Background
Omar Derdak, a Moroccan national, applied for a Pre-Removal Risk Assessment (PRRA) claiming persecution if returned to Morocco because he does not practice Islam and identifies as bisexual. A senior immigration officer rejected the application, finding Derdak had not established a risk of persecution under sections 96 or 97 of the Immigration and Refugee Protection Act.
Although the officer accepted objective evidence that same-sex relations are illegal in Morocco and punishable by six months to three years imprisonment, the officer concluded that Derdak’s statutory declaration and his wife’s supporting letter were insufficient proof of his bisexuality in the absence of corroborating documentary evidence such as statements from same-sex partners or LGBTQ+ organizations. The officer therefore determined Derdak would not face harm in Morocco.
Derdak sought judicial review, arguing the officer should have convened an oral hearing before making such a credibility determination.
The Court’s Holding
Justice Turley found the officer made an adverse credibility finding despite framing it as an insufficiency-of-evidence determination. The court held that “an officer’s choice of words is not determinative” and looked to the substance: the only reason cited for rejecting the evidence was absence of corroboration, suggesting the officer doubted the truth of Derdak’s claims rather than merely finding weak evidence.
Under section 167 of the Immigration and Refugee Protection Regulations, an oral hearing must be held when evidence raises a serious credibility issue central to the PRRA decision. Because the officer questioned whether Derdak is bisexual—a material factual issue—and because accepting that evidence would likely justify granting the PRRA (given Morocco’s criminal laws against same-sex conduct), the officer breached procedural fairness by denying Derdak a hearing to address these concerns. The court applied a “correctness” standard of review to this procedural question, citing the Court of Appeal’s recent decision in Rodas Tejeda.
Key Takeaways
- Officers cannot evade the hearing requirement by reframing credibility doubts as “sufficiency of evidence” findings; substance controls over terminology
- When a credibility determination is central to a PRRA decision and accepting the applicant’s evidence would justify granting relief, a hearing is procedurally mandatory
- Procedural fairness questions in immigration proceedings are reviewed for correctness, requiring rigorous scrutiny of the decision-making process
- LGBTQ+ applicants facing persecution in countries where sexual orientation is criminalized receive heightened procedural protections
Why It Matters
This decision strengthens due-process safeguards for vulnerable asylum and PRRA applicants, particularly LGBTQ+ individuals from countries with discriminatory laws. By holding that officers cannot use semantic maneuvers to avoid convening required hearings, the court prevents decision-makers from making dispositive credibility findings without giving applicants a fair opportunity to respond. The ruling reinforces that Canadian courts scrutinize immigration decision-making for procedural fairness, not merely substantive correctness.
For immigration practitioners, the decision confirms that careful parsing of an officer’s reasons is essential to identify disguised credibility findings, and that adverse credibility determinations on material issues cannot escape procedural requirements through recharacterization. The case also clarifies that when country conditions place a vulnerable population at serious risk, fairness demands that applicants claiming membership in that group receive a hearing before their credibility is rejected.