Date: 20060310
Docket: IMM-2338-05
Citation: 2006 FC 320
Ottawa, Ontario, March 10, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
OSMEL ENRIQUE RODRIGUEZ RODRIGUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to section 72 of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (Act) for judicial review of a decision of a pre-removal risk assessment officer (Officer) dated March 7, 2005 (Decision), wherein the Officer determined that the Applicant would not be subject to a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to his country of nationality.
BACKGROUND
[2] The Applicant, Osmel Enrique Rodriguez Rodriguez, is a citizen of Venezuela. He was born on November 10, 1977.
[3] He arrived in Canada as an international student in 1995 and has been living in Canada since then.
[4] Since Hugo Chavez came to power in 1998, Venezuela's political scene has been very polarized, and opposition supporters and "Chavistes" have been fighting each other. The tension and violence have escalated steadily, prompting fears of a civil war. The Applicant and his family disagreed with the government's policies and ideology, and are known to support the opposition.
[5] After a visit to his family in 1999-2000, the Applicant saw that the political climate in Venezuela had further deteriorated. He resolved to stay in Canada to complete his studies and not to return to Venezuela until the situation improved.
[6] After the Applicant's studies were completed, he received a phone call from his father urging him to stay in Canada for security reasons, and detailing threats that had been directed at the father and his family if his business participated in a strike that sought to topple the government. The family was forced to relocate from the Islands of Margarita to Caracas.
[7] The Applicant then filed a claim for refugee status that was denied on February 2, 2004.
[8] The Refugee Protection Division (Board) found that the Applicant had failed to establish that the threats received by his father were politically motivated, and that he had failed to establish a well-founded fear of persecution in Venezuela because of his political opinions or membership of a particular social group. The Board also determined that the Applicant had failed to demonstrate that he faced a risk to his life, or a risk of cruel or unusual treatment or punishment, or a danger of torture.
[9] Since his claim was rejected, the Applicant has been involved in Canada with various political organizations that are opposed to the Chavez government, among them a Kingston, Ontario-based opposition group called Venezuela Libre.
[10] On August 15, 2004, the Applicant attended a protest in front of the Venezuelan consulate in Montreal. He was also actively involved in the recruiting of people to vote against the Venezuelan government in a 2004 referendum.
[11] The Applicant applied for a pre-removal risk assessment (PRRA) on October 13, 2004, submitting new evidence and claiming that, due to his political opinions and membership in a particular social group, and considering the political reputation of his family, he would be at risk if he returned to Venezuela.
DECISION UNDER REVIEW
[12] The Applicant submitted three letters and documentary evidence which post-dated the Board's decision.
[13] The first letter, dated October 20, 2004, was from Daniel Santamaria, the head organizer of Venezuela Libre. Its contents support the Applicant's allegations that his family were receiving numerous kidnap and death threats because of their opposition to President Chavez, that the Applicant was a key member in Venezuela Libre, and that he could face a serious emotional-cultural shock if he were to return to Venezuela.
[14] The second letter, dated November 9, 2004, is also from Daniel Santamaria. In this letter Mr. Santamaria restates that the Applicant is a key member of Venezuela Libre, that he has been involved in anti-Chavez political activities in Canada, and that he believes the Applicant's life could be in danger if he returned to Venezuela.
[15] The third letter, dated November 8, 2004, is from the Applicant's father. He states that the political situation has worsened in the past few months, and that since President Chavez' victory in the recent referendum his power has been consolidated even further. The Applicant's father writes that he unsuccessfully sought the protection of the police from the threats he has received, and that he decided to relocate his family to Caracas for security reasons. He then urged the Applicant to stay in Canada because it would be dangerous for him to return to Venezuela, and because unemployment was rampant.
[16] The Officer states in his reasons that he has considered the contents of the letters and that he is satisfied that the Applicant has been politically active in Canada, but that there was "insufficient persuasive evidence to indicate that the Applicant would be at risk" if he returned to Venezuela because of his political activity in Canada. The Officer noted that the Applicant had not been politically active in Venezuela.
[17] Furthermore, the Officer found that, while the Applicant's father did move to Caracas, there was "insufficient persuasive evidence" to indicate that he was encountering any problems in Caracas or that the threats he received in the Margarita Islands were politically motivated.
[18] The Applicant also submitted the following documentary evidence:
(a) An Associated Press article dated March 4, 2004, stating that Venezuela's ambassador to the United Nations had resigned to protest human rights violations and threats to democracy in his country;
(b) An Amnesty International report dated March 4, 2004, stating that opposition leaders and supporters were being arrested and brutalized by the police and national guard following massive protests against the Chavez government in Venezuela;
(c) An Amnesty International report dated October 29, 2004, stating that the brother of a bar owner in Aragua had allegedly been murdered by Officers of the Aragua state police following a dispute with a drunken police officer outside the bar, and that police were apparently not taking any steps to investigate the incident. The report also stated that the victim's family were believed to be in great danger;
(d) An Associated Press report dated December 11, 2004, stating that amendments to Venezuela's penal code had created heavier penalties for slander and libel, and that the opposition felt these new rules were an attempt to stifle dissent;
(e) An editorial from the Los Angeles Times dated December 18, 2004, arguing that President Chavez and his supporters were turning Venezuela into a dictatorship, shunning democratic values and stripping citizens of their human rights.
[19] The Officer also considered a 2003 United States Department of State report on Venezuela that depicted a poor record on human rights and democratic values. Nevertheless, the Officer found that, although the documentary evidence before him indicated that "the human rights situation in Venezuela is far from favourable," it did not satisfy him that the Applicant would be personally targeted if he returned to Venezuela. The conclusion in his reasons reads as follows:
Upon a thorough review of all the evidence before me, it is my finding that is [sic] less than a mere possibility that the Applicant would be at risk of persecution for any of the Convention grounds. It is less than likely that there are there [sic] substantial grounds to believe that the Applicant would be in danger of torture in accordance with paragraph 97(1)(a) of the Act. Likewise, it is less than likely that he would face a risk to his life or of cruel and unusual treatment or punishment as set out in paragraph 97(1)(b) of the Act.
RELEVANT LEGISLATION
[20] The relevant provisions of the Act read as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
...
113. Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
...
113. Il est disposé de la demande comme il suit :
a) le demandeur d'asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'il n'était pas raisonnable, dans les circonstances, de s'attendre à ce qu'il les ait présentés au moment du rejet;
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ISSUES
[21] Applicant raises the following issues:
1. Did the Officer apply the wrong test in determining the burden of proof required of the Applicant?
2. Did the Officer give adequate reasons in his findings?
POSITION OF PARTIES
1. Did the Officer apply the wrong test in determining the burden of proof required of the Applicant?
The Applicant
[22] The Applicant submits that the Officer failed to apply the correct test for determining whether there is a well-founded fear of persecution as set out by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (FCA).
[23] The Applicant bases his argument on the Officer's use of the words "persuade" and "convince" in his reasons, which he describes as indicative of a higher burden of proof. He cites Tung v. Canada(Minister of Employment and Immigration), [1991] F.C.J. No. 292 (F.C.A.), in which the Federal Court of Appeal set aside the Board's decision rejecting an asylum claim. Justice Arthur J. Stone wrote as follows in that case at p. 7:
Moreover, the use of the word "convinced", if it be taken in the context of applying the objective test, raises the question whether the Board properly understood that test.
[24] The Applicant also relies on Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (FCA), where the Federal Court of Appeal set aside the Board's decision dismissing an asylum claim on several grounds, including the issue of the standard of proof. Justice Mark R. MacGuigan wrote as follows at p.1:
Coupled with the foregoing is the additional consideration that the Board commented that "it must be convinced that the claimant's fear of persecution is well founded" [...], which raises the question whether the Board understood the limited burden of proof on the appellant as developed in Adjei [...]
The Respondent
[25] The Respondent submits that the Officer did not set up a higher standard of proof than the Act requires in his findings relating to the Applicant's claims under sections 96 and 97 of the Act.
[26] The Officer accepted the conclusion of the Board with respect to its findings on the Applicant's section 96 claim, and he made no reviewable error in concluding that the evidence did not establish that the threats the Applicant's father received were politically motivated.
[27] Regarding the Applicant's section 97 claim, the Respondent cites Li v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1, 2005 FCA 1 (QL), and argues that the Officer correctly determined that the evidence did not establish, on a balance of probabilities, that the Applicant is more likely than not to be personally subjected to a danger of torture, or that the degree of risk is more likely than not.
2. Did the Officer give adequate reasons in his findings?
The Applicant
[28] The Applicant submits that, although the Officer did provide some reasons for his Decision, they were too sparse and did not relate clearly to the assessment of the risk of persecution. He argues that the Officer merely recited the substance of the evidence before him, which does not amount to the provision of adequate reasons justifying his findings.
[29] Citing [1979] 1 S.C.R. 684">Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684, the Applicant argues that insufficient reasons can be equated to invalid reasons, and should vitiate the Decision itself in this case.
The Respondent
[30] The Respondent states that the Officer did provide adequate reasons. The Officer also clearly linked his key findings of fact to certain pieces of evidence, and he explained why he made those findings.
[31] To support this argument, the Respondent gives the following two examples:
(a) The Officer wrote that while the letters from the head organizer of Venezuela Libre did establish that the Applicant was politically active in Canada, they did not indicate that the Applicant had been politically active in Venezuela;
(b) The Officer wrote that while he accepted the fact that the Applicant's father had moved to Caracas, he explained that the father's letter did not provide evidence that any problems the father had encountered were politically motivated.
[32] The Respondent concludes by stating that the Officer's reasons are "detailed and extensive." The Officer thoroughly reviewed and considered the evidence, and his reasons contain a detailed and analytical assessment of that evidence.
ANALYSIS
The Test
[33] The Applicant says that the Officer applied the wrong test for determining whether there is a well-founded fear of persecution if the Applicant returns to Venezuela.
[34] He directs the Court's attention to various passages in the Decision where the Officer says he is not persuaded or convinced by the evidence adduced by the Applicant. He singles out the following passage in particular:
The applicant had an opportunity to submit new evidence that would persuade me to arrive at a different conclusion from the Refugee Protection Division. The evidence has not persuaded me to arrive at a different conclusion from the Refugee Protection Division.
[35] This passage and, others where the word "persuade" is used, do not establish the legal test that the Officer applied to the new evidence. The Officer is merely saying that, on the evidence adduced, he has not been persuaded to make a different decision from the one made by the Refugee Protection Division. He is not persuaded because, as the Officer makes clear, after applying the appropriate test, he does not believe that risk of persecution exists. The Officer identifies which test he applies in the paragraph that immediately follows the passage singled out by the Applicant:
Upon a thorough review of all the evidence before me, it is my finding that is (sic) less than a mere possibility that the applicant would be at risk of persecution for any of the Convention grounds. It is less than likely that there are there (sic)substantial grounds to believe that the applicant would be in danger of torture in accordance with paragraph 97(1)(a) of the Act. Likewise, it is less than likely that he would face a risk to his life or of cruel and unusual treatment or punishment as set out in paragraph 97(1)(b) of the Act.
[36] Applicant's counsel stated at the hearing that this is a correct statement of the appropriate test and that if this was in fact, the test applied by the Officer, the Decision could not be attacked on this ground.
[37] Viewed in the context of the Decision as a whole, I believe it is clear that the Officer applied the test which he articulates in the passage cited above and that any reference to "persuade" is merely a short-hand way of saying that there is insufficient evidence to satisfy the burden of proof upon the Applicant when the appropriate legal test is applied.
[38] The Federal Court of Appeal recently had occasion to address the standard of proof and the applicable legal test in Li.
[39] As Justice Marshall E. Rothstein points out in Li, at paragraph 10, "the standard of proof must not be confused with the legal test to be met."
[40] As regards section 96, Justice Rothstein refers to the words of Justice McGuigan in Adjei at page 682 for the proposition that "the objective test is not so stringent as to require a probability of persecution ... although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not":
McGuigan J.A. adopted the "reasonable chance [of] persecution" test as the legal test to meet to obtain Convention refugee statue, i.e. not necessarily more than a fifty percent chance but more than a minimal possibility of persecution.
[41] As regards section 97(1), Justice Rothstein provided the following guidance at paragraph 29 of Li:
It is immediately apparent that the words used to describe the standard of proof - balance of probabilities - are equivalent to the words used to describe the legal test to be met in order to be entitled to protection under paragraph 97(1(a) - more likely than not. Although the words are equivalent, there are two distinct steps involved. Proof on a balance of probabilities is the standard of proof the panel will apply in assessing the evidence adduced before it for purposes of making its factual findings. The test for determining the danger of torture is whether, on the facts found by the panel, the panel is satisfied that it is more likely than not that the individual would personally be subjected to a danger of torture.
[42] Based upon this approach, the Federal Court of Appeal concluded in Li that the "requisite degree of danger of torture envisaged by the expression 'believed on substantial grounds to exist' is that the danger of torture is more likely than not." (para. 36) As regards paragraph 97(1)(b) of the Act, the Federal Court of Appeal concluded that the "degree of risk under paragraph 97(1)(b) is that the risk is more likely than not." (para. 39)
[43] With this guidance in mind, it seems clear to me that in the Decision the Officer applied the correct tests for sections 96 and 97. When he uses the word "persuade" he is merely saying in a colloquial way that, on the facts adduced and found, he is not persuaded that the Applicant has satisfied the burden of proof in that there is less than a mere possibility of risk of persecution and that a risk of torture or a risk to life or cruel and unusual treatment or punishment are less than likely on the facts of this case.
[44] Even applying a standard of correctness, I cannot find a reviewable error on this point.
Adequacy
[45] The second ground upon which the Applicant attacks the Decision is that the reasons are inadequate. He says that the Officer merely provides a recitation of the evidence and this does not "in law amount to adequate reasons for considering the assessment of the fear of persecution of the Applicant."
[46] My review of the Decision leads me to conclude that the Officer certainly provides a detailed and accurate recitation of the evidence adduced by the Applicant. But he does more than this. He explains why the evidence does not establish the required degree of risk if the appropriate legal tests are applied.
[47] For example, he carefully summarizes the letters submitted by Venezuela Libre and the Applicant's father. He then summarizes precisely what those letters establish, i.e. that the Applicant is politically active in Canada. Then he explains that the Applicant's political activity in Canada is not sufficient to satisfy the degree of risk required by sections 96 and 97. He points out that political activity in Canada cannot be equated with political activity and consequent risk in Venezuela. This is more than a recitation of the evidence. It explains precisely to the Applicant and the Court how the Officer's findings were made, what conclusions he drew, and why the degree of risk was not present.
[48] The Officer goes through a similar process with the other evidence adduced by the Applicant. The reasons are adequate. There is no reviewable error on this ground.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed;
2. There is no question for certification.
"James Russell"
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