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Pre-removal risk assessment (PRRA): Interpreting section A97

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

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Immigration and Refugee Protection Act (IRPA) section 97

The IRPA defines section 97 as:

Person in need of protection

97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

  • (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
  • (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
    • (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
    • (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
    • (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
    • (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

Person in need of protection

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

Danger of torture, risk to life, risk of cruel or unusual treatment or punishment

What is torture?

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which has been incorporated into IRPA, defines torture as follows:

  1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

A landmark Supreme Court of Canada (SCC) decision as to the deportation of a refugee that would subject them to a risk of torture is Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1.

In that decision, the SCC stated in paragraph 129:

We concluded that generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter's s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter.

Examples of torture

The European Court of Human Rights has found the following actions to constitute torture:

Grounds for torture

There is no need to demonstrate that the applicant would face torture for 1 of the 5 enumerated grounds set forth in the Convention refugee definition. The 1951 Refugee Convention requires that the fear of persecution be based on specified grounds (that is, race, religion, nationality, membership of a particular social group or political opinion). Under the CAT, however, the sole question is if a substantial risk of torture exists regardless of whether it is based on any of the grounds specified in the definition of Convention refugee.

Agent of torture

An important element of the definition of torture is that the pain or suffering amounting to torture must be inflicted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. However, the risk of torture need not be from the State government itself, and may arise, for instance, from an errant police force, the military or quasi-public actors (for example, tribes responsible for enforcing locally accepted customs).

Danger of torture

The standard to be met by an applicant alleging danger of torture is defined in the legislation as a danger of torture that is believed on substantial grounds to exist. The requisite degree of danger of torture envisaged by the expression "believed on substantial grounds to exist" is that the danger of torture is more likely than not. See Li v. Canada (Minister of Citizenship and Immigration) 2005 FCA 1 (Li) for more information. The risk does not have to meet the test of being highly probable, but objective factual material must show a probability of danger of torture to the applicant if removed.

Making an objective assessment of the danger of torture

The PRRA decision maker assesses where there are substantial grounds to believe the applicant would be personally subjected to a danger of torture on an objective basis. The Li decision held that there is no requirement to prove a subjective fear, but that the danger must be personalized. As in the Refugee Convention, the assessment may be based on past events but is also forward looking. The determinative issue is whether events related by the applicant, together with all the other evidence, including country conditions in the country of removal at the time of the decision, show that the applicant would be subjected to a danger of torture if removed.

Determining the past, present or future likelihood of torture

The CAT describes the grounds for determining if a person has experienced or is in danger of being subjected to torture. The following non-exhaustive questions, which are derived from guidance issued by the UN Committee Against Torture, may assist the PRRA decision maker in determining whether the applicant faces a personalized risk in the country of removal:

  1. Is the country concerned one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights?
  2. Has the applicant been tortured or maltreated by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity in the past? If so, was this the recent past?
  3. Is there medical or other independent evidence to support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had after-effects?
  4. If there is evidence of violations of human rights in the country concerned, has the situation changed? Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered?
  5. Has the applicant engaged in political or other activity within or outside the country concerned which would appear to make him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be removed to the country concerned?
  6. Are there factual inconsistencies in the application? If so, are they relevant?

Key questions concerning the applicant

Assessing risk to life or risk of cruel and unusual treatment or punishment

The PRRA decision maker must assess whether the applicant would be personally subjected to a risk to life or of cruel and unusual treatment or punishment.

The concept of “cruel and unusual treatment or punishment” is found in section 12 of the Canadian Charter of Rights and Freedoms (the Charter). Therefore, jurisprudence interpreting section 12 is applicable to section A97 assessments. Notions familiar to section 12 of the Charter are also present in international conventions that Canada has signed, such as the CAT, and the International Covenant on Civil and Political Rights (ICCPR). International jurisprudence, while not binding, can provide helpful guidance.

The following propositions, taken from Charter jurisprudence, are applicable:

These risks include actions that would constitute violations of fundamental human rights, such as – but not limited to – serious affronts on the physical and psychological integrity of the person.

In Cruz Varas and others v. Sweden, [1991] ECHR 26, the European Court of Human Rights explained the minimum threshold of what constitutes inhuman treatment in the following words:

It is recalled that ill-treatment must attain a minimum level of severity (…) The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age, and state of health of the victim.

Applying the standard of proof

The standard to be met by an applicant alleging a risk to life or cruel and unusual treatment or punishment is the “balance of probabilities”, the usual standard in civil proceedings. This is also the standard applicable to section 12 of the Charter. Objective factual material must show a probability of risk to the applicant if removed.

Assessing protection of the State (State agent and non-State agent)

Although international jurisprudence stems generally from cases that directly involve the State as the agent of inhuman treatment, the notion of cruel and unusual treatment as defined in IRPA does not contain such a limitation. The cruel and unusual treatment or punishment does not necessitate the State as an accomplice. Assessments must address the ability of the State to protect the applicant against torture by State or non-State actors.

For more information, see state protection.

Assessing the objective risk to life or of cruel and unusual treatment or punishment

The PRRA decision maker assesses whether the applicant would be personally subjected to a risk to life or of cruel and unusual treatment or punishment on an objective basis. The risk must be to the person. The assessment may include past events, but it is also foresighted. The PRRA decision maker must determine whether events related by the applicant, together with all the other evidence, including country conditions in the country of removal at the time of the decision, show that the applicant would be subjected to a risk to life or of cruel and unusual treatment or punishment if removed. Relevant considerations include the general situation in a country and, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The SCC’s decision R. v. Smith, [1987] 1 SCR 1045 (Smith) addressed section 12 of the Charter, which is the right not to be subjected to any cruel and unusual treatment or punishment.

A punishment will be cruel and unusual if:

Additionally, the SCC in Smith found that section 12 of the Charter ensures protection from punishments that are "grossly disproportionate". The SCC described a “grossly disproportionate” punishment as one that:

Assessing the inability of the country of removal to provide medical care under subparagraph A97(1)(b)(iv)

The legislation provides that the risk to life must not be caused by the inability of the country of origin to provide adequate heath or medical care. A risk to life under section A97 does not require the PRRA decision maker to assess whether there is appropriate health and medical care available in the country in question (see Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 (Covarrubias), and Singh v. Canada (Minister of Citizenship and Immigration), 2004 FC 288). PRRA decision makers will use this exception with respect to PRRA applicants where it is evident that the country of removal is unable to provide adequate medical care, or chooses, in good faith, for legitimate political and financial priority reasons, not to provide such care to its nationals. However, it does not apply to deny protection to those applicants whose country engages in practices that are persecutory or discriminatory to the point of persecution with respect to the provision of access to medical treatment. In Covarrubias the Federal Court of Appeal distinguished a country’s inability from a country’s unjustified unwillingness to provide adequate medical care. Therefore not all claims in respect to health care should be excluded. The decision S.V. et al. v. Canada, CAT/C/26/D/49/1996, UN Committee Against Torture (CAT) 15 May 2001 also provides further background.

Asking key questions

Similar to the questions regarding danger of torture, the following are sample questions the PRRA decision maker can ask to determine if there is risk to life or the possibility of cruel and unusual treatment or punishment:

No nexus

There is no need to demonstrate that the applicant would face a risk of torture or to life or of cruel and unusual treatment or punishment for 1 of the 5 enumerated grounds set forth in the Refugee Convention. The sole question is whether there is a substantial and objective risk of torture or to life or of cruel and unusual treatment or punishment, regardless of whether it is based on any of the grounds specified in the definition of refugee.

Assurances in death penalty cases

The SCC ruled in the 2001 case of United States v. Burns, 2001 SCC 7 (Burns) that obtaining diplomatic assurances is a constitutional requirement before removing someone facing capital punishment/death penalty, unless there are exceptional circumstances. Thus the removal of persons to countries where there is more than a mere possibility that they will face the death penalty should not proceed, before acceptable assurances are sought and obtained from the destination country. These assurances need to state explicitly that the death penalty will not be imposed or if imposed will not be carried out. Exceptions to this course of action will be rare.

The United Nations Human Rights Committee in Roger Judge vs. Canada CCPR/C/78/D/829/1998, UN Human Rights Committee (HRC) 13 Aug 2003 (PDF, 145 KB) case ruled that Canada has an international obligation under Article 6 of the International Covenant on Civil and Political Rights not to remove a person facing the death penalty without assurances that this sentence will not be carried out.

In Burns, the SCC ruled that extradition to face the possibility of capital punishment is unconstitutional, as it violates the life, liberty and security of the person provisions found in section 7 of the Charter. Consequently, the government has to consider whether assurances are required in order for removal to be lawful and Charter-compliant.

In some situations, persons who have been charged with or convicted of serious crimes face the risk of a death penalty through the judicial system in the country to which they are facing removal. While these penalties may be legally sanctioned, such cases must be examined in light of international human rights instruments to which Canada is a party, as well as Canadian jurisprudence.

Except where imposition of the death penalty is no more than a mere possibility in the domestic law of the destination country, PRRA decision makers will usually need to have assurances from that country with respect to whether the death penalty will be sought, and/or what actions will be taken to ensure that the death penalty will not be imposed, or, if it is imposed, to ensure that it will not be implemented. The specifics of assurances, obtained through diplomatic means, may vary, depending on the particular legal regime in place in the country of destination. PRRA decision makers will assess this evidence, along with all other relevant evidence, to determine whether there is more than a mere possibility that the person will face the death penalty in reaching a decision on the application for protection. The threshold here is different and lower than the standard of proof for section A97.

Initiation of a request for assurances

The decision whether or not to seek assurances should be made as early as possible in the enforcement process by the Canada Border Services Agency (CBSA) removals officer assigned to the case. Once the CBSA removals officer becomes aware that a person against whom a removal order is in force would face a risk of execution in the country to which they would be removed, the officer will, before informing the person of the opportunity to make a PRRA application, send a report electronically to the Decisions Unit at the Migration Integrity Operations Branch (MIOB).

For more information, see ENF10 – Removals (PDF, 879 KB).

The information sent to MIOB should include the following:

A MIOB analyst will prepare a recommendation, for consideration by the Director General (MIOB) in deciding whether to seek assurances. Resolution occurs when the Director General (MIOB) decides not to seek assurances; or when assurances are sought and received from Global Affairs Canada (GAC). If assurances are obtained, they will be disclosed to the applicant and their representative (if applicable) by the CBSA removals officer.

The PRRA application process will not commence until a decision is made whether to seek assurances. If the decision to seek assurances is positive, the PRRA process starts after assurances have been received from the country of destination.

Consequently, a PRRA decision shall not be rendered until the issue of assurances has been resolved (either by the decision by MIOB not to pursue assurances or the receipt of such assurances from GAC). Once assurances have been obtained, these applications will be given the highest possible priority.

Referral of cases when the issue of assurances is not resolved

In a situation where a PRRA notification was given and the PRRA decision maker becomes aware that an applicant may face the death penalty and MIOB has not yet been contacted, the PRRA decision maker shall immediately suspend processing and notify the Decisions Unit of MIOB. MIOB will advise the PRRA decision maker on next steps and liaise with the CBSA Case Management to ensure all documents listed above are obtained and transferred to MIOB.

On receipt of assurances

If assurances were sought and obtained before the person was informed of the opportunity to make a PRRA application, the CBSA removals officer will include the assurance in the package when they offer the person the opportunity to apply for a PRRA. The person will have the same prescribed time period for providing submissions with respect to the assurances as they do for the PRRA, which is 30 days after they were offered PRRA. If assurances were sought and obtained only after the PRRA application process has commenced, the CBSA removals officer will inform the applicant that assurances have been obtained, and provide the applicant and the Immigration, Refugees and Citizenship Canada (IRCC) manager with a copy of the assurances. The applicant will be given a period of 15 days in which to respond to the assurances before the PRRA decision maker proceeds to consider the application further. The applicant may request an extension of time to respond. The granting of an extension is discretionary, but a request cannot be unreasonably refused.

The PRRA decision maker will consider the assurances in light of all of the submissions and other information available, as well as current jurisprudence such as Burns.

Where no assurances are obtained

If assurances were not sought, or were sought but not obtained, the PRRA process will commence or resume, as applicable. The CBSA removals officer will inform the applicant in writing or in person and the IRCC manager of the final outcome of the assurances. As above, the PRRA decision maker will consider the application in view of the submissions and relevant jurisprudence.

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2025-11-18