Dockets: A-545-14
A-546-14
Citation:
2016 FCA 51
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CORAM:
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DAWSON J.A.
WEBB J.A.
RENNIE J.A.
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Docket:A-545-14
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BETWEEN:
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EMELIAN PETER
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Appellant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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Docket:A-546-14
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AND BETWEEN:
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SURESHKUMAR
SAVUNTHARARASA
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Appellant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
Subject to certain exemptions and exceptions not
relevant to these appeals, paragraph 112(2)(b.1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) prohibits a person from
applying for a pre-removal risk assessment (PRRA) if a specified period of time
has not elapsed since the person’s claim for refugee protection was last
rejected. The specified period of time is 12 months, unless the person is a
national of a designated country of origin. For nationals of designated
countries of origin, 36 months must elapse from the last rejection of their
refugee claim before an application for a PRRA may be made.
I.
Background Facts
[2]
The appellants are Tamils from Sri Lanka whose
claims to refugee protection were denied by the Refugee Protection Division of
the Immigration and Refugee Board of Canada on the basis that, as a result of
changes in country conditions in Sri Lanka, each failed to demonstrate that if
returned to Sri Lanka he would face a serious possibility of persecution.
Additionally, the Refugee Protection Division found that Mr. Peter failed to
provide sufficient credible and trustworthy evidence in support of his claim,
and that Mr. Savunthararasa’s testimony was not
“generally credible”.
[3]
Following their failed refugee claims, each
appellant was scheduled to be removed from Canada. Each appellant sought to
have his removal deferred, submitting that new evidence of risk was available
that had not been put in evidence before the Refugee Protection Division. Thus,
in his request for deferral, each appellant requested that his removal be
deferred pending an assessment of the risks he faced in light of the new
evidence of risk. Each request for deferral was supported by extensive
documentation about conditions in Sri Lanka.
[4]
Each request for deferral was denied by an
enforcement officer of the Canada Border Services Agency.
[5]
Subsequently, each appellant commenced an
application for judicial review of the decision refusing to defer his removal.
Each sought and obtained an order staying his removal pending determination of
his application for judicial review. Thereafter, each appellant obtained an
order granting leave to judicially review the decision of the enforcement
officer refusing to defer his removal from Canada.
[6]
The appellants’ applications for judicial review
were heard together by the Federal Court. On their applications, the appellants
argued that both paragraph 112(2)(b.1) of the Act and the “removals process” violated rights they possessed
that were protected by section 7 of the Canadian Charter of Rights and
Freedoms. Of particular concern was the limited discretion to defer removal
reposed in enforcement officers.
[7]
It is common ground that, based upon
jurisprudence of this Court, when evidence of some new risk is put forward, an
enforcement officer may defer removal when the failure to defer will expose the
person seeking deferral to a risk of serious personal harm. More specifically,
an enforcement officer may defer removal where an applicant establishes a risk
of death, extreme sanction or inhumane treatment that has arisen since the last
assessment of risk (Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, at paragraph 51; Canada
(Public Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286, [2012]
2 F.C.R. 133, at paragraphs 41-43). Enforcement officers are not to
conduct a full assessment of the alleged risks, nor come to a conclusion as to
whether the person is at risk. Rather, officers are to consider and assess the
risk-related evidence in order to decide whether deferring removal is warranted
in order to allow a full assessment of risk.
[8]
In the appellants’ submission, section 7 of the
Charter is engaged when a person claims he will be at
“risk of harm” if removed from Canada. Further, the “risk of harm” which engages section 7 is broad
enough to encompass the kinds of risks assessed under both section 96 of the
Act (a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion) and
section 97 of the Act (a risk of torture or a risk to life or a risk of cruel
and unusual treatment or punishment). The appellants argue that enforcement
officers do not, and are not permitted to, assess this full spectrum of risk.
[9]
The appellants framed two issues before the
Federal Court. First, does paragraph 112(2)(b.1) of the Act
infringe section 7 of the Charter? Second, does the removals process violate
section 7 of the Charter?
[10]
For reasons cited as 2014 FC 1073, a judge of
the Federal Court found that both paragraph 112(2)(b.1) of the Act
and the removals process comply with section 7 of the Charter. The Judge also
found the decision refusing each appellant’s request to defer removal was
reasonable. The Judge certified two questions of general importance:
1.
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 12 months have passed
since the claim for refugee protection was last rejected infringe section 7 of
the Charter?
2.
If not, does the present removals process,
employed within 12 months of a refugee claim being last rejected, when
determining whether to defer removal at the request of an unsuccessful refugee
claimant for the purpose of permitting a Pre-Removal Risk Assessment
application to be advanced, infringe section 7 of the Charter?
[11]
These are the appeals from the judgments of the
Federal Court dismissing each application for judicial review. The appeals were
heard together, accordingly a copy of these reasons will be placed on each
file.
II.
The Issue
[12]
I would frame the issue raised by the appellants
in this appeal to be whether the Federal Court erred in its analysis of whether
the removals process infringes section 7 of the Charter?
[13]
In framing the issue in this fashion, I note
that the Federal Court found paragraph 112(2)(b.1) of the Act to be
Charter-compliant on the basis that the removals process could be carried out
in a manner that was in accordance with the requirements of the Charter
(reasons at paragraphs 86, 97-98). The appellants do not take issue with this
conclusion (appellants’ joint memorandum of fact and law at paragraph 27).
[14]
The appellants view the decision of the Federal
Court to be so flawed that they do not put in issue the finding of the Federal
Court that the enforcement officers’ decisions were reasonable.
[15]
I agree that the analysis of the Federal Court
was flawed. I reach this conclusion on the following basis.
III.
Analysis
[16]
It is well-settled law that Charter issues must
not be decided in a factual vacuum. Illustrative of this principle is Justice
Cory’s comment in MacKay v. Manitoba that to attempt to decide Charter
issues without a proper evidentiary record “would
trivialize the Charter and inevitably result in ill-considered opinions.
The presentation of facts […] is essential to a proper consideration of Charter
issues” (MacKay v. Manitoba, [1989] 2 S.C.R. 357 at page 361,
61 D.L.R. (4th) 385).
[17]
In the present case, the Judge made the
following findings of mixed fact and law:
•
The risk of harm asserted by each appellant
would fall within the scope of risk that would be assessed by an enforcement
officer (reasons at paragraph 203).
•
The appellants’ allegations of a well-founded
fear of persecution upon return to Sri Lanka “would be
directly related to detention and physical harm that reaches a threshold which
is to be assessed” under the test applied by enforcement officers
(reasons at paragraph 213).
•
The appellants “describe
risks which are in the nature of extreme sanctions or inhumane treatment, both
of which are assessed under section 97 of the [Immigration and Refugee
Protection Act]. One would have thought that in a test case, the facts
demonstrating the failure to test for section 96 [Immigration and Refugee
Protection Act] factors would have been in plain evidence before the Court”
(reasons at paragraph 223).
•
The appellant, Mr. Peter
“is making a novel argument on a test that has been employed for over a decade
and is not advancing facts that permit the Court to consider whether any
allegedly unassessed risk of persecution would nevertheless fall into the
category of ‘inhumane treatment’” (reasons at paragraph 235).
[18]
The appellants have not demonstrated that these
findings are vitiated by any palpable and overriding error of fact or mixed
fact and law, or any extricable legal error.
[19]
These findings are wholly consistent with the
risks identified by each appellant in his submission to the enforcement officer
requesting deferral.
[20]
Thus, the new risks asserted by Mr. Peter arose
from his profile as a former employee of the international aid agency CARE and
his profile as a member of a family known to authorities whose members had been
investigated by the Terrorist Investigation Division (Peter Appeal Book, Tab 11
at page 234). Based on these profiles, Mr. Peter was said to face a risk of
torture, arbitrary arrest and detention, kidnapping, extortion, and murder
(Peter Appeal Book, Tab 11 at page 239). Based on the country condition
documentation, these risks would fall within the ambit of extreme sanctions or
inhumane treatment.
[21]
Similarly, Mr. Savunthararasa submitted he faced
risks arising from his profile as a “young Tamil male
from the north, who has spent time abroad, and who is a refused refugee
claimant in Canada” (Savunthararasa Appeal Book, Tab 7 at page 47). He
submitted that removal to Sri Lanka would expose him
“to risk of death, extreme sanction, or cruel and inhumane treatment”
(Savunthararasa Appeal Book, Tab 7 at page 41).
[22]
In these circumstances, the Judge ought not to have
embarked on his lengthy Charter analysis unsupported by a proper evidentiary
record. This error is sufficient to dispose of these appeals. It follows that
any comments or analysis beyond the Judge’s findings quoted above at paragraph 16
are obiter dicta and these reasons should not be read as endorsing the
Judge’s obiter comments. This particularly applies to the Judge’s
concern about the need for greater clarity about the nature of the harm that at
law constitutes a well-founded fear for the purpose of defining persecution.
[23]
This said, I am mindful that these appeals were
viewed effectively to be test cases on the validity of paragraph 112(2)(b.1)
of the Act. In the event this issue is to be re-litigated, I offer the
following comments on the nature of the required analysis.
[24]
In these proceedings, the evidence of risk of
harm was in largest part found in the extensive documentation submitted by the
appellants that set out country conditions in Sri Lanka. Such documentation is in
part conflicting and deals with a panoply of circumstances including, for
example, information concerning restrictions on the cultural life of members of
the Tamil community. In this circumstance, it is incumbent on a judge hearing
an application for judicial review to make clear findings as to the nature and
scope of the risk of harm an applicant would face on return to his country of
origin.
[25]
Once the nature and scope of the risk faced has
been clearly delineated, a judge should consider and make findings about which,
if any, risks faced would not be assessed by an enforcement officer considering
a request to defer removal.
[26]
If an applicant for deferral is found to face a
risk of harm that would not be assessed by an enforcement officer, a judge should
next consider whether in the circumstances section 7 of the Charter is engaged.
[27]
In Singh v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, in
order to decide whether the appellants had been deprived of the right to life,
liberty or security of the person, the Court began by determining which rights
the appellants possessed under the applicable immigration legislation. Those
rights were found to be the right to a determination on proper principles as to
whether a permit should issue allowing the appellants, as persons claiming
refugee status, to enter and remain in Canada, the right not to be returned to
a country where the appellants’ life or freedom would be threatened, and the
right to appeal a removal or deportation order made against them.
[28]
Once the rights possessed by the appellants as
refugee claimants were identified, the inquiry turned to whether the
deprivation of those rights constituted a deprivation of the right to life,
liberty and security of the person within the meaning of section 7 of the
Charter. The Court concluded that security of the person encompassed “freedom from the threat of physical punishment or suffering
as well as freedom from such punishment itself” (Singh at page
207). The Court expressly left open the question of whether a more expansive
approach to security of the person should be taken (Singh at page 207).
[29]
Because the Court left this question open, in
the context of a claim asserting a broader concept of security of the person,
the Federal Court must be mindful of the need to properly analyze at the first
stage of the section 7 analysis whether the removals scheme imposes limits on
the security of the person, thus engaging section 7 of the Charter.
[30]
If section 7 is found to be engaged, the inquiry
moves to the second stage of the section 7 analysis: the determination of
whether the deprivation of the claimant’s security of the person is in
accordance with the principles of fundamental justice.
[31]
At this stage, the need for clear findings of
fact is reinforced because what is required by the principles of fundamental
justice must be determined in the context of the specific fact situation (Suresh
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002]
1 S.C.R. 3, at paragraph 113). This is because the greater the effect on the
life of the individual by impugned legislation or state action, “the greater the need for procedural protections to meet the
common law duty of fairness and the requirements of fundamental justice under s.
7 of the Charter” (Suresh at paragraph 118).
IV.
Conclusion
[32]
In his judgments, the Judge dismissed each
application for judicial review and certified two questions. As the appellants
have failed to show the Judge erred in his finding that they presented no
evidence of risks they face that would not be assessed by an enforcement
officer, I would dismiss these appeals. The certified questions should not be
answered because they do not arise on the record.
“Eleanor R. Dawson”
“I agree.
Wyman W. Webb J.A.”
“I agree.
Donald J. Rennie J.A.”
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