Date: 20041109
Docket: IMM-8976-04
Citation: 2004 FC 1581
BETWEEN:
HASSAN ZOKAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY D.J.:
[1] These are reasons why the Court ordered the stay of the applicant's removal from Canada, pending consideration of the applicant's application for leave, and if leave be granted, for judicial review of a negative pre-removal risk assessment decision, dated October 15, 2004 and received by the applicant on October 21, 2004.
[2] When the matter came on for a hearing on November 1, 2004 apparently no date had been established for the applicant's removal from Canada, but the only assurance his counsel could obtain was that he would not be removed before November 2nd.
[3] When the matter came on for hearing counsel for the respondent Ministers argued that no serious issue was raised by this application, but if the Court were not prepared to accept this argument and did find a serious issue was raised then it was conceded that irreparable harm was established and that the balance of convenience would favour grant of the application sought by the applicant.
[4] Thus, the sole issue between the parties argued at the hearing was whether the underlying application for leave and for judicial review raises a serious issue, one that is arguable and not simply frivolous or vexatious.
[5] Without prejudice to the determination that may ultimately be made by the judge considering the leave application when it is perfected for consideration, in my opinion a serious issue is raised by the application for leave and for judicial review, filed on October 22, 2004.
[6] A brief overview of essential facts includes the following. The applicant arrived in Canada from Iran, his country of nationality and made a claim for refugee status which was refused in 1996. He was deported to Iran in June 1998 and upon arrival there he says he was detained, interrogated, and then released on condition that he sign in weekly at a police station. Three months later he was detained in solitary confinement, was tortured for a year, and then detained for five more years, without charge or trial. He was released in 2004.
[7] Fearful that security forces would use him to pursue members of his professed faith, he fled to Canada again, arriving at Pearson Airport on August 24, 2004. He was detained on arrival, found to be inadmissible to Canada but was given an opportunity to make an application for a pre-removal risk assessment ("PRRA") claiming to be a person in need of protection.
[8] That application was submitted on October 8th. With it were written representations including notice that he was requesting from his family in Iran evidence to support his submissions, including evidence of his incarceration, of deaths within his own family, and of a notice received at his home after his departure from Iran, directing that he report to the authorities in relation to allegations that his activities violated state religious requirements. Written PRRA submissions also included a request for an oral hearing, particularly in view of the denial of his first refugee claim and to establish evidence of events that had occurred since then. Those submissions sought to identify factors supporting an oral hearing in the circumstances of this case. Following his PRRA submissions students from the Toronto Refugee Affairs Council wrote on his behalf to obtain a copy of the earlier decision regarding refusal of his refugee claim in 1996 and a copy of any decision at any port of entry or of notes relating to his recent arrival. The 1996 decision was only provided with an affidavit on behalf of the respondent filed on the day of hearing of the stay application.
[9] A copy of the summons directed to Mr. Zokai directing that he report to authorities in Iran, was subsequently received and this was provided to his agents in Toronto on October 18, 2004. On October 28, they were able to arrange for Mr. Zokai to be examined by a doctor whose brief report dated that day was on file. Unfortunately for Mr. Zokai and his agents, he was informed that the negative PRRA decision was made on October 15th, without awaiting any documentation he was seeking to provide and without an oral hearing.
[10] The decision of the pre-removal risk assessment officer refers to the negative decision in 1996, and that
"the applicant returned to Iran before re-entering Canada on September 26, 2004. It seems reasonable to believe that having already been through the refugee process once, he would have had the opportunity to collect the necessary documents in order to support the new refugee claim he wanted to present, or in order to address the concerns raised by the board. I understand the applicant was detained during six years before being released with the help of his sisters...there is a lack of objective and supportive evidence and I am not satisfied to come to a different conclusion than that of the Board under section 96 of the IRPA (i.e. the 1996 decision rejecting his refugee claim). I am also not satisfied that the applicant would be at risk of torture, risk to life, or risk of cruel and unusual treatment or punishment". [Phrase in parenthesis added].
[11] The decision includes no reference to the request for an oral hearing. Rather, on the form for the PRRA decision, after the question "oral hearing held?" the decision checks off the box "No".
[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.
[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.
[15] Thus, an Order to stay the removal of the applicant issued, pending that consideration, and if leave be granted, pending determination of the application for judicial review.
"W. Andrew MacKay"
D.J.F.C.
Ottawa, Ontario
November 9, 2004.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8976-04
STYLE OF CAUSE: HASSAN ZOKAI
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 1, 2004
REASONS FOR ORDER: Honourable Mr. Justice W. Andrew MacKay
DATED: November 9, 2004
APPEARANCES:
Mr. Sil Salvaterra FOR THE APPLICANT
Mr. Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Community and Legal Aid Services Program
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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