Category: Pre Removal Risk Assessment

The Court set aside a decision of the PRRA officer. The applicant had filed an affidavit setting out the basis for his fear. The officer rejected the case finding that the evidence was not credible. The Court found reviewable error holding that the officer erred in not holding an oral hearing: 13 The alleged insufficiencies in the affidavit together with the Officer's finding that the Applicant's failure to claim in the United States showed a lack of subjective fear appear to have animated his overall finding. I conclude that the Officer, in fact, made the decision on credibility grounds; quite simply, the Officer did not believe the Applicant's story and rejected the PRRA application on that basis. 14 A review of this Court's jurisprudence is not particularly helpful as each of these cases turns on its individual facts. However, speaking generally, the case at bar compares more closely with the decisions in L.Y.B. v. Canada (Minister of Citizenship and Immigration), 2009 FC 1167, [2009] F.C.J. No. 1470 (QL) and Prieto v. Canada (Minister of Citizenship and Immigration), 2010 FC 253, [2010] F.C.J. No. 307 (QL) where the Court allowed the judicial reviews on similar facts. 15 I wish to make it clear that I am not saying that an affidavit will automatically mean that an oral hearing is required. Each case will turn on its facts and what information may or may not be included in the affidavit. Nor should this decision be an invitation for applicants to expect an oral hearing where they can add details and further support. In general, an applicant bears the burden of presenting sufficient evidence to the Officer and an interview is an exception to the normal written review. However, it is obvious, from the inclusion in IRPA and the Regulations of the possibility of an oral hearing, that cases will arise where credibility can only be assessed after an oral hearing. In my view, this is one of those cases.

12 However, in my view, a hearing was required by law. Under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, a hearing should be held where certain factors, prescribed by regulation, are present (s. 113(b); see Annex; see also Tekie v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 39 (QL)). In essence, the factors are whether (a) there is evidence raising a serious issue of the applicant's credibility; (b) the evidence is central to the application for protection; and (c) the evidence, if accepted, would justify allowing the application (Immigration and Refugee Protection Regulations, SOR/2002-227, s. 167; see Annex). 13 The officer's reasons persuade me that a hearing was required here. First, the officer seemed to place considerable emphasis on the credibility findings of the Immigration Appeal Division. Second, the officer found that there was insufficient objective evidence to support Mr. Liban's claim that he had a relationship with Jimmy. Third, the officer found that there was insufficient objective evidence to support Mr. Liban's claim to be an alcoholic. Fourth, the officer seemed to accept that homosexuals and alcoholics would be subjected to mistreatment in Ethiopia. Therefore, if Mr. Liban's evidence relating to his sexuality and alcoholism had been accepted, the officer would likely have allowed the application. 14 In my view, when the officer stated that there was "insufficient objective evidence" supporting Mr. Liban's assertions, he was really saying that he disbelieved Mr. Liban and, only if Mr. Liban had presented objective evidence corroborating his assertions, would the officer have believed them. To my mind, these findings are conclusions about Mr. Liban's credibility. They were central to his application. If the officer had believed Mr. Liban, the officer, in light of the documentary evidence he accepted, would likely have found that Mr. Liban was at risk.

The Court set aside the decision holding that the officer erred in refusing to accept new evidence :21 While the fact that the evidence post-dates the hearing does not per se make it new evidence, likewise evidence that refers to an old risk should not be rejected as "not new" where it speaks to the development of the risk and is materially different evidence of that old risk. 22 The error in the Officer's approach to this evidence was the failure to address the five questions or factors outlined by the Court of Appeal. This analysis is not necessarily formulaic as long as it is clear the factors were considered. The Officer concluded that the letters from the three women did not show a change of circumstances and are not new evidence. The Officer did not first consider whether the evidence was new before considering what it showed. 23 The analytical step of considering first whether the evidence was new is important in this case because the Officer did not consider (i) relevance in terms of proving or disproving a fact that was relevant to the claim of protection, and (ii) newness in terms of contradicting a finding of fact by the RPD (including a credibility finding). Therefore, there was an error of law. 24 The Officer's conclusion as to the significance of the evidence (which is tied in with the "newness" analysis) is unreasonable. Firstly, the evidence shows that the old risk is continuing, present and real; secondly, the evidence differs from that which was before the Board. It was unreasonable to reject the evidence as not new. 25 The Officer's rejection of the new evidence is further undermined by her acceptance that the Applicant was in an abusive relationship but had state protection. This was not a finding where risk was presumed as an alternative position but discounted by the availability of state protection. 26 In finding that the Applicant was in an abusive relationship, the Officer made a finding that was contrary to the Immigration and Refugee Board (Board) which rejected that submission on the grounds of credibility. The Officer accepted the only evidence which could ground a finding of abusive relationship but rejected it as not "new" for purposes of admissibility. The Officer's finding that there was no substantially different risk is unreasonable given her finding which was contrary to the Board's decision.

The Court held that the tribunal erred in refusing to receive the fresh evidence because as it was clearly relevant the officer failed to explain why it was not fresh evidence that could be considered:18 The Officer's rejection of the Committee's letter as "new evidence" ignores the ratio in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. The letter was relevant because it was "capable of proving or disproving a fact that is relevant to the claim of protection". The letter was new evidence in that it was "capable of ... contradicting a finding of fact by the RPD (including a credibility finding)". Therefore, the rejection of the letter was an error of law. There was no analysis of the "new evidence" criteria.

The Court set aside a decision where the PRRA officer refused to accept fresh evidence:17 If the PRRA officer found the applicant's explanation as to why the 1999 warrant was not provided to the Board inadequate, he did not say so. His statement that the applicant had offered no explanation as to why evidence pre-dating Board's decision was not provided suggests that he was not aware that the applicant had offered an explanation for this document. As I will discuss under the second issue, below, if the officer was aware that an explanation had been provided and found the explanation inadequate, his reasons should have reflected this finding, particularly in light of the probative nature of the document.

Tekie v. Canada (Minister of Citizenship and Immigration), 2005 FC 27: 16 In my view, section 167 becomes operative where credibility is an issue which could result in a negative PRRA decision. The intent of the provision is to allow an Applicant to face any credibility concern which may be put in issue. 17 The record in this case shows that the Officer had credibility concerns. Although the case was decided principally on the basis of "objective fear", if the Applicant's contentions had been accepted, a positive PRRA would have resulted. The fact that, in the end, the PRRA decision is based on other than credibility does not lessen the right to an oral hearing.

The Court set aside a PRRA decision holding that the officer made a credibility finding without an oral hearing.

The Court set aside a PRRA decision. The court discusses the concept of conscientious objection and also holds that being sent to a country where there is a risk of imprisonment in inhumane conditions can be a ground for risk under section 97.

The Court set aside a PRRA refusal. The court held that the officer erred in assigning little weight to the letters because they were requested by counsel.

The Court set aside a decision holding that the officer made credibility findings and hence erred in not holding an oral hearing.