I am appearing at the Federal Court this morning to challenge a negative PRRA decision by my client, a national of Egypt.
There are myriad considerations for a PRRA. This is a highly technical area of refugee law. The PRRA constrains consideration to "new evidence" and is generally speaking a paper based review. The acceptance rate for a PRRA is very low, less than 5%. Another area, and the issue for today is the requirement to hold an oral hearing.
Duri Cho v. MCI 2010 FC 1299 involved an applicant originally from Bangladesh. He moved to South Korea and obtained citizenship there. He first came to Canada in December 2006 and made a refugee claim which was withdrawn prior to referral. He returned in 2009 and made a claim for refugee protection which was determined to be ineligible (because of his previous claim). He was left with only the PRRA in terms of a risk assessment. He requested an oral hearing (pursuant to s.113(b) of the IRPA). In essence, he had problems in South Korea because of his status as a minority and the fact that he was a human rights activist. The PRRA officer found that state protection did exist in that country; and ultimately concluded that there was insufficient evidence to corroborate the claim.
At the Federal Court Madam Justice Tremblay-Lamer agreed with the applicant that the PRA officer "made a veiled credibility finding" and thus, was owed a oral hearing. A PRRA applicant is not generally entitled to an oral hearing, section 167 of the IRPR sets out the prescribed factors.
The starting point is to first determine whether or not the officer's decision to dismiss the applicant's statements was based on a finding of credibility or whether it was based merely on insufficiency of evidence.
In Cho, Justice Tremblay-Lamer states "In the absence of a determination as to credibility, an applicant's evidence is presumed to be true. Is it possible that the officer, in this case, accepted the applicant's allegations regarding having been assaulted in 2005, 2007 and 2009 as true, but nonetheless found that the burden of proof had not been satisfied in this regrd? Did he merely assess the probative value of the applicant's evidence, without making a credibility finding, and determine that it was insufficient, on its own, to prove that the alleged events took place? I do not think so"
The second factor requires that the determination has to be central to the decision with respect to the application for protection. Finally, the third factor requires the following assessment: had the impugned evidence been accepted, it might have justified allowing the application for protection.
Hamadi v. MCI 2011 FC 317 is also instructive and determined by the most eloquent Federal Court jurist, Justice Harrington. Hamadi involved a Lebanese widow. Her husband was murdered by Hezbollah apparently for his pro-Israel beliefs. She fled to Canada but her refugee claim was refused 10 years prior to her PRRA assessment. The PRRA officer gave Mrs. Hamadi's evidence "minimal weight". As in Cho, the Respondent argued that this was a question of insufficient evidence; Justice Harrington characterized it as one of credibility and a hearing should have been convoked to address those concerns.
The PRRA officer had concerns regarding Mrs. Hamadi's evidence which was, in essence, two letters purportedly from Hezbollah. He assigned minimal weight to one because it was not on Hezbollah letterhead, undated, and appears to have been requested by Mrs. Hamadi's then lawyer. The officer thought it was implausible that Hezbollah would issue a document to assist Mrs. Hamadi's PRRA (as an aside, speculation by an officer or tribunal as to the modus operandi of foreign organizations like Hezbollah, FARC, the Los Zetas is always fertile ground for attack on judicial review.)
Justice Harrington quite rightly points out that there was no PRRA pending at the time the document was issued (and that it was in fact dated). Also, Hezbollah "was treating itself as a government asnd was simply certifying one of its records. Why not identify the appellant? If one obtains, and pays for a certified record of this Court, the receipt is addressed to that applicant".
The second letter (the one that was actually un-dated, but had a logo) identified the Hezbollah files and a judgment of death. The officer found this to have minimal probative value because the translation was unofficial and informal with no translator's declaration [as an aside, a huge error for whomever was assisting Mrs. Hamadi at the time of her PRRA].
I hope Mrs. Hamadi has a portrait of Justice Sean Harrington in her house adorned with flowers (as per the admittedly non-applicable South Asian tradition). Here's how he dealt with this:
"One cannot give minimal value to a death sentence. One must give it considerable value, or no value whatsoever. If one gives no value to it, it follows that the officer considers it a forgery, and therefore considered Mrs. Hamadi a liar.
...if the two so-called Hezbollah documents are legitimate she would clearly be at risk. Therefore, this decision turned on a credibility issue, not an insufficiency of evidence issue. If the officer was concerned about the provenance of the letters and the accuracy of one of the translation, he should have put these issues to Mrs. Hamidi [sic] at a hearing.
In the result, the decision is both unreasonable and procedurally unfair."
At my radio show last week, we asked Minister Manmeet Bhullar some questions from the "Proust Questionnaire". He turned the tables and asked me "Your heroes in real life". I think I have to add Justice Harrington to that very short list.