Docket: A-322-15
Citation:
2016 FCA 140
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CORAM:
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DAWSON J.A.
NEAR J.A.
BOIVIN J.A.
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BETWEEN:
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YASMEN AL
ATAWNAH
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DIANA ELATAWNA
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KARAM ELATAWNA
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RETAL AISHA
ELATAWNA
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Appellants
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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AND
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondents
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
Yasmen Al Atawnah and three of her children, her
daughters Diana, Karam and Retal Aisha, are citizens of Israel who sought
refugee protection in Canada. Their refugee claims were never decided on their
merits because the Refugee Protection Division of the Immigration and Refugee
Board declared their claims to be abandoned.
[2]
As a result of this declaration, the appellants
were unable to obtain a pre-removal risk assessment (PRRA); paragraph
112(2)(b.1) of the Immigration and Refugee Protection Act, S.C. 2001,
c.27 (Act) precludes access to the PRRA process by individuals from designated
countries of origin who have abandoned their refugee claim until 36 months pass
from the date the refugee claim is declared to be abandoned.
[3]
The appellants moved in the Federal Court for
declaratory relief, arguing that both their removal from Canada without a full
risk assessment being conducted by a competent decision-maker in accordance
with the principles of fundamental justice and paragraph 112(2)(b.1) of
the Act violate rights guaranteed to them by section 7 of the Canadian Charter
of Rights and Freedoms.
[4]
In thorough and thoughtful reasons cited as 2015
FC 774, a judge of the Federal Court dismissed the application. In dismissing
the application the Judge rejected the appellants’ argument that paragraph
112(2)(b.1) is arbitrary and overbroad. The Judge also rejected the argument
that the provision was grossly disproportionate. The Judge certified and stated
the following serious question of general importance:
Does the prohibition contained in section
112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a
Pre-Removal Risk Assessment application until 36 months have passed since the
claim for refugee protection was abandoned, violate section 7 of the Charter?
[5]
This is an appeal from the judgment of the
Federal Court.
[6]
On this appeal the appellants’ argue that the
Judge erred in rejecting their submissions that paragraph 112(2)(b.1) is
arbitrary, overbroad and grossly disproportionate.
[7]
To the extent the appellants reargue points made
to, and rejected by, the Federal Court I reject their submissions. In my view,
the Judge selected the correct standard of review, correctness, and applied it
correctly. I detect no error on the part of the Judge. I reach this conclusion
substantially for the reasons given by the Judge.
[8]
Before us, the appellants placed great reliance
upon R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 and the Chief
Justice’s statement at paragraph 74 to the effect that the requirement in
subsection 117(4) of the Act that the Attorney General authorize prosecutions
for human smuggling under subsection 117(1) of the Act did not cure the
overbreadth problem created by subsection 117(1) of the Act. This was because
so long as subsection 117(1):
… is on the books, and so long as it is not
impossible that the Attorney General could consent to prosecute, a person
who assists a family member or who provides mutual or humanitarian assistance
to an asylum-seeker entering Canada faces a possibility of imprisonment. If
the Attorney General were to authorize prosecution of such an individual,
despite s. 117’s limited purpose, nothing remains in the provision to prevent
conviction and imprisonment. This possibility alone engages s. 7 of the Charter.
[Emphasis added]
[9]
The appellants argue that the possibility that
an enforcement officer will fail to properly consider evidence of risk and fail
to defer removal similarly engages section 7.
[10]
I respectfully disagree on the basis that this
submission fails to take into account the Chief Justice’s explanation at
paragraph 75 of the reasons that:
Implicit in the Court of Appeal’s position
is that the problem of humanitarian workers or family members prosecuted under
s. 117 of the IRPA is a problem of administrative law, and that if a
constitutional attack is to be made, it should be made against improper
exercise of the Attorney General’s duty under s. 117(4) not to prosecute such
persons. I cannot agree. As noted, although the purpose of s. 117 of the IRPA
was not to capture such persons, nothing in the provision actually enacted
disallows it. As a result, an individual charged with an offence under s.
117 would have difficulty challenging the decision. Further, judicial
review of such discretion is not currently available, and there are good
reasons why it may not be desirable. As the Court observed in Anderson,
judicial oversight of Crown decisions whether to prosecute puts at risk the discrete
roles of different actors in our adversarial system: [quotation omitted]
[Emphasis added]
[11]
As can be seen from this passage, a decision of
the Attorney General to authorise prosecution, like an enforcement officer’s
decision not to defer removal, can be made in error. The significant
distinction between the two situations is that, while a mechanism does not
exist to challenge an improper exercise of prosecutorial discretion, as
explained below, a mechanism does exist to challenge an unreasonable decision
of an enforcement officer.
[12]
As this Court recognized in Farhadi v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 646, 257 N.R.
158, at paragraph 3, “a risk assessment and
determination conducted in accordance with the principles of fundamental
justice is a condition precedent to a valid determination to remove an
individual” from Canada.
[13]
In the specific context of an enforcement
officer’s discretion to defer removal, in Baron v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R.
311, at paragraph 51, this Court stated that “deferral
should be reserved for those applications where failure to defer will expose
the applicant to the risk of death, extreme sanction or inhumane treatment”.
[14]
Thereafter, in Canada (Minister of Public
Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286, [2012] 2 F.C.R.
133, at paragraphs 41 and 42, Justice Evans, writing for the Court, observed
that if Mr. Shpati had produced some new (post PRRA) evidence of risk, the
enforcement officer would have been required to consider whether the
evidence warranted deferral and to exercise his discretion accordingly.
[15]
As the Federal Court noted in Etienne v.
Canada (Public Safety and Emergency Preparedness), 2015 FC 415, [2015]
F.C.J. No. 408, at paragraph 48, after this Court’s decision in Shpati,
the Canada Border Services Agency issued Operational Bulletin: PRG-2014-22
entitled “Procedures relating to an officer’s
consideration of new allegations of risk at the deferral of removal stage”.
This bulletin gives enforcement officer’s broader discretion to defer removal
than the discretion described in Shpati:
In the case of
Shpati, the FCA confirmed that deferral should be reserved for those
applications where:
- failure to defer removal will expose the applicant to the risk
of death, extreme sanction or inhumane treatment;
- any risk relied upon must have arisen since the last
Pre-Removal Risk Assessment (PRRA) (or since the last risk assessment); and,
- the alleged risk is of serious personal harm.
Note that
while this case law provides important guidance, officers nevertheless
retain discretion to defer removal in cases where these three elements are not
strictly met. For example, new evidence may substantiate an allegation of risk
that was previously considered. Similarly, evidence that pre-dates the last
risk assessment may arise for which there are reasons it was not presented
before the last risk assessment.
[Emphasis
added]
[16]
Enforcement officers are instructed to “consider/assess the evidence submitted, when there are
allegations of risk to the applicant upon execution of their removal order”.
When an officer concludes that deferral of removal is warranted, the
allegations of risk are to be forwarded to Citizenship and Immigration Canada,
now Immigration, Refugees and Citizenship Canada, for consideration under
section 25.1 of the Act. Among other things, section 25.1 allows the Minister,
on his own initiative, to exempt a foreign national from the application of the
PRRA bar contained in paragraph 112(2)(b.1) of the Act.
[17]
As the Judge noted at paragraph 101 of her
reasons, the appellants, and all similarly situated persons, may challenge an
enforcement officer’s refusal to defer by way of an application for leave and
judicial review in the Federal Court, and may bring a motion for a stay of
removal pending the outcome of their application for judicial review. The
Federal Court can often consider a request for a stay of removal in a more
comprehensive manner than an enforcement officer can consider a request for
deferral (Shpati, at paragraph 51).
[18]
These rights are not illusory, as demonstrated
by the following review of some of the jurisprudence of the Federal Court.
[19]
In Ragupathy v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 1370, 303 F.T.R. 178, the
applicant submitted considerable evidence of changes in conditions in Sri Lanka
that occurred after his risk upon removal was assessed in a danger opinion. The
Federal Court found that the risk alleged was both obvious and very serious.
While the enforcement officer had correctly determined that at law the
applicant was not entitled to a PRRA, the Federal Court found that the
enforcement officer possessed discretion to defer the applicants’ removal and
that the officer’s decision not to defer removal was unreasonable. The applicant
was not to be removed until the risk he feared of persecution, torture or other
inhumane punishment or treatment was reassessed by the Minister’s delegate.
[20]
In Toth v. Canada (Public Safety and
Emergency Preparedness), 2012 FC 1051, 417 F.T.R. 279, the Federal Court
held, at paragraph 23, that if there is evidence either of changed
circumstances of an applicant, or of changed conditions within the country the
applicant is to be removed to, with the result that the applicant faces a new
or increased risk that has not previously been assessed, or the ability of the
state to provide protection has been compromised, “the
enforcement officer must assess that risk and determine if a deferral of
removal is warranted.”. [Emphasis added].
[21]
To similar effect, in Kopalakirusnan v.
Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 330
an enforcement officer refused to defer the applicant’s removal until he was
eligible for a PRRA. The Federal Court stayed the applicant’s removal, stating
at paragraph 7 of the reasons that, subsequent to an assessment of risk,
circumstances may arise that call into question whether an applicant can be
removed in a manner that is Charter compliant. An applicant is entitled
to adduce evidence of this and “if there is clear and
compelling evidence that either the applicant’s circumstances have changed or
that the conditions in the country to which he is being returned have changed
or deteriorated such that the applicant faces a risk of inhumane treatment or
death, the applicant is entitled to have his risk assessed in light of that new
evidence”. Moreover, the evidence in support of the risk need not be
conclusive. The mere fact that the evidence involves an element of speculation
is not determinative.
[22]
Finally, in Etienne an enforcement
officer again refused a request to defer removal. The Federal Court set aside
the officer’s decision, stating that when the enforcement officer determined
that the applicants would not be removed to the internal flight alternative
identified by the Refugee Protection Division of the Immigration and Refugee
Board, the officer was required to consider and assess the evidence presented,
and if the evidence showed that the applicants might be at risk in the country
they were to be removed to, the officer “was required
to defer removal in order that the risk could be assessed” [Emphasis
added] (reasons, at paragraph 53). The Federal Court went on to note that the
risk the enforcement officer was required to consider was not restricted to a “new” risk in the sense that it arose after a refugee
determination or other process. Rather, the risks an enforcement officer is
required to consider include risks that have never been assessed by a competent
decision-maker (reasons, at paragraph 54).
[23]
In my view, this jurisprudence demonstrates that
the supervisory role of the Federal Court, together with the ability of the
Minister to exempt an applicant from the application of paragraph 112(2)(b.1)
of the Act, acts as a “safety valve” such that
the PRRA bar under review is not overbroad, arbitrary or grossly
disproportionate.
[24]
On appeal, the appellants make three additional arguments
that were not advanced or not dealt with in the Federal Court. They argue that:
i)
It is 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 conforms to the basic
principles of fairness, including the ability to convene an oral hearing if
credibility is in issue.
ii)
The Judge erred by categorizing their criticism
of the decision of the enforcement officer not to defer their removal from
Canada to be a collateral attack on that decision. The appellants acknowledge
the finality of the enforcement officer’s decision. The fact the officer
arguably made credibility findings in the absence of an oral hearing is said to
underscore the constitutional frailties of the current legislative scheme
iii)
The Judge erred by relying extensively upon the
decision of the Federal Court in Peter v. Canada (Public Safety and
Emergency Preparedness) 2014 FC 1073, 13 Imm. L.R. (4th) 169 – a decision
found to be “flawed” by this Court on appeal
(2016 FCA 51, [2016] F.C.J. No. 173, at paragraph 15).
[25]
In my view, none of these submissions assist the
appellants. I reach this conclusion for the following reasons.
[26]
The principle of fundamental justice articulated
by the appellants has not, to this point in time, been recognized. It follows that
the appellants must establish that it is a legal principle, that there is a
significant consensus that the alleged principle “is
vital or fundamental to our social notion of justice” and that the
principal is capable of being identified “with precision
and applied to situations in a manner that yields predictable results” (Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
2004 SCC 4, [2004] 1 S.C.R. 76, at paragraph 8).
[27]
The appellants have failed to demonstrate that
the alleged principle is a fundamental principle of justice because, contrary
to the appellants’ submission, it articulates a process whereby a single
decision-maker is required to assess risk (as opposed to a different process such
as one where, as now, an enforcement officer assesses the sufficiency of the
evidence of risk, and if satisfied the evidence is sufficient, defers removal
and refers the risk assessment to another decision-maker). It follows that the
asserted principle runs contrary to the jurisprudence of the Supreme Court that
section 7 does not require a particular type of process; it requires a fair
process having regard to the nature of the proceedings and the interest at
stake (see, for example, Charkaoui v. Canada (Citizenship and Immigration),
2007 SCC 9, [2007] 1 S.C.R. 350, at paragraph 20).
[28]
In any event, I am not persuaded that this
argument adds anything of substance to the appellants’ submission that both
their removal from Canada without a full assessment of risk and paragraph
112(2)(b.1) violate section 7 of the Charter.
[29]
With respect to the second argument advanced by
the appellants, I accept that the enforcement officer may well have
impermissibly made negative credibility findings on the basis of written
submissions when refusing to defer their removal from Canada. The appellants,
however, failed to perfect an application for judicial review of that decision.
I also accept that at paragraph 95 of her reasons, the Judge noted that the
appellants were essentially trying to mount a collateral attack on the
enforcement officer’s decision.
[30]
However, prior to this, at paragraph 94 of her
reasons, the Judge observed that the application before her was not an
application for judicial review of the enforcement officer’s decision refusing
to defer removal. The Judge then stated, in my view correctly, that the “question in this application is not whether the [appellants’]
section 7 Charter rights were violated by the way that this particular
enforcement officer assessed their evidence of risk, but whether the PRRA bar
in paragraph 112(2)(b.1) of [the Immigration and Refugee Protection Act] is
constitutionally valid”. This distinction is consistent with situations
where legislation is found to be constitutional, but the manner in which state
officials have exercised authority conferred by that legislation is found to be
unconstitutional. In my view, this is a complete answer to the appellants’
argument that their submission was mischaracterized by the Judge.
[31]
Additionally on this point, I reject the notion
that, if an enforcement officer were to make negative credibility findings on
the basis of written submissions, the Federal Court could nonetheless find the
decision to be reasonable. As the Judge noted at paragraph 93 of her reasons,
enforcement officers should limit themselves to considering the sufficiency of
the evidence before them. Citing Singh v. Canada (Minister of Employment and
Immigration), [1985] 1 S.C.R. 177, [1985] S.C.J. No. 11, at paragraph 59, the
Judge stated that the Supreme Court “has held that in
light of the important interest at stake in risk-based claims, where a serious
issue of credibility arises, ‘fundamental justice requires that credibility be
determined on the basis of an oral hearing’”.
[32]
In view of the decision of the Supreme Court in Singh,
an enforcement officer cannot reasonably make credibility findings in the
absence of an interview.
[33]
As counsel for the Minister noted in oral
argument, nothing precludes an enforcement officer from interviewing a person
who has requested that their removal be deferred, and officers do so from time
to time.
[34]
The appellants’ final argument is to the effect
that given the Judge’s reliance on the reasoning in Peter, and given
this Court’s determination that the decision was flawed, the present decision
ought to be overturned.
[35]
There are two answers to this submission.
[36]
First, in Peter this Court did not find
the Federal Court’s Charter analysis to be incorrect. Rather, it found
that the Federal Court ought not to have embarked on its Charter analysis
at all when it was not supported by a proper evidentiary record (Federal Court
of Appeal reasons, at paragraph 22).
[37]
Second, the Judge did not base her analysis upon
the Peter decision. As her reasons amply demonstrate, the Judge
conducted her own independent consideration of the scheme of the Act and the
relevant jurisprudence.
[38]
For these reasons, I would dismiss the appeal. I
would answer the certified question as follows:
Question: Does the prohibition contained in
section 112(2)(b.1) of the Immigration and Refugee Protection Act against
bringing a Pre-Removal Risk Assessment application until 36 months have passed
since the claim for refugee protection was abandoned, violate section 7 of the Charter?
Answer: No.
“Eleanor R. Dawson”
“I agree
D.G. Near J.A.”
“I agree
Richard Boivin
J.A.”
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