Processing PRRA applications: interpreting A96 and A97

The subjective component relates to the existence of persecution in the mind of the applicant. While this is internal to the individual, the applicant’s actions should be consistent with and indicative of a subjective fear. Relevant factors with respect to the question of subjective fear include:

• delay in leaving the country of risk
• failure to seek protection at the first reasonable opportunity
• failure to seek protection in other countries
• delay in making a refugee claim upon arrival in Canada
• has the applicant re-availed themselves of State protection
• re-establishment in the country of risk.

If the applicant demonstrates a lack of credibility by actions that are inconsistent with the presence of a subjective fear, then it could be held that there is no subjective basis for the application. The application could be rejected even if there is extensive evidence of human rights violations in the country of origin.

Focus should be put on the objective basis of the fear of persecution. Once it has been established that a person has an objective basis of fear of persecution, it is conceivable that the applicant also presents a subjective fear.

The objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear. The nature of the test for well-founded fear of persecution is described in terms of “reasonable chance” or “serious possibility”: Is there a reasonable chance, but more than a mere possibility, that persecution would take place were the applicant returned to the country of origin? An applicant need not show a probability of persecution. The officer must be satisfied on a balance of probabilities that the fear is well-founded. The test for well-foundedness is objective, based on objective evidence about conditions in the country of origin, particularly the country’s human rights record.

Applicants need not show that they have been persecuted in the past in order to establish a well-founded fear of persecution. However, past events related by the applicant, together with all the other evidence, including country conditions at the time of the decision, may show that the applicant would be objectively at risk if returned. Thus, the test is forward looking, except where there are compelling reasons based on past persecution for granting protection. The Convention Relating to the Status of Refugees states in paragraph C(5) and (6) of Article 1:  

“Provided that this paragraph shall not apply to a refugee falling under A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.” 

The applicant may not be in a position to present evidence of actual past persecution; in that case, evidence of persecution of persons in a similar situation to that of the applicant in the country of origin may serve to substantiate a fear of future persecution. Such persons may be family members, political associates, and members of the same social class, race, religion, or ethnic group.

In cases of prosecution, the particular circumstances must be assessed. The prosecution must be serious enough to qualify as persecution. If there is evidence that the prosecution is linked to the applicant’s race, religion, nationality, membership in a social group or political opinion, the following considerations may be relevant:

• the nature of the law that the applicant has violated (if compliance with a law results in a violation of an international legal norm, prosecution may be persecutory);
• the nature of the law under which the individual will be prosecuted (arbitrarily punishing acceptable behaviour may be persecutory);
• whether the punishment for the offence is disproportionate to the offence itself;
• the human rights record of the prosecuting country;
• the status of the country’s judicial system;
• the motivation of the government in pursuing prosecution; and
• the motivation of the applicant when the offence was committed.

Under the Convention refugee definition, it is necessary to determine whether the harm is inflicted for one of the reasons set out in the definition: the injury feared must be linked to the applicant’s:

• race
• religion
• nationality
• membership in a particular social group
• political opinion.

If there is no clear linkage, the applicant will not fit in the Convention refugee definition. In some cases involving situations of civil strife, the conclusion may be that the fear is a fear of generalized oppression and is not in some way directed against the individual or group for reasons of race, religion, nationality, membership in a particular social group or political opinion.

Particular social group

The Supreme Court of Canada  in Canada v. Ward (Minister of Employment & Immigration) [1993] 2 S.C.R. 689, has noted that the meaning of “particular social group” should take into account the general underlying themes of human rights and anti-discrimination that form the basis for the international refugee protection initiative. There are three possible categories:

• groups defined by an innate or unchangeable characteristic;
• groups whose members voluntarily associate for reasons fundamental to their human dignity that they should not be forced to forsake the association;
• groups associated by a former voluntary status, unalterable due to its historical permanence.

In Ward, the Supreme Court explicitly held that persecution based upon a person’s gender could sustain a claim to refugee status. However, the Court did not say that gender in and of itself was sufficient to define a particular social group. The Court has held that particular subcategories of women such as abused women, women subject to domestic violence constitute a particular social group. The Court has also held that women who are subject to enforced sterilization do constitute a social group. Recognition of gender as a basis for refugee protection has not been confined to claims made by women. The IRB has developed gender guidelines; PRRA officers are invited to consult them for assistance in their decision making.

Political opinion

Political opinion has been defined by the Supreme Court of Canada in Ward, at 746-747. The Court adopted Prof. Goodwin-Gill’s definition of:  "any opinion on any matter in which the machinery of state, government, and policy may be engaged."  The Court added two refinements:  First, the political opinion need not have been expressed outright. It can be imputed to the applicant on the basis of his or her actions. Second, the political opinion ascribed to the applicant does not necessarily need to conform to his or her true beliefs. The assessment should be approached from the perspective of the agent of persecution. Although victims of crime do not generally fall within the scope of a particular social group as defined in Ward, there are some situations in which the definition of political opinion may apply. The Federal Court of Appeal dealt with this issue in Klinko v. MCI, [2000]3 F.C. 327 (T.D.), concluding the denunciation of misconduct by public officials can qualify as political opinion, provided that the machinery of state, government and policy “may be engaged.”   However, risk attributable to a private vendetta or personal vengeance on the part of a government official may constitute criminal activity, but not persecution. See Rivero v. MCI [1996] F.C.J. No. 1517 (T.D.).

The standard to be met by an applicant alleging danger of torture is defined in the legislation and is the belief, on substantial grounds, of the existence of a danger of torture. The requisite degree of danger of torture envisaged by the expression "believed on substantial grounds to exist" is that the danger of torture is more likely than not. (see Li v. Canada (Minister of Citizenship and Immigration) (2005 FCA 1)). The standard is not the same as for the refugee definition: a serious possibility that an individual would be in danger of torture does not satisfy the legislative threshold test. However, the risk does not have to meet the test of being highly probable (see General Comment of CAT on the implementation of article 3 of the Convention in the context of article 22 : 21/11/97). Objective factual material must show a probability of danger to the applicant if returned to the country of origin.

For more information, see definitions of “torture” and  “agent of torture.”

The assessment of whether there are substantial grounds to believe the applicant would be personally subjected to a danger of torture is to be made on an objective basis. There is no requirement to prove a subjective fear (see Li v. Canada (Minister of Citizenship and Immigration, 2005 FCA 1). However, the danger must be personalized to the individual. As in the Refugee Convention, the assessment may be based on past events but is forward looking: the issue to be determined is whether events related by the applicant, together with all the other evidence, including country conditions at the time of the decision, show that the applicant would be subjected to torture, if returned.

The Committee against Torture has issued the following guidelines:

1. Is the country concerned one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights?
2. Has the applicant been tortured or maltreated by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity in the past? If so, was this the recent past?
3. Is there medical or other independent evidence to support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had after-effects?
4. Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered?
5. Has the applicant engaged in political or other activity within or outside the country concerned which would appear to make him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be expelled, returned or extradited to the country concerned?
6. Are there factual inconsistencies in the claim of the claimant? If so, are they relevant?

A PRRA officer can ask the following questions to determine if torture has taken place:

1. Who is the applicant?
2. Does the applicant face severe physical or mental pain, intentionally inflicted?
3. Is the pain/suffering for a specific purpose such as to get information, to punish or to intimidate?
4. Is the pain/suffering inflicted by the State? Does the State know or ought to know about the pain/suffering but does not try to prevent it?
5. Is there an IFA?
6. Does the pain/suffering arise from, is inherent in or is incidental to lawful sanctions?

The PRRA officer must assess whether there are substantial grounds to believe the applicant would be personally subjected to a risk to life or of cruel and unusual treatment or punishment.

The concept of “cruel and unusual treatment or punishment” is found in section 12 of the Canadian Charter of Rights and Freedoms. Therefore, jurisprudence interpreting section12 is applicable. Notions familiar to section 12 of the Charter are also present in international conventions that Canada has signed, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR). Iinternational jurisprudence, while not binding, can provide helpful guidance.

The following propositions, taken from Charter jurisprudence, are applicable:

• the treatment or punishment is of such character or duration that it would outrage the conscience of Canadians or be degrading to human dignity to remove someone to face such treatment or punishment;
• the treatment or punishment is disproportionate to the achievement of a valid social aim, is arbitrarily imposed or is excessive as to not be compatible with human dignity.

These risks include actions that would constitute violations of fundamental human rights, such as – but not limited to – serious affronts the physical and psychological integrity of the individual.

In Cruz Varas and others v. Sweden (15576/89 [1991] ECHR 26 20 March 1991), the European Court of Human Rights explained the minimum threshold of what constitutes inhuman treatment in the following words:

“It is recalled that ill-treatment must attain a minimum level of severity…The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age, and state of health of the victim.”

The standard to be met by an applicant alleging a risk to life or cruel and unusual treatment or punishment is the “balance of probabilities”, the usual standard in civil proceedings. This is also the standard applicable to s.12 of the Charter. Objective factual material must show a probability of risk to the claimant if returned to the country of origin.

Although international jurisprudence stems generally from cases that directly involve the State as the agent of inhuman treatment, the notion of cruel and unusual treatment as defined in IRPA does not contain such a limitation. The cruel and unusual treatment or punishment does not necessitate the State as an accomplice. In all cases, the issue of protection of the State will have to be addressed.

Learn more about state protection.

The assessment of whether there are substantial grounds to believe the applicant would be personally subjected to a risk to life or of cruel and unusual treatment or punishment is evaluated on an objective basis. The risk must be personalized to the individual. The assessment may be based on past events but is forward looking: the issue to be determined is whether events related by the applicant, together with all the other evidence, including country conditions at the time of the decision, show that the applicant, if returned, would be subjected to a risk to life or of cruel and unusual treatment or punishment. Relevant considerations include the general situation in a country and, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The Supreme Court of Canada (SCC) ruled in 2001 that obtaining diplomatic assurances is a constitutional requirement before removing someone facing capital punishment/death penalty, unless there are exceptional circumstances. Thus the removal of persons to countries where there is more than a mere possibility that they will face the death penalty should not proceed, before acceptable assurances are sought and obtained from the destination country. These assurances need to state explicitly that the death penalty will not be imposed or if imposed will not be carried out. Exceptions to this course of action will be rare.

The United Nations Human Rights Committee in the Roger Judge vs. Canada case ruled that Canada has an international obligation under Article 6 of the International Covenant on Civil and Political Rights not to remove a person facing the death penalty without assurances that this sentence will not be carried out.

The Supreme Court of Canada ruled, in the 2001 case of United States v. Burns, that extradition to face the possibility of capital punishment is unconstitutional, as it violates the life, liberty and security of the person provisions found in section 7 of the Charter of Rights and Freedoms. Consequently, the government has to consider whether assurances are required in order for removal to be lawful and Charter-compliant.

In some situations, persons who have been charged with or convicted of serious crimes face the risk of a death penalty through the judicial system in the country to which they are facing removal. While these penalties may be legally sanctioned, such cases must be examined in light of international human rights instruments to which Canada is a party, as well as Canadian jurisprudence.

Except where imposition of the death penalty is no more than a mere possibility in the domestic law of the destination country, PRRA decision-makers will usually need to have assurances from that country with respect to whether the death penalty will be sought, and/or what actions will be taken to ensure that the death penalty will not be imposed, or, if it is imposed, to ensure that it will not be implemented. The specifics of assurances, obtained through diplomatic means, may vary, depending on the particular legal regime in place in the country of destination. PRRA decision-makers will assess this evidence, along with all other relevant evidence, whether there is more than a mere possibility that the person will face the death penalty in reaching a decision on the application for protection. The threshold here is different and lower than the standard of proof for section 97, IRPA. 

Initiation of a request for assurances

The decision whether or not to seek assurances should be made as early as possible in the enforcement process. When a CBSA removals officer(1) is aware that a person against whom a removal order is in force would face a risk of execution in the country to which she would be removed, the officer will, before informing the person of the opportunity to make a PRRA application, send a report electronically to the Coordinator, Danger to the Public/Rehabilitation.

Further instructions regarding the information that CBSA will relay to CMB can be found in the ENF10 manual (PDF, 554 Kb) (PDF, 869.84KB).

The Coordinator (CMB) will prepare a recommendation, which is considered by the Director General (CMB) in deciding whether to seek assurances. Resolution occurs when the decision by the Director General (CMB) is made not to seek assurances; or when assurances are sought and received from Foreign Affairs and International Trade Canada (DFAIT).

The PRRA application process will not commence until a decision is made whether to seek assurances. If the decision to seek assurances is positive, the PRRA process will not commence until a response with respect to assurances has been obtained from the country of destination.

A PRRA decision shall not be rendered until the issue of assurances has been resolved (either by the decision by CMB not to pursue assurances or the receipt of such assurances from DFAIT). Once assurances have been obtained, these applications will be given the highest possible priority.

(1) This refers to the CBSA officer who convokes or will convoke the individual for the purpose of informing the individual of the opportunity to make a PRRA application prior to removal action being taken.

Referral of cases when the issue of assurances is not resolved

In a situation where a PRRA notification was given and the PRRA officer becomes aware that an applicant may face the death penalty and CMB has not yet been contacted, the officer shall immediately suspend processing and notify the PRRA Coordinator. The PRRA Coordinator will alert the CBSA of the need to contact the Coordinator, Danger to the Public/Rehabilitation, CMB as described above.

Decision whether to seek assurances

An analyst at the Danger to the Public/Rehabilitation Unit, CMB, will review the report and prepare a recommendation for the Director General, CMB. If the Director General concurs with the recommendation to seek assurances, the request to obtain assurances will be made to DFAIT.

The CBSA removals officer will be informed via an e-mail by the Coordinator (CMB) that the request has been sent to DFAIT or that a decision has been made not to seek.assurances.

On receipt of assurances

If assurances were sought and obtained before the person was informed of the opportunity to make a PRRA application, CBSA Removals officer will include the assurance in the package when they offer the person the opportunity to apply for a PRRA. The person will have the same prescribed time period for providing submissions with respect to the assurances as they do for the PRRA, which is 15 days. If assurances were sought and obtained only after the PRRA application process has commenced, the removals officer will inform the applicant that assurances have been obtained, and provide the applicant and the PRRA Coordinator with a copy of the assurances; the applicant will be given a period of 15 days in which to respond to the assurances, before the PRRA officer proceeds to consider the application further. The applicant may request an extension of time to respond. The granting of an extension is discretionary, but a request cannot be unreasonably refused.

The PRRA officer will consider the assurances in light of all of the submissions and other information before her, and in light of the Supreme Court decision in United States v. Burns.

Where no assurances are obtained

If assurances were not sought, or were sought but not obtained, the PRRA process will commence, or resume, as applicable. The removals officer will inform the applicant in writing or in person and the PRRA coordinator of the final outcome of the assurances. The PRRA officer will consider the application in light of all of the submissions before her and in light of the Supreme Court decision in United States v. Burns.

The legislation provides that the risk to life must not be caused by the inability of the country of return to provide adequate heath or medical care. A risk to life under s. 97 does not require the officer to assess whether there is appropriate health and medical care available in the country in question [see Covarrubias v. Canada (Minister of Citizenship and Immigration) (2006 FCA 365), and Singh v. Minister of Citizenship and Immigration, 2004 FC 288 (26 Feb 2004)]. PRRA officers will use this exception with respect to PRRA applicants where it is evident that their native country is unable to provide adequate medical care, or chooses, in good faith, for legitimate political and financial priority reasons, not to provide such care to its nationals. It does not apply to deny protection to those applicants whose country engages in practices that are persecutory [or discriminatory to the point of persecution] with respect to the provision of  access to medical treatment. (See also CAT – Mr. Suppiah Vivekanathan et al., Communication No. 49/1996).