Pre-removal risk assessment (PRRA): Decisions

On this page

• Writing guidelines
• Reasonableness standard in administrative review
• Avoiding bias or appearance of bias
• Handling PRRA decisions
• Submissions received after a PRRA decision is made
• Requests for reconsiderations of a negative decision
  • Steps
• Factors to review when deciding whether to reconsider

Writing guidelines

The program delivery instructions (PDI) on Decision making: Standard of review and process for making a reasonable decision provide a clear process for all decision makers on how to make a reasonable defensible decision. This guidance came out of the Supreme Court of Canada (SCC) decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov).

Adapted and summarized from the above referenced PDI, the following steps help to ensure well-written and defendable decisions in the PRRA context.

Decision makers must:

• Identify the application requirements that must be met before proceeding
• Identify the legal requirements that must be satisfied under PRRA, under section 96, section 97, section 98, subsection 112(3) and section 113 of the Immigration and Refugee Protection Act (IRPA)
• Identify the facts to be proven; the facts material to the risk assessment
• Apply the appropriate standard of proof in coming to a decision
  • The standard of proof for PRRA decisions is a balance of probabilities
• Identify the relevant evidence
  • Consider the applicant’s submissions
  • Consider recent documentary evidence such as that from the Immigration and Refugee Board of Canada (IRB) National Documentation Packages
  • Remember the burden of proof rests with the applicant
• Assess the credibility of the evidence
  • Credibility refers to worthiness of belief (for example: Is this a trustworthy source of information?)
  • In case of concerns with the credibility of the evidence, follow procedural fairness to ensure the applicant is made aware of these concerns and has the opportunity to respond to them
  • Avoid veiled credibility findings by holding an oral hearing as necessary
  • Avoid reasoning that is legally flawed or based on unsupported assumptions or absurd premises
• Determine the probative value of the evidence
  • Probative value refers to the capacity of the evidence to establish the fact it is used to prove (for example: If this information is true, what does it prove?)
• Determine the weight of the evidence
  • Weight is a function of credibility and probative value (weight = credibility x probative value)
  • If evidence with high probative value is given little weight without making a credibility finding (and without an oral hearing), a reviewing court may find that a veiled credibility finding has been made
• Determine the sufficiency of the evidence
  • Sufficiency refers to how much evidence is required to establish a fact (for example: Does the evidence satisfy the decision maker of the facts based on a balance of probabilities?)
• Make a decision
  • Follow the rules of procedural fairness
  • Avoid bias by using neutral language
  • Ensure that all relevant evidence has been considered
  • Identify irrelevant evidence with an explanation as to why it is not used
• Record the decision in writing
  • Follow the PRRA template structure by having a summary of the facts or evidence, an analysis and then a conclusion that references the applicable provisions in the IRPA, along with the appropriate standard of proof and legal test
  • Use neutral, comprehensible language 
  • The rationale or reason for the determination should be fully transparent, intelligible and justified in relation to the relevant facts and law
  • Proofread the decision before finalizing it

All decisions may be challenged at the Federal Court. Among other things, a decision may be challenged on the basis that there was a breach of procedural fairness, or that the decision is not reasonable. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts or law that constrain the decision maker.

Reasonableness standard in administrative review

The PDI on Decision making: Standard of review and process for making a reasonable decision notes the difference between a standard of review and standard of proof. The courts use a standard of review when assessing decision makers’ decisions. A standard of proof refers to the degree that decision makers must be satisfied that a fact has been proven.

The SCC noted that reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable” and emphasized that reasonableness review looks at both the reasoning process and outcome of the decision. The hallmarks of reasonableness are justification, transparency, and intelligibility, as well as whether the outcome is justified in relation to the relevant factual and legal constraints that bear on the decision. Decisions may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, or unfounded generalizations.

The Vavilov decision highlights the importance of reasons, and emphasizes how the treatment and weight given to evidence leads to clear and intelligible reasons. In cases where an oral hearing is conducted, either in accordance with subparagraph A101(1)(c.1) or section 167 of the Immigration and Refugee Protection Regulations (IRPR), decision makers should give applicants sufficient opportunity to address credibility concerns. Doing so, decision makers are better positioned to draw intelligible inferences in their reasons. As well, this mitigates the risk of the Court deeming a decision unreasonable due to veiled credibility findings.

Avoiding bias or appearance of bias

PRRA decision makers have an obligation to ensure impartiality in the process by which they come to their decision, and in the wording of the decision itself.

Impartiality refers to the state of mind or attitude of the decision maker in relation to the issues and the parties in a particular case. A decision maker may have preconceived ideas on a specific topic and reveal this through their words or actions.

The test for reasonable apprehension of bias is whether or not an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker would unconsciously or consciously decide an issue unfairly.

The decision makers must be careful of the language used during the hearing or the decision to avoid appearance of bias. The decision should show that they made a fair and well-considered decision. Their consideration of the evidence and the weight afforded to it should be apparent.

Managers should consider the potential for apprehension of bias when cases are assigned to PRRA decision makers.

Decision makers 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 decision maker or a family member. A family relationship between decision makers who work on cases involving the same applicant, on its own, would not necessarily require consideration of recusal, unless an allegation of bias is made.

In considering whether they should recuse themselves, decision makers 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 for the Public Sector states: "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".

Handling PRRA decisions

Once a final decision is made on the PRRA, the Canada Border Services Agency (CBSA) removals office is notified. The CBSA removals officer calls in the applicant and delivers the decision letter in person.

If requested, the removals officer will provide the applicant with a copy of the decision maker’s detailed notes. If the decision is that the applicant is not at risk, the removals officer will advise the applicant of the opportunity for judicial review of the decision and proceed with removal arrangements. Applicants found to be at risk, if applicable, are provided with a Verification of Status document and information on how to apply for permanent residence as a protected person.

The CBSA delivers PRRA decisions to applicants in the course of a removal interview.

For more information on the subsection A112(3) process, see Applicant restrictions on access to protection.

Submissions received after a PRRA decision is made

The timely delivery of decisions by the CBSA ensures that the PRRA decision is based on relatively current information. In some cases, the CBSA may require more time to finalize removal arrangements. In Chudal v. Canada (Minister of Citizenship and Immigration), 2005 FC 1073, the Federal Court ruled that a PRRA decision maker must consider submissions made by a PRRA applicant up to the point where the applicant is notified that a decision has been made. The stay of removal under paragraph R232(c) continues until that point. Any submissions made after the decision has been delivered must be considered as a subsequent application as per section R165, for which there is no stay of removal. In addition, a refused PRRA applicant may be subject to the 12-month PRRA bar as per paragraph A112(2)(c). For more information on the PRRA bar, see Intake.

Requests for reconsideration of a negative decision

The PDI on Reconsideration after refusal gives an overview of this process.

While decision makers are not obligated to reconsider previous decisions, they must consider the request. The legal doctrine of functus officio does not automatically bar such reconsideration, as per the Federal Court of Appeal decision in Canada (Citizenship and Immigration) v. Kurukkal, 2010 FCA 230. When an applicant requests that their decision be reconsidered, a decision maker may exercise their discretion in determining whether such reconsideration is warranted.

An applicant’s dissatisfaction or disagreement with the decision does not by itself mean reconsideration is warranted.

When possible, reconsideration requests should be assigned to the original decision maker.

Steps

• Decide whether to reconsider the decision (see Factors to review when deciding whether to reconsider, below)
• Notify the applicant about whether the decision will be reconsidered
  • If refusing to reconsider, the decision maker may refer to the original decision, which outlined the reasons their application was rejected
• Record the reasons why the reconsideration request was granted or refused
• If the decision maker decides to reconsider, they should:
  • notify the CBSA, which may suspend the applicant’s removal proceedings
  • if the case involves litigation (for example, at the Federal Court), advise Immigration Litigation Management Division
  • reconsider the case and render a new decision
  • record the new decision
  • notify both the applicant and the CBSA of the new decision (the original decision stands or is now positive)

Factors to review when deciding whether to reconsider

When considering whether to exercise their discretion to reconsider, the decision maker is required to take all relevant circumstances into account. The onus is on the applicant to demonstrate that the circumstances warrant the exercise of discretion to reconsider the decision because it is in the “interest of justice” or because of the “unusual circumstances” of the case (Azizi v Canada (Citizenship and Immigration), 2022 FC 751). The decision maker should consider the circumstances surrounding the original decision and whether they are of such a nature that reconsideration is warranted. They 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 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 (that is, facts that arose after the original decision was communicated to the applicant) and whether it is reliable and material or central to the decision
• If new evidence is submitted, whether that evidence would be more appropriately considered in the context of a subsequent PRRA
• If the additional evidence presented could 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