Mar 1, 2016

In February, the Federal Court of Appeal released its much anticipated decision in Savunthararasa v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 51. This case (and the joint case of Peter v. Canada) have been eagerly followed by the refugee law community. In essence, the cases challenged section 112(2)(b.1), a relatively recent provision of the Immigration and Refugee Protection Act that requires a mandatory 12 month waiting period (or 36 months in some cases) before a Pre-Removal Risk Application (PRRA) can be made after a final determination of a rejected refugee claim. Generally, a PRRA is another application for protected person status on the basis of new evidence, evidence that was not previously available, or a change in circumstance since the original refugee hearing. This waiting period has been characterized as the “PRRA bar”.

In this case, two individuals had their refugee claim rejected by the Refugee Protection Division. They requested that an enforcement officer defer a removal based on new evidence; this request was denied. On judicial review, they challenged section 112(2)(b.1) and the removals process as violating section 7 of the Canadian Charter of Rights and Freedoms: the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Federal Court rejected the Charter argument, but certified the Charter questions so that an appeal could be made to the Federal Court of Appeal. In turn, the Federal Court of Appeal not only dismissed the appeal, but refused to answer the question of whether there was a violation of section 7 because of what the panel deemed to be a lacking evidentiary record. Instead, the Federal Court of Appeal was critical of the Federal Court Judge for “hav[ing] embarked on his lengthy Charter analysis unsupported by a proper evidentiary record”.

The circumstances of this decision are aggravating. It is certainly preferable to have the Federal Court of Appeal reject the temptation to provide a negative finding on the issue. That being said, it is not difficult to imagine scenarios where individuals are at risk of deportation to countries where there is a very real risk of persecution, torture, or cruel and unusual treatment or punishment within the twelve month (or thirty-six month) waiting period. In such cases, one would hope that a deferral request is granted. However, if denied, Canada potentially violates the principle of non-refoulement. It is therefore exasperating that refugee law advocates must now wait for another case to be argued before the Federal Court of Appeal so that this issue is finally resolved on an appellate level and potentially protected persons are precluded from being deported.