r v. Canada, 2014 FC 1073

[2016] 2 F.C.R. 501 IMM-12508-12 2014 FC 1073 Emilian Peter ( Applicant ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) and Canadian Association of Refugee Lawyers ( Intervener ) Indexed as: Peter v. Canada (Public Safety and Emergency Preparedness) Federal Court, Annis J.—Toronto, December 3, 2013 and June 2, 2014; Ottawa, November 13, 2014.

Citizenship and Immigration — Exclusion and Removal — Removal of Refugees — Removals process — Judicial review of Canada Border Services Agency (CBSA) decision refusing to defer execution of applicant’s removal order — Applicant, Sri Lankan Tamil, seeking mandamus compelling respondent to conduct assessment of risk applicant would be facing upon return to Sri Lanka or overturning CBSA’s decision — Applicant making refugee claim but claim denied — In request for deferral of removal, applicant modifying facts previously relied on in refugee claim — Alleging would be facing serious risk of harm upon return to Sri Lanka — Removals officer concluding that evidence applicant would be at risk insufficient; that information provided thereby pre-dating refugee claim hearing — Immigration and Refugee Protection Act, s. 112(2) (b.1) prohibiting pre-removal risk assessment protection application (PRRA) from being brought within 12 months after refugee protection claim last rejected (PRRA bar) — Applicant claiming that PRRA bar illegal; that removals process unconstitutional — Whether Act, s. 112(2)(b.1) unconstitutional for infringing applicant’s Canadian Charter of Rights and Freedoms, s. 7 right; whether removals process applied by removals officer to determine whether to defer applicant’s removal from Canada pursuant to Act , s. 48 unconstitutional for violating principles of fundamental justice under Charter, s. 7; whether CBSA removals officer’s decision not to defer applicant’s removal reasonable — PRRA bar in Act, s. 112 constitutional — 12-month bar on PRRA not arbitrary, overbroad or grossly disproportionate — Prescriptive period of 12 months reasonable in circumstances, appropriate given objectives of ensuring expeditious removal of unsuccessful refugee claimants within reasonable timeframe — Removals process not violating Charter, s. 7 — None of allegations relating to legal standard or competency of removals officer raising principle of fundamental justice under Charter, s. 7 — Regarding reasonableness of removals officer’s decision, officer’s decision justified, transparent, intelligible; falling within range of acceptable reasonable outcomes on issues addressed — Questions certified regarding Charter-compliance of PRRA bar, constitutionality of removals process — Application dismissed.

Constitutional Law — Charter of Rights — Fundamental Freedoms — In judicial review of removals officer’s decision refusing to defer execution of applicant’s removal order, applicant challenging constitutionality of Immigration and Refugee Protection Act, s. 112(2) (b.1), of removals process for infringing applicant’s Charter, s. 7 right — Principle against removal of unsuccessful refugee claimant in face of alleged unprotected risks, based on removals process under Act presently in place, not constituting principle vital or fundamental to our societal notions of justice such that depriving applicant of Charter rights — 12-month bar in Act, s. 112(2)(b.1), current removals process not unconstitutional, not violating Charter, s. 7 right.

This was an application for judicial review of a decision of the Canada Border Services Agency (CBSA) refusing to defer the execution of the removal order against the applicant, a Sri Lankan Tamil. The applicant was seeking a mandamus order compelling the respondent to conduct an assessment of the risk that he would be facing upon return to Sri Lanka or, in the alternative, overturning the CBSA’s decision and having the matter remitted for reconsideration.

The applicant arrived in Canada without his family and made a refugee claim before the Refugee Protection Division (RPD) of the Immigration and Refugee Protection Board. His first narrative described a previous history of being arrested and tortured in Sri Lanka. The applicant claimed that he feared being incarcerated and treated inhumanely based on his connection with an individual he allegedly became entangled with in Sri Lanka. His refugee claim was rejected for lack of credibility and because he had failed to establish that his prospective fear of harm was well-founded.

His application for leave and judicial review of the negative refugee decision was denied. He had also filed a humanitarian and compassionate (H&

C) application to obtain permanent resident status. In his request to the inland enforcement officer (removals officer) for a deferral of removal, the applicant modified the facts he had relied on in his refugee claim. He 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 a non- governmental organization, explaining that he had not included this information at earlier stages of his refugee claim because he had been advised against this by his interpreter.

The applicant also claimed that he would face risk based on other family-related reasons and asked that his removal be deferred until the determination of his humanitarian and compassionate application. In examining the applicant’s submissions, the removals officer noted that he had to determine whether removal would subject the applicant to risk of death, extreme sanction or inhumane treatment. The removals officer concluded that there was insufficient evidence that the applicant would be at risk due to his family’s profile and that, regardless of this, the information provided pre-dated the RPD hearing.

He added that his discretion was very limited and did not permit him to defer the applicant’s removal to Sri Lanka based on the evidence provided. He also noted that it was beyond his authority to carry out H&C assessments. The officer refused the applicant’s request for a deferral of removal. The applicant argued inter alia that a removals officer is obligated to consider risk, which obligation 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. He submitted that

section 7 of the Canadian Charter of Rights and Freedoms is engaged where a person claims a risk of harm upon removal to another state jurisdiction, giving rise to an obligation to determine the existence of risk prior to removing

the person to the country where that person could potentially face risk. Subject to ministerial exemptions based on class or country, paragraph 112(2) ( b.1 ) of the Immigration and Refugee Protection Act prohibits a pre-removal risk assessment protection application (PRRA) from being brought within 12 months after the refugee protection claim was last rejected (PRRA bar). The applicant argued that the purpose of the PRRA bar is resource efficiency.

He claimed that the amendment creating 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 and that this fails to provide them with a fresh risk assessment on the basis of evidence not previously considered. He proposed his own alternative test, which would correct alleged deficiencies and would render the

section 112 test constitutional. His argument was directed primarily at whether the removals test is Charter-compliant. The main issues were whether paragraph 112(2) ( b.1 ) of the Act is unconstitutional for infringing

section 7 of the Charter ; whether the removals process applied by the removals officer to determine whether to defer the applicant’s removal from Canada pursuant to

section 48 of the Act was unconstitutional for violating the principles of fundamental justice under

section 7 of the Charter; and whether the CBSA removals officer’s decision not to defer removal of the applicant was reasonable. Held , the application should be dismissed. The PRRA bar in

section 112 of the Act is constitutional insofar as the removals process is carried out in accordance with the Charter . The low success rate of PRRA applications is indicative of the reasonableness of the RPD decisions. The low probability of a successful PRRA application supported the argument for a screening mechanism that was framed to capture only those cases where there was clear and persuasive evidence that new risk circumstances had arisen. The amendment creating the 12-month bar on PRRA was not arbitrary, overbroad or grossly disproportionate.

In this time period, there would be less occasion for a change in country conditions to occur, as these would normally correlate with time elapsed since the RPD rejection of refugee protection claims. The 12-month bar also prevents unnecessary adjudicative processes that delay removal of unsuccessful refugee claimants. These were appropriate considerations to support a 12-month bar.

The prescriptive period of 12 months was reasonable in the circumstances and appropriate given its objectives of ensuring the expeditious removal of unsuccessful refugee claimants within a reasonable timeframe so as to prevent unwarranted use of the immigration and refugee determination regimes and to bring finality to the process. The removals process in its entirety was at issue, including both the test and the procedures. It had to be determined whether the removals process deprived the applicant of a

section 7 right to protection upon removal in a manner inconsistent with the principles of fundamental justice. The applicant’s allegations of well-founded fear upon return to Sri Lanka would be directly related to detention and physical harm that reached a threshold that was to be assessed by the removals test. The fundamental question posed is whether persons are being removed who would have succeeded on a PRRA had they remained. The persecution cases that are not captured by the removals test that could succeed on a PRRA application are minimal at best.

The success rate for all PRRA applications under both sections 96 and 97 of the Act is extremely low, evidence that the RPD is doing a good job at evaluating risk and of the de minimis nature of the risk involving a PRRA. Thus, with such a low rate of success, only serious risk of harm situations resulting from persecution (i.e. those encompassed by

section 97 of the Act) would succeed if deferred to a PRRA. The removals officer’s task is not to assess risks based on the legal standards used in a PRRA but is limited to assessing the sufficiency of the new evidence that is alleged to establish risk. In this matter, Charter compliance pursuant to

section 7 involved the balancing of all factors that apply to delineate the foundational qualities of the right to a PRRA prior to removal of an unsuccessful refugee claimant. None of the allegations relating to the legal standard or competency of the removals officer raised a principle of fundamental justice under

section 7 of the Charter. Moreover, the oversight function of the Federal Court provides a heightened degree of reliability to the decisions of the removals officer, which mitigates to a large extent any concerns of competency or legal standards. The applicant’s proposed removals test involved a low threshold test intended to determine whether evidence not previously considered that is not inherently incredible is sufficient to raise a possibility that a PRRA officer might conclude that the claimant should not be removed either on the “well-founded fear of persecution” or “person in need of protection” basis.

However, the proposed test was impractical and, if implemented, would lead to a situation approximating the reconstitution of the automatic PRRA in the number of deferred removals that would occur and would undermine the efficacy of the removals process as a whole by making it subject to a continual series of deferred removals based on unchallengeable “new” evidence to support new PRRA applications.

Thus, the applicant’s implicit submission based on his proposed screening test that the present removals test is not a minimal impairment on his right to have his persecution risks screened for deferral of his removal to allow for a PRRA application was rejected. Charter rights may be limited when their exercise undermines the purpose that they are said to serve. The removals test appeared to establish a threshold of risk of harm that assures that deferral of removal will capture those cases that should be reviewed at a PRRA.

The removals process is integral to the refugee determination process, without which it serves no purpose. The essential objective of the refugee determination process is to decide who remains in Canada and who must leave. If the removals side of the process is undermined by an over-extended right, then the effectiveness of its decisions and the system itself is undermined such that the right surely cannot be fundamental.

A balancing point regarding two relatively intractable and significant societal interests had to be found: those of the applicant not to be removed to a situation of risk and those of society in upholding the core principles of the refugee determination process. This includes society’s expectation that the rationale for the expeditious removal of unsuccessful refugee claimants should be maintained, with few exceptions. On this basis and for other reasons, the removals test was determined to be Charter compliant.

Given a number of factors that were considered and balancing the interests involved herein, it was concluded that the principle against removal of an unsuccessful refugee claimant in the face of alleged unprotected risks, based on the removals process under the Act presently in place with a removals test assessing for an exposure to a risk of death, extreme sanction or inhumane treatment, is not a principle that is vital or fundamental to our societal notions of justice such that it deprives the applicant of his rights under the Charter.

Regarding the reasonableness of the removals officer’s decision, the removals officer carefully considered the applicant’s submissions regarding the country documentation. He provided reasons for his decision concluding that the applicant’s claims of being at risk were speculative and not corroborated. Also, there was nothing in the documentation identifying the applicant, in particular, as having been connected with the Liberation Tigers of Tamil Ealam or describing any conduct on his part while in Canada that would draw the Sri Lankan authorities’ attention to him.

There was a justified, transparent and intelligible basis for the officer’s rejection of the applicant’s arguments that the country conditions had changed for the risk profile to conclude that the decision fell within the range of acceptable

possible (reasonable) outcomes on this issue. The following two questions were certified: whether the prohibition contained in paragraph 112(2)(b.1) of the Act against bringing aPRRA application until 12 months have passed since the claim for refugee protection was last rejected infringes

section 7 of the Charter;if not, whether the present removals process, employed within 12 months of a refugee claim being last rejected, when determiningwhether to defer removal at the request of an unsuccessful refugee claimant for the purpose of permitting a PRRA application to beadvanced infringes

section 7 of the Charter. STATUTES AND REGULATIONS CITED

An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, ss. 35, 37, 41.

An Act to amend the Immigration Act and to amend other Acts in consequence thereof, R.S.C., 1985 (4th Supp.), c. 28, ss. 14, 16, 18, 19. Balanced Refugee Reform Act, S.C. 2010, c. 8, ss. 4, 5, 15(3). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 12. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 18.1, 52. Immigration Act, R.S.C. 1952, c. 325. Immigration Act, R.S.C., 1985, c. I-2, s. 53(1)(b). Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2 “convention refugee”, 3(g), 45(1),(2),(3),(4),(5), 46, 55, 70, 71(1), 72(1),(2), 84. Immigration and Refugee Protection Act, S.C. 2001, c. 27 (as assented to 1st November, 2001), ss. 48, 96, 97, 98, 112, 113, 114. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(f), 48, 72(1), 95, 96, 97, 112, 113.

Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 230, 231, 232, 233, 234. Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 15(1). Immigration Regulations, 1978, SOR/78-172, s. 2(1). Immigration Regulations, 1978, amendment, SOR/93-44, ss. 1, “member of the post determination refugee claimants in Canada class”10. Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 20(2)(b). Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, s. 20. Regulations Amending the Immigration Regulations, 1978, SOR/97-182, s. 5.

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L.R. (3d)130; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Suresh v.Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Cheung v. Canada (Minister of Employment andImmigration), (FCA), [1993] 2 F.C. 314, (1993), 102 D.L.R. (4th) 214 (C.A.); Rodriguez v. British Columbia(Attorney General), (SCC), [1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342; Canada (Attorney General) v. Bedford,2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Malmo-Levine; R. v.

Caine, 2003SCC 74, [2003] 3 S.C.R. 571; Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398, [1993] F.C.J. No.796 (C.A.) (QL); Kadhm v. Canada (Minister of Citizenship and Immigration), , 140 F.T.R. 286 (F.C.T.D.); Retnem v.Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317, 132 N.R. 53 (F.C.A.); Amayo v. Minister ofEmployment and Immigration, (FCA), [1982] 1 F.C. 520, [1981] F.C.J. No. 136 (C.A.) (QL); Mirzabeglui v. Canada(Minister of Employment and Immigration), [1991] F.C.J. No. 50 (C.A.) (QL); Madelat v.

Canada (Minister of Employment andImmigration) (1991), 179 N.R. 94, [1991] F.C.J. No. 49 (C.A.) (QL); He v. Canada (Minister of Employment and Immigration) (1994),78 F.T.R. 313, 25 Imm. L.R. (2d) 128 (F.C.A.); Xie v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 125, [1994]F.C.J. No. 286 (T.D.) (QL); Fathi-Rad v. Canada (Secretary of State) (1994), 77 F.T.R. 41, [1994] F.C.J. No. 506 (T.D.); Namitabar v.Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42, (C.A.); Lerer v. Canada (Minister ofCitizenship and Immigration) (1995), 90 F.T.R. 105, [1995] F.C.J.

No. 31 (T.D.) (QL); Ali v. Canada (Minister of Citizenship andImmigration) (1996), 119 F.T.R. 258, 36 Imm. L.R. (2d) 34 (F.C.T.D.); Chen v. Canada (Minister of Citizenship and Immigration), (F.C.T.D.); Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, [2015] 1 F.C.R. 335; Li v. Canada(Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239; Canada (Attorney General) v. Ward, (SCC), [1993] 2 S.C.R. 689, (1993), 103 D.L.R. (4th) 1; Maldonado v. Minister of Employment and Immigration, (FCA), [1980] 2 F.C. 302; Selvarathinam v.

Canada (Minister of Public Safety and Emergency Preparedness), IMM-11837-12, GleasonJ., order dated December 10, 2012. REFERRED TO: Orelien v. Canada (Minister of Employment and Immigration), (FCA), [1992] 1 F.C. 592, (1991), 15 Imm. L.R. (2d)1 (C.A.); Nguyen v. Canada (Minister of Employment and Immigration), (FCA), [1993] 1 F.C. 696, (1993), 100D.L.R. (4th) 151 (C.A.); Canada (Minister of Citizenship and Immigration) v. Farhadi, , 6 Imm. L.R. (3d) 80(F.C.A.); Ragupathy v.

Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1370, 303 F.T.R. 178; Saini v.Canada (Minister of Citizenship and Immigration), (FC), [1998] 4 F.C. 325, (1998), 150 F.T.R. 148 (T.D.);Jayasundararajah v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1169; Arunachalam v. Canada (Minister ofCitizenship and Immigration), , 150 F.T.R. 289 (F.C.); R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; De Guzman v.Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655; Yaliniz v.

Canada (Minister of Employment andImmigration) (1988), 7 Imm L.R. (2d) 163, [1988] F.C.J. No. 248 (QL) (C.A.); Salibian v. Canada (Minister of Employment andImmigration), (FCA), [1990] 3 F.C. 250, (1990), 73 D.L.R. (4th) 551 (C.A.); Dhurmu v. Canada (Public Safety andEmergency Preparedness), 2011 FC 511; Lin v. Canada (Public Safety and Emergency Preparedness), 2011 FC 771, 391 F.T.R. 315;Kumuravel v. Canada (Minister of Public Safety and Emergency Preparedness), IMM-458-12, de Montigny J., judgment datedDecember 11, 2012; Hussain v.

Canada (Public Safety and Emergency Preparedness), 2012 FC 1544, 424 F.T.R. 206; R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, (1991), 5 C.R.R. (2d) 31; Say v. Canada (Solicitor General), 2005 FC 739, [2006] 1 F.C.R. 532,affd 2005 FCA 422, 50 Imm. L.R. (3d) 159, leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiv; Idahosa v. Canada (Minister ofPublic Safety and Emergency Preparedness), 2008 FCA 418, [2009] 4 F.C.R. 293; Daniel v. Canada (Citizenship and Immigration),2007 FC 392; Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90D.L.R. (4th) 289; Toth v.

Canada (Minister of Employment and Immigration), , 6 Imm. L.R. (2d) 123 (F.C.A.); ReB.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, (1985), 24 D.L.R. (4th) 536; Doré v. Barreau du Québec, 2012SCC 12, [2012] 1 S.C.R. 395; E. (Mrs.) v. Eve, (SCC), [1986] 2 S.C.R. 388, (1986), 31 D.L.R. (4th) 1. AUTHORS CITED Citizenship and Immigration Canada. Guide 5291 — Humanitarian and Compassionate Considerations. Citizenship and Immigration Canada. Inland Processing Manual (IP).

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Section 7 of the Canadian Charter of Rights and Freedoms, Toronto: Irwin Law, 2012.

APPLICATION for judicial review (heard jointly with the application in 2014 FC 1074 ) of a decision of the Canada Border Services Agency refusing to defer the execution of the removal order against the applicant, a Sri Lankan Tamil. Application dismissed. APPEARANCES Barbara Jackman and Caitlin Maxwell for applicant. Kristina Dragaitis and Amy King for respondent. Andrew Brouwer and Richard Wazana for intervener. SOLICITORS OF RECORD Jackman, Nazami & Associates , Toronto, for applicant. Deputy Attorney General of Canada for respondent. Canadian Association of Refugee Lawyers , Toronto, for intervener.

The following are the reasons for judgment and judgment rendered in English by Annis J.: TABLE OF CONTENTS Paragraph I. Introduction 1–7 II. Background 8–13 III. Decision Under Review 14–24 IV. Party Pleadings 25–80 A. Applicant 25–46

(1) The Minister’s Obligations under

Section 7 of the Charter 26–28

(2) The Scope of the Risk 29–33

(3) The Illegality of the PRRA Bar 34–35

(4) Alternative Test 36–39

(5) Competent Decision Maker 40–44

(6) Arbitrariness 45–46 B. Respondent 47–80

(1) Automatic Right to the PRRA Process is Not a Foundational Norm 47–62

(2) The Absence of Consideration of Persecution in the Removals Test 63–72

(3) Competence and Bias of Removals Officers 73–80 V. Issues 81 VI. Standard of Review 82–83 VII. Statutory Provisions 84 VIII. Analysis 85–322 A.

Section 7 Analysis 85–315

(1) Introduction 85–94

(2) Is the 12-Month PRRA Bar Unconstitutional? 95–127 (

a) Is 12 Months an Arbitrary Limitation for the PRRA Bar? 117–127

(3) Is the Removals Process Unconstitutional? 128–309 (

a) Overview 128–131 (

b) Section 7 Charter Principles Applicable to the Removals Process 132–148 (

i) Principles of Fundamental Justice 132–148 a. Vital or Fundamental Principle 132–136 b. Balancing the Fundamental Rights of the Individual with Societal Interests 137–148 (

c) The Jurisprudence Establishing the Removal Test 149–175 (

i) Removals Test – Wang 151–160 (ii) Baron 161–163 (iii) Shpati 164–175 (

d) The Alleged Narrowness of the Removals Test for its Failure to Consider Persecution Risks 176–226 (i)The Parties’ Arguments 176–184 (ii) The Extent of “Residual” Risks Arising from Persecution Not Assessed by the Removals Test 185–202 a. Persecutory Discrimination versus Hardship Discrimination 185–186

b. The Need for a Threshold Definition of Persecutory Discrimination: Cheung v. Canada (Minister of Employment & Immigration) 187–199 c. The “Residual” or “Unassessed” Persecution Risk Factors 200–202 (iii) The Nature and Extent of the Risk on Removal Presented by the Applicants Peter and Savunthararasa 203–213 a. Personal Narratives 203–205 b. Country Conditions 206–213 (iv) Examples of Residual Persecution Risk Cases 214–220 (

v) Conclusions on the Extent of the Unprotected Risk 221–226 (

e) The Untested Scope of Cruel and Unusual or Inhumane Treatment 227–235 (

f) Where Removal Might Result in the Order of the Removals Officer Inoperative 236–238 (

g) No Previous History of Persecution as an Issue in Removal 239–241 (

h) Standard of Assessment, Gatekeeping on a Lower Threshold, Assessing for Deferral to a PRRA or H & C Officer 242–274 (

i) The test does not evaluate for the standard of demonstrating a well-founded fear; and 245–259 (ii) The test applies a more stringent test for deferral than that which is applied by the actual decision maker. 245–259 (iii) There is no consistent standard articulated for the officer’s assessment of the evidence 260–261 (iv) The removals officer is not authorized to assess evidence 262–264 (

v) Competency of the removals officer 265–271 (vi) The Oversight Function of the Federal Court 272–274 (

i) The Availability of a

Section 7 Remedy in the Federal Court 275–277 (

j) The Applicant’s Proposed Removal Screening Test 278–293 (

k) Why Not a Removals Test That Includes Persecution? 294–296 (

l) Balancing the Interests of the Unsuccessful Refugee’s Removal Rights against Societal Interests Protecting the Refugee Protection Process 297–313 (

m) Conclusion on the Constitutionality of the Removals Process 314–315 B. The Reasonableness of the Removals Officer’s Decision 316–322 IX. Conclusion 323 X. Certified Questions 324–328 A. Proposed by the Applicant 325 B. Proposed by the Respondent 326–327 C. Those Certified 328 Paragraph I. Introduction 1–7 II. Background 8–13 III. Decision Under Review 14–24 IV. Party Pleadings 25–80 A. Applicant 25–46

(1) The Minister’s Obligations under

Section 7 of the Charter 26–28

(2) The Scope of the Risk 29–33

(3) The Illegality of the PRRA Bar 34–35

(4) Alternative Test 36–39

(5) Competent Decision Maker 40–44

(6) Arbitrariness 45–46 B. Respondent 47–80

(1) Automatic Right to the PRRA Process is Not a Foundational Norm 47–62

(2) The Absence of Consideration of Persecution in the Removals Test 63–72

(3) Competence and Bias of Removals Officers 73–80 V. Issues 81 VI. Standard of Review 82–83 VII. Statutory Provisions 84 VIII. Analysis 85–322 A.

Section 7 Analysis 85–315

(1) Introduction 85–94

(2) Is the 12-Month PRRA Bar Unconstitutional? 95–127 (

a) Is 12 Months an Arbitrary Limitation for the PRRA Bar? 117–127

(3) Is the Removals Process Unconstitutional? 128–309 (

a) Overview 128–131 (

b) Section 7 Charter Principles Applicable to the Removals Process 132–148 (

i) Principles of Fundamental Justice 132–148 a. Vital or Fundamental Principle 132–136 b. Balancing the Fundamental Rights of the Individual with Societal Interests 137–148 (

c) The Jurisprudence Establishing the Removal Test 149–175 (

i) Removals Test – Wang 151–160 (ii) Baron 161–163 (iii) Shpati 164–175 (

d) The Alleged Narrowness of the Removals Test for its Failure to Consider Persecution Risks 176–226 (i)The Parties’ Arguments 176–184 (ii) The Extent of “Residual” Risks Arising from Persecution Not Assessed by the Removals Test 185–202 a. Persecutory Discrimination versus Hardship Discrimination 185–186 b. The Need for a Threshold Definition of Persecutory Discrimination: Cheung v. Canada (Minister of Employment & Immigration) 187–199 c.

The “Residual” or “Unassessed” Persecution Risk Factors 200–202 (iii) The Nature and Extent of the Risk on Removal Presented by the Applicants Peter and Savunthararasa 203–213 a. Personal Narratives 203–205 b. Country Conditions 206–213 (iv) Examples of Residual Persecution Risk Cases 214–220 (

v) Conclusions on the Extent of the Unprotected Risk 221–226 (

e) The Untested Scope of Cruel and Unusual or Inhumane Treatment 227–235 (

f) Where Removal Might Result in the Order of the Removals Officer Inoperative 236–238 (

g) No Previous History of Persecution as an Issue in Removal 239–241 (

h) Standard of Assessment, Gatekeeping on a Lower Threshold, Assessing for Deferral to a PRRA or H & C Officer 242–274 (

i) The test does not evaluate for the standard of demonstrating a well-founded fear; and 245–259 (ii) The test applies a more stringent test for deferral than that which is applied by the actual decision maker. 245–259 (iii) There is no consistent standard articulated for the officer’s assessment of the evidence 260–261 (iv) The removals officer is not authorized to assess evidence 262–264 (

v) Competency of the removals officer 265–271 (vi) The Oversight Function of the Federal Court 272–274 (

i) The Availability of a

Section 7 Remedy in the Federal Court 275–277 (

j) The Applicant’s Proposed Removal Screening Test 278–293 I. INTRODUCTION [ 1 ] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the IRPA or the Act) of a decision of the Canada 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 paragraph 20(2) (

b) of the Official Languages Act [R.S.C., 1985 (4th Supp.), c. 31], 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 (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 paragraph 112(2) ( b.1 ) of the IRPA , as added by subsection 15(3) of the Balanced Refugee Reform Act , S.C. 2010, c. 8, is unconstitutional for infringing

section 7 of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter). Subject to ministerial exemptions based on class or country, the relevant portion of paragraph 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. Paragraph 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 adviceof his legal counsel. The officer concluded that the applicant had not provided a sufficiently credible explanation as to why these riskshad not been presented to the RPD for consideration. Moreover, he was not satisfied that the new evidence presented was even eligiblefor consideration in light of paragraph 113(

a) of the Act, which limits the officer’s consideration to be given to new evidence that aroseafter the rejection or that was not reasonably available, or that the applicant could not have reasonably been expected to present in thecircumstances, 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’sprofile, 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.

Theaffidavit provided personal testimony as to the dangers that Tamils face upon return to Sri Lanka.

The officer concluded that theinformation provided in the affidavit was uncorroborated, anecdotal, and insufficiently detailed regarding the risk profile of the personsallegedly 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 deferthe 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 onH&C grounds was decided, the officer noted that both the “Inland Processing Manual IP 5” and the “Instruction Guide IMM 5291 –Applying for Permanent Residence from Within Canada – Humanitarian and Compassionate Considerations” make it clear that thesubmission of a request for permanent residence on H&C grounds does not delay an applicant’s removal from Canada.

The officer didnot accept the evidence in the affidavit of the applicant counsel’s law clerk, Ms. Watts, stating that the acceptance rate of H&Capplications for applicants who are not in Canada is virtually nil. The officer determined that there was no documentary evidence orproof supporting these contentions. Further, he noted that it was beyond his authority to carry out H&C assessments. The officer notedthat 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 constitutionalobligation to protect human rights and that this obligation can be met by providing a fresh risk assessment on the basis of evidence notpreviously 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 statejurisdiction. This gives rise to an obligation to determine the existence of risk prior to removing the person to the country where he or shecould potentially face a risk. The Supreme Court in Singh et al. v. Minister of Employment and Immigration, (SCC),[1985] 1 S.C.R. 177 (Singh), recognized that

section 7 is engaged where a non-citizen claims a well-founded fear of persecution in hercountry 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 (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 (Németh), has also noted Canada’s internationalobligation to respect the principle of non-refoulement, though this principle does not commit Canadian authorities to any particularprocedural scheme for its application in extradition matters. The Federal Court has on numerous occasions recognized that Canada wouldbe in breach of its international obligations and

section 7 of the Charter if it were to execute deportation orders in circumstances whichput the life, liberty, or security of person in peril (see Orelien v. Canada (Minister of Employment and Immigration), (FCA), [1992] 1 F.C. 592 (C.A.) (Orelien); Nguyen v. Canada (Minister of Employment and Immigration), (FCA),[1993] 1 F.C. 696 (C.A.); Canada (Minister of Citizenship and Immigration) v. Farhadi, , 6 Imm. L.R. (3d) 80(F.C.A.), at paragraph 3). [28] The Federal Court has recognized that a timely risk assessment is Canada’s safeguard against deportation to torture or similartreatment (see Ragupathy v.

Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1370, 303 F.T.R. 178(Ragupathy), at paragraph 27) 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 Sainiv. Canada (Minister of Citizenship and Immigration), (FC), [1998] 4 F.C. 325 (T.D.), at paragraph 25;Jayasundararajah v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1169 (Jayasundararaja), at paragraphs 25–26;Arunachalam v.

Canada (Minister of Citizenship and Immigration), (FC), 1998 CanLlI 8220, 150 F.T.R. 289(F.C.T.D.).

(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 inhumantreatment”, which is the test applied by removals officers as first enunciated by Justice Pelletier in Wang v. Canada (Minister ofCitizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 682 (Wang) [at paragraph 48]. [30] The test reflected the wording of subsection 2(1) of the Immigration Regulations, 1978 [SOR/78-172] (ImmigrationRegulations), as amended by SOR/93-44,

section 1, that predated the IRPA. The wording taken from the Immigration Regulations wasused for the purpose of conducting a form of pre-removal risk assessment of unsuccessful Convention refugees who were members ofthe post-determination refugee claimant class (the PDRCC). The factors in the Immigration Regulations were subsequently reformulatedin paragraph 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 onhumanitarian and compassionate grounds (H&C), as opposed to a risk assessment. The test in Wang was then adopted by the FederalCourt of Appeal in Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311(Baron) and Shpati v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133 (Shpati).

However, theapplicant 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 theIRPA and that this broader conception of risk is supported by jurisprudence of the Supreme Court and the Federal Courts. He advancesthat the concept of risk must, at a minimum, be the risk which has already been recognized by Canadian courts, including persecution ofa Convention refugee (IRPA,

section 96), torture (IRPA,

section 97), the concept of cruel and inhuman treatment under

Article 7 of theInternational Covenant on Civil and Political Rights, 19 December 1966, [1976] Can. T.S. No. 47, and the concept of cruel and unusualtreatment or punishment under

section 12 of the Charter. The applicant did not pursue the

section 12 Charter argument. The applicantargues that narrowing the parameters to exclude real risks, as the officer did in both of the applicants’ cases, is inconsistent with theprinciples of fundamental justice. [33] The applicant argues that the object of the amendment creating the PRRA bar is “resource efficiency”, as the significance of thePRRA in the refugee claim process is still recognized.

The PRAA should be based upon the recognition and commitment to the principlethat persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk ofcruel 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 andconsistent state practice and that Canada is bound by principles of customary international law in the absence of conflicting domesticlegislation (see R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292). Further, constitutional principles in Canada accord with Canada’sinternational human rights obligations. The applicant also points out that paragraph 3(3)(

f) of the IRPA indicates that the Act should beconstrued and applied in a manner that complies with international human rights instruments to which Canada is a signatory. Theapplicant argues that international human rights law does not have to have been incorporated explicitly into Canadian law to apply to theinterpretation of the IRPA (see de Guzman v.

Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, atparagraphs 82–107). [35] According to the applicant, the PRRA bar is illegal, in that various unsuccessful refugee claimants will be deported before theycan seek the protection that the PRRA mechanism was intended to offer, returning them to places where their lives and freedom could bethreatened and thereby contradicting the principle of non-refoulement. The applicant contends that this possibility means that

section 112of 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 ascredible, might lead a competent decision maker to determine that the person has a well-founded fear of persecution or other form ofcruel 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 thatwhich would be applied if the person passed to the next assessment and was eligible for a review of risk in the context of the engagementof

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 theevidence. In Wang, the Court stated that the officer could determine the bona fides of the request, while in Toth v. Canada (Public Safetyand Emergency Preparedness), 2012 FC 1051, 417 F.T.R. 279, Justice Zinn applied a test of “clear and convincing” evidence. Theapplicant cites Adjei v.

Canada (Minister of Employment and Immigration), (FCA), [1989] 2 F.C. 680 (C.A.), for theproposition that the foregoing are not the tests used for a determination of the need for protection from persecution, which should bewhether 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 ofEmployment and Immigration) (1988), 7 Imm L.R. (2d) 163, [1988] F.C.J. No. 248 (C.A.) (QL); Salibian v.

Canada (Minister ofEmployment and Immigration), (FCA), [1990] 3 F.C. 250 (C.A.) (Salibian), at paragraphs 17–18).

(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, theremust be an oral hearing where credibility is considered before a competent, independent, and impartial decision maker in order todetermine the existence of risk and whether protection should be provided. The applicant cites Chieu v. Canada (Minister of Citizenshipand Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 (Chieu); and Pushpanathan v.

Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982 (Pushpanathan), at paragraph 70, for the proposition that the requirements of naturaljustice 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 theCharter and Canada’s international obligations, cannot be filled by removals officers. The removals officers exceed their jurisdiction insuch cases by taking on the role of a final decision maker in their assessment of evidence and conclusions on the narrow concept of riskwhich 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 (Public Safety And Emergency Preparedness) , 2011 FC 511 , at paragraph 38 ; Lin v. Canada (Public Safety and Emergency Preparedness) , 2011 FC 771 , 391 F.T.R. 315, at paragraph 12 ; and Jayasundararajah , at paragraph 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 S.C.R. 76 ( Canadian Foundation ), at paragraph 8 ). [ 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 S.C.R. 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 United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. 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 (Office of the Auditor General of Canada, Report of the Auditor General to the House of Commons , Chapters 1 to 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 for 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 for 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 persecution covered by

section 96 of the IRPA . [ 64 ] The respondent argues that the applicant is unable to demonstrate how the Federal Court of Appeal in Shpati , which was dealing with the scope of an removals officer’s discretion to defer in circumstances where risk was at issue and where a negative PRRA assessment had been made, differs from a post-RPD evaluation of new risk as in this matter.

The respondent denies the assertion that the Shpati decision is obiter and contends that Shpati stands for the proposition that if an individual’s risk has been fully considered and rejected, lawful removal may occur unless there is persuasive evidence of new risk of deprivation of a key human right (i.e. risk to life, extreme sanction, or inhumane treatment). [ 65 ]

Section 97 of the IRPA provides a broader scope of protection than the claimant would be entitled to under

section 96 , which only provides coverage when an individual establishes a subjective and objective basis for a well-founded fear of persecution on one or more of the listed grounds, also known as a “nexus”. As a result, the scope of the risk assessed by the removals test encompasses nearly all of the risk arising out of persecution claims. [ 66 ] The respondent acknowledges that the standard of proof under

section 97 of the IRPA is a risk on a balance of probabilities which may impose a higher hurdle than

section 96 of the IRPA, which employs the standard of a serious possibility of persecution. The respondent responds that the removals officer is not concerned with matters of standard of proof of the risk, as no final determination is being made. The officer’s assessment is limited to the sufficiency of evidence to determine whether it is “new” and probative that the applicant will likely face deprivation of a key human right if returned, in which case removal will be deferred for the purposes of a

PRRA application. [67] The respondent also acknowledges that the definition of “persecution” based upon the Federal Court of Appeal decision inRajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (Rajudeen) (available on QL [[1984] F.C.J. No.601]) might imply a lower level of harm than the wording of the removals test.

The respondent argues that the very definition ofpersecution that he cited (“systematic infliction of punishment directed against those holding a particular [religious belief]; persistentinjury or annoyance from any source”) implies a history of harm being inflicted on the applicant.

By definition, the RPD will havealready considered this sort of evidence in the claim rejected prior to removal and it will not be new for the purposes of the removals test. [68] While acknowledging that it is not necessary to show past personal persecution in order to establish a nexus to the Conventionrefugee grounds (Salibian), the respondent asserts that the evidence must be tied to actual events of persecution of similarly situatedpersons.

The respondent submits that it is difficult to imagine a convincing situation in which such a claim could arrive shortly after anegative refugee determination before the RPD but fails to meet the removals test. [69] The respondent notes that the applicants have not made any argument as to how the application of the removals test prejudicesthem. The removals test is a broader test than

section 96 of the IRPA and at the stage of making their deferral request, the removalsofficer is only assessing the sufficiency of new evidence. [70] The respondent further argues that if the deferral request is refused the claimant still has recourse before the Federal Court toseek a stay of removal on the grounds removal would violate the individual’s rights under

section 7 of the Charter. The Supreme Court inNémeth stated that there is no specific procedure that is required to satisfy the principles of fundamental justice. Moreover, Justice Evansin Shpati remarked the “Federal Court can often consider a request for a stay more comprehensively than [a removals] officer can adeferral” (Shpati, at paragraph 51). [71] The respondent contends that the applicant’s complaint is contingent upon the time lag between leave for judicial review beingdismissed in the RPD decision and removal being scheduled.

Consequently, the applicant’s argument that he is entitled to another full-scale risk assessment after a negative decision by an expert tribunal is a thinly-veiled attempt at extending the individual’s unlawful stayin Canada by providing another opportunity to put forward evidence that was not put forward before the RPD for no particularlypersuasive reason. [72] The applicant’s proposed test of “evidence not inherently incredible and not previously considered” is significantly broader thanthe more limited powers of removals officers and would create the very abuses the amendments to the Act are designed to eliminate.

TheFederal Court of Appeal has already rejected the suggestion that removals officers should defer removal where applicants have soughtjudicial review of a negative PRRA decision in good faith as too low a threshold (see Shpati, at paragraphs 46–48).

(3) Competence and Bias of Removals Officers [73] The respondent contends that removals officers do not carry out a risk assessment per se, but rather assess the evidence todetermine whether the alleged risk is obvious, serious, and arose after the RPD determination (see Ragupathy, at paragraph 35;Kumuravel v. Canada (Minister of Public Safety and Emergency Preparedness), IMM-348-12 (judgment dated December 11, 2012, deMontigny J.); Hussain v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1544, 424 F.T.R. 206). [74] Further, the respondent contends that Mr.

Peter’s arguments boil down to allegations of institutional bias. The standard forinstitutional bias is a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases (R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, at page 144). This test was applied by the Federal Court and upheld on appeal in a trilogyof cases looking at the institutional independence of PRRA officers (see Say v. Canada (Solicitor General), 2005 FC 739, [2006] 1F.C.R. 532, at paragraphs 39–43, affd 2005 FCA 422, 50 Imm.

L.R. (3d) 159, leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiv). [75] The respondent argues that this application of the test for institutional bias holds true for CBSA removals officers decidingdeferral requests.

They have sufficient institutional independence to fulfil their jurisdiction under subsection 48(2) of the IRPA,especially since removals officers do not actually conduct a risk analysis, but rather examine the evidence of risk to determine if it issufficiently serious. [76] Furthermore, the respondent argues that the position of a removals officer need not carry with it the level of procedural fairnessattached to the IRB’s [Immigration and Refugee Board] court-like processes.

The context in which the removals officer is making his orher decision must be analysed in order to determine the level of procedural fairness required. First, the role of the removals officers fallsat the end of a removal process where the majority of the claimants involved have already been found not to be at risk. As a result, theyneed only address the rare situations when a new risk will arise in the period after the RPD hearing. The respondent also argues that thereis an important distinction between removals officers who make decisions on deferral requests and removals officers who

schedule anddetermine removals. There is no evidence that the officers making deferral decisions are “singularly focused on effecting removal” asthe applicant alleges. Finally, the determination of deferral requests is a very administrative process. [77] In addition, the discretion of a removals officer to defer removal when someone does demonstrate new risk is sufficient toremedy the danger of removing an unsuccessful refugee claimant under risk.

While a statutory stay of removal or appeal is not availableto the claimant, he or she can apply to the Federal Court for a further review of the removals officer’s consideration of risk in the deferralrequest. [78] Further, the lack of a statutory stay or appeal is appropriate at the deferral stage, as there needs to be some finality to the riskassessment process to ensure that allegations of risk do not become a tool to avoid removal. The courts have rejected the use of riskassessments as a method to avoid removal (see Sinnappu v.

Canada (Minister of Citizenship and Immigration), (FC),[1997] 2 F.C. 791 (T.D.), at paragraph 71, affd , 253 N.R. 234 (F.C.A.) (Sinnappu); see also Ragupathy). Further, therespondent argues that Sinnappu found that the removals test under the pre-2002 IRPA regime was constitutional. [79] Finally, no rights are determined by a removals officer determining deferral, as there is no right to remain in Canada that is being

abrogated in those circumstances. The removal of an inadmissible person is not inconsistent with

section 7 or 12 of the Charter (Idahosav. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 418, [2009] 4 F.C.R. 293, at paragraph 48; Daniel v.Canada (Citizenship and Immigration), 2007 FC 392, at paragraph 21; Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, at page 733). [80] As a result of the foregoing, the respondent argues that the determination of deferral requests does not necessitate a high level ofprocedural fairness. V. ISSUES [81] The following issues arise in the present case: 1. Does paragraph 112(2)(b.1) of the IRPA violate

section 7 of the Charter? 2. Does the removals process violate

section 7 of the Charter? 3. Was the CBSA removals officer’s decision not to defer removal of the applicant reasonable? VI. STANDARD OF REVIEW [82] In Shpati, the Federal Court of Appeal noted at paragraph 27, that the standard of review of the decision of a removals officer todefer removal is reasonableness, unless it involves a question of law: In my view, the officer’s decision under

section 48 is reviewable on a standard of reasonableness because it involves either the exerciseof discretion, or the application to the facts of the words of

section 48, “as soon as is reasonably practicable.” However, any question oflaw on which the officer based his decision (such as the scope of the statutory authority to defer) is reviewable on a standard ofcorrectness: Patel v. Canada (Citizenship and Immigration), 2011 FCA 187, 98 Imm. L.R. (3d) 175, at paragraphs 26–27. Enforcementofficers have no delegated legal power to decide questions of law. [83] Issues 1 and 2, above, involve the constitutionality of the PRRA bar and the removals process, which requires a review on acorrectness standard (Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), at paragraph 58). Issue 3 relates to theremovals officer’s exercise of discretion, which requires a review on a reasonableness standard. VII. STATUTORY PROVISIONS [84] The following provisions of the Charter, IRPA, and Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPARegulations) are applicable to the case at hand: Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44],

section 7 Life, liberty andsecurity of person 7. Everyone has the right to life, liberty and security

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