2016 FCA 144, 2016 FCA 144

[2017] 1 F.C.R. 153 A-322-15 2016 FCA 144 Yasmen Al Atawnah , Diana Elatawna , Karam Elatawna , Retal Aisha Elatawna ( Appellants ) v. The Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration ( Respondents ) Indexed as: Atawnah v. Canada (Public Safety and Emergency Preparedness) Federal Court of Appeal, Dawson, Near and Boivin JJ.A.—Toronto, April 11 and May 9, 2016.

Citizenship and Immigration — Exclusion and Removal — Removal of Refugees — Removals process — Appeal from Federal Court decision dismissing appellants’ motion for declaratory relief — Appellants’ refugee claims deemed abandoned — Immigration and Refugee Protection Act, s. 112(2) (b.1) precluding appellants, as individuals from designated countries of origin having abandoned refugee claim, from obtaining pre-removal risk assessment (PRRA) until 36 months pass from date refugee claim declared abandoned — Federal Court rejecting appellants’ argument that Act , s. 112(2)(b.1) arbitrary, overbroad, grossly disproportionate — Question certified as to whether Act, s. 112(2)(b.1) violating Canadian Charter of Rights and Freedoms, s. 7 — Act, s. 112(2)(b.1) not violating Charter, s. 7 — Mechanism existing to challenge unreasonable decision by enforcement officer, i.e. by way of application for leave, judicial review in Federal Court, motion for stay of removal — Supervisory role of Federal Court, Minister of Citizenship and Immigration’s ability to exempt applicant from application of s. 112(2)(b.1), acting as “safety valve” — PRRA bar under review not overbroad, arbitrary or disproportionate — Appeal dismissed.

Constitutional Law — Charter of Rights — Fundamental Freedoms — Federal Court dismissing appellants’ motion for declaratory relief — Appellants’ refugee claims deemed abandoned — Immigration and Refugee Protection Act, s. 112(2) (b.1) precluding appellants, as individuals from designated countries of origin having abandoned refugee claim, from obtaining pre-removal risk assessment (PRRA) until 36 months pass from date refugee claim declared abandoned — Whether Act, s. 112(2)(b.1) arbitrary, overbroad, disproportionate; violating Canadian Charter of Rights and Freedoms, s. 7 — S. 112(2)(b.1) not violating Charter, s. 7 — Possibility that enforcement officer failing to properly consider evidence of risk, defer removal, not engaging s. 7 — Mechanism in place to challenge unreasonable decision by enforcement officer — Obligation to conduct assessment of risk prior to removal not principle fundamental of justice — Asserted principle contrary to case law that Charter, s. 7 not requiring particular type of process.

This was an appeal from a Federal Court decision dismissing the appellants’ motion for declaratory relief. The appellants, citizens of Israel, sought refugee protection.

As a result of a declaration by the Refugee Protection Division of the Immigration and Refugee Board of Canada that their refugee claims were abandoned, the appellants were unable to obtain a pre-removal risk assessment (PRRA) because paragraph 112(2) (b.1) of the Immigration and Refugee Protection Act precludes access to the PRRA process by individuals from designated countries of origin who have abandoned their refugee claim until 36 months pass from the date the refugee claim is declared to be abandoned.

The appellants argued before the Federal Court that their removal without a PRRA being conducted by a competent decision maker in accordance with the principles of fundamental justice and paragraph 112(2)(b.1) of the Act violate their rights under

section 7 of the Canadian Charter of Rights and Freedoms . The appellants also argued that paragraph 112(2) (b.1) is arbitrary, overbroad and grossly disproportionate. The Federal Court rejected the appellants’ argument that paragraph 112(2)(b.1) is arbitrary, overbroad and grossly disproportionate. A question was certified as to whether the prohibition contained in paragraph112(2) (b.1) of the Act against bringing a pre-removal risk assessment application until 36 months have passed since the claim for refugee protection was abandoned violates

section 7 of the Charter . Held , the appeal should be dismissed. Paragraph 112(2)(b.1) does not violate

section 7 of the Charter . The possibility that an enforcement officer will fail to properly consider evidence of risk and fail to defer removal similarly will not engage

section 7 . A mechanism does exist to challenge an unreasonable decision of an enforcement officer. The appellants, and all similarly situated persons, may challenge an enforcement officer’s refusal to defer by way of an application for leave and judicial review in the Federal Court, and may bring a motion for a stay of removal pending the outcome of their application for judicial review.

The case law demonstrates that the supervisory role of the Federal Court, together with the ability of the respondent Minister of Citizenship and Immigration to exempt an applicant from the application of paragraph 112(2)(b.1), acts as a “safety valve” such that the PRRA bar under review is not overbroad, arbitrary or grossly disproportionate.

The principle of fundamental justice articulated by the appellants whereby prior to removing an individual, a decision maker must conduct an assessment of risk that conforms to the basic principles of fairness, including the ability to convene an oral hearing if credibility is in issue, has not been recognized. The appellants failed to demonstrate that the alleged principle is a fundamental principle of justice because, contrary to their submission, it articulates a process whereby a single decision maker is required to assess risk.

It follows that the asserted principle runs contrary to the case law of the Supreme Court that

section 7 of the Charter does not require a particular type of process; it requires a fair process having regard to the nature of the proceedings and the interest at stake. STATUTES AND REGULATIONS CITED 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], s. 7 . Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 25.1, 112(2) (b.1), 117 .

CASES CITED APPLIED: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76. CONSIDERED: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; Canada (Minister of Citizenship and Immigration) v. Farhadi, , 6 Imm. L.R. (3d) 80 (F.C.A.); Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010]2 F.C.R. 311; Shpati v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133; Etienne v. Canada(Public Safety and Emergency Preparedness), 2015 FC 415, 33 Imm. L.R. (4th) 326; Ragupathy v.

Canada (Minister of Public Safetyand Emergency Preparedness), 2006 FC 1370, 303 F.T.R. 178; Toth v. Canada (Public Safety and Emergency Preparedness), 2012 FC1051, 417 F.T.R. 279; Kopalakirusnan v. Canada (Public Safety and Emergency Preparedness), 2013 FC 330; Peter v. Canada (PublicSafety and Emergency Preparedness), 2014 FC 1073, [2016] 2 F.C.R. 501, affd 2016 FCA 51; Singh et al. v. Minister of Employmentand Immigration, (SCC), [1985] 1 S.C.R. 177, (1985) 17 D.L.R. (4th) 422. REFERRED TO: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.

APPEAL from a Federal Court decision (2015 FC 774, 36 Imm. L.R. (4th) 262) dismissing the appellants’ motion for declaratory relief.Appeal dismissed. APPEARANCES Samuel E. Plett for appellants. Catherine Vasilaros and Aleksandra Lipska for respondents. SOLICITORS OF RECORD Desloges Law Group Professional Corporation, Toronto, for appellants. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by [1] Dawson J.A.: Yasmen Al Atawnah and three of her children, her daughters Diana, Karam and Retal Aisha, are citizens of Israelwho sought refugee protection in Canada.

Their refugee claims were never decided on their merits because the Refugee ProtectionDivision of the Immigration and Refugee Board declared their claims to be abandoned. [2] As a result of this declaration, the appellants were unable to obtain a pre-removal risk assessment (PRRA); paragraph 112(2)(b.1)of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) precludes access to the PRRA process by individuals fromdesignated countries of origin who have abandoned their refugee claim until 36 months pass from the date the refugee claim is declaredto be abandoned. [3] The appellants moved in the Federal Court for declaratory relief, arguing that both their removal from Canada without a full riskassessment being conducted by a competent decision maker in accordance with the principles of fundamental justice and paragraph112(2)(b.1) of the Act violate rights guaranteed to them by

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

Part I ofthe Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. [4] In thorough and thoughtful reasons cited as 2015 FC 774, 36 Imm. L.R. (4th) 262, a judge of the Federal Court dismissed theapplication. In dismissing the application the Judge rejected the appellants’ argument that paragraph 112(2)(b.1) is arbitrary andoverbroad. The Judge also rejected the argument that the provision was grossly disproportionate.

The Judge certified and stated thefollowing serious question of general importance: Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-RemovalRisk Assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate

section 7 of theCharter? [5] This is an appeal from the judgment of the Federal Court. [6] On this appeal the appellants’ argue that the Judge erred in rejecting their submissions that paragraph 112(2)(b.1) is arbitrary,overbroad and grossly disproportionate. [7] To the extent the appellants reargue points made to, and rejected by, the Federal Court I reject their submissions. In my view, theJudge selected the correct standard of review, correctness, and applied it correctly. I detect no error on the part of the Judge.

I reach thisconclusion substantially for the reasons given by the Judge. [8] Before us, the appellants placed great reliance upon R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 and the ChiefJustice’s statement at paragraph 74 to the effect that the requirement in subsection 117(4) of the Act that the Attorney General authorizeprosecutions for human smuggling under subsection 117(1) of the Act did not cure the overbreadth problem created by subsection117(1) of the Act. This was because so long as subsection 117(1):

… is on the books, and so long as it is not impossible that the Attorney General could consent to prosecute, a person who assists a familymember or who provides mutual or humanitarian assistance to an asylum-seeker entering Canada faces a possibility of imprisonment. Ifthe Attorney General were to authorize prosecution of such an individual, despite s. 117’s limited purpose, nothing remains in theprovision to prevent conviction and imprisonment. This possibility alone engages s. 7 of the Charter. [Emphasis added.] [9] The appellants argue that the possibility that an enforcement officer will fail to properly consider evidence of risk and fail todefer removal similarly engages

section 7. [10] I respectfully disagree on the basis that this submission fails to take into account the Chief Justice’s explanation at paragraph 75of the reasons that: Implicit in the Court of Appeal’s position is that the problem of humanitarian workers or family members prosecuted under s. 117 of theIRPA is a problem of administrative law, and that if a constitutional attack is to be made, it should be made against improper exercise ofthe Attorney General’s duty under s. 117(4) not to prosecute such persons. I cannot agree.

As noted, although the purpose of s. 117 of theIRPA was not to capture such persons, nothing in the provision actually enacted disallows it. As a result, an individual charged with anoffence under s. 117 would have difficulty challenging the decision. Further, judicial review of such discretion is not currently available,and there are good reasons why it may not be desirable.

As the Court observed in Anderson, judicial oversight of Crown decisionswhether to prosecute puts at risk the discrete roles of different actors in our adversarial system: [Quotation omitted; emphasis added.] [11] As can be seen from this passage, a decision of the Attorney General to authorize prosecution, like an enforcement officer’sdecision not to defer removal, can be made in error.

The significant distinction between the two situations is that, while a mechanismdoes not exist to challenge an improper exercise of prosecutorial discretion, as explained below, a mechanism does exist to challenge anunreasonable decision of an enforcement officer. [12] As this Court recognized in Canada (Minister of Citizenship and Immigration) v. Farhadi, , 6 Imm.

L.R. (3d)80, at paragraph 3, “a risk assessment and determination conducted in accordance with the principles of fundamental justice is acondition precedent to a valid determination to remove an individual” from Canada. [13] In the specific context of an enforcement officer’s discretion to defer removal, in Baron v.

Canada (Minister of Public Safety andEmergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, at paragraph 51, this Court stated that “deferral should be reserved forthose applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment”. [14] Thereafter, in Shpati v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133 [Shpati], atparagraphs 41 and 42, Justice Evans, writing for the Court, observed that if Mr.

Shpati had produced some new (post PRRA) evidence ofrisk, the enforcement officer would have been required to consider whether the evidence warranted deferral and to exercise his discretionaccordingly. [15] As the Federal Court noted in Etienne v. Canada (Public Safety and Emergency Preparedness), 2015 FC 415, 33 Imm. L.R. (4th)326 [Etienne], at paragraph 48, after this Court’s decision in Shpati, the Canada Border Services Agency issued Operational Bulletin:PRG-2014-22 entitled “Procedures relating to an officer’s consideration of new allegations of risk at the deferral of removal stage”.

Thisbulletin gives enforcement officers broader discretion to defer removal than the discretion described in Shpati: In the case of Shpati, the FCA confirmed that deferral should be reserved for those applications where: - Failure to defer removal will expose the applicant to the risk of death, extreme sanction or inhumane treatment; - Any risk relied upon must have arisen since the last Pre-removal Risk Assessment (PRRA) (or since the last risk assessment); and, - The alleged risk is of serious personal harm.

Note that while this case law provides important guidance, officers nevertheless retain discretion to defer removal in cases where thesethree elements are not strictly met. [Underlining added by Zinn J.] For example, new evidence may substantiate an allegation of risk thatwas previously considered.

Similarly, evidence that pre-dates the last risk assessment may arise for which there are reasons it was notpresented before the last risk assessment. [Emphasis added.] [16] Enforcement officers are instructed to “consider/assess the evidence submitted, when there are allegations of risk to the applicantupon execution of their removal order”. When an officer concludes that deferral of removal is warranted, the allegations of risk are to beforwarded to Citizenship and Immigration Canada, now Immigration, Refugees and Citizenship Canada, for consideration under section25.1 of the Act. Among other things,

section 25.1 allows the Minister, on his own initiative, to exempt a foreign national from theapplication of the PRRA bar contained in paragraph 112(2)(b.1) of the Act. [17] As the Judge noted at paragraph 101 of her reasons, the appellants, and all similarly situated persons, may challenge anenforcement officer’s refusal to defer by way of an application for leave and judicial review in the Federal Court, and may bring amotion for a stay of removal pending the outcome of their application for judicial review.

The Federal Court can often consider a requestfor a stay of removal in a more comprehensive manner than an enforcement officer can consider a request for deferral (Shpati, atparagraph 51). [18] These rights are not illusory, as demonstrated by the following review of some of the jurisprudence of the Federal Court. [19] In Ragupathy v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1370, 303 F.T.R. 178, the applicantsubmitted considerable evidence of changes in conditions in Sri Lanka that occurred after his risk upon removal was assessed in a dangeropinion.

The Federal Court found that the risk alleged was both obvious and very serious. While the enforcement officer had correctlydetermined that at law the applicant was not entitled to a PRRA, the Federal Court found that the enforcement officer possesseddiscretion to defer the applicants’ removal and that the officer’s decision not to defer removal was unreasonable. The applicant was not to

be removed until the risk he feared of persecution, torture or other inhumane punishment or treatment was reassessed by the Minister’s delegate. [ 20 ] In Toth v.

Canada (Public Safety and Emergency Preparedness) , 2012 FC 1051 , 417 F.T.R. 279, the Federal Court held, at paragraph 23, that if there is evidence either of changed circumstances of an applicant, or of changed conditions within the country the applicant is to be removed to, with the result that the applicant faces a new or increased risk that has not previously been assessed, or the ability of the state to provide protection has been compromised, “the enforcement officer must assess that risk and determine if a deferral of removal is warranted” (emphasis added). [ 21 ] To similar effect, in Kopalakirusnan v.

Canada (Public Safety and Emergency Preparedness) , 2013 FC 330 , an enforcement officer refused to defer the applicant’s removal until he was eligible for a PRRA. The Federal Court stayed the applicant’s removal, stating at paragraph 7 of the reasons that, subsequent to an assessment of risk, circumstances may arise that call into question whether an applicant can be removed in a manner that is Charter compliant.

An applicant is entitled to adduce evidence of this and “if there is clear and compelling evidence that either the applicant’s circumstances have changed or that the conditions in the country to which he is being returned have changed or deteriorated such that the applicant faces a risk of inhumane treatment or death, the applicant is entitled to have his risk assessed in light of that new evidence”. Moreover, the evidence in support of the risk need not be conclusive.

The mere fact that the evidence involves an element of speculation is not determinative. [ 22 ] Finally, in Etienne an enforcement officer again refused a request to defer removal.

The Federal Court set aside the officer’s decision, stating that when the enforcement officer determined that the applicants would not be removed to the internal flight alternative identified by the Refugee Protection Division of the Immigration and Refugee Board, the officer was required to consider and assess the evidence presented, and if the evidence showed that the applicants might be at risk in the country they were to be removed to, the officer “was required to defer removal in order that the risk could be assessed” (emphasis added) (reasons, at paragraph 53).

The Federal Court went on to note that the risk the enforcement officer was required to consider was not restricted to a “new” risk in the sense that it arose after a refugee determination or other process.

Rather, the risks an enforcement officer is required to consider include risks that have never been assessed by a competent decision-maker (reasons, at paragraph 54). [ 23 ] In my view, this jurisprudence demonstrates that the supervisory role of the Federal Court, together with the ability of the Minister to exempt an applicant from the application of paragraph 112(2) (b.1) of the Act , acts as a “safety valve” such that the PRRA bar under review is not overbroad, arbitrary or grossly disproportionate. [ 24 ] On appeal, the appellants make three additional arguments that were not advanced or not dealt with in the Federal Court.

They argue that: (

i) It is a principle of fundamental justice that prior to removing an individual from Canada, a decision maker empowered to assess risk must conduct an assessment of that risk that conforms to the basic principles of fairness, including the ability to convene an oral hearing if credibility is in issue. (ii) The Judge erred by categorizing their criticism of the decision of the enforcement officer not to defer their removal from Canada to be a collateral attack on that decision. The appellants acknowledge the finality of the enforcement officer’s decision.

The fact the officer arguably made credibility findings in the absence of an oral hearing is said to underscore the constitutional frailties of the current legislative scheme. (iii) The Judge erred by relying extensively upon the decision of the Federal Court in Peter v. Canada (Public Safety and Emergency Preparedness) , 2014 FC 1073 , [2016] 2 F.C.R. 501 [ Peter ]—a decision found to be “flawed” by this Court on appeal ( 2016 FCA 51 , at paragraph 15 ). [ 25 ] In my view, none of these submissions assist the appellants.

I reach this conclusion for the following reasons. [ 26 ] The principle of fundamental justice articulated by the appellants has not, to this point in time, been recognized. It follows that the appellants must establish that it is a legal principle, that there is a significant consensus that the alleged principle “is vital or fundamental to our social notion of justice” and that the principle is capable of being identified “with precision and applied to situations in a manner that yields predictable results” ( Canadian Foundation for Children, Youth and the Law v.

Canada (Attorney General) , 2004 SCC 4 , [2004] 1 S.C.R. 76, at paragraph 8 ). [ 27 ] The appellants have failed to demonstrate that the alleged principle is a fundamental principle of justice because, contrary to the appellants’ submission, it articulates a process whereby a single decision maker is required to assess risk (as opposed to a different process such as one where, as now, an enforcement officer assesses the sufficiency of the evidence of risk, and if satisfied the evidence is sufficient, defers removal and refers the risk assessment to another decision maker).

It follows that the asserted principle runs contrary to the jurisprudence of the Supreme Court that

section 7 does not require a particular type of process; it requires a fair process having regard to the nature of the proceedings and the interest at stake (see, for example, Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350, at paragraph 20 ). [ 28 ] In any event, I am not persuaded that this argument adds anything of substance to the appellants’ submission that both their removal from Canada without a full assessment of risk and paragraph 112(2)(b.1) violate

section 7 of the Charter . [ 29 ] With respect to the second argument advanced by the appellants, I accept that the enforcement officer may well have impermissibly made negative credibility findings on the basis of written submissions when refusing to defer their removal from Canada. The appellants, however, failed to perfect an application for judicial review of that decision.

I also accept that at paragraph 95 of her reasons, the Judge noted that the appellants were essentially trying to mount a collateral attack on the enforcement officer’s decision. [ 30 ] However, prior to this, at paragraph 94 of her reasons, the Judge observed that the application before her was not an application for judicial review of the enforcement officer’s decision refusing to defer removal. The Judge then stated, in my view correctly, that the “question in this application is not whether the [appellants’]

section 7 Charter rights were violated by the way that this particular

enforcement officer assessed their evidence of risk, but whether the PRRA bar in paragraph 112(2)(b.1) of [the Immigration and RefugeeProtection Act] is constitutionally valid”. This distinction is consistent with situations where legislation is found to be constitutional, butthe manner in which state officials have exercised authority conferred by that legislation is found to be unconstitutional.

In my view, thisis a complete answer to the appellants’ argument that their submission was mischaracterized by the Judge. [31] Additionally on this point, I reject the notion that, if an enforcement officer were to make negative credibility findings on thebasis of written submissions, the Federal Court could nonetheless find the decision to be reasonable. As the Judge noted at paragraph 93of her reasons, enforcement officers should limit themselves to considering the sufficiency of the evidence before them. Citing Singh etal. v.

Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, at page 214, the Judge stated that theSupreme Court “has held that in light of the important interests at stake in risk-based claims, where a serious issue of credibility arises,’fundamental justice requires that credibility be determined on the basis of an oral hearing’”. [32] In view of the decision of the Supreme Court in Singh, an enforcement officer cannot reasonably make credibility findings in theabsence of an interview. [33] As counsel for the Minister noted in oral argument, nothing precludes an enforcement officer from interviewing a person whohas requested that their removal be deferred, and officers do so from time to time. [34] The appellants’ final argument is to the effect that given the Judge’s reliance on the reasoning in Peter, and given this Court’sdetermination that the decision was flawed, the present decision ought to be overturned. [35] There are two answers to this submission. [36] First, in Peter this Court did not find the Federal Court’s Charter analysis to be incorrect.

Rather, it found that the Federal Courtought not to have embarked on its Charter analysis at all when it was not supported by a proper evidentiary record (Federal Court ofAppeal reasons, at paragraph 22). [37] Second, the Judge did not base her analysis upon the Peter decision. As her reasons amply demonstrate, the Judge conducted herown independent consideration of the scheme of the Act and the relevant jurisprudence. [38] For these reasons, I would dismiss the appeal.

I would answer the certified question as follows: Question: Does the prohibition contained in paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a pre-removal risk assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate

section 7of the Charter? Answer: No. Near J.A.: I agree. Boivin J.A.: I agree