Federal Appeal


Immigration and Citizenship

Refugee protection

Removal

Applicants' argument that their removal in absence of risk assessment violated the Charter failed

Refugee Protection Division found that applicants committed crimes against humanity and were excluded from protection under s. 98 of Immigration and Refugee Protection Act (IRPA). As directed by s. 113(d) of IRPA, pre-removal risk assessment (PRRA) officer conducted restricted PRRA, with respect to s. 97 grounds alone. Officer determined applicants did not meet threshold required to stay removal orders. Federal Court dismissed application for judicial review. Applicants appealed. Appeal dismissed. Coherence and consistency in interpretation of scheme supported conclusion that PRRA officer had no jurisdiction to reconsider prior exclusion finding. Subsections 112(3) and (c) of IRPA did not require Minister, when conducting PRRA, to confirm that there remained substantive basis for excluding applicant from refugee protection. Applicants' argument that their removal in absence of risk assessment under s. 96 criteria violated s. 7 of Canadian Charter of Rights and Freedoms failed on basis of established Supreme Court jurisprudence with respect to interface between s. 7 of Charter and exclusion findings. Applicants' s. 7 Charter rights were protected by safeguards available to them under IRPA. Minister was not required to exercise discretion under s. 25.2 of IRPA to exempt applicants from application of s. 112(3), such that failure to consider their request for exemption vitiated PRRA decision. PRRA officer's decision was not shown to be unreasonable.

Tapambwa v. Canada (Citizenship and Immigration) (2019), 2019 CarswellNat 403, 2019 FCA 34, David Stratas J.A., Donald J. Rennie J.A., and Judith Woods J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 2495, 2017 CarswellNat 2496, 2017 FC 522, 2017 CF 522, Richard F. Southcott J. (F.C.).

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