Docket: IMM-103-11
Citation: 2011 FC 1334
Ottawa, Ontario, November 21, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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MARCO ANTONIO MONTESINOS HIDALGO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Defendant
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (hereafter IRPA) of the decision
made on September 20, 2010, by a Pre-Removal Risk Assessment (“PRRA”) Officer,
rejecting the applicant’s PRRA application.
[2]
For
the reasons expressed below, I find that the applicant was denied procedural
fairness. The application for judicial review will, therefore, be granted.
BACKGROUND
[3]
The
applicant is a 31 year old citizen of Mexico. He studied law and in
2003 became the owner of a video store in Tapachula Chiapas. In December
2006 he was approached by members of the gang Mara 18 to use his store to sell
drugs. He refused. He was subsequently beaten at his store in January 2007. He
reported the incident to the police.
[4]
Upon
following up on the status of the investigation in March 2007, the applicant
came to believe that one of the policemen he had reported the matter to was in
league with the gang. The applicant was than beaten again. He went to the
hospital and, while recuperating, his store burned down.
[5]
The
applicant consequently moved to Tuxtla Guetierrez Chiapas and filed
another complaint. He was advised that the police officer he suspected would be
investigated. In September 2007, the applicant received a phone call telling
him that if he identified someone during the investigation he would be killed.
The applicant came to Canada in November 2007 and made a claim for
refugee protection.
[6]
The
Refugee Protection Division (“RPD”) of the Immigration and Refugee Board
determined that the applicant was not a Convention refugee or a person in need
of protection. Credibility and state protection were the determinative issues.
On the advice of new counsel, the applicant sought to submit additional
documentary evidence following the hearing. That request was denied. An
application for leave and for judicial review of the RPD decision was
dismissed.
[7]
The
applicant made a PRRA application in August 2009. The application was rejected
in October 2009. Leave for judicial review of that decision was granted but the
application was withdrawn by the applicant after the Minister agreed to have
the matter reexamined by another officer. On the redetermination, the
assessment was again
that the applicant faced less than a mere possibility of persecution and that
there was no ground to believe that he faced a danger of torture or of a risk
to his life, or cruel and unusual treatment or punishment.
DECISION UNDER REVIEW:
[8]
The
officer was not satisfied that the additional evidence submitted by the
applicant changed the material facts of his claim or overcame the RPD finding
on state protection. Applying s.113(a) of the IRPA, the officer found that no
consideration should be given to the evidence as it was available to the
applicant before his RPD hearing.
[9]
The
applicant also submitted additional documentary evidence respecting country conditions
in Mexico. The officer found that
although the conditions in Mexico are less than ideal, referring to the drug cartels and gang
problems, the applicant did not prove that he faced a personalized risk in his
country. The officer concluded that the applicant, therefore, did not overcome
the presumption of state protection.
ISSUES
[10]
The
issues raised in this application are whether the officer erred in failing to address the
applicant’s request for an oral hearing and in failing to hold such a hearing.
STANDARD OF REVIEW
[11]
The Federal
Court is authorized to intervene when a tribunal has failed to observe a principle of natural
justice, procedural fairness or other procedure that it was required by law to
observe: paragraph 118.1(4)(b) Federal
Courts Act, RS C, c F-7. The standard of review for this application of
this authority has been described as correctness: Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at para 43; and Sivabalasuntharampillai
v Canada (Minister of
Citizenship and Immigration), 2011 FC 975 at para 19. As was also stated in Khosa, at paragraph 43, relief
may be withheld when the procedural error is purely technical and occasions no
substantial wrong or miscarriage of justice.
ANALYSIS
[12]
The
applicant submits that he requested that an oral hearing be held pursuant to s.113(b)
of the IRPA if the officer had concerns regarding his credibility. He contends that
he was denied procedural fairness by the officer’s failure to grant a hearing and
failure to provide reasons to explain why a hearing was not necessary.
[13]
Section
113(b) of the IRPA provides that in considering an application for protection a
hearing may be held if the Minister, on the basis of the prescribed factors, is
of the opinion that a hearing is required.
[14]
Section
167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (hereafter the Regulations) sets out the prescribed
factors as follows:
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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.
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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.
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[15]
The
criteria in s.167 are cumulative: Tran v Canada (Minister of Public Safety
and Emergency Preparedness, 2010 FC 175; Ventura v Canada
(Minister of Citizenship and Immigration), 2010 FC 871; Matano
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1290.
[16]
The
criteria have been interpreted by the Court as requiring, first, a question as
to the applicant's credibility and second, that this credibility finding is
determinative to the case. As stated by Justice Bédard in Matute Andrade v Canada
(Minister of Citizenship and Immigration) 2010 FC 1074 at
paragraph 31,
the Court needs to look “beyond the words” to determine whether
credibility was actually in issue.
[17]
Here,
the
applicant submits that the issue of state protection was intertwined with his
credibility. If his story was found to be truthful, the officer’s state
protection finding may have been different. Thus he was entitled to a hearing
and an opportunity to persuade the officer to accept the evidence that would
have corroborated his story.
[18]
The
respondent argues that the PRRA officer properly rejected the new evidence in
accordance with s.113(a) IRPA and the jurisprudence: Raza v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385. This extinguished all issues
regarding credibility.
[19]
I
agree with the respondent that an oral hearing may have ultimately served no
purpose since the applicant’s object in requesting a hearing was to persuade
the officer to accept his new evidence. In that regard, the officer’s finding
that the new evidence was not admissible may well have ended the matter, as the
respondent contends. However, that reasoning does not appear in the officer’s
decision.
[20]
In
my view, the officer’s reasons are open to the interpretation that he did not
believe the applicant and that credibility was, therefore, in issue. In those
circumstances, the weight of the jurisprudence in this Court is to the effect that
an officer must provide reasons as to why he/she refuses a request for an oral
hearing. See Zemo v Canada (Minister of Citizenship and Immigration), 2010 FC 800 at para
18; Zokai v Canada (Minister of Citizenship and Immigration), 2005 FC
1103 at para 12; and Rana v Canada (Minister of Citizenship and Immigration), 2010 FC 36 at para 40.
[21]
In
this case, the officer checked off a box besides a “no” under the headline
“oral hearing” on the form used to structure PRRA decisions but gave no reasons
to explain why a hearing was not necessary. Apart from the check box, there is
no indication that the officer turned his mind to the issue. In my view, this
falls short of constituting adequate reasons.
[22]
Since
the officer did not provide any reasons as to why an oral hearing was not
necessary, the Court cannot assess the reasonableness of his decision to not
grant the requested hearing. The respondent’s argument that this followed
inevitably from the decision to exclude the new evidence may be correct but
does not fill the void in the officer’s reasons.
[23]
In
the result, I find that the failure to provide adequate reasons for the
decision not to hold a hearing constitutes a breach of procedural fairness and
will send the matter back for reconsideration.
[24]
No
questions were submitted for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted and
the matter is remitted for
redetermination by a different pre-removal risk assessment officer in
accordance with these reasons.
“Richard
G. Mosley”
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