Processing pre-removal risk assessment (PRRA) applications: General policy

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

PRRA is found in Division 3 of Part 2 of the Immigration and Refugee Protection Act (IRPA), and assists in ensuring that Canada’s immigration and refugee protection system meets its international obligations, as well as those under the Canadian Charter of Rights and Freedoms.

PRRA applications – except those of most persons described in A112(3) – are considered on the same consolidated protection grounds considered by the IRB. These grounds consist of those identified in: the Geneva Convention relating to the Status of Refugees; the United Nations Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (‘Convention against Torture’); as well as risk to life or risk of cruel and unusual treatment or punishment, as provided in the IRPA.

Approved applications (other than 112(3) ones) result in the same refugee protection afforded persons whose refugee claims are approved by the IRB.

In the majority of cases, PRRA is carried out through a paper review process. However, in order to ensure that PRRA officers have all the tools necessary to ensure a fair and effective risk review, the IRPA also gives them the discretion to hold an oral hearing in certain exceptional cases, based on a series of criteria identified in the Regulations. Moreover, the IRPA also dictates that, in some cases, hearings are mandatory.

With limited exceptions outlined in A112(1) and A112(2), persons who are subject to a removal order that is in force may apply for PRRA. With the exception of Port of Entry and Subsequent PRRAs, persons must first be notified by the CBSA of their entitlement to apply. PRRA candidates may be divided into five overall categories:

  • people whose refugee claim has been rejected (this includes withdrawn or abandoned claims), and more than 12 months have passed (refer to the intake procedures for more information)
  • people whose refugee claim is ineligible for referral to the IRB, except those who are ineligible vis-à-vis the Safe Third Country Agreement [A101(1)(e)]
  • previous PRRA applicants who are still in Canada, and more than 12 months have passed (refer to the intake procedures for more information)
  • other individuals who never previously sought refugee protection in Canada and are now facing removal

In cases where the applicant had a refugee hearing before the IRB, the PRRA is restricted to new evidence that arose after the rejection or evidence that was not reasonably available at the time of the rejection.

A PRRA application is not an appeal of a negative refugee claim decision, but rather an assessment based on new facts or evidence demonstrating that the person is now at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment.

In other cases where there has never been a previous risk determination, such as ineligible claimants, there would be no risk information on file and PRRA officers base their determination of risk on any written evidence the applicant may wish to present for consideration.

Although the paragraph A113(a) new evidence rule does not apply to subsequent PRRA applications, the administrative law principle of issue estoppel applies to subsequent PRRA applications as a matter of binding Federal Court and Supreme Court of Canada jurisprudence. Issue estoppel is a form of res judicata—a rule by which a final judgement by a court is conclusive upon the parties in any subsequent litigation involving the same cause of action. If the same question has been decided in a previous PRRA decision that is final, the officer may limit the subsequent PRRA to a re-examination of the evidence in light of any changes that have occurred since the initial decision. However, the officer has discretion to decline to apply issue estoppel in appropriate, though limited, circumstances if it would be in the interests of justice to do so. For example, the officer may consider reasons why, with reasonable diligence, evidence that was available when the previous PRRA application was made could not have been presented at that time. The officer must state whether or not issue estoppel is being applied to the subsequent PRRA (or what issues are subject to the principle) and provide reasons. See Vasquez v. MCI,   IMM-1979-97, F.C.T.D. (16 Sept 1998);  Chowdhury v. MCI, [2003] FCJ No.1333, (9 Sept 2003); Casseus v. MCI, 2003 FCT 472 (23 Apr 2003).

The Charter and PRRA

Canada is bound by the Canadian Charter of Rights and Freedoms and international obligations to assess risk prior to removing an individual to a country of alleged persecution or risk of torture, to life, or of cruel or unusual treatment or punishment. PRRA stems from these obligations. While PRRA officers do not have the authority of a Court to rule on the constitutionality of legislative provisions, they are required to apply the law in a manner consistent with the Charter.

Some PRRA applications raise Charter issues. Particular examples would be the application of A97(1)(b)(iii), where the applicant would face the prospect of the death penalty, the application of A97(1)(b)(iv), where the applicant would face the prospect of imminent death because of the lack of access to critical medical treatment, or the application of A113(a), where the evidence that the applicant wishes to submit would be compelling, with respect to both the probability and the severity of the risk that the applicant would face.

When these and similar issues are raised by the evidence submitted by the applicant, the PRRA officer, through the manager, seeks legal advice on the Charter implications of the decision to be rendered and the proper interpretation of the law in light of the Charter. The manager refers the request to the departmental legal services, through the Immigration Program Guidance Branch (IPG). The PRRA officer defers a decision on the application until legal advice is provided by IPG.

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