Enforcement officers: kids judging credibility

Get ready for this: Enforcement officers can, nay must, conduct an interview of a deportee who has alleged risk, if the credibility of the risk allegation is at issue. So says the Federal Court of Appeal in its recent pronouncement in Atawnah v. MPSEP.

Those same government officials who book airplane tickets and whom the court has repeatedly told us can only defer removal when illness strikes, or possibly to allow a child to finish school, or to permit a deportee to pack his bags, must now conduct full interviews to assess the credibility of risk allegations.
Boy, are the summer students who work at the airport going to have a hard time with this! Don’t get me wrong, I am all for credibility determinations being made after oral hearings. But these boys and girls are not equipped for such a task. Someone else has to step in.

This duty to conduct an interview was “uncovered” by the Federal Court of Appeal in the Atawnah decision as an afterthought in a review of a legislative, court and immigration officer scheme that ensured Charter compliance at the stage of removal. In arguing that the scheme was complete, and that all Charter rights were covered, the court of appeal (inadvertently) introduced a duty that had to this point never existed — the duty to conduct an oral interview. Here is how the court did it.

The appellants in Atawnah were Israeli citizens who had made and then abandoned refugee claims in Canada and in so doing had fallen into s. 112(2)(b.1) of the Immigration and Refugee Protection Act, prohibiting them from applying for protection under a pre-removal risk assessment for 36 months. With no risk assessment being undertaken prior to removal, the appellants alleged that the section breached s. 7 of the Charter and sought declaratory relief that it was unconstitutionally overbroad.

The appeal court rejected this argument on the basis of its all-time favourite: discretion! There is enough room in the entire scheme, said the court, to fit sufficient discretion into it to ensure that s. 7 rights would be protected on removal. Indeed, the court held that this scheme was so comprehensive it allowed for an oral interview by an enforcement officer. In fact, it would be an unreasonable exercise of discretion if the enforcement officer made a credibility decision in the absence of an interview. Nice . . .

Justice Eleanor Dawson, writing for the court, held that a person could be denied a PRRA, the requirement for which emanated from the Supreme Court decision in Suresh, because mechanisms existed to challenge an unreasonable decision of an enforcement officer.

Here is how it works: If a deportee has evidence of risk that had not been previously considered, he can ask an enforcement officer to defer removal pending an assessment of the risk (risk to life, extreme sanction or inhumane treatment). When an officer concludes that deferral of removal is warranted, the allegations of risk are to be forwarded to Immigration, Refugees and Citizenship Canada for consideration under s. 25.1 of the IRPA. This section allows the minister to exempt a foreign national from the PRRA bar. If the enforcement officer refuses, this decision can be challenged in Federal Court, which can consider a request for a stay of removal in a more comprehensive way than an enforcement officer can consider a request for deferral.

In assessing the evidence of risk, the court noted that it need not be conclusive and that the “mere fact that the evidence involves an element of speculation is not determinative.” Indeed, the court said if the evidence showed the applicants might be at risk, deferral was mandatory pending a full risk assessment.

The mechanisms reviewed by the court, which included the supervisory role of the Federal Court  together with the ability of the minister to exempt an applicant from the PRRA bar, acts as a safety valve such that the scheme is rendered constitutionally compliant. Part of that safety valve was the duty of the enforcement officer to conduct an oral interview where matters of credibility arose.

The boys and girls who book plane tickets and shatter dreams of a life in Canada had better learn fast to judge whether a stutter or failure to make eye contact or hand tremor means that a lie is coming. They best ride their bikes to the closest video store and get back copies of Perry Mason and watch very, very closely. They have to get it right when they decide whether a deportee is lying about her fear of being tortured if deported. Their little job just got enormous!