Processing pre-removal risk assessment (PRRA) applications: Procedures and guidelines applicable to all cases

• Accepting new evidence only
• Identifying the issues central to the application
• Conducting research
• How much research is enough?
• Weighing the evidence
• Consideration of submissions
• The risk must not be faced generally – Generalized oppression
• State protection – Unable or unwilling to seek state protection
• Internal flight alternative (IFA)
• Factors that could lead to a rejection of the application
• Country in which the applicant claims to face risk

Accepting new evidence only

Paragraph A113(a) of the Immigration and Refugee Protection Act (IRPA) provides that persons whose claim to refugee protection has been rejected may only present new evidence that arose after the rejection, that was not reasonably available or that the applicant could not reasonably have been expected in the circumstances to have presented.

Where the Refugee Protection Division panel did not have or take jurisdiction with respect to the protection issue raised, and did not consider the evidence available to the applicant, the “new evidence” rule does not prevent the applicant from submitting that evidence in support of their application. An example of this situation is if the RPD excluded a claimant without considering whether or not the claimant had a well-founded fear of persecution. When refugee protection has been vacated by the IRB, the refugee claim is deemed to have been rejected [A109(3)]. It may be inferred that the date of the vacation decision is the relevant date for purposes of  paragraph A113(a) . However, evidence that post-dates the original refugee claim is not admissible in vacation proceedings, as the purpose of this proceeding is to determine whether refugee protection was obtained by misrepresentation or withholding information, and if so, whether there was sufficient other evidence before the original panel by which the person could have been found to be a Convention refugee or a person in need of protection. Because the applicant could not have presented evidence at the vacation hearing that post-dates the original decision, evidence of this nature could not reasonably have been expected to have been presented at the vacation hearing, and the PRRA applicant is not precluded from presenting such evidence.

When a PRRA is returned by the Federal Court for a re-determination by a different officer, new submissions will be solicited. If new submissions are as a result received from the applicant, the PRRA officer must consider all submissions, including those made in support of the original PRRA.

Identifying the issues central to the application

Identifying the issues is of prime importance in analysis and decision making. The research performed is centred on the issues identified in the case. PRRA decisions depend upon the research conducted if the decision is to be informed and accurate. The interdependency of the decision analysis steps becomes quite evident. Care should be taken to progress in a logical manner through these steps, affording them equal importance.

Conducting research

The PRRA officer will undertake research independent of the issues identified in the application. The research sources consulted by the PRRA officer will vary with each individual case, but some sources can be found on the Country Conditions page.

When information is obtained through Internet research:

• Copies of all documents obtained from the Internet [other than those identified above as “conventional sources of research”] and used in the decision-making process will be retained on the case file [this will ensure not only that the document is available for review by the Court, but also that the “version” of the document available to the Court is the same as that consulted by the officer];
• Subject to the following paragraph, officers will retain discretion with regard to whether a document should be shared with the applicant prior to rendering a decision, if it can be demonstrated that the document is “publicly accessible” [“publicly accessible” documents should originate with reliable sources, and should be available at sites directly related to the source, rather than through cross-references from other sites, the reliability of which may not be as well established];
• Where a document post-dates the submission of the applicant, or where the date of publication is not clearly indicated, officers will share with the applicant, prior to rendering a decision, any document that shows changes in the country conditions that could affect the decision;
• Officers may seek responses from applicants with respect to any relevant documentation that comes to light and on which they intend to rely, but unless a hearing is mandatory, PRRA officers retain the authority, pursuant to section 167 of the Immigration and Refugee Protection Regulations (IRPR), to determine if an oral hearing is required.
• In cases where a hearing is mandatory, officers may share documentation, as above, in line with the principles of procedural fairness. However, if the document is determinative of the case, the document should be identified in the notice and shared before the hearing. The applicant should be given an opportunity to address the document at the hearing.

How much research is enough?

One of the implicit assumptions about PRRA is that the PRRA officer will become, over time and through experience, very knowledgeable on many countries. The knowledge accumulated should, in a straightforward case, enable officers to make judgements without the need for extensive additional research. If the officer has addressed all the issues identified or presented, the research should be complete. The gravity of the decision being made and its impact on the individual, to their life and future and that of their family, should be taken into consideration when the officer answers the question: “How much is enough?”

Weighing the evidence

Having obtained information on the facts of the case, the PRRA officer has to weigh any conflicting evidence to determine which facts have been established on a balance of probabilities and which statements are supported by the evidence. It is not a simple task to decide which fact or collection of facts is more reasonable or more likely, given the circumstances of the case. Furthermore, the PRRA officer then must decide whether the facts establish that the applicant would face a reasonable chance of persecution referred to in A96 or whether return would more likely than not subject the applicant to a substantial risk of treatment as defined in A97. PRRA decision-makers must be fair, sensitive and judicious in their approach to assessing the value of the evidence being considered.

For example, the fact that specific issues raised in submissions cannot be confirmed nor denied is not, in itself, grounds for a finding that a risk exists. Nor does the converse necessarily hold true. The facts related must be reasonable and logical given the existing country conditions. Although testimony and evidence filed by the applicant is presumed to be true, this presumption may be rebutted. If the weight that the officer gives to any piece of evidence is insufficient to establish the facts as alleged by the applicant, reasons must be given. Factors that can be taken into consideration include

• the date of the document
• the reasons for which it was prepared
• the relationship between the person who prepared the document and the applicant
• whether the author has an interest in the outcome of the application
• whether the document shows signs of bias
• whether it appears to be contrived
• whether its contents are consistent with other reliable evidence
• the extent to which the document has been corroborated by trustworthy evidence
• whether the author was a witness to the events described or whether it consists of hearsay (a legal term describing a class of evidence that is based on the reports of others rather than the personal knowledge of a witness [and that is generally not admissible as testimony])

R168(d) provides that the officer may verify third-party evidence. It is not appropriate to judge the credibility of an applicant who does not appear before the PRRA officer, except in writing, but the weight given to any set of facts can be influenced by the conclusions of the RPD and the applicant’s prior history with immigration.

Where the evidence raises a serious issue of the applicant’s credibility, is central to the decision with respect to the application for protection, and, if accepted, would justify allowing the application for protection, an oral hearing may be needed. The weight given any factor in the case is an objective decision of the decision-maker.

The task is to weigh the facts in a fair and impartial manner, considering both positive and negative elements judiciously. PRRA decision-makers might ask themselves which facts are more important, which evidence more persuasive, which argument more compelling or convincing, and why is this so?

It must be clearly explained in the PRRA decision why one piece of evidence was preferred over another. It is not necessary to mention each and every piece of evidence supplied by the applicant in your assessment. It is, however, advisable to mention those which are directly applicable (i.e. mention the applicant by name) or are particularly significant, so as to avoid the accusation of ignoring evidence.

Consideration of submissions

The applicant should make it clear in submissions what risk would be faced in the country of return. The applicant is expected to explain how the alleged risk might lead to a risk to life or to a risk of cruel and unusual treatment or punishment, the danger of torture, or the reasonable possibility of persecution and which refugee Convention grounds are applicable.

Submissions should address:

• what is the risk the applicant fears
• why the applicant is unable or unwilling to avail themselves of the protection of the country of return
• whether the risk would be faced in every part of that country and whether the risk is faced generally by other individuals in or from that country
• whether the risk faced is inherent or incidental to lawful sanctions, and whether the sanctions are imposed in disregard of accepted international standards
• whether the risk is caused by the inability of the country to provide adequate health or medical care.

The risk must not be faced generally – Generalized oppression

All grounds for protection involve a demonstration that the risk be characterized as personal and objectively identifiable. These risks may, in fact, be shared by other persons who are similarly situated. The Act does provide for protection in cases of generalized oppression: a stay of removal to particular countries may be decided upon by the Minister of Public Safety where whole populations are at risk, according to factors set out in the Regulations. The application for protection, by contrast, is meant to deal with an allegation of personal risk.

However, in some cases, a generalized risk may meet the Convention refugee definition if the applicant is personally subject to serious harm that has a nexus to at least one of the five protection grounds enumerated in the Refugee Convention. The Federal Court of Appeal has rejected the comparative approach (asking whether the applicant is more disadvantaged than others) in favour of a non-comparative approach that asks whether there is a reasonable chance of serious harm on the basis of one of the five Convention grounds. On this point, see Salibian v. MEI, [1990] 3 F.C. 250 (Fed. C.A.) and Rizkalleh v. MEI (1992), 156 N.R. 1 (Fed. C.A.).

The Federal Court of Appeal considered the question of indirect persecution in Pour-Shariati v. MEI (1997), 39 Imm. L.R. (2d) 103 and concluded that it does not constitute persecution within the meaning of the Refugee Convention. For example, the fact that family members face persecution does not make an applicant a Convention refugee unless he or she personally meets the definition, as may be the case if he or she were a similarly-situated person. The requirement that risk be personal is incorporated into the definition of a person in need of protection in A97.

State protection – Unable or unwilling to seek state protection

Where the applicant faces a risk, whether of persecution, of torture, to life, or of cruel and unusual treatment or punishment, the issue to be determined in every case will be whether the applicant is able to obtain the protection of the State. A person is unable to seek protection of the State in circumstances where the State cannot provide protection. This can arise either

• where the threats emanate from non-State agents [and the State is unwilling or unable to protect adequately the concerned person], or
• where the threats emanate from the State.

When a person is unwilling to avail themselves of the State’s protection, the person opts, because of the risks, to not seek the protection of the State. This can arise when the State has lost control over its territory, or when the State has failed previously to protect the applicant from actions of third parties.

The applicant has a duty to seek State protection before soliciting international protection (see Ward, supra). When the State in question is a democratic State, the applicant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The level of difficulty the applicant will face in making out his or her case is directly proportional to the level of democracy in the State in question:  the more democratic the State’s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. However, the applicant is not required to seek State protection if it would be objectively unreasonable to do so in the circumstances. See Kadenko v. Canada (Solicitor General) (1986), 143 D.L.R. (4th) 532 (F.C.A.).

No government can guarantee the protection of all of its citizens at all times. It is not enough for the applicant to show that the state has not always been effective in protecting similarly-situated persons.  Where a state has effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that it is not always successful will not be enough to establish that the state is unable to protect. See Canada (MCI) v. Villafrarnca (1992), 18 Imm.L.R. (2d) 130 (F.C.A.) on this point. A standard of “effective” protection should not be imposed on other states that the police forces in our own country sometimes only aspire to. See Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (T.D.) on this point.

Local failure by the police to provide effective protection does not necessarily amount to a lack of state protection. The question of state capacity to provide protection must be assessed in light of a broader pattern of state inability or refusal to extend protection. Local refusal to provide protection does not constitute a state refusal in the absence of evidence of a broader state policy not to extend protection to the target group. Refusal does not necessarily have to be overt, as other factors can be cited to justify ineffective state action. See the observations of Mr Justice Pelletier on this point, in Zhuravlvev, Anatoliy v. M.C.I.(F.C.T.D., no. IMM-3603-99), April 14, 2000.

The question of State ability and willingness to provide protection will be determined by an objective analysis of the evidence. There is a presumption that the State is able to provide protection; therefore, there must be clear and convincing proof of the State’s inability or unwillingness to provide protection.  Where the applicant has failed to demonstrate that the State is unable to provide protection, the application should be rejected.

Internal flight alternative (IFA) (IFA)

When considering an application for protection, the decision-maker must be alert to the possibility that the applicant, although at risk in one part of the country of return, might reasonably be expected to obtain protection at some other locality within that country. In such a situation, the applicant can be denied protection because they could avail themselves of an “Internal Flight Alternative”. An IFA must be a realistic and attainable option, accessible without great physical danger or undue hardship. It must offer protection from the risk that is stable, rather than transitory, and there should be an established authority to which the individual can turn for recourse.

The burden of establishing that an IFA does not exist, or that it would be unreasonable to require the individual to return to an IFA, rests with the applicant. When assessing the reasonableness of the IFA, the PRRA officer should consider the particular circumstances of the individual and of the country involved to establish whether it would be inhumane and unreasonable to require an individual to return to some part of the State. Elements such as convenience or preference of the applicant to live in a particular part of the country should not render an IFA unreasonable.

Humanitarian and compassionate considerations are not relevant when assessing the reasonableness of the IFA. For instance, hardships flowing from separation from relatives in the country of refuge are not considered relevant to the assessment of whether it would be unduly harsh to return to an IFA. These considerations are only relevant in the context of applications to the C&I Minister for humanitarian and compassionate considerations.

Factors that could lead to a rejection of the application

While all protection grounds must be considered and applied, and reasons given in respect of all grounds in coming to a determination that the application be rejected, the absence of an essential ingredient in the application of one ground will often mean that the other two grounds are also inapplicable. The factors defined above and listed below may lead to a rejection of the application, under all grounds of protection:

• harm feared is not severe
• harm feared is generalized
• harm feared is the law of general application, lawfully imposed, fitting international standards
• harm feared is not objectively supported
• there is effective State protection
• there is an IFA or the applicant possesses multiple nationalities.

Country in which the applicant claims to face risk

Country of nationality or citizenship

The definitions of “refugee” and “person in need of protection” confine the protection to persons who are outside their country of origin. The definitions include distinctions between persons who have a country of nationality and persons who do not; the latter may seek international protection when they are outside their country of former habitual residence. In cases where the applicant has multiple nationalities, the PRRA officer must examine the need for protection with respect to all countries of nationality if an application is to be allowed. If the application is to be rejected it need only be determined that the applicant is not at risk in one country of nationality, as defined in  A96  and  A97  [see Harris, Dorca v. MCI, IMM-1652-97, 31 Oct 1997 (F.C.T.D)]. This principle is applicable even if the applicant has never entered or lived in one of the countries of nationality.

Where citizenship in another country is available, an applicant is expected to make attempts to acquire it and will be denied refugee protection if it is shown that it is within his or her power to acquire that other citizenship. This includes the situation of a person who must renounce citizenship in one country, where persecution or a threat enumerated in  A97  is asserted, in order to acquire citizenship in another; the person should be deemed to be a citizen of the country in which they have a claim to citizenship. The operative principle is whether it is within the Applicant’s power to obtain citizenship as of right if established procedures are followed (seeCanada [Minister of Citizenship and Immigration] v. Manzi Williams, 2005 FCA 125).

Country of former habitual residence

Where the applicant is stateless, the country of reference is that of former habitual residence as determined by evidence of a significant period of de facto residence. If there is more than one country, the applicant must be at risk as defined in A96 or A97 in each country of habitual residence. The applicant does not have to be able to return legally to a country of former habitual residence for it to qualify as a country of reference. In addition, the applicant must be unable or unwilling to return to any of the countries of former habitual residence. If the applicant can return to any country of former habitual residence and be safe from persecution or threat enumerated in  A97 , the applicant is not a Convention refugee or a person in need of protection. See the 1998 Federal Court of Appeal decision in Thabet v. MCI, [1998] 4 F.C. 21, 160 D.L.R. (4th) 666 (Fed. C.A.). See also Elbarbari v. MCI (1998), 157 F.T.R. 111 (Fed. T.D.), and Maarouf v. MEI, [1994] 1 F.C. 723 (Fed.T.D).

Handling PRRA decisions

Upon completion of the Pre-Removal Risk Assessment, the PRRA officer returns the file to the CBSA removals office. Except when the applicant is described in subsection A112(3) and has been found to be at risk by the PRRA officer, the removals officer calls in the applicant and delivers the decision in person.

Timely decision delivery ensures that the decision communicated to the individual is based on relatively current information, but delays may be needed to finalize removal arrangements in some cases. The Federal Court, in Chudal [2005 FC 1073], has ruled, however, that submissions made by a PRRA applicant, up to the point where the applicant is notified that a decision has been made, must be considered by the PRRA officer. The stay of removal under R232(c) continues until the client is notified that a decision has been made. Any submissions made after the applicant has been notified that a decision has been made must be considered as a subsequent application R165, for which there is no stay of removal.

If requested, the removals officer will provide the applicant with a copy of the decision and the officer’s notes, which contain the reasons for the decision. 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.

Handling subsection A112(3) cases

See the Restrictions on access to protection section for details on A112(3) cases.