On April 2, 2015, the Honourable Justice Zinn of the Federal Court expanded the common law to require removal officers to consider evidence of risk that has never been assessed, when determining whether to grant a deferral of removal pending a Pre-Removal Risk Assessment (‘PPRA’). Gerami Law (Ms. Arghavan Gerami, an immigration lawyer in Ottawa) represented the Applicants in this case. The Court granted the judicial review based on administrative law principles and decided that it was unnecessary to consider the constitutionality of the Section 112(2)(b.1) of the Immigration and Refugee Protection Act (‘IRPA’).

The Applicants, with assistance from their immigration lawyer in Ottawa, had made a refugee claim to the Refugee Protection Division (‘RPD’) on the basis that they faced a risk of death or cruel and unusual treatment as Haitian nationals living in the Turks and Caicos. The RPD determined that the family could relocate to the United Kingdom to avoid their risk – otherwise known as an Internal Flight Alternative (‘IFA’) – because the Turks and Caicos Islands are a British Overseas Territory of the UK. Therefore, the RPD did not assess the risk that the family faced in the Turks and Caicos.

Section 112(2)(b.1) of the IRPA bars unsuccessful refugee claimants and their refugee lawyers from making a PRRA application for a 12-month period after their claims have been denied. The Government had scheduled the Applicants’ removal to be only 4 days before the 12-month bar would end and they would become eligible to make a PRRA. They were scheduled to be removed to the Turks and Caicos, since they were not nationals of the UK, and thus requested a deferral of their removal pending an application and decision on a PRRA.

The deferral request, prepared by their refugee lawyer, presented evidence of risk they would face upon returning to the Turks and Caicos, namely that they would face risk of death or cruel and unusual treatment as Haitians, and that their son would risk worsening his PTSD, which he developed as a result of the severe discrimination and abuse he suffered as a child of Haitian heritage. The CBSA Enforcement Officer refused their request on the basis that no new evidence of risk was presented that would warrant deferring their removal pending a PRRA, and that they had an IFA in the UK to which they could relocate as soon as they landed in the Turks and Caicos.

The Applicants, with assistance from the refugee law office, made an application for leave and for judicial review requesting that the Federal Court quash the Officer’s decision and declare that statutory PRRA-bar of section 112(2)(b.1) of the IRPA is unconstitutional and, therefore, of no force or effect. Their refugee lawyer argued (1) that the Officer had fettered his discretion by failing to assess the best interests of the children, the risk to Simeon’s mental health, and the risk to the family in general on the basis of their Haitian nationality; (2) that the PRRA-bar prevented them from having a risk assessment, which violated their rights to life, liberty and security of the person under s. 7 of the Charter of Rights and Freedoms; and (3) that, unlike the recent Federal Court case of Peter v Canada, which had decided that the PRRA-bar did not violate the Charter rights of failed refugee claimants who had previously had their risk assessed, the Etienne family had never had their risk assessed.

The Canadian Association of Refugee Lawyers (‘CARL’), which had intervened in this case, argued that the PRRA-bar could result in failed refugee claimants being returned to countries where they would face violations to their rights to life, liberty or security of the person under the Charter, thereby also breaching Canada’s international law obligations. CARL submitted that, although only 2.7% of PRRA applications are successful, this also means that PRRAs have saved 2.7% of applicants from removal to death, extreme sanction, or inhumane treatment and therefore serve as an invaluable protector of Charter rights.

The Respondent agreed that the Officer had erred by not considering the best interests of the child or the new evidence risk to the child’s mental health that arose after the RPD hearing. Given this admission, the Government submitted that there was no live issue to be decided on judicial review.

The Federal Court held, on the contrary, that it was incumbent on the Court to decide whether the Officer had erred in failing to consider the risk to the child, in addition to whether he failed to consider the evidence of risk that the family had presented at the RPD, since not to do so would be a disservice to similarly situated applicants.

The Court found that the Officer had erred on both counts. It had previously been established in common law that, when determining whether to defer removal pending a PRRA, removal officers must decide whether there is sufficient new probative evidence of the applicant’s exposure to a risk upon removal. In this case, the Court interpreted the meaning of “new” evidence to include evidence that was previously presented to a decision-maker, like the RPD, but was never assessed. In the Etiennes’ case, the RPD had never assessed their risk as Haitian nationals in the Turks and Caicos, deciding only that they had an IFA in the UK. Therefore the Officer erred in failing to consider the old but un-assessed evidence of risk, as well as the new evidence of risk to the child that had developed after the RPD hearing.

The Etienne decision is significant in that it expanded the common law definition of “new” evidence in the context of deferrals by requiring removal officers to consider evidence of risk that was previously presented before a decision-maker but was never assessed. This provides increased protection to migrants affected by the PRRA-bar, in that they should be afforded a deferral to a PRRA if the RPD failed to assess their risk, which can occur if the RPD rejected their claim based on the grounds of identity or of an IFA. This decision will therefore ensure that migrants’ risk will be assessed at least once before being removed from Canada.

In addition to the judicial review decision, the Honourable Justice Zinn also made a significant decision on the Etiennes’ stay motion in August 2013. Under the amended section 48(2) of IRPA, removal officers must remove individuals “as soon as possible.” The Respondent emphasized in its submissions that this legislative change evinced the Government’s policy decision to remove persons expeditiously from Canada. The Federal Court found, however, that “as soon as possible” must mean “as soon as legally possible,” and that removals that are in breach of the Charter are illegal and are not to be enforced as soon as physically possible. This decision also provides more protection to migrants by ensuring that they are not removed to conditions that would violate their rights to life, liberty, and security of the person.