Date: 20100428
Docket: IMM-5170-09
Citation: 2010 FC 464
Ottawa, Ontario, April 28, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HORACIO
LOPEZ PUERTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant, a citizen of Colombia, arrived in Canada from the United States on
July 27, 2009 with his family. He alleges a well-founded fear of persecution
and risk to his life by the Revolutionary Armed Forces of Colombia (FARC).
Because the Applicant had made an unsuccessful refugee claim in Canada in 2003,
he was not eligible to have his claim referred to the Refugee Protection Division
of the Immigration and Refugee Board (RPD). However, it was determined that he
was eligible to make an application for pre-removal risk assessment (PRRA).
Under cover letter of August 14, 2009, the Applicant’s application was
submitted, attached to which was extensive affidavit and documentary evidence.
[2]
In a
lengthy decision, dated October 7, 2009, a PRRA Officer rejected the
application. The key finding of the Officer was that the Applicant had
submitted insufficient evidence to establish that he or his family had been
targeted or threatened by FARC. Although the Officer acknowledges that adequate
state protection does not exist for persons targeted by FARC, the insufficiency
of the evidence to establish that the Applicant was such a person was fatal to
his claim for protection. In other words, the mere existence of FARC in Colombia was not indicative of the
risk for this individual.
[3]
The
Applicant seeks to quash the PRRA Officer’s decision.
II. Issues
[4]
This application
raises the following issues:
1.
Did the Officer err
by failing to acknowledge that the evidence raised a “serious issue of the
applicant’s credibility” such that an oral hearing was required pursuant to s.
113 (b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA) and s. 167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations)?
2.
Did the Officer err
by applying an incorrect test or by failing to articulate the correct test
under s. 97 of IRPA?
3.
Did the Officer err
by ignoring, misinterpreting, or misconstruing the evidence before him?
[5]
On the particular
facts of this case, I am satisfied that the Officer applied the correct test
under s. 97 of IRPA and that he did not fail to have regard to the evidence
before him. However, I will allow this application for judicial review on the
basis that the Officer erred by failing to convoke an oral interview where the
evidence before him raised a serious issue of the Applicant’s credibility.
III. Statutory
Framework
[6]
As noted, because the
Applicant had previously made an unsuccessful refugee claim in Canada (in 2003), he was precluded by s. 101(1)(b) of IRPA from
making a claim to the RPD for protection under s. 96 or 97 of IRPA. He was
limited to applying to the Minister for protection under s. 112(1) of IRPA. The
assessment of his application is referred to as a PRRA.
[7]
Section 113(b) of
IRPA states that, on an application for a PRRA, “a hearing may be held if the
Minister, on the basis of prescribed factors, is of the opinion that a hearing
is required”.
[8]
The prescribed
factors are set out in s.167 of the Regulations, as follows:
1)
whether there is
evidence that raises a serious issue of the applicant’s credibility and is
related to ss. 96 and 97 of IRPA;
2)
whether the evidence
is central to the decision with respect to the application for protection; and
3)
whether the evidence,
if accepted, would provide a basis for allowing the application for protection.
IV. Analysis
[9]
In the decision, the
Officer explicitly accepts that “state protection or an Internal Flight
Alternative is not available for those targeted by FARC”. It follows that an
acceptance of the Applicant’s story of persecution by FARC is central to the
decision and that, had that evidence been accepted, there would have been a
basis for allowing the application. Thus, the second and third factors set out
in s. 167 of the Regulations are clearly satisfied on the facts of this case.
Moreover, it appears obvious to me that the fears of the Applicant are related
to, at least, s. 97. (I leave open the question of whether they are also
related to s. 96.) Accordingly, the question before me is whether the evidence
before the Officer raises a “serious issue” of the Applicant’s credibility.
[10]
Although there may be
some disagreement as to the appropriate standard of review of this aspect of
the Officer’s decision, I view the Officer’s decision of whether to convoke a
hearing to be an exercise of discretion to which a standard of reasonableness
should apply.
[11]
Paraphrasing
the words of Justice Zinn in Ferguson v. Canada (Minister of Citizenship and
Immigration), 2008 FC
1067, 74 Imm. L.R. (3d) 306 at para. 32, where a fact asserted is critical to
the PRRA application, it is open to an Officer to require more evidence to
satisfy an applicant’s legal burden. In this case, a critical element of the
Applicant’s case was his wife’s work with indigent people.
[12]
The key piece of
evidence before the Officer was the Applicant’s sworn affidavit. I begin by
observing that a key fact in the Ferguson case was that the Applicant had not
submitted a sworn affidavit; all the submissions were made by counsel. In his
sworn affidavit, the Applicant describes a number of incidents of targeting of
him and his family by members of FARC. While I accept that more details could
have been included, the incidents were set out in some detail. In his decision,
the PRRA Officer sets out a number the evidentiary matters referred to by the
Applicant and determines that there is insufficient evidence in respect of
each. Among the purported deficiencies in the sworn affidavit (along with some
other supporting documentation) are the following:
·
Insufficient evidence
to show that the Applicant’s wife was kidnapped;
·
Insufficient evidence
that FARC had threatened or extorted the Applicant, his family or a native
chief;
·
Insufficient
explanation of how his spouse recognized a person in an automobile to be a
person who had accosted her the previous day; and
·
Insufficient evidence
that the spouse’s work as a cultural advisor would involve her in security
issues.
[13]
The alleged
insufficiencies in the affidavit together with the Officer’s finding that the
Applicant’s failure to claim in the United
States showed a lack of
subjective fear appear to have animated his overall finding. I conclude that
the Officer, in fact, made the decision on credibility grounds; quite simply,
the Officer did not believe the Applicant’s story and rejected the PRRA
application on that basis.
[14]
A review of this
Court’s jurisprudence is not particularly helpful as each of these cases turns
on its individual facts. However, speaking generally, the case at bar compares
more closely with the decisions in L.Y.B. v. Canada (Minister of Citizenship
and Immigration), 2009 FC 1167, [2009] F.C.J. No. 1470 (QL) and Prieto
v. Canada (Minister of Citizenship and Immigration), 2010 FC 253, [2010]
F.C.J. No. 307 (QL) where the Court allowed the judicial reviews on similar
facts.
[15]
I wish to make it
clear that I am not saying that an affidavit will automatically mean that an
oral hearing is required. Each case will turn on its facts and what information
may or may not be included in the affidavit. Nor should this decision be an
invitation for applicants to expect an oral hearing where they can add details
and further support. In general, an applicant bears the burden of presenting
sufficient evidence to the Officer and an interview is an exception to the
normal written review. However, it is obvious, from the inclusion in IRPA and
the Regulations of the possibility of an oral hearing, that cases will arise
where credibility can only be assessed after an oral hearing. In my view, this
is one of those cases.
V. Conclusion
[16]
In conclusion, the
decision of the Officer not to convoke a hearing on the evidence before him
does not fall within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47).
[17]
Neither party
proposed a question for certification. None will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The application for
judicial review is allowed, the decision of the Board is quashed and the matter
is sent back for re-determination by a different panel of the Board; and
2.
No question of
general importance is certified.
“Judith
A. Snider”
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