Operational Bulletin 440-H - December 17, 2012

Changes to the Pre-Removal Risk Assessment Program under the new legislation

Issue

This Operational Bulletin (OB) replaces the previous ones (OB 440C of June 28, 2012 and OB 440E of August 15, 2012 are now archived) related to changes to the Pre-Removal Risk Assessment (PRRA) process with the coming into force of the Balanced Refugee Reform Act and Protecting Canada’s Immigration System Act (PCISA).

Background

On June 28, 2012, the PCISA (under Bill C-31) received Royal Assent which amended the Immigration and Refugee Protection Act (IRPA). While most of the provisions of the Bill come into force on December 15, 2012, certain provisions came into effect on June 28, 2012, including two statutory provisions in relation to the PRRA process:

• Under paragraph 112(2)(b.1) of the Balanced Refugee Reform Act, a person may not apply for a PRRA if less than 12 months have passed since their refugee claim was rejected—or determined to be abandoned or withdrawn—by the Refugee Protection Division (RPD) or the Refugee Appeal Division of the Immigration and Refugee Board (IRB).
• Under paragraph 112(2)(c) of the PCISA, a person may not apply for a PRRA if less than 12 months have passed since their previous PRRA was rejected, withdrawn or abandoned.

These statutory provisions apply to PRRA applications received on or after June 28, 2012. However, Orders in Council were sought on August 15, 2012, to allow for these 12-month bars to be applied on PRRA cases already in the inventory (i.e. applications received prior to June 28, 2012), as well as to allow the Minister of Citizenship, Immigration and Multiculturalism to impose exemptions to the 12-month bar for certain foreign nationals.

Effective on June 28, 2012, with the Royal Assent of PCISA:

• All new PRRA cases are subject to these 12-month bars (the bar does not apply to PRRA applications already received or in process by Citizenship and Immigration Canada (CIC) prior to Royal Assent).  
  
  Note: modified by Order in Council August 15, 2012 (see below). 
  
• Subsection 112(2)(d) of the IRPA has been repealed. Previously, a person who left Canada since their removal order came into force following a refugee claim that was ineligible, abandoned, withdrawn or rejected – or following a rejected PRRA – could not apply for PRRA unless six months had passed since their departure. This “six-month bar” no longer exists. These persons would now be subject to the 12-month bar. However persons who left Canada after their refugee claim was found ineligible may apply for PRRA, even if less than six months have passed since their departure.

Effective on August 15, 2012, with the granting of the Orders in Council:

• Allowed CIC to close PRRA and subsequent PRRA applications, that were in the inventory, for which a previous IRB or PRRA decision (rejected, abandoned or withdrawn) was made within the last 12 months (August 15, 2011 to August 14, 2012) and for which a country exemption did not apply (see below).
• Gave the ability for the Minister to exempt from the 12-month bar, nationals and former habitual residents of a country, who lived in a given part of that country, or particular groups within countries (see subsection 112(2.1) of the Balanced Refugee Reform Act) due to significant changes in country conditions that could lead to certain persons being subject to personalized risks related to sections 96 and 97 of the IRPA.
• The countries exempted from the 12-month PRRA bar, at the time of the granting of the Orders in Council, were the following: Central African Republic, Egypt, Guinea-Bissau, Libya, Mali, Somalia, Sudan, and Syria.
• Nationals from these countries were exempt from the 12-month bar only if their IRB or PRRA decision (rejected, abandoned or withdrawn) was rendered between August 15, 2011 and August 14, 2012. There are no exemptions to the 12-month bar for cases decided by the IRB or a Senior Immigration Officer from August 15, 2012, onward. This means that for all IRB decisions made on or after August 15, 2012, the 12-month PRRA bar is in effect and they do not benefit from the exemption.

Effective on December 15, 2012, with the coming into force of PCISA:

• Rejected refugee claimants from a Designated Country of Origin – archived (DCO) are not eligible for a PRRA for 36 months from the date of their final decision at the IRB. This is not retroactive to individuals already in the PRRA inventory (applications received prior to December 15, 2012) [A112(2)(b.1)]. There is a new field in the Field Operations Support System (FOSS), on the Record of Refugee Claim screen, which will indicate that the individual is from a DCO.
• The PRRA bar does not apply to individuals whose refugee claim has been vacated as per A109(3), or was rejected on the basis of section E or F of Article 1 of the Refugee Convention [A112(2)(b.1)]. Consequently, such individuals will be able to make an application for a PRRA and will not be subject to the 12- or 36-month bar.
• For PRRA applicants who have been determined to be inadmissible on grounds of serious criminality, a PRRA will be conducted (assessed with respect to A96 and A97) but a positive decision will have the same result as a ‘restricted’^{Footnote 1} PRRA:
  • PRRA applicants who are inadmissible due to an in-Canada conviction punishable by at least 10 years imprisonment will receive a ‘full’ PRRA. This PRRA will be assessed further to A96 and A97, however, as with ‘restricted’ PRRAs, an approved application does not result in protected person status (rather, the person’s removal order is stayed). Before December 15, 2012, a person would receive a ‘restricted’ PRRA (assessed with respect to A97 only, plus no refugee protection if approved) if inadmissible due to an in-Canada conviction that imposed a term of at least two years imprisonment.
  • PRRA applicants who are inadmissible due to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence punishable by at least 10 years imprisonment receive a ‘full’ PRRA (as described above) with a positive decision not resulting in protected person status but a stay of removal. Before December 15, 2012, such persons would have received a ‘restricted’ PRRA, as described above.

The transfer of the PRRA function to the IRB is scheduled to take place two years following the date of the coming into force of PCISA, except A112(3) and A115(1) cases, which will still be decided at CIC.

FOSS/NCMS (National Case Management System) instructions for when an IRB or PRRA decision is less than one year old and a PRRA is triggered in error by the Canada Border Services Agency (CBSA) or the client sends a PRRA application directly to the Backlog Reduction Office in Vancouver (BRO-V).