Pre-removal risk assessments (PRRAs): exclusions

This section provides guidance regarding the exclusion clauses in the 1951 Convention Relating to the Status of Refugees (Refugee Convention) (PDF, 480 KB) and how they apply in the context of pre-removal risk assessments (PRRAs).

General information

• Overview
• Authority to assess exclusions
• When to consider an exclusion

Procedures

• Assessing Article 1F exclusions in pre-removal risk assessments (PRRAs)
• Modes of liability, Ezokola and defences
• Processing exclusions in pre-removal risk assessments (PRRAs)

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Overview

The exclusion clauses are an integral part of the definition of a Convention refugee set out in the Refugee Convention. They provide that persons are excluded from refugee status if they fall under one of these clauses.

Two of the exclusion clauses contained in the Refugee Convention are incorporated into Canadian law and are contained in the Schedule of the Immigration and Refugee Protection Act (IRPA):

• Article 1E of the Refugee Convention deals with persons who are not considered to be in need of protection
• Article 1F deals with persons who are not considered to be deserving of protection

Section A98 confirms that persons described under either of these clauses are excluded from refugee protection in Canada. However, persons described under Article 1F may benefit from restricted access to protection, where their applications are assessed only on the basis of factors set out in section A97 and where they benefit only from a reviewable stay of removal rather than from protected person status.

Authority to assess exclusions

A PRRA officer has the authority to make an exclusion finding in any case where section A96 applies. In many cases where an exclusion clause applies, an exclusion finding is made by the Refugee Protection Division (RPD) of the Immigration and Refugee Board when a claim for refugee protection is made to the Board. However, in cases where a person has not been before the RPD or a situation of exclusion has arisen by the time of a PRRA determination, the PRRA officer must assess whether an exclusion applies.

The authority of a PRRA officer to determine whether an applicant is a person described in Article 1F was confirmed by the Federal Court of Appeal in Li v. Canada (Minister of Citizenship and Immigration), 2010 FCA 75.

When to consider an exclusion

When assessing PRRA applications, the officer must, in most cases, consider

• the refugee grounds (section A96)
• the danger of torture, the risk to their life or the risk of cruel and unusual treatment or punishment (section A97)
• whether an exclusion under the Refugee Convention applies (section A98)

Section A98 excludes persons described in Articles 1E and 1F of the Refugee Convention from protection and is what gives officers the authority to make exclusion findings.

However, IRPA sets out that officers only apply section A98 in certain circumstances. Paragraphs A113(c) through (e) define what those circumstances are.

Specifically, section A113 provides that a PRRA officer shall consider whether an exclusion applies [A98] when assessing the application of a person described by one of the following:

• a person who is not subject to a restricted PRRA as noted in subsection A112(3)
• a person who is inadmissible on grounds of serious criminality for a conviction in Canada for which a term of imprisonment of less than 2 years—or no term of imprisonment—was imposed
• a person who is inadmissible on grounds of serious criminality with respect to a conviction outside Canada that, if committed in Canada, would be punishable by a maximum term of imprisonment of at least 10 years

In short, when officers consider grounds related to the Convention refugee definition (that is, section A96), they should also consider exclusions (that is, section A98).