This is a case that should have never ended up in Court. The removal of the Etienne family (2 adults and three children) to Turks and Caicos was scheduled to be enforced on August 31, 2013. However, an assessment had never been performed of the risk the family may face upon being returned to the Turks and Caicos.
Although the family had a refugee hearing, the Refugee Protection Division Member did not consider family’s arguments regarding the persecution they faced in Turks and Caicos as a result of their Haitian origins. Instead, he based his decision on what he assumed to be a valid Internal Flight Alternative to the United Kingdom. However, this was later proven not to be a viable option.
Gerami Law PC sent a deferral of removal request on behalf of the Etienne family, which was received by the Canada Border Services Agency Officer on August 25, 2013. The letter explained that paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act (“IRPA”) prevented the Etienne family from applying for a Pre-Removal Risk Assessment (“PRRA”) before their scheduled removal date. Section 112(2)(b.1), colloquially referred to as the “PRRA bar”, prevents individuals from applying for a PRRA until a year after a failed refugee claim. It was explained in the letter that the Etienne family would become eligible for a PRRA on September 11, 2013. The Officer also received evidence that the family’s youngest son Simeon suffered from post-traumatic stress disorder (‘PTSD’) resulting from the trauma of persistent discrimination and physical abuse he suffered at the hands of his school teacher in the Turks and Caicos (due to his Haitian background). Simeon’s doctor provided a letter stating that Simeon’s return to that same environment would result in a significant worsening of his condition. Nonetheless, the Officer did not grant deferral of their removal.
Gerami Law PC brought an emergency stay of removal on behalf of the Etienne family on August 27, 2013. It was argued that the Officer did not give proper consideration to the fact that no assessment had been performed of the risk the family faced if returned to Turks and Caicos and that their eligibility for a PRRA was imminent. It also argued that the Officer failed to consider the best interest of the children, particularly the evidence that Simeon’s PTSD would worsen upon return to Turks and Caicos.
In granting the stay, the Federal Court stated that it had been established that irreparable harm would result if the stay were not granted. The decision also stated that although an Officer is required to arrange for the removal of a failed refugee claimant “as soon as possible,” this must be as soon as legally possible. Removal that would result in a violation of individuals’ rights to life, liberty and security of the person, guaranteed under the Canadian Charter of Rights and Freedoms, would be illegal and impermissible.
A notice of leave for judicial review and an application for judicial review were filed at the same time as the stay application. The application raised the following issues:
1 - Whether the Officer incorrectly applied the requirement in subsection 48(2) of the IRPA that failed refugee claimants be removed from Canada “as soon as possible” in such a way that his decision violated the Canadian Charter of Rights and Freedoms; and
2 - Whether section 112(2)(b.1) of the IRPA is unconstitutional.
In its response to the leave application, the Minster of Public Safety and Emergency Preparedness (“the Minister”) stated that the Officer’s decision not to defer the family’s deferral had been quashed on the basis that in making his decision the Officer had failed to take the best interests of the child into account. The Minister then went on to ask that judicial review not be granted, arguing that the issue was now moot because the relief the family sought had been granted and, consequently, there was no live controversy between the parties. The Minster also pointed to the fact that there had been other cases heard at the Federal Court in December 2013 that dealt with the constitutionality of the PRRA bar and thus argued that the issue did not need to be decided in the Etienne case.
Nonetheless, the Federal Court granted leave in Etienne v. Minister of Public Safety and Emergency Preparedness on December 24, 2013.
On February 19, 2014, the Minster brought a Motion for Judgment to the Federal Court, again arguing the matter was moot. Again, the Minster argued that the Court should grant the relief requested by the Etienne family, but, as the family had been granted the relief it had requested, it was not necessary or desirable for the Court to hear argument regarding the constitutionality of paragraph 112(2)(b.1).
On March 14, 2014, the Federal Court dismissed the Minister’s motion. Mr. Justice Zinn ruled that “determining the constitutionality of paragraph 112(2)( b.1) is exactly the role of the Court.” He found that although the situation facing the Etiennes would never arise for them again, it may well arise for other individuals in similar situations. He also differentiated the Etienne case from the cases argued in December, stating that unlike the other cases, the Etienne case dealt with the risk of harm to a child and, even more importantly, unlike the individuals involved in the other cases, the Etiennes had never received a risk assessment. For more information about Mr. Justice Zinn’s order click here.
On Friday, March 7, 2014, the Canadian Association of Refugee Lawyers (“CARL”) brought a motion to intervene in this case. CARL argued that the PRRA bar could result in failed refugee claimants being returned to countries where they will face violations to their rights to life, liberty or security of the person and that this would lead to violations of rights guaranteed under the Charter and international law. The decision on this motion is pending. A similar motion was granted allowing CARL to intervene in the PRRA bar cases that were heard in December, so a positive outcome seems likely.
We at Gerami Law PC are very excited that this judicial review is going to be heard and we are hopeful that CARL will be joining us in arguing that the PRRA bar violates the Canadian constitution.