The principle of non-refoulement and the possibility of an oral hearing in pre-removal risk assessment in Canada

Abstract

The principle of non-refoulement requires Canada to carry out risk assessments prior to removal of non-citizens from Canada, when they allege the risk of persecution, torture or other forms of cruel and inhuman treatment at their home country. Thus, to ensure compliance of the principle of non-refoulement , Canada established the Pre-Removal Risk Assessment ("PRRA") process. My thesis focuses on the procedural set up of the PRRA process, which makes it difficult for an applicant to qualify for an oral hearing. Oral hearing may be held in the PRRA process if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required. Three prescribed factors under section 167 of the Immigration and Refugee Protection Regulations ("IRPR ") restrict the possibility of having an oral hearing in the PRRA process. They remove the discretionary ability of PRRA Officers to call for oral hearings to assess or reassess the credibility of the applicant or the claim. The lack of oral hearing or the difficulty in obtaining one could adversely affect the fairness of the PRRA process. Moreover, oral hearings address procedural issues such as the right to reply and the duty to disclose. My thesis will demonstrate that: (1) higher level of procedural fairness, arising from common law, necessitates an oral hearing for the PRRA process with respect to credibility assessment; (2) the principle of non-refoulement is a principle of fundamental justice; and (3) the prescribed factors, for determining whether an oral hearing is required for the PRRA process, violate section 7 of the Charter and cannot be saved by section 1. Therefore, section 167 of the IRPR is unconstitutional and invalid.