Foreign nationals’ rights to procedural fairness breached by failure to provide oral hearing

Need for oral hearing. Foreign nationals (FNs) were mother and two children who were stateless Palestinians from West Bank. Children’s father was moderate Muslim and teacher who refused to advocate for Hamas’ ideology. Father went into hiding after being subjected to violence and threats, and FNs fled to United States after they were threatened by Hamas. FNs came to Canada but were deemed ineligible for refugee protection. FNs unsuccessfully applied for pre-removal risk assessment. FNs brought application for judicial review. Application granted; matter remitted for re-determination. FNs’ right to procedural fairness was breached by failing to provide oral hearing. Section 113(b) of Immigration and Refugee Protection Act stated hearing could be held if relevant minister was of opinion that hearing was required having regard to prescribed factors in s. 167 of Immigration and Refugee Protection Regulations. Immigration officer had clearly called into question authenticity of documents and credibility of mother. Applicant’s testimony was presumed to be true unless there was valid reason to doubt its truthfulness. Inconsistency between mother’s sworn evidence and documents was very reason why oral hearing would have been warranted; inconsistency was central to decision denying protection; and outcome might have been different if mother’s evidence was accepted.

Majali v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 774, 2017 FC 275, Cecily Y. Strickland J. (F.C.).