Pre-Removal Risk Assessment (PRRA) in Canada

What is a pre-removal risk assessment (PRRA) in Canada?

A PRRA is an application for protection made to the Minister of Immigration by a person who is in Canada and whose removal order has come into force. It is the way the law lets someone have the risk of return looked at before they are actually removed (IRPA s. 112(1)).

The word "protection" matters. If a PRRA succeeds, it can lead to refugee protection, or, for people caught by certain restrictions, to a stay of the removal order for a particular country (IRPA s. 114(1)). It is not a general humanitarian request. Humanitarian and compassionate considerations are dealt with under a different provision of the Act (IRPA s. 25(1)).

Who can apply for a PRRA?

The starting point is a person in Canada whose removal order has taken effect. Persons who are already protected persons, or who are recognized as refugees by another country they could be sent to, are dealt with under a separate rule against removal to danger (IRPA ss. 112(1) and 115(1)).

Under the Regulations, a person applies after the Department notifies them that they may do so. That notice must be given before removal from Canada. It counts as given when the application form is handed over, or seven days after it is mailed to the last address the person gave (IRPR s. 160(1), (3) and (4)).

When is a PRRA application not allowed?

The Act lists situations where a person may not apply at all (IRPA s. 112(2)). In plain terms, they include:

• an extradition process that has reached the "authority to proceed" stage;
• a refugee claim that was found ineligible;
• a recent refugee claim rejection, withdrawal or abandonment, until 12 months have passed (with some listed exceptions, such as certain deemed rejections and rejections under Article 1E or 1F of the Refugee Convention); and
• a recent PRRA rejection, withdrawal or abandonment, until 12 months have passed.

For nationals of a country designated under IRPA s. 109.1(1), the 12-month period becomes 36 months. The Minister can also exempt the nationals of a country, or a defined group of them, from the waiting period (IRPA s. 112(2.1)). Counting the waiting period is not always simple. Where there was an appeal or a Federal Court application, the clock can run from a later date than the original rejection, so the exact date should be confirmed by a lawyer.

Does a PRRA stop removal?

Sometimes, but not always. This is the point people most often misunderstand.

The stay that does apply ends at the earliest of several events, including a written statement that the person will not apply, a missed filing period, or a rejection of the application (IRPR s. 232).

What risk does the officer assess?

For most applicants the officer looks at the same grounds that apply to refugee claims: whether the person fits the Convention refugee definition (s. 96) or the definition of a person in need of protection (s. 97) (IRPA s. 113(c), which refers to ss. 96 to 98).

• Section 96 concerns a well-founded fear of persecution connected to the person's race, religion, nationality, political views, or social group.
• Section 97 concerns a personal danger of torture, or a risk to life or of cruel and unusual treatment or punishment, with several conditions set out in the section.

Some applicants face restrictions, for example certain serious criminality, security or exclusion findings (IRPA s. 112(3)). For most of them, the assessment is based on s. 97 and on an added weighing of danger or the nature of past acts; for some serious-criminality applicants described in s. 113(e), ss. 96 to 98 are considered together with that weighing (IRPA s. 113(d) and (e)). Before deciding, the Minister considers written assessments given to them and any written response received within 15 days (IRPR s. 172(1)).

What evidence counts in a PRRA?

If the person's refugee claim was rejected, the PRRA is not a second chance to repeat the same story. The Act allows only new evidence: evidence that came into existence after the rejection, or that was out of reach or could not fairly have been expected to be offered earlier (IRPA s. 113(a)).

Written submissions are allowed, and the applicant may be assisted by a lawyer or other counsel at their own expense. Where submissions are made, the applicant must point out which evidence is new and how it relates to them (IRPR s. 161(1) and (2)).

Is there a hearing?

Whether to hold a hearing is left to the Minister, who applies prescribed factors (IRPA s. 113(b)). A hearing is therefore generally not automatic, although the Act makes one mandatory in one narrow case involving a particular ineligibility finding (IRPA s. 113.01). The factors are:

1. whether there is evidence raising a serious credibility issue connected to ss. 96 and 97;
2. whether that evidence is central to the decision; and
3. whether, if accepted, it would justify allowing the application (IRPR s. 167).

If a hearing is held, the applicant is given notice of the time, place and issues of fact. The hearing is limited to those issues unless others arise, and the applicant answers the officer's questions. Evidence from anyone else must be in writing (IRPR s. 168).

What happens after a PRRA decision?

If the application is allowed, the decision has the effect of conferring refugee protection (IRPA s. 114(1)(a)). For applicants with the restrictions described above, the result is a stay of the removal order for the country or place where the risk was found (IRPA s. 114(1)). That stay can later be re-examined and cancelled if circumstances change (IRPA s. 114(2)). A positive decision can also be vacated if it was obtained by misrepresenting or withholding material facts (IRPA s. 114(3)).

An application is treated as rejected if it is refused, withdrawn or declared abandoned (IRPR s. 171). On request, the applicant is entitled to receive the officer's file notes explaining the decision (IRPR s. 174).

PRRA refused: what are the options?

Judicial review in the Federal Court is one route. It starts with an application for leave, which in a matter arising in Canada must be served and filed within 15 days after the person is notified of, or otherwise becomes aware of, the decision (IRPA s. 72(1) and (2)(b)). A judge may allow more time for special reasons (IRPA s. 72(2)(c)). Whether that could apply is a question for a lawyer, not a safe assumption.

The standard of review the Court applies to an officer's decision is explained in Vavilov. What the Court can review, and what it can order, should be confirmed with a lawyer.

The automatic stay for judicial review in IRPR s. 231 is written for certain Refugee Appeal Division decisions, and its text does not mention a PRRA decision. A rejected PRRA also ends the PRRA stay (IRPR s. 232), so whether removal can be paused during a court challenge depends on a separate request to the Court (a stay motion). The test applied to those motions comes from Toth and RJR-MacDonald, and is covered in the guide on emergency stays. The wider court process is covered in judicial review at the Federal Court. Where a removal order itself can be appealed, an appeal to the Immigration Appeal Division is a separate path.

When it is worth talking to a lawyer

A person in this position typically benefits from legal advice when:

• a notice that they may apply for protection has been handed over or mailed;
• a removal date, a direction to report, or a removal order has been issued;
• a PRRA decision has been received, which starts a very short court deadline;
• a refugee claim was rejected, withdrawn or abandoned and the waiting period needs to be counted;
• new risk evidence has appeared since the earlier decision; or
• there is a criminality or security issue that may affect which assessment applies.

What to gather

• The removal order and all notices from CBSA or IRCC, including the PRRA form and envelope
• The decisions and reasons from any earlier refugee claim, appeal or Federal Court proceeding
• Identity and travel documents
• Evidence of risk that is dated after the earlier decision (reports, threats, summonses, medical or police records)
• Country information that links to the person's own situation
• Proof of the date and manner in which each notice was received