Iboude v. Canada (Minister of Citizenship and Immigration), 2005 FC 1316

Date: 20050926

Docket: IMM-1107-05

Citation: 2005 FC 1316

Present: The Honourable Mr. Justice de Montigny

BETWEEN:

AISSA IBOUDE

NAJIA NEGADI

Applicants

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

[1]                            On February 18, 2005, the applicants, citizens of Algeria, filed an application for leave and for judicial review against a decision by Mélanie Leduc, pre-removal risk assessment (PRRA) officer, dated December 7, 2004. The officer determined that the applicants would not be subject to a risk of persecution or torture, a risk to life or a risk of cruel and unusual treatment or punishment if they were removed to Algeria.

[2]                            For the following reasons, in my opinion this application for judicial review must be dismissed.

[3]                            The applicants raised several grounds in an attempt to persuade me that the officer's decision was erroneous in fact and in law; they also contended that the applicant should have been entitled to a hearing in the context of the PRRA procedure, specifically considering the fact that she was ineligible for a hearing before the IRB. I will briefly address these two submissions in order.

[4]                            First, regarding the errors allegedly made by the PRRA officer, it was submitted that too much importance was assigned to secondary factors such as the inconsistencies between the family record submitted with the PRRA application and the record of family civil status accompanying the Personal Information Form, as well as changes which appear to have been made to certain photocopies of official documents.

[5]                            In my opinion, the officer was entitled to determine that these documents lack probative value. The weight and credibility of evidence falls within the PRRA officer's assessment and her determinations do not seem unreasonable to me. On that point, it is indeed important to point out that the applicants did not file any original documents in support of their PRRA application; the PRRA officer could certainly assign some importance to that factor, especially since at his hearing before the IRB, the applicant stated that he had not brought with him a medical report or a police report establishing his sister's death. It was therefore not unreasonable for the officer to expect that the applicant would file such documents in support of his PRRA application and to draw a negative inference from that shortcoming.

[6]                            The applicants also allege that the PRRA officer did not consider the situation of women in Algeria in her analysis of the documentary evidence, and that she was not sensitive to the vulnerable position of women who are victims of family violence.

[7]                            A careful review of the decision indicates, however, that the officer was conscious of the risk alleged by the female applicant, as well as the physical and psychological assaults on her by her brothers, because of their disapproval of her marriage. If the officer did not think it necessary to examine the documentary evidence on Algeria, it is because she did not believe the submissions on that point. Not only was the evidence submitted not conclusive and even had certain defects but, moreover, the officer was of the opinion that the applicants could very well settle elsewhere in Algeria, thereby escaping the control of the female applicant's family.

[8]                            Finally, it was submitted that the officer had not analyzed the personal situation of the applicants' fear of persecution by armed terrorists, and that the fact that they had already been targeted by terrorists had not been taken into consideration.

[9]                            The officer first noted that the applicants' allegations had already been assessed and dismissed by the IRB because they were not credible, and that no new evidence had been submitted to her on the basis of which she could make a different determination. That said, the officer had nevertheless examined the documentary evidence and determined that the applicants were not at greater risk than the other citizens of Algeria, that the political situation had improved in the country, and that they could seek refuge in a large city and thereby reduce the risks that they could face. The PRRA officer has a great deal of expertise on these issues, and there is no basis for me to find that her determinations were unreasonable and could not be supported by the objective evidence.

[10]                        In short, it is my opinion that the PRRA officer's decision was based on clear reasons and on her assessment that the applicants would not face a personal risk of persecution if they were to return to Algeria. It is settled law that these types of decisions are the responsibility of the PRRA officer. To succeed, the applicants had to establish that the decision was based on a patent error of law or on an erroneous finding of fact made in a perverse or capricious manner, which they did not succeed in doing.

[11]                        With respect to the obligation to hold a hearing, the applicants claim that the female applicant should have been heard by the PRRA officer since her credibility was at issue. A hearing would have enabled her to allay the officer's misgivings with regard to the validity of certain documents.

[12]                        Section 113 of the Immigration and Refugee Protection Act clearly establishes that the Minister or his representative is not bound to grant a hearing or an interview. The Supreme Court recognized in Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3, that a hearing was not required in all cases and that the procedure provided under section 113 was consistent with the principles of natural justice stated in the Canadian Charter; in the vast majority of cases, it will be enough that applicants have the opportunity to submit their arguments in writing.

[13]                        Parliament stated, at section 167 of the Immigration and Refugee Protection Regulations (SOR/2002-227), the circumstances under which a hearing must be held. It is only when credibility is at the heart of the decision and could have a determinative effect on the decision that a hearing is required. In this case, the applicants had the opportunity to argue their point of view through written submissions, and the PRRA officer properly determined that a hearing was not required.

[14]                        It appears to me that the PRRA officer did not determine that the female applicant lacked credibility, but rather that there is no objective basis for the alleged risks in light of the documentary evidence which had been submitted to her. The documents were not all consistent with one another, some were altered, there was no official report establishing the death of the applicant's sister, the medical order did not establish that the female applicant's deafness was the result of a physical assault: all of this supported the officer's determination that the alleged risk was not corroborated by the objective documentary evidence. Accordingly, the applicant's credibility was incidental, and the PRRA officer was entitled to weigh the evidence and to determine that it lacked probative value. The a posteriori explications that the female applicant wanted to raise to explain the shortcomings in the evidence were not sufficient to justify her request for a hearing.

[15]                        For all of these reasons, it is my opinion that the application for judicial review must be dismissed, since the applicants failed to show that the PRRA officer's decision was patently unreasonable. No question of general importance will be certified.

"Yves de Montigny"