Processing pre-removal risk assessment applications: Abandonment, withdrawal and vacation

Abandonment

R169 provides the conditions under which an application will be declared abandoned. Abandonment applies in the context of lack of attendance at hearings or where the applicant voluntarily departs Canada. Those two scenarios provide an efficient means to close a file where applicants demonstrate that they do not wish to pursue the application.

In the case of lack of attendance at a hearing, however, R169(a) dictates that the applicant should be afforded a second opportunity to attend a hearing with prior notice; should the applicant fail to appear at the subsequent hearing, the application is declared abandoned.

If an applicant voluntarily departs Canada, the application under pre-removal risk assessment (PRRA) is declared abandoned once the PRRA officer is informed of the departure.

The Regulations provide that the stay of removal, where applicable, will no longer apply once an application for protection is rejected. R171 states that an application for protection is rejected when the application is declared abandoned.

Withdrawal

R170 provides a legal basis for applicants to withdraw an application for protection. Notice of withdrawal will have been made in writing and the application is declared rejected on receipt of the notice.

Vacation

Further to subsection 114(3) of the Immigration and Refugee Protection Act (IRPA), the Minister of Immigration, Refugees and Citizenship has the authority to vacate a decision to allow a PRRA application if they are of the opinion that it was obtained as a result of directly or indirectly misrepresenting or withholding material facts on a relevant matter. When a PRRA decision is vacated, the decision is nullified and the application for protection is deemed to have been rejected at the time of the decision to vacate.

The Regulations do not specify the procedure for vacation of PRRA decisions. The following procedures for vacation will ensure that vacation decisions are made in an efficient manner, while respecting the procedural rights of the individual concerned.

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When vacation is initiated

Vacation is permitted only where the grant of protection resulted from misrepresentation or withholding of relevant information; it is not applicable where circumstances in the country of origin have changed, such that the individual would no longer be in need of protection. While PRRA officers may, through their own research, obtain evidence or facts leading to the opinion that the decision to allow the application may have been obtained as a result of direct or indirect misrepresentation or withholding of facts on a relevant matter, it is more likely that the information will come to light through other means, most probably as a result of inquiries or investigations that have been conducted with respect to the individual, either by the CBSA or by other officers of Immigration, Refugees and Citizenship Canada (IRCC). Communication by PRRA officers with the CBSA or with other components of IRCC with respect to suspected cases of misrepresentation or withholding of facts should take place through the PRRA manager. When formal vacation proceedings are commenced, the case should not be assigned to the PRRA officer who made the original decision, nor to any PRRA officer who was previously involved in the inquiries that gave rise to the opinion that the decision to allow the application may have been obtained as a result of direct or indirect misrepresentation or withholding of relevant facts. If legal advice is required, it should be obtained through Operational Management and Coordination.

Adverse information should be disclosed

Where a PRRA officer is assigned a case where facts and evidence may lead to the conclusion that there has been misrepresentation or withholding of facts on a relevant matter, the officer shall send the person concerned a notice detailing the evidence, with copies of any unclassified evidence that is extrinsic, and provide the person with 15 days for the purpose of making submissions and presenting evidence in response.

Decision on vacation

Once the PRRA officer is in receipt of the submissions made and evidence presented, the officer shall:

• carefully review the submissions and evidence;
• determine whether or not the previous decision was obtained as a result of misrepresentation or withholding of relevant facts; and
• determine whether there was other sufficient evidence considered at the time of the first determination to justify refugee protection.

If the decision is to vacate the previous determination, the earlier determination is nullified and the individual is no longer a protected person.
It is not open to the person concerned to bring forth new evidence on risk in the context of this decision-making process. If the decision is to vacate the previous determination, the person is not precluded from applying again for protection and submitting any new evidence.

Vacation pending application for permanent residence or where person is a permanent resident

A21 provides that protected persons, other than those referred to in A112(3), may apply for permanent residence. When, as a result of a decision to vacate, the person is no longer a protected person, any pending application to become a permanent resident is a nullity. Section A46 provides for loss of permanent residence should a decision to vacate occur after landing.