Last Updated on August 12, 2010 by Steven Meurrens
On August 4, 2010, the Federal Court released its decision in Sayed v. Canada (Citizenship and Immigration), 2010 FC 796 (“Sayed“) The decision involved a discussion of many Pre-Removal Risk Assessment (“PRRA“) issues, including when a PRRA officer will be required to call a hearing.
The PRRA is based on the principle of non-refoulement, and provides that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment. Approved applications generally result in the same refugee protection afforded to persons whose refugee claims are approved by the Immigration and Refugee Board.
PRRA is generally carried out through a paper review process. However, officers have the discretion to hold an oral hearing in certain cases, as outlined in s. 167 of the Regulations. This section states that:
Hearing — prescribed factors
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.
In Sayed, Justice Zinn noted that in the context of PRRA applications following negative refugee determinations, the test of whether to hold an oral interview is that where the testimony of the applicant, if believed, would adequately address the determinative issues raised by the Board in rejecting the applicant’s refugee claim, then an officer must convoke an oral review to determine the credibility of the evidence (unless the officer accepts the evidence on its face).
It follows from this that if an applicant’s PRRA affidavit does not address all of the determinative issues found by the Board, then the Applicant will not have a right to an oral hearing.
It is therefore important for claimants to ensure that their PRRA affidavit does not simply reiterate the allegations made during the refugee hearing. Rather, they must present further evidence and testimony to address the issues that caused their refugee claim to fail.