Date: 20050815
Docket: IMM-8976-04
Citation: 2005 FC 1103
OTTAWA, Ontario, August 15th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
HASSAN ZOKAI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (Officer) dated October 15, 2004 in which it was determined that the applicant would not be at risk of persecution if returned to Iran.
FACTS
Background
[2] The applicant, a citizen of Iran, arrived in Canada in 1995 and made an unsuccessful claim for refugee status on the basis of religious persecution. He was deported to Iran in June 1998. The applicant claims that upon his return to Iran, he was detained, interrogated and released on condition that he report weekly to the police. Three months later, he was detained, placed in solitary confinement and tortured for a year. He was then transferred to the general population of the prison, where he spent an additional five years. The applicant was never charged with an offence and did not receive a trial.
[3] In 2004, the applicant was released on condition that he report to the police station monthly. The applicant states that he did this for two months, but then became frightened when he realized that his movements were being tracked by security forces. Fearful that he was being used to reveal the identity of other members of his faith, the applicant fled to Canada on August 24, 2004. He was detained on arrival at Pearson International Airport and found to be inadmissible for the purpose of a refugee claim. However, he was given an opportunity to make an application for a Pre-Removal Risk Assessment (PRRA).
PRRA Application
[4] The PRRA application was filed on October 8, 2004. In the written submissions that accompanied the application, the applicant indicated that his family was gathering evidence in Iran to corroborate his claim of imprisonment and torture. In particular, the applicant was waiting to receive a summons that had been issued by Iranian authorities after he left for Canada directing him to report to prison. The applicant also indicated that arrangements were being made to have a medical doctor examine him in the Immigration Detention Centre for signs of torture. Furthermore, the applicant requested that an oral hearing be held to allow him to present evidence regarding the events that took place after his first refugee hearing.
PRRA Decision
[5] The PRRA submissions were received by the respondent on October 12, 2004 and a negative decision was rendered on October 15, 2004. The applicant was notified of the decision on October 21, 2004. The basis of the Officer's decision was that the applicant had not provided documentary evidence to support his claim, such as written testimonies from family members or court/prison documentation. The decision does not refer to the request for an oral hearing, and none was held.
Summons and Medical Report
[6] A copy of the summons directing the applicant to report to Iranian authorities on a charge "related to being against the national religion" was received by his agents (volunteer law students) in Toronto on October 18, 2004. On October 28, 2004, the applicant was examined by the attending physician for the detention centre. His brief report states that the applicant's "history and examination [is] in keeping with 1 year intermittent torture while in jail in Iran 1999. He appears to be a victim of torture."
Stay of Deportation by MacKay J.
[7] The applicant filed an application for judicial review of the PRRA decision on October 22, 2004. On November 9, 2004, Mr. Justice Mackay issued a stay of deportation pending resolution of this judicial review, and he held at paragraphs 12, 13 and 14 of his decision:
¶ 12. In my opinion circumstances of this case give rise to concern about procedural fairness in considering the PRRA application of the applicant. Here a specific request was made for an oral hearing with reference to subsection 113(b) of IRPA and section 167 of the IRPA Regulations. The latter sets out factors to be considered when determining whether or not a hearing is required. Those factors relate to whether there is a serious issue of the applicant's credibility in regard to evidence central to the decision with respect to the application for protection. The decision of the PRRA officer makes no reference to those factors, or to any other factors that led to the decision not to have an oral hearing despite the written request for one. There is no evidence in the decision that consideration was given to the appropriateness of an oral hearing apart from indicating that none was held. Moreover, the timing of the decision, which stresses the lack of objective and supportive evidence, despite an indication that such evidence was being sought, a decision made within seven days of the receipt of the application, effectively precluded the attempt to provide information or evidence with respect to the applicant's circumstances after his deportation to Iran. This precluded consideration of any new evidence apart from the representations made by him and in writing by his agents. (Emphasis added)
¶ 13. I do not suggest that if an oral hearing is requested that request must be granted. Yet here one was requested and the circumstances supporting that request were advanced but no reference was made in the PRRA decision to consideration of the request, to the circumstances advanced, or the factors set out in the regulations to be weighed in considering the request. Moreover, the essence of the decision is that the applicant's story and professed fears are given no weight, effectively rejecting the applicant's evidence as not credible even though no specific reference is made to credibility as an issue. That process of decision making was ultimately unfair, particularly, where the timing of the process effectively foreclosed a reasonable time for presentation of supporting evidence.
¶ 14. That unfairness in my view warrants intervention of the Court to stay the removal of the applicant pending the determination for leave and for judicial review of the PRRA decision, without prejudice to consideration of the leave application by a judge, when the application is perfected.
Mr. Justice MacKay has thoroughly examined the underlying issue, and concluded that the PRRA process was unfair to the applicant.
ISSUES
[8] The same issues as on the stay are raised on this application for judicial review:
1. Did the Officer's failure to consider the applicant's request for an oral hearing amount to a breach of procedural fairness?
2. Did the Officer breach the duty of fairness in rendering a decision without waiting for additional documentary evidence from the applicant?
ANALYSIS
Issue No. 1
Did the Officer's failure to consider the applicant's request for an oral hearing amount to a breach of procedural fairness?
[9] Subsection 113(b) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) provides that an oral hearing may be held in the context of a PRRA application. The factors to be considered when determining whether to hold a hearing are set out in section 167 of the IRPA Regulations which reads as follows:
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant's credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
167. Pour l'application de l'alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d'une audience est requise :
a) l'existence d'éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;
b) l'importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu'ils soient admis, justifieraient que soit accordée la protection.
[10] The applicant submits that while the decision to hold a hearing is discretionary, the Officer nonetheless had an obligation to consider the request for an oral hearing, with reference to the factors set out in section 167 of the Regulations. The respondent submits that an oral hearing was not required because the Officer did not make a credibility finding against the applicant. Therefore, it is of no consequence that the Officer failed to refer specifically to the applicant's request for an oral hearing or to the above factors.
[11] I agree with the applicant that a breach of procedural fairness arises on the facts of this case. The applicant made a detailed request in his PRRA application for an oral hearing, with specific reference to the factors set out in section 167 of the Regulations. However, the PRRA Officer makes no reference to these factors, or to any other factors that led to the decision not to hold an oral hearing, despite the written request for one. In fact, there is no evidence that the Officer turned his mind to the appropriateness of holding an oral hearing.
[12] Furthermore, it is clear, despite the respondent's submissions to the contrary, that credibility was central to the negative PRRA decision. In refusing to accord weight to the applicant's story without corroborating evidence, the PRRA Officer, in effect, concluded that the applicant was not credible. In my view, given these credibility concerns, it was incumbent on the Officer to consider the request for an oral hearing and to provide reasons for refusing to grant the request. The Officer's failure to do so in this case constitutes a breach of procedural fairness. Moreover, in view of the special circumstances of this case with respect to credibility, the Court is of the view that a hearing is appropriate.
Issue No. 2
Did the Officer err in rendering a decision without waiting for additional documentary evidence from the applicant?
[13] The applicant submits that it was unfair for the Officer to render a negative decision three days after receiving the PRRA submissions on the basis that no supporting documentary evidence was provided, when the applicant had advised the Officer that evidence would be forthcoming. The respondent, in reply, states that the Officer complied with section 162 of the IRPA Regulations which prescribes that a decision cannot be rendered until 30 days after the applicant was notified of the right to make a PRRA application. As a result, the Officer cannot be faulted. The respondent also points out that the applicant has the right to make a new PRRA application pursuant to section 165 of the Regulations when he receives new evidence.
[14] In my opinion, it is not a sufficient answer that the Officer waited the minimum statutorily prescribed period before rendering the PRRA decision. The common law duty of fairness requires that an applicant be given a reasonable opportunity to present evidence and to participate in the application process, especially where, as here, a negative decision would have a profound impact on the life of the applicant. Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.); Mojzisik v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 33 at paragraph 21. In this case, it is evident, with the benefit of hindsight, that the applicant was not given such an opportunity so there was a breach of the duty of fairness.
CONCLUSION
[15] For these reasons, this application for judicial review will be allowed. My analysis and conclusion are exactly the same as set forth by Justice MacKay. I am surprised that the respondent proceeded with this case, and did not settle following Justice MacKay's thorough analysis. This wastes the time and resources of the applicant's counsel and the Court.
[16] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the PRRA decision dated October 15, 2004 is set aside, and the PRRA application is to be redetermined by another PRRA Officer as soon as possible after providing the applicant with a hearing (i.e. an interview) so that the PRRA Officer can assess the credibility of the applicant's allegations.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8976-04
STYLE OF CAUSE: HASSAN ZOKAI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: August 10, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: August 15, 2005
APPEARANCES BY:
Sil Salvaterra FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Osgoode Hall Law School
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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