May 14, 2019
Recent Case Regarding Reconsideration of Certain Prior Exclusions Under the Refugee Convention by PRRA Officers
Tapambwa v Canada (Citizenship and Immigration)[1], a recent Federal Court of Appeal (FCA) decision, discusses the authority of officers charged with deciding a Pre-Removal Risk Assessment (PRRA) when the applicant was previously found to be excluded from refugee protection under Article 1(F)(a) of the Refugee Convention. The Appellants, a married couple who are citizens of Zimbabwe and former members of the Zimbabwe National Army, sought leave to appeal to the Supreme Court of Canada on 16 April 2019 and are currently awaiting a decision. The FCA held, in responding to one of three questions certified by the Federal Court, that the PRRA officer did not have the authority to reassess the exclusion finding. The Honourable Justice Donald J. Rennie, wrote the following for the FCA regarding the officer’s authority with regard to relevant provision of the Immigration and Refugee Protection Act (IRPA):
The text of subsection 112(3) and the scheme of the IRPA demonstrate that there is no authority in a PRRA officer to reconsider an exclusion finding. The appellants’ interpretation rests on a de-contextualized reading of subsection 112(3), does not take account of the architecture of the IRPA and seeks to give subsection 112(3) an interpretation which it is incapable of bearing.[2]
The Appellants in Tapambwa feared persecution on account of political opinion and believed that their and their children’s lives would be at risk if returned to Zimbabwe. They had made refugee claims in Canada in July 2011. However, the Refugee Protection Division (RPD) found in November 2012 that the couple was complicit in crimes against humanity, leading to their exclusion from refugee protection pursuant to Article 1(F). They applied for judicial review of the RPD decision but the application was dismissed on 11 July 2013. After being ordered to leave Canada on the basis that they were inadmissible for crimes against humanity, they applied for a PRRA to stop their removal and asked the PRRA officer to revisit the finding that they were excluded from refugee protection due to complicity in crimes against humanity. The basis for reconsideration of the complicity issue was the Supreme Court of Canada’s decision in Ezokola v. Canada (Citizenship and Immigration), [3] which was released on 19 July 2013 and reformulated the test for complicity. The PRRA application was unsuccessful, leading the couple to challenge the decision at the Federal Court.[4]
Article 1(F)(a) of the Convention concerns individuals who have committed a crime against peace, war crime or crime against humanity. Those excluded under Article 1(F)(a), are only entitled to a restricted PRRA, meaning that the officer must only assess new (after the refugee claim was rejected) evidence or facts concerning whether the applicants were personally in danger of torture, or faced “a risk to their life or to a risk of cruel and unusual treatment or punishment”. Unlike many other PRRA applications, in cases of exclusion under Article 1(F)(a) officers are not required to also consider new facts or evidence regarding the risk of persecution.
We look forward to reading the Supreme Court of Canada’s opinion on the officer’s authority in regards to PRRA applications regarding persons excluded under Article 1(F), should Canada’s highest court grant leave in Tapambwa.