Immigration and Refugees Law
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For individuals whose refugee claims have been rejected in Canada, the immediate instinct is often to look for secondary recourses to secure protection. However, Canadian immigration law explicitly prevents a Pre-Removal Risk Assessment (PRRA) from acting as an immediate, secondary refugee process. Understanding the statutory bars and structural design behind this rule is critical for navigating the post-claim landscape and planning a proper legal strategy for a PRRA after refugee refusal.
The restriction against filing an immediate PRRA is not merely administrative policy; it is mandated by statute. Under Section 112(2)(b.1) of the Immigration and Refugee Protection Act (IRPA), an individual is legally barred from applying for a PRRA if fewer than 12 months have passed since their claim was rejected, abandoned, or withdrawn. For nationals of specific designated countries, this statutory bar is extended to 36 months.
Immigration and Refugee Protection Act, s. 112(2)(b.1): “less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since…”
The calculation of this timeline begins from the date of the final refusal, abandonment, or withdrawal, or, if the matter was litigated, from the date of the final decision from the Federal Court. You can review the full statutory text on the official Government of Canada Justice Laws Website.
This statutory limitation is replicated for those who have previously undergone a PRRA. Under IRPA s. 112(2)(c), an applicant cannot submit a subsequent PRRA if “less than 12 months” (or 36 months for designated countries) have elapsed since the rejection, abandonment, or withdrawal of their previous PRRA application.
The Canadian judiciary has consistently clarified that the PRRA framework is designed to assess risks immediately prior to an enforced removal, rather than functioning as an instantaneous appeal or a second bite at the refugee protection apple. Navigating a refugee appeal alternative requires understanding this timing constraint.
In the foundational case of Asfaw v. Canada (Citizenship and Immigration), 2016 FC 366, Zinn J. emphasized at paragraph 16:
“a PRRA should not be conducted immediately, because its effectiveness in safeguarding the applicant’s right of non-refoulement depends on it being conducted just prior to removal”
Citing established jurisprudence, the Court further noted that to align with Parliament’s clear intent, “the PRRA must coincide as closely as possible with the person’s departure from the country.”
This legal principle remains firmly intact and was reiterated in Arabzada v. Canada (Public Safety and Emergency Preparedness), 2024 FC 256, where the Court confirmed at paragraph 17:
“Conducting a PRRA reasonably close in time to when the person could be removed from Canada best ensures its effectiveness.”
Ultimately, Parliament’s structural choice ensures that risk is evaluated based on the realities existing at the time of departure, rather than duplicating the refugee determination process immediately after its completion.
The legislative history and operational policies demonstrate that the statutory bar was engineered to protect the integrity of the broader immigration system. In the case of Hamdan v. Canada (Citizenship and Immigration), 2019 FC 993, the Federal Court cited relevant policy objectives establishing the true intent of the restriction:
“The intent of the bar is to prevent Pre-Removal Risk Assessment applications from being used as a post-claim recourse by failed refugee claimants and further delaying removals of those without legitimate claims.”
By enforcing these timelines, the law prevents the PRRA from turning into an automatic administrative tool utilized solely to frustrate and delay the execution of valid removal orders immediately following a failed claim.
Even after an applicant satisfies the statutory 12 or 36-month waiting period and becomes eligible, the initiation of a PRRA is not automatic or immediate. Instead, the process is structurally tethered to operational removal steps taken by the government.
According to the Immigration and Refugee Protection Regulations (IRPR), s. 160(1), an individual may only apply for protection “after they are given notification to that effect by the Department.” Furthermore, IRPR s. 160(3)(a) dictates that this notification must be served “before removal from Canada.” You can read the regulatory framework via the official Immigration and Refugee Protection Regulations page.
The Court in Asfaw (at para 19) explicitly clarified the limits of an applicant’s leverage regarding this process:
“this applicant has no automatic right to a PRRA nor does she have a right to require a notification be issued to permit the PRRA at this time.”
In conclusion, an immediate PRRA application following a refugee refusal is legally impossible due to three overlapping pillars:
A mandatory 12-month or 36-month waiting period under IRPA s. 112(2)(b.1) and (c)
Definitive rulings in Asfaw and Arabzada establishing that risk assessments must occur close to the actual date of removal.
IRPR provisions dictating that a PRRA can only be triggered via an official notification issued by the Department prior to removal.
If you need assistance navigating your options for a PRRA after refugee refusal, consider consulting with a regulated Canadian immigration professional.
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