Processing PRRA applications: PRRA decisions

Recording decisions in writing

Writing guidelines

The following principles and techniques will help in the preparation of well-written and defendable decisions:

• Good organization is indispensable to effective writing. All decisions should begin with the decision to be made and the identified risk issues should be outlined to highlight the most important aspects. This does not involve repeating the whole case, but simply highlighting the most important details as a framework for the analysis and decision.
• It is important to show that you have carefully analyzed the case, weighed all of the evidence, and balanced the treatment you have given to the evidence considered. The decision should be based on the evidence presented and researched, supported by the factual weight of the evidence itself.  The decision should not be based on any preconceived bias or information. The research should be fresh and show that you have addressed the individual case. Each PRRA applicant is entitled to a fully independent assessment of the facts.
• To a certain extent, the method of conveying the decision can be influenced by the submissions received. Whatever your personal style, thorough decisions will fully identify the issues and the relevant facts, will provide an analysis of facts and issues and will clearly and concisely rationalize the decision made. The decision should be clear, concise, logical and factual. The source material should be identified in the decision. Photocopies of articles cited may be kept on file for future reference especially material that is specific to the applicant, not widely available or subject to frequent updates.
• The reasons for the decision should be short and concise and address the issues raised. It is not necessary for you to write volumes to explain your decision.
• Decisions have to be written with a sense of the audience: principally the applicant and the authorized representative, and occasionally, a third party reader. Consequently, the rationale or reason for the determination made should be fully transparent. To the extent possible, language and tone should be impersonal, non-judgmental, respectful and impartial.

Note-taking

PRRA officers’ notes—the analysis and reasons—form the rationale for a decision. They should be clear and concise, address the risk issues alleged by the applicant, and reflect the research conducted. The notes should help the reader reach the same reasoned conclusion. Notes may be written in point form but they must capture the rationale of the issues and the research.

Officers’ notes will be provided to the applicant upon request. As the notes form the reasons for a decision, care should be taken to remain non-judgmental, to honestly and accurately reflect research. The notes should show that the PRRA officer made a fair and considered decision. The PRRA officer’s consideration of the evidence and the weight afforded it should be apparent. In cases dealing with positive risk pursuant to A112(3), the notes are forwarded to the applicant as part of the rebuttal process.

When an officer is of the opinion that an applicant under subsection 112(3) of the Immigration and Refugee Protection Act (IRPA) would be at risk, their risk opinion and any notes are transmitted to the Danger Assessments Section (DAS) at Canada Border Services Agency (CBSA) National Headquarters. The notes are shared with the applicant as part of the rebuttals process followed in these cases [see Procedure: 112(3) applicants for more information on the subsection A112(3) process].

Requests for reconsideration of a negative decision

While PRRA decision makers are not obligated to reconsider previous decisions, they must consider the reopening request. The legal doctrine of functus officio does not automatically bar such reconsideration (MCI v. Kurukkal, 2010 FCA 230). When a person requests that their decision be reconsidered, a senior immigration officer may exercise their discretion in determining whether such reconsideration is warranted.

Reconsideration of decisions should be limited to exceptional cases. An applicant’s dissatisfaction or disagreement with the decision does not by itself make theirs an exceptional case.

When possible, assign reconsideration requests to the original decision maker.

Steps

1. Decide whether to reconsider the decision (see Factors to consider when deciding whether to reconsider, below).
2. Notify the applicant about whether the decision will be reconsidered. If refusing, the officer may refer to the original decision, which outlined the reasons their application was rejected.
3. If the officer decides to reconsider,
   1. notify the CBSA, which may suspend the applicant’s removal proceedings;
   2. if the case involves litigation (e.g., at the Federal Court), advise the Case Management Branch, Litigation Management;
   3. notify both the applicant and the CBSA of the ultimate decision (the decision stands or is now positive).
4. Record the reasons why the reopening request was granted or refused.

Factors to consider when deciding whether to reconsider

The onus is on the applicant to satisfy the officer that the reconsideration is appropriate. The decision maker should consider the circumstances surrounding the original decision and whether they are of such a nature that reconsideration is warranted. The decision maker should look at the reasons being given for the reconsideration request and also consider the interests of administrative efficiency. The following is a non-exhaustive list of factors that may be relevant to consider:

• The passage of time between the date of the original decision and the date of the reconsideration or reopening request.
• Whether the decision maker failed to comply with the principles of natural justice or procedural fairness.
• Whether it is necessary to reopen the decision to correct an administrative or other error due to lack of jurisdiction of the decision maker.
• If new evidence is submitted, whether that evidence is based on new facts (i.e., facts that arose after the original decision was communicated to the applicant) and whether it is reliable and material or central to the decision. Decide whether that evidence would be more appropriately considered in the context of a subsequent PRRA.
• Where additional evidence presented would have been available at the time of the original decision,
  • whether the evidence is reliable and confirms a material fact;
  • why the applicant was unable to present the evidence, initially.
• Whether there were any concerns regarding fraud or misrepresentation relating to a material fact, either in the original decision or with the new submissions.
• Whether there is a negative decision from the Federal Court after judicial review.

Submissions received after a PRRA decision is made

PRRA applicants will not usually know that a decision has been made on a PRRA application until they are summoned by the CBSA for delivery of the decision; the convocation letter states that a decision has been made but does not indicate the nature of the decision. Prior to receiving that letter, an applicant may wish to present new information or evidence in support of a pending application; the Federal Court, in Chudal [2005 FC 1073], has ruled that submissions made by a PRRA applicant must be considered, up to the point where the applicant is notified that a decision has been made. The principle of functus officio does not preclude the making of submissions up to that point.

Avoiding bias or appearance of bias

As independent decision makers, PRRA officers have an obligation to ensure that they are not only unbiased in making their decisions, but also that they do not appear to be biased.

PRRA officers should inform managers of personal circumstances that may give rise to an apprehension of bias such as previous involvement in an applicant's case by the PRRA officer or by a family member. A family relationship between officers who work on cases involving the same client, on its own, would not necessarily require consideration of recusal, unless an allegation of bias is made.

PRRA coordinators should be cognizant of the potential for apprehension of bias in their assignment of cases. While coordinators and officers are not required to exhaustively examine files to assure themselves that no potential for apprehension of bias exists, they will need to consider the matter when such a circumstance comes to light.

In considering whether they should recuse themselves, PRRA officers should ask themselves whether a reasonable person, apprised of all the facts, would apprehend bias if they were to decide the case. Note that the Values and Ethics Code instructs, "if a conflict should arise [real, potential or apparent] between the private interest and the official duties of a public servant, the conflict shall be resolved in favour of the public interest".

If a PRRA officer decides to recuse themselves from a case, they should request that the PRRA coordinator re-assign the file to another officer.

If an allegation of bias is raised and the PRRA officer believes that no actual, potential or apparent bias exists, the officer must clearly outline that analysis in their assessment.