Section 113 — Pre-removal risk assessment — consideration
Text of provision
Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3) — other than one described in subparagraph (e)(i) or (ii) — consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada; and
(e) in the case of the following applicants, consideration shall be on the basis of sections 96 to 98 and subparagraph (d)(i) or (ii), as the case may be:
(i) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years for which a term of imprisonment of less than two years — or no term of imprisonment — was imposed, and
(ii) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, unless they are found to be a person referred to in section F of Article 1 of the Refugee Convention.
Plain English
Section 113 provides that a PRRA application is evaluated by an officer who considers any new evidence submitted by the applicant, subject to restrictions on evidence that could have been presented at the RPD hearing. The officer considers risks under ss 96 and 97 — that is, risk of persecution as a Convention refugee, and risk of torture, death, or cruel treatment.
For applicants who are not rejected refugee claimants, the officer considers all evidence. For rejected claimants, only new evidence not reasonably available at the RPD hearing may be considered, or evidence of changed conditions in the country of reference.
Practical effect
PRRA is not a re-hearing of a failed refugee claim. The evidentiary bar for rejected claimants is deliberately high — the applicant must show new evidence that genuinely could not have been presented at the RPD level, or demonstrate a material change in country conditions since the RPD hearing. PRRA applications by rejected claimants have very low acceptance rates. For persons who are inadmissible on security or serious criminality grounds, PRRA does not create a right to stay — the non-refoulement obligation under s 115 applies separately.