Ottawa, Ontario, this 18th day of August, 2005
PRESENT: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
RAYAN HUSSIEN
Applicants
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Rasha Mahamed Mohamed Ahmed requested an assessment of the risk she would face if she were returned to her home country of Sudan. While in Canada, Ms. Ahmed gave birth to a child out of wedlock. She fears that if she returns to Sudan, she will be punished very harshly according to Sharia law.
[2] The officer who performed the pre-removal risk assessment found that it was unlikely Ms. Ahmed would be punished. She noted that, according to birth certificates Ms. Ahmed submitted with her application, Ms. Ahmed had named her second husband as the father of her three other children, born before she left Sudan. However, at the time of their births, she was still married to her first husband. The officer reasoned that if Ms. Ahmed had not been punished for her previous adulteress activities, it was unlikely she would be punished this time either.
[3] Ms. Ahmed argues that she was treated unfairly because, in effect, the officer made a negative credibility finding without giving her the benefit of an oral hearing. She asks to have her application reviewed by another officer.
[4] I agree that Ms. Ahmed was treated unfairly, although I am not persuaded that an oral hearing was required. I will, therefore, allow this application for judicial review.
I. Issue
[5] Did the officer treat Ms. Ahmed unfairly?
II. Analysis
[6] Ms. Ahmed argues that the officer was obliged to afford her an oral hearing according to s. 113(b) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, and s. 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (see attached Annex). Those provisions permit an oral hearing for a risk assessment when there is a serious issue relating to the applicant's credibility that is central to the officer's decision.
[7] Ms. Ahmed had previously given testimony (in an earlier, unsuccessful refugee claim) that her three sons, Ahmed, Hasan and Hussein, were from her first marriage. They were born in 1985 and 1989 (Hasan and Hussein are twins). The birth certificates she submitted for her risk assessment named her second husband, whom she married in 1993, as the father of these three boys. From that discrepancy, the officer drew the inference that Ms. Ahmed had already committed adultery in Sudan with impunity.
[8] I do not share Ms. Ahmed's view that the officer made an adverse credibility finding that was central to her application. As I see it, the officer simply drew an inference from the evidence before her about the dates of the boys' births and the date of her marriage to her second husband. The officer's error was that she failed to give Ms. Ahmed an opportunity to respond to her concerns about that evidence. Ms. Ahmed could not reasonably have anticipated that the officer would conclude from the evidence that she was a serial adulteress. There may have been a simple explanation for the discrepancy. The birth certificates were issued in 2003, ten years after Ms. Ahmed had married her second husband. Ms. Ahmed might well have named her second husband as the boys' father at that point in time, even if he was not their natural parent. In the circumstances, the officer was obliged to give Ms. Ahmed a chance to explain before arriving at a determination that was both highly derogatory and fatal to her application for protection: Cornea v. Canada (Minister of Citizenship and Immigration),2004 FC 972, [2003] F.C.J. No. 1225 (F.C.) (QL); John v. Canada (Minister of Citizenship and Immigration), 2003 FCT 257, [2003] F.C.J. No. 350 (T.D.) (QL).
[9] Accordingly, I will grant this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is granted;
2. No question of general importance is stated.
JUDGE
Annex
|
Immigration and Refugee Protection Act, S.C. 2001 c. 27
Consideration of application
113. Consideration of an application for protection shall be as follows: ¼
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
Immigration and Refugee Protection Regulations, SOR/2002-227
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. |
Loi sur l'immigration et la protection des réfugiés, L.C. 2001 ch. 27
Examen de la demande
113. Il est disposé de la demande comme il suit :
[¼]
b) une audience peut être tenue si le ministre l'estime requis compte tenu des facteurs réglementaires;
Règlements sur l'immigration et la protection des réfugiés, DORS/2002-227
Facteurs pour la tenue d'une audience 167. Pour l'application de l'alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d'une audience est requise :
a) l'existence d'éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur; b) l'importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection; c) la question de savoir si ces éléments de preuve, à supposer qu'ils soient admis, justifieraient que soit accordée la protection. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6790-04
STYLE OF CAUSE: RASHA MAHAMED MOHAMED AHMED ET AL. v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 10, 2005
AND JUDGMENT: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: AUGUST 18, 2005
APPEARANCES:
Mr. Jack C. Martin FOR THE APPLICANTS
Ms. Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jack C. Martin
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.