Digests

Mojzisik v. Canada (Minister of Citizenship and Immigration)

IMM-1496-03

2004 FC 48, von Finckenstein J.

13/1/04

9 pp.

Judicial review of pre-removal risk assessment (PRRA) officer's decision concluding neither evidence on record nor new evidence submitted establishing applicant would be denied state protection if returned to Slovakia--Refugee claim assessed under old Immigration Act-- Post-determination refugee claimant in Canada (PDRCC) application converted to PRRA claim--Therefore body such as Convention Refugee Determination Division (CRDD) or Refugee Protection Division (RPD) not considering whether applicant person in need of protection--Question addressed only by PRRA officer--Applicant arguing Canadian Charter of Rights and Freedoms, s. 7 breached because PRRA officer could only consider evidence which arose after Convention refugee determination made--Immigration and Refugee Protection Act, s. 113(a) permitting unsuccessful refugee claimant to adduce new evidence arising after rejection of claim or that applicant could not reasonably have been expected in the circumstances to have presented, at time of rejection--In most cases RPD has first undertaken assessment of whether person in need of protection--Therefore PRRA officer limited by first half of Immigration and Refugee Protection Act (Act), s. 113(a) to considering evidence which arose after Refugee Protection Division hearing--But second half of s. 113(a) addressing applicant's situation--As s. 113(a) not denying applicant chance to present all evidence relevant to his case, no need to continue with s. 7 analysis-- As to alleged violation of principles of natural justice depriving applicant of meaningful opportunity to be heard, issue focussing on definition of "new evidence" in kit given to applicant--Definition woefully inadequate for converted PDRCC application--At least, letter informing applicant of conversion of his application should have informed him PRRA officer now has additional authority to determine whether applicant person in need of protection and that any evidence in that respect would qualify as new evidence--No such explanation provided in letter or given orally to applicant --Procedural fairness demands applicant understand issues under consideration and has meaningful opportunity to be heard--Not the case here--Application allowed--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 113(a).