Date: 20061115
Docket: IMM-4690-05
Citation: 2006 FC 1380
Ottawa, Ontario, November 15,
2006
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
RASANATH
ESCALONA PEREZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr.
Rasanath Escalona Perez, the Applicant, came to Canada from Venezuela with his
family in 1990. In 2002, the family applied for protection in Canada. Julio
Enrique Escalona and Denis Alexandra Perez Escalona (the parents) claimed to
have fled Venezuela due to their
fears of being prosecuted under that country’s drug laws. The parents alleged
that police charges were trumped up against them after they witnessed a drug
transaction between police and government officials. In a decision dated June
9, 2004, a panel of the Refugee Protection Division of the Immigration and
Refugee Board (the RPD) denied the family’s refugee claim. Leave to apply for
judicial review of the RPD decision was denied on October 28, 2004.
[2] On
April 30, 2005, the Applicant, separate from the rest of his family, applied
for a pre-removal risk assessment (PRRA). In brief, the basis of his
application was that he would be “detained upon arrival in Venezuela, and will be
forced to endure torture and other forms of severe mistreatment in prison”. In
a decision dated June 28, 2005, a PRRA Officer concluded that the Applicant
would not be at risk if returned to Venezuela. The Applicant seeks
judicial review of that decision.
Issues
[3] The
issue in this application, as discussed during the oral submissions, is quite
narrow. Specifically, did the PRRA Officer misapprehend the findings of the RPD
and, thus, fail to address the claim of the Applicant made in the PRRA
application. The issue relates to one sentence in the PRRA decision where the
Officer states:
Although reference in the documentary
evidence is made to retribution against family members of those who witness
police misconduct, this issue was before the RPD and not substantiated.
[4] The
Applicant submits that the RPD made no determination that the parents had not
witnessed police misconduct and thus committed a reviewable error.
Standard of Review
[5] This issue is a question of mixed fact and law. Accordingly, it
will be reviewed on the standard of reasonableness simpliciter (Kim
v. Canada (Minister of Citizenship and Immigration, 2005 F.C. 437 at
para. 19).
Analysis
(a) The PRRA Application
[6] The
starting point of this analysis is the PRRA application. What risks were
outlined by the Applicant? It is clear from the submissions made to the PRRA
Officer that the Applicant fears that he would be subjected to arbitrary arrest
and detention and to deplorable prison conditions. The Applicant’s claim for
protection could not be based on the alleged witnessing of police wrongdoing
since only his parents alleged that they had been the witnesses. To attempt to
demonstrate that he would be in the same position of arbitrary arrest and
detention as his parents, he submitted that the 2004 United States Department
of State (DOS) Report, dated February 28, 2005, disclosed that the Applicant
would face the same risks as his parents. A specific reference was made in the
DOS Report that:
Throughout the country, witnesses to
abuses by security forces reported instances in which their family members
later were harassed, threatened, or killed.
[7] Thus,
this assertion was made for the purpose of linking the Applicant to his parents
and to the fear of prison conditions. This is made clear with the summary
statement in the PRRA application that, “In a nutshell, prison conditions in Venezuela are so
heinous as to create this genuine fear”. Having linked his
claim to that of his parents, the Applicant’s claim is totally dependent on a
conclusion that the parents are at risk of imprisonment.
(b) PRRA Officer Decision
[8] I
turn now to the PRRA Officer’s decision. The sentence objected to by the
Applicant is contained in a lengthy paragraph.
The applicant is now twenty-two years old
and has lived in Canada for the past fifteen years.
He has never been accused of having committed a crime in Venezuela. No warrant has been issued
for his arrest. The evidence concerning his parents’ interest to the police was
before the RPD, but was not found to support the conclusion that they could not
get a fair trial or that they experienced past persecution. Counsel has filed
documentary evidence to outline problems in Venezuela with arbitrary arrest, poor prison
conditions, corruption, and the like. Although this background is recognized, the
applicant has failed to establish personalized risk. As someone who left the
country at age 7, he is not wanted by the public authorities. Although
reference in the documentary evidence is made to retribution against family
members of those who witness police misconduct, this issue was before the RPD
and not substantiated. Allegations of torture were not found to be credible or
trustworthy. The panel concluded that the Criminal Court can fairly deal with
the substantive nature of their defence. Family members were not found to be at
risk by the panel because of their parents’ legal problems. New evidence has
not been filed that would materially affect this conclusion. I am not satisfied
that there is a serious possibility that the applicant would face persecution
in Venezuela at the hands of the police
because of his parents’ drug charges. In addition, he is not at substantial
risk of torture, death or cruel and unusual treatment or punishment.
[9] I will now turn to the RPD decision.
(c) The RPD Decision
[10] The
RPD decision forms a base line for the PRRA Officer’s decision. In this case,
the RPD concluded that, as of June 9, 2004 (the date of its decision), the
removal of the family to Venezuela would not subject them
to a risk to their lives or a risk of cruel and unusual punishment or a danger
of torture. In general, the RPD expressed serious concerns regarding the
credibility of the parents. However, the RPD’s key determinations were that:
- The parents could
expect a fair process of prosecution in respect of the outstanding warrant
for their arrest;
- There is no serious
possibility that the parents would be “picked up upon their return, and
immediately imprisoned and subjected to a long process of detention, or
held indefinitely”.
[11] The
claims of the children – including that of the Applicant – were based on those
of the parents and no separate risks were evidently identified for the
children. In other words, the risks of being a family member of someone who
witnessed police wrongdoing could have been identified and assessed at the RPD
hearing.
(d) The purpose of the PRRA
[12] It
is well-established that a PRRA is not intended to be an appeal of a decision
of the RPD (Kaybaki v. Canada (Solicitor General of
Canada), 2004 F.C. 32 at para. 11; Yousef v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 1101 at para. 21(F.C.); Klais
v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J.
No. 949 at para. 14 (F.C.)). The decision of the RPD is to be considered as
final with respect to the issue of protection under s. 96 or s. 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), subject only to
the possibility that new evidence demonstrates that the applicant would be
exposed to a new, different or additional risk that could not have been
contemplated at the time of the RPD decision. Thus, the PRRA Officer
is under no obligation to assess the alleged risks now identified by the
Applicant. I will now turn to the facts of this PRRA Application.
(e) Application to the Facts of this
Application
[13] For
the reasons that follow, I am satisfied that: (a) there was no misapprehension
of the RPD decision by the PRRA Officer; and, (b) the decision of the PRRA
Officer is sustainable on the standard of reasonableness simpliciter.
[14] There
are three reasons why, in my view, the PRRA Officer did not err by including
the statement that, “Although reference in the documentary evidence is made to
retribution against family members of those who witness police misconduct, this
issue was before the RPD and not substantiated.”
The reasons are:
- The PRRA Officer
did not misapprehend the RPD decision;
- The evidence
related to the witnessing of a drug transaction was evidence that could
have been put to and considered by the RPD; and
- Given that the
Applicant’s PRRA application relies on the risk to his parents, this risk
of arbitrary arrest and imprisonment was dismissed by the RPD.
[15] First,
I am not persuaded that the statement, when read in the context of the entire
PRRA decision, shows a misapprehension of the RPD decision. I agree that there
may be some question as to the accuracy of the statement made by the PRRA
Officer; the RPD did not directly state that it disbelieved the parents’
story of witnessing police wrongdoing. Thus, one possible interpretation of the
RPD decision is that the RPD believed the parents’ story that they had
witnessed police misdeeds. Consequently, I am satisfied that the PRRA Officer’s
interpretation of the RPD decision is not unreasonable.
[16] The
RPD did not accept many elements of the parents’ story. Throughout the reasons,
the RPD refers to a lack of reliable information. A reasonable interpretation
of the decision is that the RPD did not believe the claim that the parents had
witnessed police misconduct. Consequently, the RPD concluded that the parents
had been detained on suspicion of being involved in illegal substances and
assessed the possibility of risk on that basis. In other words, the RPD
rejected the story of witnessing a drug transaction by the police. Given this
interpretation, the PRRA Officer did not err when he stated that the issue of
witnessing “was before the RPD and not substantiated”. On this interpretation –
which is not unreasonable - the issue was, indeed, before the RPD and was not
substantiated.
[17] Even
if I assume that the PRRA Officer erred in stating that the issue of witnessing
“was before the RPD and not substantiated”, there are two further reasons for
not overturning this decision. As noted above, the issue of a separate risk for
the children could and should have been made to the RPD. It appears from the
RPD reasons that either this risk was not put to the RPD, or, it was rejected
by the RPD. In any event, it is clear that this risk – if it exists – also existed
at the time of the RPD hearing. It is simply too late to now put forward this
“free-standing” risk. Although the PRRA Officer did not make specific reference
to the failure of the Applicant to place this risk squarely before the RPD, a
further review would not assist the Applicant as the PRRA Officer would be
bound to reject this particular claim of risk on the basis that it was or
should have been before the RPD.
[18] Finally
– and most importantly – the overall risk identified by the Applicant was no
different than that identified and directly dealt with by the RPD. As
identified above, the Applicant’s fear is that, “In a nutshell, prison
conditions in Venezuela are so
heinous as to create this genuine fear”. It follows that prison conditions only
become relevant if the Applicant is to be arrested and arbitrarily detained for
a lengthy period. In respect of the parents, this is precisely what the RPD
assessed in its decision. The RPD found that there is no serious possibility of
the parents being picked up upon their return, and immediately imprisoned and
subjected to a long process of detention, or held indefinitely. On the
principle that the PRRA determination is not to be an appeal of the RPD
decision, the conclusions of the RPD are final. When the lengthy paragraph from
the PRRA is viewed in this context, I can see no error. In short, it is not
unreasonable to conclude that the Applicant, who relies on his link to his
parents, is at no greater risk of imprisonment than his parents. As we can see from
the PRRA Officer’s reasons, the PRRA Officer considered the question of whether
the Applicant had shown any individualized risk and concluded that he had not.
In short, the PRRA Officer understood and addressed the claim that was put
forward by the Applicant. I see no reviewable error.
Conclusion
[19] For
these reasons, the application will be dismissed. I agree with the parties that
there is no question for certification.
ORDER
This Court orders that:
1. The application for judicial
review is dismissed; and
2.
No question of general importance is certified.
“Judith A. Snider”
________________________
Judge
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