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Immigration Law - Removal and deportation - Removal from Canada - Pre-removal risk assessment

Thursday, July 07, 2016 @ 8:00 PM  


Appeal by Atawnah from a decision dismissing her application for a declaration that s. 112(2)(b.1) of the Immigration and Refugee Protection Act (IRPA) violated her rights under s. 7 of the Canadian Charter of Rights and Freedoms (Charter). The applicant, a citizen of Israel, sought refugee protection in Canada. Her claim was never decided on its merits because the Refugee Board declared her claim abandoned. Section 112(2)(b.1) precluded access to the pre-removal risk assessment process by individuals from designated countries of origin who had abandoned their refugee claim until 36 months had passed from the date the refugee claim was declared to be abandoned. The appellant’s application was dismissed on the basis that the provision was not arbitrary, overbroad or grossly disproportionate.

HELD: Appeal dismissed. The supervisory role of the Federal Court, together with the ability of the Minister to exempt an applicant from the application of s. 112(2)(b.1), acted as a safety valve such that the pre-removal risk assessment bar was not overbroad, arbitrary or grossly disproportionate. The possibility that an enforcement officer would fail to properly consider evidence of risk to defer removal did not engage s. 7 of the Charter since a mechanism existed to challenge an unreasonable decision of an enforcement officer. Section 25.1 of the IRPA allowed the Minister, on his own initiative, to exempt a foreign national from the application of s. 112(2)(b.1). The appellant could challenge an enforcement officer’s refusal to defer by way of an application for leave and judicial review in the Federal Court and bring a motion for a stay of removal pending the outcome of the application for judicial review. The Federal Court could often consider a request for a stay of removal in a more comprehensive manner than an enforcement officer could consider a request for deferral. The appellant failed to demonstrate that it was a principle of fundamental justice that prior to removing an individual from Canada, a decision-maker empowered to assess risk must conduct an assessment of that risk that conformed to the basic principles of fairness, including the ability to convene an oral hearing if credibility was in issue. The asserted principle ran contrary to the jurisprudence of the Supreme Court that s. 7 did not require a particular type of process, but required a fair process having regard to the nature of the proceedings and the interest at stake. While the enforcement officer might well have impermissibly made negative credibility findings on the basis of written submissions, the question was not whether the appellant’s s. 7 Charter rights were violated by the way that this particular enforcement officer assessed the evidence of risk, but whether s. 112(2)(b.1) was constitutionally valid.