Date: 20260708
Docket: IMM-8290-24
Citation: 2026 FC 919
Ottawa, Ontario, July 8, 2026
PRESENT: The Honourable Madam Justice Turley
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BETWEEN:
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OMAR DERDAK
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS AND JUDGMENT
I. Overview
[1] The Applicant, Mr. Derdak, seeks judicial review of a senior immigration officer’s decision refusing his application for a Pre-Removal Risk Assessment [PRRA]. In his PRRA application, the Applicant claimed that he would be at risk of persecution if he was returned to Morocco because he does not practice the Islamic faith and because he is a bisexual man. The officer refused the Applicant’s PRRA application on both grounds, finding that the Applicant had not established a risk of persecution or other harm under section 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The officer accepted the objective country condition evidence that same sex relations are illegal in Morocco and are punishable by prison sentences of six months to three years and/or a fine. However, the officer found that, in the absence of any supporting documentary evidence, the evidence of the Applicant, and that of his wife, was insufficient to demonstrate that he is bisexual and at risk of harm in Morocco.
[3] I am allowing the application for judicial review. I agree with the Applicant that the officer made a negative credibility determination and that, as a result, an oral hearing should have been convened to provide the Applicant with an opportunity to address the officer’s concerns. This finding is sufficient to dispose of this application; there is no need to consider the Applicant’s other ground of review.
II. Issue and Standard of Review
[4] The parties disagree on the standard of review applicable to the issue of whether a PRRA officer erred in failing to hold an oral hearing in accordance with section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
[5] The Applicant argues that the failure to hold a hearing is a breach of procedural fairness and that, as a result, the standard of review akin to correctness applies. The Respondent, on the other hand, submits that the presumptive standard of reasonableness applies because the officer’s decision about whether to hold an oral hearing turns on their interpretation and application of the governing legislation to the facts.
[6] As I noted at the hearing, there is divergence in the Court’s jurisprudence about the proper standard of review.
[7] In some decisions, reasonableness has been applied because, in deciding whether to hold a hearing, the officer is interpreting their home statute: SKGO v Canada (Citizenship and Immigration), 2024 FC 1295 at para 15; Balogh v Canada (Citizenship and Immigration), 2022 FC 447 at paras 16–21; Garces Canga v Canada (Citizenship and Immigration), 2020 FC 749 at para 23; Sallai v Canada (Citizenship and Immigration), 2019 FC 446 at para 30; Huang v Canada (Citizenship and Immigration), 2018 FC 940 at para 16.
[8] Other decisions have concluded that correctness applies because deciding whether to hold a hearing is a question of procedural fairness: Iwekaeze v Canada (Citizenship and Immigration), 2022 FC 814 at paras 7–14; Allushi v Canada (Citizenship and Immigration), 2020 FC 722 at para 17; Nur v Canada (Citizenship and Immigration), 2019 FC 951 at para 8; Khan v Canada (Citizenship and Immigration), 2019 FC 534 at paras 16–20; Nadarajan v Canada (Public Safety and Emergency Preparedness), 2017 FC 403 at paras 12–17; Zmari v Canada (Citizenship and Immigration), 2016 FC 132 at paras 10–13.
[9] Since the hearing of this judicial review, the Federal Court of Appeal released its decision in Canada (Public Safety and Emergency Preparedness) v Rodas Tejeda, 2026 FCA 115. In that case, the Court of Appeal resolved the divergence in this Court’s jurisprudence concerning the standard of review where the issue is whether an administrative decision-maker erred in determining that a delay constituted an abuse of process: Rodas Tejeda at paras 33–46.
[10] The Court of Appeal concluded that the standard akin to correctness applies to all questions of procedural fairness. It does not matter whether the decision-maker “ruled on the procedural fairness issue by considering what procedural fairness requires”
, or whether a breach of procedural fairness is argued for the first time before the reviewing court based on what the decision-maker “did or did not do as opposed to what it decided in the reasons it gave”
: Rodas Tejeda at para 40.
[11] Based on Rodas Tejeda, I find that the standard of review akin to correctness applies in this case to the issue of whether the officer erred in failing to hold an oral hearing. At its core, this is an issue of the fairness of the decision-making process. I agree with Justice McHaffie that “the fact that there were legislated procedural provisions that had to be interpreted and/or applied did not take the issue outside the procedural fairness framework”
: Iwekaeze at para 9.
[12] That said, ultimately, I would have reached the same conclusion applying the reasonableness standard. In the circumstances, the officer’s determination that an oral hearing was not required fails to withstand scrutiny under either standard of review.
III. Analysis
[13] In accordance with paragraph 113(b) of the IRPA and section 167 of the IRPR, a hearing must be held on a PRRA application if there is evidence that: (a) raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 or 97 of the IRPA; (b) is central to the decision with respect to the PRRA application; and (c) if accepted, would justify allowing the PRRA application.
[14] This case turns on the first factor, namely whether the officer questioned the credibility of the Applicant’s evidence that he is bisexual.
[15] I recognize that the officer framed their assessment of the Applicant’s evidence in terms of weight and sufficiency; not credibility. However, this Court has held that “[a]n officer’s choice of words is not determinative”
: Merenyi v Canada (Citizenship and Immigration), 2025 FC 1995 at para 11; see also: Johnfiah v Canada (Citizenship and Immigration), 2024 FC 1091 at para 9; Sallai at para 49; Majali v Canada (Citizenship and Immigration), 2017 FC 275 at para 31.
[16] The true basis for the officer’s decision must be identified to determine whether it is an adverse credibility finding or a sufficiency of evidence finding. As Justice Sadrehashemi points out, “[t]he exercise of determining whether an insufficiency of evidence finding is effectively a negative credibility finding is fact specific”
: Johnfiah at para 10.
[17] It may be difficult, in some cases, to determine whether an officer made an adverse credibility finding or an insufficiency of evidence determination. Justice Norris provides a useful test: “if the factual propositions the evidence is tendered to establish, assuming them to be true, would likely justify granting the application and, despite this, the application was rejected, this suggests that the decision maker had doubts about the veracity of the evidence”
: Ahmed v Canada (Citizenship and Immigration), 2018 FC 1207 at para 31.
[18] Here, in support of his PRRA application, the Applicant submitted a statutory declaration addressing his bisexuality. He states that he realized he was bisexual and attracted to men “after several years of partying and hanging out with guys during after-hours at bars and clubs.”
He did not tell anyone because being “bisexual is completely unacceptable in [the] Muslim religion.”
The Applicant says that he told his wife he was bisexual in 2020 after an argument about him being out every night. He told her that he “had many one-night encounters with random men [he] met in clubs, but [had] never been in a lasting relationship with a man”
: Statutory Declaration sworn November 22, 2023 at paras 24–25, Certified Tribunal Record [CTR] at 47.
[19] In addition, the Applicant submitted a letter from his wife in which she explains that, in 2020, she “was faced with the biggest shock of [her] life”
when the Applicant disclosed his bisexuality to her. He told her about his “numerous sexual one-night encounters with unknown men in afterhours clubs.”
She says that while she did not want anything to do with him at first, she ultimately decided to support him because he had stepped in and raised her two daughters as his own. She also states that she was the only one the Applicant had told about his sexual orientation: Letter dated November 23, 2023, CTR at 58.
[20] While the officer gave “some weight”
to this evidence, “on their own and in the absence of additional supporting documentary evidence,”
it was found insufficient to establish the Applicant as bisexual. The officer noted that the Applicant had not submitted “any other supporting documentary evidence to indicate that he is bisexual,”
such as, from any of his same-sex partners, from any friends or acquaintances in the LGBTQI+ community, or from any LGBTQI+ organizations, clubs, or events. The officer concluded that, in the absence of such further documentation, the Applicant’s materials were not “sufficient to establish that [he] is bisexual”
: Pre-Removal Risk Assessment dated March 8, 2024 at 7–8 [PRRA Decision], CTR at 9–10.
[21] The officer did acknowledge the country condition evidence that same-sex relations in Morocco are illegal and punishable by “six months to three years and/or a fine,”
that LGBTQI+ individuals face “familial and societal violence and discrimination,”
and that there are no effective protections available. But, because the officer found a lack of sufficient evidence establishing the Applicant’s bisexuality, the officer determined that he would not be “negatively affected by conditions for LGBTQI+ individuals”
in Morocco: PRRA Decision at 8, CTR at 10.
[22] In my view, the officer made an adverse credibility finding. The only reason that the officer cites for finding the evidence insufficient is that no “other supporting documentary evidence to indicate that he is bisexual”
was submitted: PRRA Decision at 8, CTR at 10.
[23] The Respondent attempts to justify the officer’s insufficiency finding, arguing that the Applicant’s evidence was “brief,”
that his wife’s evidence was only “a short statement,”
and that “evidence tendered by persons with a personal interest in the outcome of a case”
may require corroboration: Respondent’s Further Memorandum of Argument at paras 9, 11. The officer, however, did not make these findings, and the Respondent cannot offer after-the-fact explanations to bolster or gap-fill the officer’s decision: SKGO at para 18.
[24] In the circumstances, I find that “the officer’s reasons for rejecting the application are comprehensible only if the officer had doubts bearing directly on the applicant’s credibility”
: Ahmed at para 33. Indeed, if the evidence had been accepted as true, given the officer’s acknowledgment of the risk faced by bisexual people in Morocco, the Applicant’s PRRA application would likely have been granted. As a result, it was a breach of procedural fairness not to hold a hearing to allow the Applicant an opportunity to address the officer’s concerns.
IV. Conclusion
[25] The application for judicial review is granted. On redetermination, the Applicant should be given an opportunity to submit further evidence and submissions.
[26] The parties did not propose any questions for certification, and I agree that none arise.
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