRRA”) application from being brought within 12 months after the refugee protection claim was last rejected. Section 112(2)(b.1) is referred to throughout these reasons as the “PRRA bar”.
[4] The second issue is whether the “removals process” applied by the Inland Enforcement Officer (the “removals officer” or the “officer”) to determine whether to defer the applicant’s removal from Canada pursuant to section 48 of the Act is unconstitutional for violating the principles of fundamental justice under section 7 of the Charter. This aspect of the applicant’s constitutional challenge encompasses the removals test as developed by the Federal Courts and applied by the officer, the officer’s competency and authority to assess risk, and other related aspects of the removals process, including the role of the Federal Court in motions brought before it to stay an applicant’s removal following rejection of a deferral request by the officer.
[5] These reasons determine the common issues and affect both applications. Accordingly, I direct that a copy of these reasons be placed in the Savunthararasa file.
[6] I dismiss Mr. Peter’s application. I conclude that both the PRRA bar and the removals test are in compliance with section 7 of the Charter. I also reject the applicant’s challenges to the officer’s competency and related issues. Further, I conclude that the decision of the removals officer was reasonable. My reasons in support of these conclusions follow.
[7] For purposes of ease of terminology, when discussing the “refugee determination process” or other statements where the term refugee is not capitalized, I am referring to both sections 96 and 97 of the IRPA together as in the meaning of a person on whom refugee protection is conferred by section 95 of the IRPA. This usually is in reference to some form of shared “risk of harm” required for a successful claim, often common in nature and degree, emanating from the claimant’s country of origin. This use of the term “refugee” is to be distinguished from references to a “Convention Refugee” or a “Refugee” in a capitalized form, which designates a specific connection to section 96 of the IRPA.
II. BACKGROUND [8] The applicant is a 41 year old Christian Tamil from Mannar in northern Sri Lanka. He is married with five children. In November 2010, he left his wife and children in Sri Lanka and fled to the United States. He arrived in Canada on April 4, 2011 at the Quebec-United States border and made a claim for inland refugee protection at Citizenship and Immigration Canada’s (“CIC”) offices in Etobicoke, Ontario on April 13, 2011.
[9] The applicant’s first narrative described a previous history of being arrested and tortured in 2005 or 2006. He originally alleged being entangled, without intention or justification, in the affairs of a person called Ruban, who he alleged was arrested by the authorities. The applicant claimed that he feared being incarcerated and treated inhumanely based on his connection with Ruban because of an allegation that the applicant’s card was found on Ruban’s person.
[10] On March 29, 2012, the applicant’s refugee claim was rejected by the Refugee Protection Division (the “RPD”) on the basis that his evidence lacked credibility and that he had not established that his prospective fear of harm was well-founded.
[11] On April 20, 2012, Mr. Peter applied for leave and judicial review of the negative RPD decision.
[12] Pending the outcome on the leave application, the applicant filed for permanent residence on humanitarian and compassionate (“H&C”) grounds on June 21, 2012. He continued to rely on similar facts as were before the RPD, which were later significantly varied before the removals officer.
[13] Leave to judicially review the RPD decision was denied by Justice Near, as he then was, on August 14, 2012.
III. DECISION UNDER REVIEW [14] In his request for a deferral of removal, Mr. Peter alleged that he would face serious risk of harm upon return to Sri Lanka because of the work he had done as a driver for the non-governmental organization CARE. He explained that he had not included information about his past employment with CARE and the problems he experienced as a result of this employment in his Personal Information Form (“PIF”) or at his RPD hearing because his interpreter insisted that he should not mention this. He also alleged that he would face risk because of his familial connection to his nephews, who had been detained by the Sri Lankan government on the basis of alleged involvement with the Liberation Tigers of Tamil Ealam (the “LTTE”). Furthermore, he claimed that he would face risk based on the fact that his wife and children had been forced to move frequently to avoid problems with the Sri Lankan government. He also asked that his removal be deferred until such time as his H&C application was determined.
[15] The request was supported by a large package of background information on the country conditions and a statutory declaration of Patricia Watts, a law clerk with the applicant’s counsel. She deposed, among other things, that several of Mr. Peter’s counsel’s clients with similar risk profiles had been detained, abducted, and beaten after their arrival in Sri Lanka
[16] In examining the applicant’s submissions, the officer noted that he was tasked with determining whether removal would subject Mr. Peter to risk of death, extreme sanction, or inhumane treatment.
[17] The officer indicated that he had carefully reviewed the news articles and country condition reports in the voluminous documentation submitted by the applicant on country conditions. The officer noted that most of them post-dated the RPD decision and that there was an emphasis on the alleged risks for returnees and failed asylum-seekers. The officer concluded that they referred broadly to general conditions in Sri Lanka and made no specific mention of the applicant. The officer also noted that many of the submitted materials were not from commonly known mainstream or impartial sources. Specifically with respect to alleged risks faced by failed asylum-seekers, the officer found that many of the presented circumstances were materially dissimilar to the situation of the applicant as they were actually discussing the removal of Sri Lankan Tamils from Europe rather than from Canada. He noted that Mr. Peter had no record of criticizing or protesting against the Sri Lankan government in Canada or while abroad. The officer concluded that the evidence provided by the applicant was insufficient to demonstrate that he faced a risk to his life upon return to Sri Lanka that was sufficiently personalized and that overall the statements of the applicant’s counsel were speculative and not clearly established by any of the evidence provided in the deferral request.
[18] With specific reference to the alleged torture of a failed asylum seeker removed to Sri Lanka from Canada, the officer noted that no specific information was provided, such as the identity of the alleged victim, which rendered the information too vague and insufficiently corroborated to be relied upon.
[19] The officer noted that the applicant was questioned but not detained as a result of his CARE employment. He also found the evidence regarding the applicant’s relationship to the mastermind of the assassination attempt unsupported. The officer concluded that there was insufficient, non-speculative documentation to demonstrate that the applicant would face risk in Sri Lanka based upon his former work as a driver for CARE. Despite the fact that this particular risk was not raised to the RPD, which the applicant now claims was due to the advice given to him by his interpreter, the officer noted that both the Refugee Intake Form and the PIF that the applicant signed contain a statement that the information provided was “complete, true and correct.” In addition, the officer did not find it credible that the applicant followed the advice of his interpreter in not raising his work for CARE to the RPD instead of following the advice of his legal counsel. The officer concluded that the applicant had not provided a sufficiently credible explanation as to why these risks had not been presented to the RPD for consideration. Moreover, he was not satisfied that the new evidence presented was even eligible for consideration in light of section 113(a) of the Act, which limits the officer’s consideration to be given to new evidence that arose after the rejection or that was not reasonably available, or that the applicant could not have reasonably been expected to present in the circumstances, at the time of rejection.
[20] The officer went on to conclude that there was insufficient evidence that the applicant would be at risk due to his family’s profile, and that in any case, the information provided pre-dated the RPD hearing.
[21] The officer examined an affidavit provided by a social worker and law clerk from the office of the applicant’s legal counsel. The affidavit provided personal testimony as to the dangers that Tamils face upon return to Sri Lanka. The officer concluded that the information provided in the affidavit was uncorroborated, anecdotal, and insufficiently detailed regarding the risk profile of the persons allegedly subject to risk upon return to Sri Lanka to have any probative value.
[22] The officer concluded that his discretion as an Inland Enforcement Officer is very limited and that it did not permit him to defer the applicant’s removal to Sri Lanka based on the evidence provided
[23] In regard to the applicant’s request that his removal be deferred until such time as his application for permanent residence on H&C grounds was decided, the officer noted that both the “Inland Processing Manual 5” and the “Instruction Guide IMM 5291 – Applying for Permanent Residence from Within Canada – Humanitarian and Compassionate Considerations” make it clear that the submission of a request for permanent residence on H&C grounds does not delay an applicant’s removal from Canada. The officer did not accept the evidence in the affidavit of the applicant counsel’s law clerk, Ms. Watts, stating that the acceptance rate of H&C applications for applicants who are not in Canada is virtually nil. The officer determined that there was no documentary evidence or proof supporting these contentions. Further, he noted that it was beyond his authority to carry out H&C assessments. The officer noted that the evidence from the affiant Watts was largely anecdotal and not authenticated by any objective evidence.
[24] As a result, the officer refused the applicant’s request for a deferral of removal.
IV. PARTY PLEADINGS A. Applicant [25] The applicant submits that there is an obligation on the removals officer to consider risk which arises from the constitutional obligation to protect human rights and that this obligation can be met by providing a fresh risk assessment on the basis of evidence not previously considered.
(1) The Minister’s Obligations under Section 7 of the Charter [26] The applicant alleges that section 7 of the Charter is engaged where a person claims a risk of harm upon removal to another state jurisdiction. This gives rise to an obligation to determine the existence of risk prior to removing the person to the country where he or she could potentially face a risk. The Supreme Court in Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, 17 DLR (4th) 422 [Singh] recognized that section 7 is engaged where a non-citizen claims a well-founded fear of persecution in her country of nationality or former habitual residence and where she claims a substantial risk of torture or other such treatment.
[27] The Court in Németh v Canada (Minister of Justice), 2010 SCC 56, [2010] 3 SCR 281 [Németh] has also noted Canada’s international obligation to respect the principle of non-refoulement, though this principle does not commit Canadian authorities to any particular procedural scheme for its application in extradition matters. The Federal Court has on numerous occasions recognized that Canada would be in breach of its international obligations and section 7 of the Charter if it were to execute deportation orders in circumstances which put the life, liberty, or security of person in peril (see Orelien Canada (Minister of Employment and Immigration), [1992] 1 FC 592, 135 NR 50 (CA) [Orelien]; Nguyen v Canada (Minister of Employment and Immigration), [1993] 1 FC 696, 100 DLR (4th) 151 (FCA); Farhadi v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 646 (QL) at para 3, 257 NR 158 (FCA)).
[28] The Federal Court has recognized that a timely risk assessment is Canada’s safeguard against deportation to torture or similar treatment (see Ragupathy v Canada (Minister of Public Safety & Emergency Preparedness), 2006 FC 1370, 303 FTR 178 at para 27 [Ragupathy]) and the fact that the person is excluded from a determination or that there has been a prior determination, successful or not, of whether a person is at risk in returning to a particular country has not been a bar to a timely determination (see Saini v Canada (Minister of Citizenship and Immigration), [1998] 4 FC 325, [1998] FCJ No 982 (QL) at para 25; Jayasundararajah v Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 1169 at paras 25-26, 195 ACWS (3d) 224 [Jayasundararaja]; Arunachalam v Canada (Minister of Citizenship and Immigration),150 FTR 289. 81 ACWS (3d) 323.
(2) The Scope of the Risk [29] Further, the applicant claims that the concept of ‘risk’ is broader than “the risk of death, extreme sanction or inhuman treatment,” which is the test applied by removals officers as first enunciated by Justice Pelletier in Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 [Wang].
[30] The test reflected the wording of section 2(1) of the Immigration Regulations, as amended by SOR/93-44, s. 1 [Immigration Regulations] that predated the IRPA. The wording taken from the Immigration Regulations was used for the purpose of conducting a form of pre-removal risk assessment of unsuccessful Convention refugees who were members of the Post-Determination Refugee Claimant Class (the “PDRCC”). The factors in the Immigration Regulations were subsequently reformulated in section 97(1)(b) in the IRPA, now describing persons in need of protection who, upon removal, would be subject to a risk of “life or to a risk of cruel and unusual treatment or punishment.”
[31] Moreover, Wang involved a removal where the underlying procedure was an application for permanent residence on humanitarian and compassionate grounds [H&C], as opposed to a risk assessment. The test in Wang was then adopted by the Federal Court of Appeal in Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron] and Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286, 343 DLR (4th) 128 [Shpati]. However, the applicant contends that both the Wang test and its adoption by the Federal Court of Appeal is obiter dicta.
[32] The applicant argues that the risk which must be assessed at the time of removal is not limited to the factors in section 97 of the IRPA and that this broader conception of risk is supported by jurisprudence of the Supreme Court and the Federal Courts. He advances that the concept of risk must, at a minimum, be the risk which has already been recognized by Canadian courts, including persecution of a Convention refugee (IRPA, s 96), torture (IRPA, s 97), the concept of cruel and inhuman treatment under Article 7 of the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976, No 47, 6 ILM 368, and the concept of cruel and unusual treatment or punishment under section 12 of the Charter. The applicant did not pursue the section 12 Charter argument. The applicant argues that narrowing the parameters to exclude real risks, as the officer did in both of the applicants’ cases, is inconsistent with the principles of fundamental justice.
[33] The applicant argues that that the object of the amendment creating the PRRA bar is “resource efficiency,” as the significance of the PRRA in the refugee claim process is still recognized. The PRAA should be based upon the recognition and commitment to the principle that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment. Such a commitment requires the risk be reviewed prior to removal.
(3) The Illegality of the PRRA Bar [34] The applicant argues that non-refoulement is a rule of customary international law because of its normative character and consistent state practice and that Canada is bound by principles of customary international law in the absence of conflicting domestic legislation (see R v Hape, 2007 SCC 26, [2007] 2 SCR 292). Further, constitutional principles in Canada accord with Canada’s international human rights obligations. The applicant also points out that section 3(3)(f) of the IRPA indicates that the Act should be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. The applicant argues that international human rights law does not have to have been incorporated explicitly into Canadian law to apply to the interpretation of the IRPA (see De Guzman v Canada (Minister of Citizenship and Immigration), 2005 FCA 436, 262 DLR (4th) 13 at paras 82-107).
[35] According to the applicant, the PRRA bar is illegal, in that various unsuccessful refugee claimants will be deported before they can seek the protection that the PRRA mechanism was intended to offer, returning them to places where their lives and freedom could be threatened and thereby contradicting the principle of non-refoulement. The applicant contends that this possibility means that section 112 of the IRPA is an illegal provision.
(4) Alternative Test [36] The applicant submits that the role of the removals officer is not defined in the legislation and should be limited to that of a ‘gatekeeper,’ such that he or she cannot decide the merits of the case but only whether there is evidence before him which, if accepted as credible, might lead a competent decision maker to determine that the person has a well-founded fear of persecution or other form of cruel and inhumane treatment on return to a particular country.
[37] According to the applicant, it cannot be the case that the removals officer is meant to apply a narrower concept of risk than that which would be applied if the person passed to the next assessment and was eligible for a review of risk in the context of the engagement of section 7 Charter interests.
[38] The applicant also alleges that there does not appear to be a consistent standard articulated for the officer’s assessment of the evidence. In Wang, the Court stated that the officer could determine the bona fides of the request, while in Toth v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1051, 417 FTR 279, Justice Zinn applied a test of “clear and convincing” evidence. The applicant cites Adjei v Canada (Minister of Employment and Immigration), [1989] 2 FC 680, (1989) 57 DLR (4th) 153 (FCA) for the proposition that the foregoing are not the tests used for a determination of the need for protection from persecution, which should be whether there is a well-founded fear (i.e. a serious or reasonable chance) based on evidence accepted on a balance of probabilities.
[39] The applicant further advances that the risk does not need to be personalized (see Orelien, Yaliniz v Canada (Minister of Employment and Immigration), 9 ACWS (3d) 369, 7 Imm L R (2d) 163 (FCA), Salibian v Canada (Minister of Employment and Immigration), [1990] 3 FC 250, 73 DLR (4th) 551 (FCA) at paras 17-18 [Salibian]).
(5) Competent Decision Maker [40] The applicant argues that where a non-citizen claims a need of Canada’s protection from risk in another state jurisdiction, there must be an oral hearing where credibility is considered before a competent, independent, and impartial decision maker in order to determine the existence of risk and whether protection should be provided. The applicant cites Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 SCR 84 [Chieu] and Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 1222, 160 DLR (4th) 193 at para 70 [Pushpanathan] for the proposition that the requirements of natural justice are met when removing individuals from Canada by providing for an oral hearing, tendering evidence, giving reasons, etc.
[41] The applicant further argues that the role of making risk determinations, because of its vital importance in light of section 7 of the Charter and Canada’s international obligations, cannot be filled by removals officers. The removals officers exceed their jurisdiction in such cases by taking on the role of a final decision maker in their assessment of evidence and conclusions on the narrow concept of risk which they apply to the facts (risk of death, extreme sanction, or inhumane treatment).
[42] In addition, the applicant claims that because the removals officers’ role is to remove applicants, they cannot be seen as independent and impartial to the degree necessary to meet the requirements of fundamental justice. Their “singular focus” on effecting removal does not meet fairness requirements given the potentially grave consequences of a wrong decision in terms of risk assessment and removal.
[43] The applicant cites various Federal Court decisions for this proposition about the role of removals officers including Dhurmu v Canada (Minister Of Public Safety And Emergency Preparedness), 2011 FC 511, 219 ACWS (3d) 188 at para 38, Lin v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 771, 391 FTR 315 at para 12, and Jayasundararajah at para 15.
[44] He also argues that the Court’s analysis in Wang was premised on the recognition that the removals officer is not the decision maker but rather is determining whether to defer removal for another decision maker to address an outstanding application. In the applicant’s opinion, for purpose of making risk determinations, competent decision makers include designated CIC immigration officers and members of the RPD.
(6) Arbitrariness [45] The modifications to the IRPA mean that a claimant can no longer apply for a risk assessment in the form of a PRRA until a year has passed since the refusal of his or her claim. The applicant contends that even with the 12-month bar on PRRA applications, where a credible claim to risk is made out, there must be an assessment of this by a competent officer. The 12-month bar is, in some instances, a breach of section 7 of the Charter, as it is arbitrary and not based on the reality of changing country conditions.
[46] The applicant also claims that the PRRA bar does, in some instances, breach section 7 of the Charter by preventing the consideration of relevant “new” evidence of risk. In support of this submission, the applicant filed an affidavit of expert witness Professor Okafor who opined that given the difficulties in obtaining reliable and accessible information about country conditions, accurate human rights reporting may take longer than 12 months to be published.
B. Respondent (1) Automatic Right to the PRRA Process is Not a Foundational Norm [47] The respondent argues that a second PRRA is not a “foundational requirement for the dispensation of justice” where the applicant is an unsuccessful refugee as determined by a thorough and fair “refugee determination process” before the RPD, where his removal occurs within a year of the RPD decision, where the applicant may make a deferral request based on new evidence of risk (and other factors) and where he may seek a stay of removal from the Federal Court.
[48] The respondent argues that the applicant has not met the second criterion to establish the existence of a principle of fundamental justice, which has been described as a principle for which there is sufficient consensus that it is vital or fundamental to our societal notion of justice (Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76 at para 8 [Canadian Foundation]).
[49] The respondent contends that the applicant confuses the Charter-compliance of the refugee process, which it recognizes is an inviolate part of the legislative scheme, with the constitutionality of the removals process of an unsuccessful refugee claimant. The entirety of the removals scheme is to be considered when determining Charter-compliance in the removal of an individual asserting a risk.
[50] The jurisprudence relied on by the applicant is of little assistance beyond supporting that some form of risk assessment is required at the time of removal. Indeed, Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh] stands for the proposition that no special form of assessment is required. Similarly, Singh is a decision regarding the refugee process that upheld the proposition that refugee claimants are entitled to fundamental justice in the determination of whether they are refugees under the 1951 Convention Relating to the Status of Refugees, Can TS 1969 No 6 (the “Convention”) or not. The respondent relies on Singh for the proposition that procedural fairness may demand different requirements in different contexts.
[51] The respondent contends that the decisions of Suresh, Ragupathy, Farhadi, and Németh are distinguishable. The applicants in those cases had Convention refugee status but were being removed based on a finding of criminality. As a result, the requirement for the risk assessment involved a balancing exercise of discretion, considering their criminality against their risk upon removal, a test which was upheld by the Supreme Court.
[52] The respondent rejects the bare assertion of the applicant that the purpose of the PRRA bar is “resource efficiency.” It contends that the purpose of the PRRA bar (and other amendments) is designed to counter the many abuses inherent in the pre-existing refugee system and to bring finality to the refugee determination process.
[53] The respondent submits that the extensive extrinsic evidence demonstrates that Parliament was reacting to criticism of the extreme delays in removing unsuccessful refugee claimants. The PRRA process was a major factor contributing to these delays, as demonstrated by the slow rate of removal of refused refugee claimants (Officer of the Auditor General of Canada, Report of the Auditor General to the House of Commons, ch 1 – 8 (Ottawa: Office of the Auditor General, 2008)). This slowness was identified as an abuse of Canada’s refugee system and a factor which eroded the integrity of Canada’s refugee and immigration systems. These factors were echoed in the Minister’s opening remarks upon the introduction of the legislation providing for the amendments to the Act, including the PRRA bar.
[54] The testimony given at the Parliamentary Committee meetings demonstrated that the existence of the PRRA was not considered essential by numerous stakeholders, provided that there was some mechanism to account for exceptional circumstances and review new evidence of risk, which the respondent argues is amply satisfied by the availability of a deferral request and a motion to stay removal in the Federal Court.
[55] The respondent referred to evidence provided by the United Nations High Commissioner of Refugees (the “UNHCR”) representative who identified dilatory procedures in removal as being an abuse about which the UNHCR was particularly concerned. He expressed concerns in support of the PRRA bar, including: the lack of “differentiated outcome between being recognized or not recognized as a refugee,” that “there needs to be an end to the process,” that “the real issue” is “how long it takes to remove you” because “[i]f removal is expedited and speedy there is probably no need for further review because country situations do not change that quickly.” and that “[if there is a fundamental change during that period] it is important for the individual to have access to some sort of protection due to a risk concern.”
[56] The representative of the Canadian Council of Refugees stated that:
We understand that the current process too does not work. Review requests cannot be processed again; that is not feasible. At the same time, there has to be a possibility… to allow for this new evidence to be heard.
[57] The representative on behalf of the Canadian Bar Association stated regarding the PRRA process: “… [i]t is neither fast nor fair. It does, as it is currently structured, delay removals for a long period of time, and almost nobody gets accepted. We propose a much more efficient system that would correct mistakes…” that would permit reopening of a case only if “there are very special changed circumstances.” Other representatives expressed the same views that when exceptional circumstances occur, such as when there is new evidence, there should be a mechanism that is not required to be “a big and formal appeal mechanism” to review the new evidence before the person is removed.
[58] In addition, statistical evidence shows that from 2005 to September 2012, positive PRRA determinations after a negative RPD decision were extremely low, being only 1.6 percent. This means that 98.4 percent of PRRA applications were unsuccessful during that period. Between 2005 and September 2012, 65,219 PRRA applications were submitted and only 1,013 were successful. During the time period studied there was no time bar in place and thus, there was no limit on the length of time between the negative RPD decision and the PRRA decision. It may be inferred that the success rate for PRRAs in the months after the RPD decision, when the application is based upon rate of “change” in country conditions, was likely even lower.
[59] The respondent contends that the low rate of positive determinations is evidence both that the RPD assesses risk well and that country conditions do not change quickly or much at all in a way that impacts risk assessments and certainly not within the 12 month PRRA bar. Broad access to the PRRA process therefore merely adds to the delay in removal without substantial benefit.
[60] The respondent also submits that the low rate of successful PRRA applications objectively counters the arguments of the applicant’s expert that country conditions change quickly or that the reporting of country conditions is not reliable. These arguments are in addition to the respondent pointing out that the opinion makes no specific reference to examples of untimely documents concerning Sri Lanka in general or among the voluminous materials filed by the applicant in this case. If this opinion were accepted, all risk decisions in the refugee determination process would be unreliable for lack of timely data and subject to ongoing future consideration without finality.
[61] The respondent further contends that the low rate of positive determinations demonstrates that the amendments are not arbitrary in that there is a clear connection between what the law seeks to achieve and the claimed infringement of rights.
[62] In addition, the respondent submits that the applicant’s other arguments lead to the conclusion that removal could never occur. With the exception of voluntary compliance to leave Canada, the CBSA is required to take a number of steps before removal can occur: locate the individual, convoke them for a pre-removal interview, obtain necessary travel documents, and in some cases defer removal for a short time in order to allow unsuccessful refugee claimants to organize their affairs. These are irreducible aspects of the removal process. Moreover, there could always be updated documents that would merit another review of risk allegations and a further PRRA decision, which would then be subject to applications for judicial review. That state of affairs certainly could not be characterized as necessary to satisfy the principles of fundamental justice. On the contrary, the timely removal of unsuccessful claimants is more in line with the principles of fundamental justice, provided that there is an opportunity to provide compelling new evidence of personalized risk for those exceptional cases where new risks arise.
(2) The Absence of Consideration of Persecution in the Removals Test [63] The respondent acknowledges that when there is evidence of new risks, the wording of the removals test, which is based on the applicant establishing that they will face a risk to life, inhumane treatment, or extreme sanction upon return to their country, may be likened to the wording of section 97 of the IRPA and does not include the risks of