Sylla v. Canada (Minister of Citizenship and Immigration), 2004 FC 475

Date: 20040329

Docket: IMM-4500-03

Citation: 2004 FC 475

Ottawa, Ontario, the 29th day of March 2004

Present:           The Honourable Mr. Justice Simon Noël

BETWEEN:

                                                           ABDOULAYE SYLLA

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The applicant is seeking judicial review of a decision by Martine Beaulac, a pre-removal risk assessment officer (PRRA), dated May 1, 2003. In this decision, it was determined that the applicant was not a person who could be subjected to a danger of persecution, torture, a risk to his life or a risk of cruel and unusual treatment or punishment, if he were removed to Guinea.

[2]                In reaching this conclusion, the officer found that:

-           the applicant's credibility was called into question as a result of the confusion about the date of birth;

-           the documentary evidence did not support the applicant's argument to the effect that he would be at risk if he were to return to his country of origin;

-           there was an internal flight alternative in Guinea;

-           state protection was available to the applicant in Guinea;

[3]                Given the determination regarding credibility, the applicant argues that the officer should have held a hearing in accordance with section 113 of the Immigration and Refugee Protection Act (IRPA) and section 167 of the Immigration and Refugee Protection Regulations (the Regulations), and he adds that this is a violation of the applicant's rights guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (the Charter). He claims that the finding on credibility led the officer to dismiss essential documents such as the notices, warrants and birth certificate, and that these are important to his case.

[4]                The confusion about the applicant's date of birth is not new evidence because this confusion was obvious in his file and there has not been any new evidence available since the decision of the Immigration and Refugee Board (IRB). Paragraph 113(a) of the IRPA states that, upon an application for a pre-removal risk assessment, the applicant must submit " . . . 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." The problems regarding the date of birth existed well before the IRB's decision.

[5]                In any event, a careful review of the officer's decision shows that the decision regarding credibility was not, in itself, determinative when we take into account all of the elements considered. The other three findings made by the officer are important and even determinative for the purposes of this case, whereas the finding on credibility does not affect the other three findings. (See Kim v. M.C.I., [2003] F.C.T. 321, Keller v. M.C.I., [2003] F.C. 1063 and Houcine v. M.C.I., [2003] F.C.T. 533).

[6]                The right to a hearing in the context of PRRA proceedings exists when credibility is the key element on which the officer bases his or her decision and without which the decision would have no basis. It has been held that PRRA proceedings without a hearing (under IRPA), and in which the applicant's position is explained in writing, are in accordance with the principles of fundamental justice. (See Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3 and Youmis v. Solicitor General of Canada, [2004] F.C. 266, paragraph 6). Therefore, there was no violation of the fundamental rights provided in section 7 of the Charter.

[7]         The parties did not propose any question for certification.

                                                                        ORDER

THE COURT ORDERS THAT:

-           The application for judicial review is dismissed and no question will be certified.

               "Simon Noël"                    

            Judge

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                              FEDERAL COURT

                                                       SOLICITORS OF RECORD

DOCKET:                                                                          IMM-4500-03

STYLE OF CAUSE:                                                          ABDOULAYE SYLLA v. MCI

PLACE OF HEARING:                                                    OTTAWA, ONTARIO

DATE OF HEARING:                                                      MONDAY, MARCH 22, 2004, ADJOURNED TO

THURSDAY, MARCH 25, 2004

REASONS:                                                                       THE HONOURABLE MR. JUSTICE SIMON NOËL

DATE OF REASONS:                                                      March 29, 2004

APPEARANCES:                              

Joseph-Alphonse André                                                       FOR THE APPLICANT

Daniel François Kasenda Kabemba

Marie Crowley                                                                     FOR THE RESPONDENT

SOLICITORS OF RECORD:

Joseph-Alphonse André                                                      

Solicitor and Notary

Ottawa, Ontario                                                                   FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada                                     FOR THE RESPONDENT