Cerna v. Canada (Solicitor General), 2005 FC 1061

Date: 20050803

Docket: IMM-5744-04

Citation: 2005 FC 1061

Toronto, Ontario, August 3, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

JEAN PIERRE BOUCHER CERNA

Applicant

and

SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]    This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,S.C. 2001, c. 27 ("IRPA") for judicial review of the June 15, 2004 decision of the pre-removal risk assessment officer (the "PRRA officer"), wherein it was determined that Jean Pierre Boucher Cerna (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.

[2]    The applicant seeks:

a)          an order that the tribunal do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

b)          an order that the matter be sent back for redetermination.

Background

[3]    The applicant, Jean Pierre Boucher Cerna is a citizen of Peru. In 1997, his older brother left Peru and came to Canada. His mother followed in 1999. Both were subsequently granted refugee status in Canada.

[4]    The applicant arrived in Canada on September 8, 2002 and made a claim for refugee protection on September 25, 2002. His claim was heard and dismissed orally on March 18, 2003. The refugee claim was denied in part on the basis that if requested, state protection was in fact available to him, as was an internal flight alternative ("IFA").

[5]    On April 30, 2003, the applicant filed an application on humanitarian and compassionate ("H & C") grounds for an exemption from the requirement to apply for landing from outside Canada.

[6]    On April 28, 2004, the applicant filed his PRRA application.

[7]    On June 15, 2004, the PRRA officer denied both the H & C application and the PRRA application.

[8]    The applicant filed for judicial review of the H & C application, but leave was denied on August 10, 2004 for failure to perfect the application.

[9]    The applicant filed a motion for a stay of removal which was dismissed by order of the Court on July 12, 2004. The applicant was subsequently deported to Peru.

[10]                        This is the judicial review of the negative PRRA decision.

PRRA Officer's Decision

[11]                        The PRRA officer stated in part as follows:

The Law of General Application is not applicable in this case as state-sanctioned penalties are not part of the risks alleged by the applicant.

Risk by definition is forward looking to the possibility of persecution, torture, risk to life and risk of cruel and unusual treatment or punishment. Bearing that in mind, I have carefully considered the most current and publicly available documentary evidence regarding country and human rights conditions in Peru as well as all documents submitted by the applicant in order to make a determination of risk.

The applicant states that on August 22, 2002, four members of the Shining Path intercepted him in a car and asked the whereabouts of his brother and mother. (The applicant's brother and mother departed Peru for Canada in 1997 and 1999 respectively.) On August 23rd and 24th, the applicant states that he received death threats by phone and was again asked the whereabouts of his family members. On August 25th, 2002, the applicant states that three of the same four members of the Shining Path pulled him into a car with tinted windows and drove him around while beating him with a gun, punching him and threatening him. The applicant states., "It was almost an hour of physiologic [sic] torture, physic [sic] ill - treatment and moral damage." The applicant submits that the Shining Path is seeking revenge because his brother and mother left Peru.

The applicant did not attempt to seek assistance from the police or DINCOTE (National Anti-terrorism Directorate . . ., currently known as DIRCOTE, . . .). The applicant states that he did not seek protection of the state because his brother and mother unsuccessfully attempted to request their assistance. The applicant drew the conclusion that based on his family's experience, he would also not receive help from the police and DINCOTE. The applicant argues that he is similarly situated to his mother's and brother's cases.

[12]                        The PRRA officer then cited numerous passages from the Research Directorate document (PER2332.E Jan.2004), Amnesty International Report 2004, and the United States Department of State Country Reports on Human Rights Practices, Peru - 2003 (February 25, 2004), indicating the areas in which the Shining Path appears to be active and the increased state responses resulting in a significant decrease in the ranks of the Shining Path.

Analysis:

In the applicant's PRRA submissions, he conducts an analysis of the RPD decision of his refugee claim. PRRA is not an appeal mechanism for the RPD. Nevertheless, I have carefully reviewed the applicant's explanations his areas of concern of the RPD decision and statements of allegations of risk in the PRRA context. The applicant's intention of his submissions were to refute the RPD's determination that the applicant lacked credibility and trustworthy evidence at the RPD.

The applicant submits a letter from Mr. Alejandro LAU as evidence of the problems he encountered in Peru. Mr. LAU writes, "he told me about the physics [sic] ill-treatment and telephone threats which made members of Shinning [sic] Path, this point is usual because of the infiltration of terrorists in universities as students or teachers who incites those communist-terrorist ideas". I assign little weight to this letter as the information on which Mr. LAU writes is based on what the applicant told him and has little objective basis.

Research indicates that Shining Path continues to be active in Peru, however, the state continues to maintain control over its security forces. Research also indicates that both the size of the Shining Path's fighting force and its geographical reach remain limited. Furthermore, the Peruvian government has continued to combat against Shining Path.

I note that the applicant submits copies of his mother and brother's Personal Information Forms and his mother's and brother's reports to the police in his PRRA submissions. These documents pre-date the applicant's RPD decision. . . I have taken these submissions into consideration, however, I find that the allegations of risk remain the same as presented in front of the RPD.

After careful consideration of the applicant's PRRA submissions, I accept that the applicant has been pursued by the members of the Shining Path. However, I further find that state protection exists for the applicant.

The applicant has provided numerous articles regarding the Shining Path in Peru and he states in his submissions that the Shining Path is still active. The information within these documents is not specific to the applicant nor does it refute that state protection is available to the applicant.

When stating that a threat to his life exists in Peru, the burden of proof lies upon the applicant in presenting clear and convincing evidence that the state was unable to protect him. Threats were made to the applicant; however, the applicant did not take steps to avail himself of state protection. There is a duty to approach the state by the applicant. I find that the applicant has not met the burden of proof and has presented little evidence that he attempted to avail himself of protection from the Peruvian authorities, or that such protection was not forthcoming.

I also find that there is a reasonable and viable internal flight alternative for the applicant as the Shining Path does not operate in every part of Peru. Prior to leaving Peru, the applicant resided in the capital city, Lima, Peru. Research indicates that the Shining Path mainly operates in the regions of Huallaga, Ene and Apurimac, Junin, Ayacucho, Apurimac and a part of Cusco. Reasearch also indicates that there has been an increased presence of Shining Path recruitment at the universities; however, I note that the applicant has completed his economics degree and does not indicate that he wishes to further his education if he were to return to Peru.

Assessment of Risk

As a result of having found the availability of state protection and a reasonable and viable internal flight alternative, I do not find that there is more than a mere possibility that the applicant would face persecution if they were to return to Peru. Similarly, I do not find that the applicant would be more likely than not at risk of torture, at risk to life, or at risk of cruel and unusual treatment or punishment

Issues

[13]                        1.          Did the PRRA officer err in law in the state protection analysis?

2.          Was the PRRA officer's IFA analysis unreasonable?

Applicant's Submissions

[14]                        Standard of Review

The applicant submitted that the standard of review on Issue 1 is correctness as it involves an error of law, and with respect to Issue 2 is reasonableness simpliciter, as it is a question of mixed fact and law (see Adviento v. Canada (Minister of Citizenship and Immigration) 2003 FC 1430).

[15]                        Issue 1 (State Protection Analysis)

The applicant submitted that in his submissions to the PRRA officer, he provided evidence in respect of both branches of the test for state protection set out in Canada (Attorney General) v. Ward 1993 2 S.C.R., and followed by the Court in Irhuegbae v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 671, that "clear and convincing confirmation of a state's inability to protect might include testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize".

[16]                        The applicant submitted that he provided evidence that his mother and brother had sought police protection and that it was not forthcoming. The evidence was comprised of letters from his mother and brother, a police report and two reports of the National Department Against Terrorism (DINCOTE). This evidence met the requirements of testimony from similarly situated individuals. The PRRA officer erred in determining that the applicant had failed in his duty to approach the state for protection. The applicant was not required to approach the state for protection if it is clear, as is the case here, that the state cannot protect him. He is not required to risk his life in order to seek ineffective state protection merely to prove its ineffectiveness (see D'Mello v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 72 (F.C.T.D.)(Q.L.)).

[17]                        The applicant further submitted that consequences of police inaction may in some cases justify an applicant's reluctance to seek protection from the state, especially when no corrective or punitive action is taken by the authorities and it encourages the resurgence of similar incidents (see Kraitman et al. v. Canada (Secretary of State) (1994), 81 F.T.R. 64).

[18]                        The applicant submitted that the PRRA officer based her decision on the availability of state protection solely on the documentary evidence without applying the proper legal test to determine whether the applicant had met his onus. While he himself did not go to the authorities, his family had made efforts to obtain state protection that was clearly not forthcoming. As he is similarly situated to his mother and brother, he was not obligated to go to the state, and therefore the PRAA officer's analysis is based on an error of law.

[19]                        Issue 2 (Internal Flight Alternative)

The applicant submitted that the proper legal test for determining whether an applicant has an IFA has been clearly established. The test has been stated as "to find an IFA, the Board must be satisfied on a balance of probabilities that it would not be unreasonable in the circumstances, including circumstances particular to the applicant, to seek and obtain safety from persecution in another part of the country" (see Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (FCA)). The PRRA officer erred by failing to consider the reasonableness of the proposed IFA for this applicant.

[20]                        The PRRA officer, in finding an IFA, failed to take into account that the applicant's mother and brother had moved on several occasions and it had been ineffective for them. Further, if an individual must remain in hiding to avoid problems, it would not be evidence of an IFA. Large urban areas cannot be assumed to be an IFA by virtue of their population size alone. The PRRA officer failed to properly analyze the true viability of an IFA for the applicant and therefore the decision is unreasonable.

Respondent's Submissions

[21]                        Standard of Review

The respondent submitted that the PRRA officer's determination on the availability of state protection and an IFA for the applicant are questions of fact and thus the appropriate standard of review is patent unreasonableness (see Ahmed v. Canada (Solicitor General) 2004 FC 686).

[22]                        The respondent submitted that in order for this judicial review to be granted, the Court must find that the PRRA officer erred in both her findings on state protection and IFA (see Judge v. Canada (Minister of Citizenship and Immigration) 2004 FC 1089).

[23]                        The respondent submitted that new evidence that was not before the decision-maker is irrelevant and should not be considered on a judicial review application (see Moktari v. Canada (Minister of Citizenship and Immigration) (2001), 200 F.T.R. 25). It is the PRRA officer's decision that is under review and therefore only evidence that was before her can properly be accepted. Any information or documents that were not before the PRRA officer should not be considered by this Court.

[24]                        Issue 1 (State Protection)

The respondent submitted that the onus is on the applicant to provide clear and convincing proof of Peru's alleged inability to provide protection. In Bustamante v. Canada (Minister of Citizenship and Immigration) 2002 FCT 499, Martineau J. accepted that based on the documentary evidence in that case, since the late 1990s "the Shining Path organization had been all but decimated by the Peruvian authorities," and was satisfied that the claimant in that case had not presented convincing evidence to the decision maker that the state could not protect him, despite having been allegedly threatened by the Shining Path. The same determination should apply in this case (see also Mejia v. Canada (Minister of Citizenship and Immigration) 2004 FC 925).

[25]                        The respondent submitted that the PRRA officer applied the correct test, that the burden of proof lies upon the applicant in presenting clear and convincing evidence that the state was unable to protect him. The respondent submitted that the reasons show that contrary to the applicant's assertions, the PRRA officer was cognizant of, and had regard to, his mother and brother's past experiences with the lack of help from the police notwithstanding having made police reports.

[26]                        Merely because his mother and brother had complained to the police more than three years earlier does not absolve the applicant of the duty to seek state protection, or show that seeking it out would be unreasonable, especially when the state authorities have significantly reduced the strength of the Shining Path (Bustamante, supra).

[27]                        The respondent submitted that the documentary evidence before the PRRA officer established that the situation in Peru vis-a-vis the Shining Path terrorist organization was very different in 2002 from the situation in the late 1990s when his mother and brother had left the country.

[28]                        The respondent submitted that it was therefore reasonable for the PRRA officer to not simply accept that state protection would not have been forthcoming for the applicant based solely on the alleged experiences of his mother and brother. The PRRA officer reviewed all the evidence and determined that the applicant's situation was not similar to that of his mother and brother when they left Peru a number of years ago. The applicant is asking this Court to re-weigh the evidence that was before the PRRA officer. That is not the Court's task on a judicial review.

[29]                        Issue 2 (Internal Flight Alternative)

The respondent submitted that the applicant had the burden of proving that an IFA was not reasonable. He failed to do so.

[30]                        The respondent submitted that the PRRA officer did not err in finding that an IFA was reasonably available to the applicant. The PRRA officer considered that the size of the Shining Path organization and its geographical reach had become quite limited. The evidence indicated that the Shining Path operate chiefly in the rural cocoa producing regions of Peru, with some presence at universities. The PRRA officer noted that the applicant had lived in Lima prior to coming to Canada and could resettle there, as according to the documentary evidence, it is not within the current limited geographical reach of the Shining Path.

[31]                        The respondent submitted that in making her determination, the PRRA officer properly applied the test as set out in Thirunvukkarasu, supra, assessing the situation in Lima both in terms of the presence of the Shining Path and the applicant's ability to re-settle there. It was not unreasonable for the PRRA officer to find that the applicant had not met the onus of showing that he would suffer more than a mere possibility of persecution throughout Peru given the viable option of re-settling in Lima.

[32]                        The respondent submitted that the application for judicial review should therefore be dismissed.

Analysis and Decision

[33]                        Standard of Review

The standard of review for an IFA finding is patent unreasonableness (see Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263).

[34]                        I propose to deal firstly with the issue of an IFA.

Was the PRRA Officer's IFA analysis unreasonable?

The Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. 1256 (C.A.) dealt with the issue of an IFA. I have reviewed the PRRA officer's decision and I note that the officer dealt with the requirements outlined by the Court of Appeal in that case. The officer took into account the question of whether in all the circumstances, including the circumstances particular to the applicant, conditions in the part of the country where the IFA would be available were such that it would not be unreasonable for the applicant to seek refuge there. The officer also accepted that the applicant had in the past been subject to attacks by the Shining Path.

[35]                        The PRRA officer correctly noted from recent documentary evidence that the Shining Path does not operate in all parts of the country, that the Shining Path had greatly decreased in number and that the government had cracked down on the organization. The PRRA officer identified an IFA for the applicant.

[36]                        The onus is on the applicant to demonstrate that a well-founded fear of persecution exists throughout the country of Peru. In my view, the applicant did not do this.

[37]                        I am of the further view that the PRRA officer did not make a reviewable error in relation to the IFA issue.

[38]                        Because the applicant had to demonstrate the lack of an IFA in order to succeed, I need not deal with the other issue.

[39]                        I did not consider any new evidence from the further affidavit as that evidence was not before the PRRA officer.

[40]                        The application for judicial review is therefore dismissed.

[41]                        Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

ORDER

[42]                        IT IS ORDERED that the application for judicial review is dismissed.

                                                                                                                   "John A. O'Keefe"