Refugee Class

Finding and using case law is an essential skill for immigration practitioners.

This article introduces a case that interprets three important immigration matters: the task of a pre-removal risk assessment officer, the Minister’s obligation under section 25.2 of IRPA, and section 7 of the Charter analysis principles.

Mr. and Mrs. Tapambwa are a couple from Zimbabwe who both served in the Zimbabwe National Army. They claimed refugee protection in Canada in 2011. The Refugee Protection Division (RPD) concluded that there were serious reasons to believe that they were complicit in crimes against humanity committed by the Zimbabwe National Army and thus were excluded from refugee protection. The RPD also concluded that neither they nor their children would face a personalized risk to their lives or to cruel and unusual treatment. Therefore, the RPD refused their refugee claims on the basis that they are neither Convention refugees prescribed in section 96 of IRPA nor persons in need of protection prescribed in section 97 of IRPA.

They were also found inadmissible for crimes against humanity and were issued a removal order by the Immigration Division (ID). When faced with the removal order, the couple applied for a pre-removal risk assessment (PRRA). The PRRA officer conducted a restricted PRRA, which was based on the risks prescribed in section 97 of IRPA and whether they were a danger to the security of Canada. Their PRRA was refused on the grounds that they would not face the risks enumerated in either Convention refugee or person in need of protection.

They sought judicial review in response to their negative PRRA. The Federal Court dismissed their judicial review but certified the following three questions (2017 FC 522) raised by the couple and eventually answered by the Federal Court of Appeal (FCA) in negative.

a.       Do ss. 112(3)(a) and (c) of the IRPA require the Minister, when conducting a PRRA, to confirm that there remains a substantive basis for excluding the applicant from refugee protection?

b.      If not, does s. 25.2 of the IRPA provide the Minister discretion, in the absence of a pre-established policy, to exempt a person making an application for protection under s. 112 of the IRPA from the restrictions that flow from s. 112(3) of the IRPA, which discretion obliges the Minister to consider and make a decision on a request that such discretion be exercised?

c.       If not, does the combined effect of ss. 112(3)(a) and (c), 113(d) and 114 of the IRPA violate s. 7 of the Charter insofar as it deprives an applicant of the right to be recognized as a refugee without confirmation that there remains a substantive basis for excluding the applicant from refugee protection?

1. The task of a PRRA officer is to consider whether the risks had changed on new evidence or a change in country conditions.

The first question was raised by the applicants on the basis that the situations prescribed in paragraphs 112(3) (a) and (c) where refugee protection may not be conferred are ambiguous on whether a PRRA officer can make a fresh assessment of exclusion and inadmissibility. If they are authorized to do so, then a PRRA is to make a de novo determination of the claim rejected by the RPD as well as the previous admissibility determination. The FCA gave a firm negative answer to the question. The Court affirmed that a PRRA officer does not have the authority to reconsider a prior inadmissibility finding. The RPD’s exclusion determination is conclusive unless set aside by the Federal Court. The FCA made it clear that IRPA does not give a PRRA officer authority to reverse an inadmissibility or exclusion finding.

Furthermore, the FCA concluded that though section 25.1 of IRPA grants the Minister the discretion of considering humanitarian and compassionate (H&C) relief on their initiative, a PRRA officer does not have the legal authority to invoke such discretion on their own initiative to grant an exemption for a restricted PRRA on H&C grounds.

2. When there is a change in law, the Minister is not obliged to establish a public policy under section 25.2 of IRPA

Before the applicants applied for a PRRA, the Supreme Court of Canada (SCC) released a decision, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40. The decision changed the test for complicity in crimes against humanity from “complicity by association” to “complicity by contribution.” The new test requires a finding of a claimant making a “significant and knowing contribution” to an organization’s crime or criminal purpose before they can be excluded according to Article 1F(a); namely, they have committed a crime against peace, a war crime, or a crime against humanity.

According to section 25.2 of IRPA, the Minister may introduce public policies on H&C grounds. As both the RPD’s exclusion determination and the ID’s inadmissibility finding concerning the applicants were concluded before the change of the test, the applicants argued that the Minister is obliged to exercise discretion to establish a public policy under section 25.2 of IRPA to exempt them from a restricted PRRA. The Court examined the wording and Parliament’s intention of section 25.2 of IRPA and concluded that the provision adopts the word “may,” which means it is not mandatory for the Minister to initiate a public policy in the circumstance of a change of law.

3. Three principles frame the analysis concerning section 7 of the Charter

The applicant contended that the absence of risk assessment against section 96 of IRPA violates section 7 of the Charter, life, liberty, and security of person. The Court reiterated the three principles for section 7 of the Charter engagement analysis.

First, the restricted PRRA scheme does not violate section 7 of the Charter. It has been established by the SCC in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1. Second, the SCC held in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 that the Charter does not provide a positive right to refugee protection. Third, the SCC in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 held that section 7 of the Charter is not engaged by an inadmissibility or exclusion finding. Based on the three principles, the applicants’ assertion failed. Judicial review is a mechanism to oversee the decisions made by the Minister, the officers, as well as the members of the Immigration and Refugee Board and the courts have the inherent authority to interpret IRPA and IRPR. As such, immigration practitioners should pay adequate attention to case law to keep abreast of the changes of law. The explained case, which clarifies three important immigration matters, is a good example to show the importance of case law.

This article is for information purposes only and should not be considered legal advice. For details on the three immigration matters interpreted by the case law, refer to Tapambwa v. Canada (Minister of Citizenship and Immigration), 2019 FCA 34 and the applicable provisions of IRPA and IRPR as well as the Charter.