What a Pre-Removal Risk Assessment considers

A Pre-Removal Risk Assessment, almost always shortened to PRRA, is the last risk assessment Canadian law provides before a removal order is carried out. It asks one question: would removal expose the person, today, to persecution, torture, a risk to life, or cruel and unusual treatment? It is not a second refugee hearing, and the rules limiting what evidence it may look at are what separate the two.

Angelina Shuster is a paralegal licensed by the Law Society of Ontario. A Pre-Removal Risk Assessment is an application decided by an officer at Immigration, Refugees and Citizenship Canada rather than a proceeding before a tribunal. Our legal team assists with the full range of your matter, including applications filed with IRCC. What follows is general information about procedure in Canada and is not legal advice; reading it does not create a paralegal-client relationship, and every matter turns on its own record.

What is a Pre-Removal Risk Assessment?

It is an application for protection under subsection 112(1) of the Immigration and Refugee Protection Act. A person in Canada may apply if they are subject to a removal order in force, or if they are named in a certificate described in subsection 77(1). The application is made to the Minister and decided by a senior immigration officer, not by the Immigration and Refugee Board.

That single structural fact explains most of what follows. The Refugee Protection Division runs an oral hearing and assesses a claim from the beginning; a refugee hearing is built around testimony. A PRRA is normally decided on paper, by an officer reading written submissions and documents, and its purpose is narrower: to check whether something has changed, or was never available, that makes removal dangerous now. It only becomes available once a removal order is in force, and the three kinds of order are compared in a separate article on departure, exclusion and deportation orders.

Who may apply, and who may not

Most people under an enforceable removal order may apply, but subsection 112(2) closes the door on four groups. Two are narrow: a person who is the subject of an authority to proceed under section 15 of the Extradition Act, and a person whose refugee claim was found ineligible under paragraph 101(1)(e).

The other two are the time bars, and they are the ones most often encountered. Under paragraph 112(2)(b.1), an application may not be made where less than 12 months have passed since a refugee claim was rejected, withdrawn or abandoned at the Refugee Protection Division or the Refugee Appeal Division, or since the Federal Court refused leave or denied judicial review of that claim — whichever of those days is latest. Paragraph 112(2)(c) applies the same 12-month bar after a previous application for protection was rejected, withdrawn or abandoned.

For a national of a country designated under subsection 109.1(1) of the Act, the bar is 36 months rather than 12. Under subsection 112(2.1) the Minister may exempt the nationals of a country, the residents of a given part of a country, or a class of nationals, from either bar.

The 15 days that decide whether removal is stayed

Filing on time is what stays the removal order; filing late does not. Section 160 of the Immigration and Refugee Protection Regulations provides that a person may apply after being given notification by the Department, and notification is given when the application form is handed over in person or, if it is mailed, seven days after it was sent to the last address the person provided. What happens next depends on the calendar.

Section 232 lists when a stay obtained in the first row ends: on written confirmation that no application will be made, where no application is made within the period, on rejection of the application, on the decision about permanent residence that follows a positive one, or, for a restricted applicant, when the Minister cancels the stay. Other stays operate independently of the PRRA and are covered in the article on stays of removal orders.

What the officer assesses

For an ordinary applicant, paragraph 113(c) directs that consideration be on the basis of sections 96 to 98 of the Act — the same definitions the Refugee Protection Division applies. Section 96 covers a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion. Section 97 covers a person in need of protection, and it is the more technical of the two.

• Paragraph 97(1)(a) covers a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture.
• Paragraph 97(1)(b) covers a risk to life or a risk of cruel and unusual treatment or punishment — but only where four conditions are all met.
• The person must be unable, or because of that risk unwilling, to seek the protection of that country.
• The risk must be faced in every part of the country, and must not be a risk faced generally by other individuals in or from that country.
• The risk must not be inherent or incidental to lawful sanctions, unless those sanctions disregard accepted international standards.
• The risk must not be caused by the country's inability to provide adequate health or medical care.

Those four conditions do a great deal of work. A danger everyone in a country faces — generalised violence, for instance — falls outside paragraph 97(1)(b) precisely because it is faced generally, however severe it is, and a risk confined to one region falls outside it because protection exists elsewhere.

What counts as new evidence

Paragraph 113(a) is the provision that keeps a PRRA from becoming a rehearing. Where a refugee claim has already been rejected, the applicant may present only evidence that arose after the rejection, or that was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented at the time of the rejection.

Subsection 161(2) of the Regulations adds a duty that is easy to overlook: a person who makes written submissions must identify the evidence said to meet paragraph 113(a) and indicate how that evidence relates to them.

In Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, the Federal Court of Appeal set out the questions an officer works through when applying paragraph 113(a): whether the evidence is credible, relevant, new and material, and whether the express statutory conditions on timing and availability are met. Newness in that sense is not the date printed on a document: a report published after the rejection that only restates conditions already considered is new in date and not new in substance. Subsection 161(1) confirms that a person applying for protection may make written submissions and may be assisted, at their own expense, by counsel, and an older article on the site deals with submissions in pre-removal risk assessment cases in more detail.

When is a hearing held?

Rarely, and only where three prescribed factors line up. Paragraph 113(b) permits a hearing where the Minister, on the basis of prescribed factors, is of the opinion that one is required, and section 167 of the Regulations sets those factors out: whether there is evidence raising a serious issue of the applicant's credibility that relates to sections 96 and 97; whether that evidence is central to the decision; and whether that evidence, if accepted, would justify allowing the application.

The common thread is credibility. Where the officer's concern is the weight of the evidence rather than whether the applicant is telling the truth, the section 167 factors are generally not engaged and the file stays on paper.

Restricted assessments under subsection 112(3)

Subsection 112(3) identifies applicants for whom refugee protection may not be conferred at all: those inadmissible on grounds of security, violating human or international rights, or organized criminality; those inadmissible for serious criminality in respect of a conviction punishable by a maximum term of at least 10 years; those whose claim was rejected on the basis of section F of Article 1 of the Refugee Convention; and those named in a certificate under subsection 77(1). Those grounds are explained in the article on what an admissibility hearing decides.

For those applicants, paragraph 113(d) changes both the test and the outcome. Consideration is on the basis of the section 97 factors together with, for serious criminality, whether the applicant is a danger to the public in Canada, and for the others, whether the application should be refused because of the nature and severity of acts committed or the danger the applicant poses to the security of Canada.

The effect of a positive decision also changes. Under paragraph 114(1)(b), allowing a restricted application stays the removal order for the country or place where the risk was found; it does not confer refugee protection, and under subsection 114(2) the Minister may re-examine the grounds and cancel that stay if the circumstances have changed. Section 172 of the Regulations sets the procedure: before deciding, the Minister gives the applicant a written assessment on the section 97 factors and a written assessment on the applicable subparagraph of 113(d), and must consider any written response received within 15 days after those assessments are given.

What happens after the decision

A positive decision on an ordinary application has the effect, under paragraph 114(1)(a), of conferring refugee protection. The person becomes a protected person and may apply for permanent residence on that basis, and the stay under section 232 continues until the decision on that application is made.

A rejection ends the stay under paragraph 232(c), and removal may proceed. There is no appeal to the Immigration and Refugee Board, because the decision was never a tribunal decision. The route that remains is an application for leave and judicial review in the Federal Court, filed within 15 days for a matter arising in Canada. Leave is decided first on the written record, and filing does not by itself stop a removal — a stay is a separate motion with its own test.

Karb Law works on removal order matters and on refugee claims and related proceedings. Anyone holding a notification form, a removal date or a decision with a deadline running can contact the office.