Date: 20100907
Docket: IMM-5953-09
Citation: 2010 FC 880
Ottawa, Ontario, September 7, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JOSE
HENRY MONGE CONTRERAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Mr. Jose Henry Monge Contreras fears that if he
is sent back to his native El Salvador he will be harmed by the Mara/Salvatrucha gang. The gang killed his
brother, shot at his friends and his other brother, and shot Mr. Monge
Contreras in the knee.
[2]
Mr. Monge Contreras applied for a pre-removal
risk assessment (PRRA) before being deported to El
Salvador. The officer who conducted the PRRA concluded
that Mr. Monge Contreras had not rebutted the presumption that state protection
was available to him in El Salvador and, therefore, that there were insufficient grounds on which to
find that he would face torture or cruel and unusual treatment or punishment if
returned.
[3]
Mr. Monge Contreras argues that the officer
erred by failing to afford him an oral hearing, by rendering an unreasonable
decision on state protection, and by issuing inadequate reasons. He asks me to
order another officer to reconsider his application.
[4]
I cannot find any basis on which to overturn the
officer’s decision and must, therefore, dismiss this application for judicial
review.
[5]
There are three issues:
1.
Was the officer obliged to hold an oral hearing?
2.
Was the officer’s conclusion on state protection
unreasonable?
3.
Were the officer’s reasons inadequate?
II.
The Officer’s Decision
[6]
Because Mr. Monge Contreras was ineligible for
refugee protection, the officer only considered his application under s. 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (see Annex
“A”).
(1)
Was the officer obliged to hold an oral hearing?
[7]
Mr. Monge Contreras argues that the officer
implicitly challenged his credibility by noting the absence of corroborating
medical evidence to support his claim to have been shot in the knee. Accordingly,
he says, the officer had a duty to hold an oral hearing.
[8]
As I read the officer’s decision, while he did
note the absence of corroborating medical evidence, the main issue was state
protection. In other words, the officer appeared to accept Mr. Monge Contreras’s
version of events and then considered whether the state of El Salvador was in a position to offer him
protection. The officer’s analysis did not turn on the issue of credibility
and, accordingly, he was not obliged to convene an oral hearing (Tekie
v. Canada (Minister of Citizenship and Immigration), 2005 FC 27).
(2)
Was the officer’s conclusion on state protection
unreasonable?
[9]
Mr. Monge Contreras argues that the officer
merely relied on a smattering of documentary sources and then declared his
conclusion that he had not “rebutted the presumption of state protection in El Salvador with clear and convincing
evidence”. Further, Mr. Monge Contreras maintains that the officer failed to
recognize that seeking protection would be futile under the prevailing conditions
in El Salvador.
[10]
Clearly, El Salvador has serious problems responding adequately to crime. The
documentary evidence Mr. Monge Contreras relies on makes that clear. But the
officer relied mainly on one key document – a letter from an official of the El
Salvador Civil National Police. In it, the official confirms the risk that
would await Mr. Monge Contreras if he were to return to El Salvador. But he also notes that the
police are currently providing protection from gang threats to Mr. Monge
Contreras’s wife and three daughters under the Regimen of Urgent Protection for
Victims and Witnesses.
[11]
Given the evidence before him, I cannot conclude
that the PRRA officer failed to consider relevant documentary evidence or
unreasonably found that adequate state protection was available. Mr. Monge
Contreras did not explain why he could not avail himself of the state
protection El Salvador is
currently providing the rest of his family.
(3)
Were the officer’s reasons inadequate?
[12]
Mr. Monge Contreras maintains that the officer
failed to explain adequately his conclusion that state protection was available
in El Salvador. The officer
merely cited selected passages from the documentary evidence and then stated
his conclusion.
[13]
In my view, read in their context and in light
of the record before him, the officer’s reasons are adequate. As mentioned, a
key piece of evidence was the letter from the Civil National Police noting the
availability of protection for victims of crime and the protection currently
being provided to Mr. Monge Contreras’s family. The other documentary evidence
was relevant but did not require extensive analysis to arrive at the conclusion
that Mr. Monge Contreras had failed to discharge the evidentiary burden on him.
III.
Conclusion and Disposition
[14]
Given the evidence before him relating to state
protection, the officer was not obliged to hold an oral hearing. Further, his
conclusion was reasonable in the sense that it fell within the range of
acceptable outcomes and his reasons were adequate. No question of general
importance arises for certification.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James W.
O’Reilly”
Annex “A”
|
Immigration and Refugee Protection Act S.C. 2001, c. 27
Person in need of
protection
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.
|
Loi
sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27
Personne à protéger
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.
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