Digests

Zamora v. Canada (Minister of Citizenship and Immigration)

IMM-9593-03

2004 FC 1414, Harrington J.

14/10/04

10 pp.

Judicial review of pre-removal risk assessment (PRRA) officer's dismissal of claim for Canadian protection-- Applicant previously claiming refugee status as dependant under mother's principal refugee claim--Refugee claims of mother, dependent son denied--Mother obtaining status through marriage and residing in Canada with spouse and minor child--Applicant returned to Venezuela, became anti-Chavez activist--Returned to Canada fearing retribution from pro-Chavez Bolivarian circle--Too old to be sponsored by mother and not entitled to claim refugee status in own right given Immigration and Refugee Protection Act (IRPA), s. 101(1)(b) providing that person can no longer claim refugee status if previous claim rejected by Immigration and Refugee Board--Applicant applying under IRPA, s. 112 et seq. for PRRA in which could invoke facts subsequent to earlier unsuccessful claim that would substantiate well-founded fear of persecution as Convention refugee or as person in need of protection--Request for PRRA hearing denied--PRRA officer dismissed claim for Canadian protection on grounds claim lacking subjective fear of persecution and lacking objective basis since state protection available in Venezuela-- Immigration and Refugee Protection Regulations, (IRP Regulations) s. 167 not entitling applicant to hearing unless specific factors, such as issue of credibility, present--Judicial review application of PRRA officer's decision based on following grounds: (1) hearing should have been held; (2) PRRA officer made patently unreasonable finding of fact material to holding claim lacked subjective fear; (3) rules of natural justice not followed since PRRA officer relied on Internet material not included in Board's data bank on Venezuela's country conditions in finding claim lacked objective fear and failed to give applicant opportunity to respond--Oral hearing not absolute requirement in all situations--Context of situation to be considered--PRRA officer created issues pertaining to subjective and objective aspects of fear of persecution and not giving applicant opportunity to meet case PRRA officer herself created against him--PRRA officer making patently unreasonable finding of fact in finding applicant living in, working at same place after incident triggering decision to leave country--In fact, sworn statement applicant living in hiding in Venezuela-- Documents relied on by PRRA officer on Venezuelan country conditions not standard documents but result of specific Internet research conducted by PRRA officer--Applicant entitled to disclosure of such research and to opportunity to respond before PRRA officer made decision--Unilateral use of Internet unfair--Porto Seguro Companhia De Seguros Gerais v. Belcan S.A., [1997] 3 S.C.R. 1278 establishing that rule in admiralty that parties not entitled to disclosure of advice nautical assessors give judges or to call expert witnesses violating principle of natural justice of right to be heard--Supreme Court establishing that right to be heard (audi alteram partem) confers right on every party to bring forth evidence on all material points and to call expert witnesses--Internet equated with assessor by analogy--PRRA officer obliged to make disclosure before reaching decision and to give applicant opportunity to comment--Applicant entitled to hearing for PRRA since credibility in issue-- Application allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 101(1)(b), 112--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 167.