Section A115 cases – Non-refoulement assessments

For in formation on the pre-removal risk assessment (PRRA), please consult the PRRA program delivery instructions.

On this page

• General policy
• Subsection A115(1) Protection
• Subsection A115(1) Assessments at the port of entry (POE)
• Subsection A115(2) Exceptions

General policy

The United Nations 1951 Convention relating to the Status of Refugees (Refugee Convention), supplemented by its 1967 Protocol, help protect refugees. The Refugee Convention created legal obligations for States, like Canada, that are party to it to not return refugees to places where they face risk. This is described by the term “non-refoulement”.

Article 33(1) of the Refugee Convention indicates:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.

Article 33(2) provides an exception to this principle of non-refoulement:

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

Section 115 of the Immigration and Refugee Protection Act (IRPA) supports Article 33:

Protection

115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Exceptions

1. (2) Subsection (1) does not apply in the case of a person
   • (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or
   • (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

Subsection A115 (1) Protection

Persons in Canada who are protected persons or are recognized as Convention refugees by another country to which they may be returned are protected from removal (refoulement) to a country where they would be at risk of persecution, danger of torture, or of cruel and unusual treatment or punishment. In some cases such persons may face removal from Canada.

Pursuant to subsection A112(1), persons described in subsection A115(1) are not entitled to apply for a PRRA. However, the principle of non-refoulement means that if they cite risks in the country where they may return (typically the country that recognized them as a Convention refugees), they cannot be removed there until their risk is assessed under section A115.

Subsection A115(1) assessments differ from PRRAs. In a regular PRRA, a stay will be in place pursuant to section 232 of the Immigration and Refugee Protection Regulations (IRPR) until the earliest of the events indicated in that provision occur. In the subsection A115(1) process, removal is barred by virtue of the wording of subsection A115(1) itself, which incorporates the Refugee Convention principle of non-refoulement. Removal cannot take place until the risk is assessed by Immigration, Refugees and Citizenship Canada (IRCC).

Subsection A115(1) assessments are initiated by a Canada Border Services Agency (CBSA) removals officer during the removal process, much like a PRRA. The removals officer notifies the person that they have 30 days to submit their application and submissions to IRCC and gives them an Application for a Risk Assessment further to Section 115(1) of IRPA to complete. The person is also informed that they can waive the assessment by submitting a statement of no intention to apply.

If no submissions are received by IRCC after 30 days, the CBSA removals officer may proceed with removal arrangements.

For more information, see ENF 10 – Removals (PDF, 878 KB).

If submissions are received, the IRCC PRRA decision maker carries out a risk assessment based on the protection grounds as enumerated in subsection A115(1). Submissions, for a Convention refugee being removed to the country that recognized them as such should address any contention of risk in that country.

The CBSA removals officer is notified upon IRCC’s completion of the subsection A115(1) assessment and delivers the results to the person concerned.

If the decision is negative, the CBSA removals officer may proceed with removal arrangements.

If the applicant is found to be at risk, that finding has the effect of preventing removal to that country. The removals officer informs the person of the following:

• the decision grants a legislative prohibition of removal based on the non-refoulement principle as defined in section A115
• that removal will not take place
• that the legislative prohibition of removal is temporary and may be subject to review in the event of a change in circumstances

Pursuant to subsection A115(3), the Safe Third Country Agreement (STCA) applies to subsection A115(1) cases, unless there is an STCA exemption. For information on STCA exemptions, please see Processing in-Canada claims for protection: Safe Third Country Agreement (STCA).

Subsection A115(1) Assessments at the port of entry (POE)

During a border services officer’s examination of a person seeking entry to Canada, the person may state that they are seeking refugee protection. If this statement is made once a removal order has been made, the person subject to that removal order may not make a refugee claim per subsection A99(3). However, persons who assert risk after becoming subject to a removal order that is in force are usually entitled to apply for a risk assessment. The border services officer interview will determine whether the person is entitled to a PRRA, an section A115 assessment, or neither.

In the course of the interview, if the border services officer finds the applicant described under subsection A115(1), the officer will initiate an subsection A115(1) assessment and notify the person that they have 30 days to submit their application and submissions to IRCC. See process described above under subsection A115(1) Protection.

The CBSA cannot remove the person until the section A115 assessment is completed as removal is barred by virtue of the wording of subsection A115(1) itself.

Subsection A115(2) Exceptions

Paragraphs A115(2)(a) and (b) create exceptions to the protection offered by subsection A112(1) for persons with protected person status in Canada or who were recognized as Convention refugees by another country that are facing removal to their country of risk, if it is determined that the risk they would face there are outweighed by the danger they pose to the public in Canada, to the security of Canada or due to the nature and severity of the acts committed.

These cases are known as danger opinions, or ministerial opinions on danger to the public, nature and severity of the acts committed and danger to the security of Canada. The CBSA initiates these cases, and a senior decision maker at IRCC’s Migration Integrity Operations Branch (MIOB) renders the decision. The senior decision maker will determine whether the person should be allowed to remain in Canada by balancing the risks and any humanitarian and compassionate considerations with the danger to the public in Canada, the danger to the security of Canada, or due to the nature and severity of the acts committed, as the case may be.

For more information, see ENF28 –Ministerial opinions on danger to the public, nature and severity of the acts committed and danger to the security of Canada (PDF, 225 KB).