Date: 20100720
Docket: IMM-5799-09
Citation: 2010 FC 765
Ottawa, Ontario, July 20,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
DEISY JULIETH DUITAMA GOMEZ,
EDISON GIOVANNI AMORTEGUI,
DANIEL ALEJANDRO AMORTEGUI DUITAMA and
LAURA SOFIA AMORTEGUI DUITAMA
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Deisy Julieth Duitama Gomez applies, with
her immediate family members, for judicial review of a pre-removal risk
assessment (PRRA) made October 7, 2009 wherein the PRRA Officer determined the
Applicants would not be subject to personalized risk to life or risk of cruel
or unusual treatment should they return to Columbia.
[2]
Ms. Gomez (the Applicant) is the principal
applicant; she, her spouse and two children are citizens of Columbia. The Applicant was kidnapped and
raped by members of FARC, a terrorist group active in Columbia. She fears the group will renew efforts to extort money from her
under the threat of violence. The Officer accepted the allegations of
kidnapping and rape, but gave no weight to the threat of extortion.
[3]
For reasons that follow I am granting the
judicial review.
Facts
[4]
The PRRA Officer summarized from the Applicant’s
affidavit:
“The
applicant states that her family has been persecuted by the FARC in Columbia. She states that her grandmother
and her brother inherited a farm in Columbia and were forced to pay a vacuna to the FARC. She states that
her grandmother and mother (who lived on the farm with the applicant) decided
to abandon the farm for their safety and moved to Bogota. The applicant states that she lived with her grandmother and her
mother lived in another home in Bogota. The applicant states that on 13 January 1997, the FARC was able to
track down her mother and brother and they were kidnapped. After the
applicant’s grandmother pleaded with the guerrillas to release them and
promising to pay the later on, they were released. The applicant states that
her mother made a denunciation to the authorities about what happened but did
not mention her brother, as she feared for his safety. The applicant states
that her mother planned her flight to the U.S., but could not take the children. She states her mother and uncle
fled to the U.S., as they were
able to obtain visas. She states that she and her siblings lived with her
grandmother and moved houses so that they could not be found. In 2002, the
applicant’s mother had returned to visit from the U.S. and she was once more kidnapped by the FARC and eventually
released. The applicant states that her mother filed a denunciation with the
authorities about the kidnapping but refused to state where her children were living
because she feared FARC would obtain the information and come after them for
reprisals. After this event, the applicant’s mother returned to the U.S. once again. The applicant states that
on 18 September 2002, she was kidnapped and raped by the FARC as a consequence
of her mother’s denunciation. She states that she was eventually released and
returned to her grandmother. The applicant states she was afraid to call the
police, as the FARC would find out, just as they had found out about her
mother’s denunciation. The applicant states in May 2004, she moved in with
Giovanni in a common-law relationship. She states that she witnessed a shooting
that was close to her home and later realized that the man who was shot was
probably mistaken for her common-law husband. She states that she left Colombia in October 2008 and travelled to
the United States with great
pain and tribulations.”
[5]
While this account captures an overview of the
Applicant’s account, there is more which makes the degree of her suffering
quite remarkable. The circumstances of the rape and subsequent events are not
referred to, nor questioned, by the PRRA Officer.
[6]
The Applicants delivered submissions and
supporting documents on their PRRA application on August 26, 2009. They advised
that further evidence would be forthcoming including a psychological assessment
of the Applicant. The PRRA Officer issued the negative decision five weeks
later prior to receipt of further evidence from the Applicants.
[7]
The Applicants had been previously denied
opportunity to make a PRRA application because of the circumstances of their
arrival in Canada which became
the subject of attention by advocacy groups and litigation. However those
events are not, in my view, relevant considerations in this judicial review of
the October 7, 2009 negative PRRA decision.
Issues
[8]
The issues I have to address in this application
for judicial review are:
1.
Did the PRRA Officer deny the Applicant’s
procedural fairness by not receiving the Applicants’ further evidence?
2.
Did the PRRA Officer err in the analysis of the
availability of state protection?
Legislation
[9]
The Immigration and Refugee Protection Act,
(2001, c.27) (IRPA) provides at section 113:
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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;
(b) a hearing may be held if the
Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required;
(c) in the case of an applicant not
described in subsection 112(3), consideration shall be on the basis of
sections 96 to 98;
(d) in the case of an applicant described
in subsection 112(3), consideration shall be on the basis of the factors set
out in section 97 and
(i) in the case of an applicant for
protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada, or
(ii) in the case of any other applicant,
whether the application should be refused because of the nature and severity
of acts committed by the applicant or because of the danger that the
applicant constitutes to the security of Canada.
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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;
b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au
paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et,
d’autre part :
(i) soit du fait que le demandeur
interdit de territoire pour grande criminalité constitue un danger pour le
public au Canada,
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
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[10] Section 167 of the Immigration and Refugee Regulations,
(SOR/2002-227) provide specific factors an Officer must take into account when
considering whether or not an oral hearing is in order. The regulation reads:
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167. For the purpose of determining
whether a hearing is required under paragraph 113(b) of the Act, the factors
are the following:
(a) whether there is evidence that raises
a serious issue of the applicant's credibility and is related to the factors
set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to
the decision with respect to the application for protection; and
(c) whether the evidence, if accepted,
would justify allowing the application for protection.
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167. Pour l’application de l’alinéa 113b)
de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience
est requise :
a) l’existence d’éléments de preuve
relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments de preuve
pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments
de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée
la protection.
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Standard of Review
[11] In Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir),
the Supreme Court of Canada held there are two standards of review at common
law in Canada: correctness and
reasonableness (para. 34). The standard of correctness generally applies to
questions of law; such as questions of natural justice or procedural fairness.
The standard of reasonableness applies to questions of fact or mixed facts and
law (para. 51).
[12] The Supreme Court also held a standard of
review analysis need not be conducted in every instance. Where the standard of
review applicable to the particular question before the Court is well settled
by past jurisprudence, the reviewing court may apply that standard. Dunsmuir,
para. 57.
[13] Both parties argue the appropriate standard
of review for an officer’s decisions on the facts and most questions on fact
and law should be reviewed on the standard of reasonableness. Whereas questions
concerning the officer’s duty of procedural fairness towards the applicant are reviewable
on the standard of correctness, Liu v. Canada (Minister of Citizenship and Immigration), 2009 FC 877; Ram v. Canada (Minister of Citizenship and Immigration), 2010 FC 548. I agree.
[14] Finally, I note that in Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 59 the Supreme Court of Canada stated:
“Reasonableness is a single standard that takes its colour from the
context. One of the objectives of Dunsmuir was to
liberate judicial review courts from what came to be seen as undue complexity
and formalism. Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within
"a range of possible, acceptable outcomes which are defensible in respect
of the facts and law" (Dunsmuir, at para. 47). There might be more than one
reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.”
Analysis
Did
the PRRA Officer breach her duty of procedural fairness towards the Applicant
by not receiving her further evidence or conduct an oral hearing?
Further
Evidence
[15] The PRRA Officer did not wait for the Applicant’s psychological
report nor did the Officer give the Applicants an oral hearing.
[16] The Respondent submits the Applicants had the opportunity to make
their PRRA submissions: submitting 250 pages of material five weeks prior to
the decision.
[17] The Respondent submits, drawing on Barrack v. Canada (Minister of
Citizenship and Immigration), 2008 FC 962, a humanitarian &
compassionate grounds case, that an applicant has the burden of adducing proof
of any claim on which his or her application relies and makes a scant
application at his or her own peril. A PRRA Officer has no obligation to
inquire into a deficient application.
[18] I agree with this principle, but it does not apply in this case. The
Applicant’s submissions were detailed and full – the opposite of scant. In
advising more submissions were forthcoming, the Applicant was meeting her
obligation to substantiate her claims. For example, the PRRA Officer accepted
the Applicant’s allegations of rape and kidnapping and was alerted to a
psychological report to be submitted as evidence to prove assertions with
respect to their impact on the Applicant’s mental health and vulnerability.
[19] The documentary evidence discloses that women are at a higher risk
of sexual assault and other gender related crimes because of the conflict in Columbia. The Applicant is a vulnerable
female who is a reported rape victim. In these circumstances the Guidelines
concerning Women Refugee Claimants Fearing Gender-Related Persecution issued by
the Chairperson pursuant to section 159(1)(h) of IRPA are applicable and
the psychological assessment should be relevant. The PRRA Officer gives no
reason for ignoring the expected psychological assessment of the Applicant, nor
did she take any of the Chairperson’s guidelines into account.
Oral
Hearing
[20] The Respondent submits there is no need for an oral hearing when an
officer assesses the weight of evidence, not its credibility. Where credibility
is at issue in evidence central to the claim which would likely lead to the
application being granted the IRPA regulations require an oral hearing.
[21] The Applicant argues, successfully in my opinion, that the officer’s
assessment of central evidence was based on veiled credibility findings. She
refers to Justice MacKay’s decision in Zokai v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1581 at paragraph 13:
“I do not
suggest that if an oral hearing is requested that request must be granted. Yet
here one was requested and the circumstances supporting that request were
advanced but no reference was made in the PRRA decision to consideration of the
request, to the circumstances advanced, or the factors set out in the
regulations to be weighed in considering the request. Moreover, the essence
of the decision is that the applicant's story and professed fears are given no
weight, effectively rejecting the applicant's evidence as not credible even
though no specific reference is made to credibility as an issue. That
process of decision making was ultimately unfair, particularly, where the
timing of the process effectively foreclosed a reasonable time for presentation
of supporting evidence.”
(emphasis
added)
[22] The PRRA Officer finds there is insufficient evidence the Applicants
would be targeted by any terrorist group in Columbia. The PRRA Officer notes the Applicant’s mother only referred to the
high price of her kidnappers’ ransom because she had relatives abroad. The
Officer discounts the evidence because she failed to refer to the kidnappers’
demands for payment of vacuna (i.e. war tax) on the family farm when she filed
denunciations with the police after each of her two kidnappings. The Officer
draws this inference notwithstanding both kidnappings occurred after the
grandmother and mother abandoned the farm to the FARC.
[23] Further, the Applicant stated in her affidavit that her grandmother
and mother were compelled to pay FARC the vacuna and later store illegal
products on their farm. When they could no longer pay, they abandoned the farm
and moved to Bogota where they
thought they would be safe. Instead FARC kidnapped her mother and brother and
demanded a ransom. The Applicant was 13 years old at the time and living at her
grandmother’s home. At one point she answered the door at her home to receive a
package for her grandmother. The package contained the tips of her mother’s
fingers to underscore the demand for money. The medical evidence in the record
discloses that her mother, among other indicia of wounds, is missing the top
joints of two fingers on her left hand.
[24] The Applicant also attested to the circumstances of her own
kidnapping and rape. She stated:
The
next morning, one of them (the kidnappers) came to me and he was on the phone
talking to may grandmother. He told me to say “hi” to her and tell her how good
they were treating me. I was just crying and my grandmother was crying too.
Then he told my grandmother that these things happen to those who talk too
much, that it was because my mother had made a denunciation about her
kidnapping. They said they would exterminate all of us, then he hung up the
phone.
[25] In addition, the PRRA Officer notes the Applicant provided a
translation of a letter dated March 18th, 2009 from a Psychiatrist
in Bogota. The letter states
the Applicant received treatment for persecutory delusions; suicide attempts;
trauma due to rape; and claustrophobia. It is an independent confirmation of
the Applicant’s account of sexual assault and underlines the suffering it has
caused in her life. The Officer notes the translation states she is
receiving treatment in Bogota in March 2009, but, during that month, the Applicant
was in detention in Canada.
Significantly, the Officer writes: “In the absence of an explanation, I assign
it no weight.” The Officer found a contradiction which would more appropriately
go to the Applicant’s credibility, which in turn should create a need for an
oral hearing in the event there is a misunderstanding. But since there was no
oral hearing, the Applicant had no opportunity to offer an explanation.
[26] I find the Officer identified issues that are at the heart of the
Applicant's credibility with respect to the relevant factors in section 97 of
the IRPA. This evidence is central to the question of whether or not this
application would be accepted if properly assessed.
[27] I find the PRRA Officer made an adverse credibility finding with
respect to the Applicant’s evidence and did not afford her an opportunity to
address it, as would have been required, in an oral hearing pursuant to section
167 of the IRPA Regulations.
Did
the PRRA Officer err in the analysis of the availability of state protection?
[28] Finally, the Respondent defends the PRRA Officer’s assessment of the
evidence concerning the availability of state protection. It submits the onus
is on the Applicants to “adduce, relevant, reliable and convincing evidence
which satisfies the trier of fact on the balance of probabilities that the
state protection is inadequate.” Canada (Minister of Citizenship and Immigration) v. Flores Carrillo, 2008 FCA 94, para. 30.
[29] In Ward v. Canada (Attorney General), [1993] S.C.J. No.
74, the Supreme Court of Canada held that the test as to whether a state is
able to protect a citizen is twofold. First, those situations where state protection
“might reasonably have been forthcoming” will defeat a claimant’s failure to
seek state protection. Second, in a practical sense, the claimant must provide
clear and convincing confirmation of a state’s inability to protect. This may
be in relation to the claimant or to a similarly situated person.
[30] The Federal Court of Appeal recognized in, Hinzman v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 171, that there may be
“exceptional circumstances” where the claimant may not need to exhaust all
possible protections available for state protection.
[31] In Flores Zepeda v. Canada (Minister of Citizenship and Immigration), 2008 FC 491, at para. 16, Justice Tremblay-Lamer stated:
Indeed,
in my opinion, the requirement of having to place oneself in danger in order
to exhaust all protection avenues would constitute and “exceptional
circumstance” referred to the by the Federal Court of Appeal above [Hinzman].
(emphasis
added)
[32] In assessing whether the Applicant rebutted the presumption of state
protection, the PRRA Officer asserts the Applicants did not seek protection in Colombia. She alleges the Applicant relied
instead on her mother’s experience denouncing her kidnappings by FARC. The
officer adds these kidnappings happened in 1997 and 2002. The Officer also
noted the spouse’s mother and grandmother still reside in Columbia.
[33] However, the PRRA Officer chooses to ignore the consequences of the
mother’s denunciations. The mother filed her first denunciation with the
authorities in 1997 and was subsequently kidnapped again in 2002 when she
visited Columbia to see her
children. The mother’s second denunciation led to the Applicant being kidnapped
and sexually assaulted in 2004.
[34] The Officer glosses over the glaring absurdity in the Applicant’s case,
which is that reporting FARC to the police invites terrible consequences; in
her case, kidnapping and sexual assault. Instead of dealing with this head-on,
the Officer generalizes about a steady decline in FARC kidnappings between 2002
and 2006 and concludes FARC is in “irreversible decline” and “weakening”. The
Officer’s generalizations do not answer the Applicant’s specific and well
founded allegation that the police have been of no use to her or her mother, a
similarly situated person. This missing link belies the Officer’s incomplete
analysis and renders her conclusion unreasonable.
Conclusion
[35] I conclude the PRRA Officer failed to wait for or give reasons for
not waiting for the further evidence being the psychological evidence
concerning the effects of FARC sexual assault against the Applicant. This by
itself may not determine whether this Application should succeed. However, when
coupled with the failure to grant the Applicant an oral hearing on findings
which go to the Applicant’s credibility there is a breach of the Officer’s duty
of procedural fairness.
[36] The Officer also failed to properly assess the Applicant’s case and
her reason for not seeking state protection given the evidence concerning the
consequences of her mother’s two denunciations. This resulted in an incomplete
analysis and renders the finding on state protection unreasonable.
[37] The application for judicial review is granted.
[38] The parties have not proposed a question for certification and I see
no reason to find one.
[39] I make no order for costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The application for judicial review is granted.
2.
The parties have not proposed a question for
certification and I see no reason to find one.
3.
I make no order for costs.
“Leonard
S. Mandamin”
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