In Canada (Public Safety and Emergency Preparedness) v. Shpati, the Federal Court of Appeal considered the question of whether removal from Canada should be deferred for a refugee claimant who has a pending judicial review of a negative pre-removal risk assessment ("PRRA"). The claimant submitted that if they were removed, their right to have a negative PRRA judicially reviewed would be rendered moot.
The Federal Court of Appeal found that, should removal be deferred for these reasons, it would amount to an automatic stay where a refugee claimant applies for a judicial review of a negative PRRA. Since the Immigration and Refugee Protection Act, S.C. 2001, c. 27 already prescribes a number of circumstances where an automatic stay would be applied, interpreting otherwise would be contrary to the statutory scheme. Furthermore, the potential mootness of the judicial review does not necessarily constitute irreparable harm under the tripartite test described by El Ouardi v. Canada (Solicitor General), 2005 FCA 42 and Palka v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 165. Since the mootness of the action does not constitute irreparable harm, there is no reason why enforcement officers should be legally obligated to consider it when determining a request for deferral of removal.
October 18, 2011
Link to Decision
Mary Phan
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