Date: 20100304
Docket: IMM-2318-09
Citation: 2010 FC 253
Ottawa, Ontario, March 4, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CAMILO
ALBERTO HURTADO PRIETO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the pre-removal risk assessment officer (the officer), dated
January 21, 2009, wherein the officer determined that the applicant is neither
a Convention refugee nor a person in need of protection.
[2]
The
applicant requests the decision of the officer be set aside and that the matter
be referred to a different officer for redetermination.
Background
[3]
The
applicant, a citizen of Colombia, went to study at a
university in Moscow, Russia in
2006. He alleges that on December 9, 2007, he was approached by fellow
Colombians who insisted that he work with them and join the FARC, a guerrilla
group in Colombia. When he
refused to cooperate, the men began kicking and punching him until university
security arrived. He alleges that they sought him out because of his ability to
speak Russian and his high marks.
[4]
The
applicant alleges that he approached university student services but they did
not help. About two weeks later, the Colombian men threatened him again. On
January 7, 2008, the applicant found that his room on campus had been severely
vandalized. On January 29, 2008, the day before he returned to Colombia, the men
approached him again and beat him until some passersby helped him escape.
[5]
Upon
return to Colombia, the applicant
alleges that his family was shocked and took him to the hospital for medical
attention. His family then helped him apply for an Australian student visa and
on April 14, 2008, he travelled to Australia where he resided for
seven months before his family had to bring him back home, unable to continue
financing his education.
[6]
On
December 15, 2008, while back in Colombia, the applicant alleges
that he was approached by two men, one of whom put a gun to his back and
reminded him of the commitment he had made while in Russia. They tried
to kidnap him but he escaped.
[7]
On
December 17, 2008, the applicant fled for the United States. On December
18, 2008, the applicant was arrested as he entered Canada at the port of entry
at Stanstead,
Quebec, without
reporting for examination. He was issued an exclusion order and subsequently
submitted a pre-removal risk application.
PRRA Officer’s Decision
[8]
The
determinative issue for the officer in rejecting the claim was the
well-foundedness of the applicant’s fear.
[9]
The
failure to apply for refugee protection in Australia indicated
that the applicant lacked the subjective fear component. The fact that he
re-availed himself by returning to Colombia after the incidents with the FARC
recruiters, and again after his time in Australia, further indicated that he
lacked subjective fear.
[10]
The
officer also found that the applicant did not have an objective basis to his
application. There was insufficient evidence that the applicant sought any
medical attention or complained to police in Russia regarding
his incidents with the attackers. The applicant submitted a clinical history
dated February 1, 2008 from the Cosmetic and Alternative Medicine Riar Center in Colombia. The portions
of the history on diagnosis and suggested treatment were illegible to the officer.
There was also evidence that the applicant had submitted a letter to the
Attorney General in Bogota, Colombia, requesting an investigation into the
events. The officer noted that the authorities had taken the applicant’s complaint.
The officer, however, put little weight on these pieces of evidence because the
source of the information was the applicant and because there was little
evidence that further investigations were carried out.
[11]
The
officer accepted that the FARC commit violent acts and are responsible for
serious human rights violations. The officer also accepted that there is
inadequate state protection for those targeted by the FARC. The applicant’s
documentation showed that the FARC carry out death threats by phone or by mail,
with the aim of having the recipient leave an area or the country. However,
there is insufficient evidence that the applicant or his family in Colombia had received
threats by telephone or mail, or were tortured by the FARC. Nor is there sufficient
evidence that his family was ever harassed or targeted by the FARC while the
applicant was abroad.
[12]
The
officer then turned to country conditions and noted that the articles submitted
by the applicant did not relate to the applicant to show a personalized forward
looking risk. The officer also canvassed various documentation related to Colombia’s status as
a constitutional democracy, and found that despite Colombia’s documented
problems, it was reasonable to expect the applicant to seek assistance from
state agencies before seeking Canada’s protection.
Issues
[13]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err by not allowing the applicant an oral hearing?
3. Did the officer
err by not providing an analysis of the applicant’s claim under section 97 of
the Act, separate from his analysis of the claim under section 96 of the Act?
4. Did the officer
take into account irrelevant considerations?
5. Did the officer
err in concluding that the applicant did not have well-founded fear?
Applicant’s Written Submissions
[14]
First,
the applicant submits that natural justice required there to be an oral hearing
because credibility was an issue. By stating many times in the decision that
there was little or insufficient evidence in favour of the applicant, the officer
was implicitly putting little weight on evidence from the applicant’s sworn
affidavit, and thus questioning his credibility.
[15]
The
applicant swore that on December 15, 2008 a gun was pointed at him, yet the officer
found “there is insufficient evidence that the FARC guerrillas are interested
in harming the applicant”. This was a finding of a want of credibility.
[16]
Second,
the applicant submits that the officer erred by failing to provide separate analyses
for sections 96 and 97. The subjective fear element, used in the section 96
analysis, is wholly irrelevant to a claim under section 97.
[17]
Third,
the applicant submits that the officer erred by taking into account the
following irrelevant considerations: that the applicant had no problems leaving
Colombia on two
occasions and the impunity of paramilitaries in Colombia.
[18]
Finally,
the applicant submits that the officer’s conclusion on the well-foundedness of
his fear was unreasonable. The officer based this determination on the fact
that the applicant had not been targeted by the FARC, yet the sworn evidence of
the applicant contradicts this with his evidence of the episode on December 15,
2008 when a gun was put to his back.
Respondents’ Written Submissions
[19]
First, the respondents submit that no oral hearing was required.
Oral hearings are only required during PRRA hearings in exceptional cases where
all the criteria in section 167 of the Immigration and Refugee
Protection Regulations, SOR/2002/227, (the Regulations) are met. The applicant has not demonstrated that he meets
all the criteria set out in section 167.
[20]
In addition, credibility must be the key element on which the
officer based his or her decision and that, without that critical component, the
decision would have been unreasonable. Here, the officer’s decision was not
based on credibility, but on the insufficiency of the applicant’s evidence to
support his allegations. The applicant had the onus to establish his
well-founded fear and was required to provide all relevant evidence in writing
since interviews are only held in exceptional cases. It was open to the officer
to conclude there was not sufficient evidence.
[21]
The respondents submit that no separate analysis under section 97
was required because the facts supported a co-mingled analysis. The analysis
regarding the objective basis of the applicant’s fear was sufficient analysis
to determine that the applicant was not a person in need of protection. Thus,
no separate analysis was required under section 97.
[22]
The respondents dispute the ‘irrelevant considerations’
allegation. The officer’s finding that the applicant had no trouble leaving the
country was relevant to the risk, given that the applicant alleged that the
FARC is highly sophisticated. Documentary evidence on paramilitary groups was
similarly relevant because documentary evidence on paramilitaries and the FARC
is interconnected.
[23]
Finally, the respondents submit that the officer’s ultimate
conclusion was reasonable considering the following sound factors it was based
on:
-
no evidence that the applicant sought state protection in Russia
or claimed protection in Australia;
-
the applicant re-availed himself of Colombia’s
protection twice;
-
significant evidence of Colombia’s
serious efforts to protect its citizens;
-
no evidence that the applicant’s family was being attacked or harassed;
and
-
the officer did consider his evidence of being personally targeted
in Colombia but the applicant did not require
any medical treatment after his encounters in Russia and in Colombia.
Analysis and Decision
[24]
Issue
1
What is the standard of
review?
Issues 2, 3 and 4 go to the
procedural fairness of the impugned decision and must be decided on a standard
of correctness. It is well established that no deference is owed to the
decision maker in this regard and that it is up to this Court to form its own
opinion as to the fairness of the hearing (see Gonzalez v. Canada (Minister
of Citizenship and Immigration), 2008 FC 983 at paragraph 16).
[25]
Issue
5, however, relates to the fact driven determination reached by the officer. It
was a decision Parliament entrusted to officers with specialized skills and is
thus owed deference. Therefore it will only be interfered with if it is found
to be unreasonable (see Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, [2008] S.C.J. No. 9 (QL) at paragraph 53 and Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12 (QL)
at paragraph 58).
[26]
Issue
2
Did the officer err by not
allowing the applicant an oral hearing?
Regarding the requirement for
an oral hearing in the general immigration context, the Supreme Court of Canada
in Singh et al. v. Canada (Minister of Employment and Immigration),
[1985] 1 S.C.R. 177, held that oral hearings are only necessary when the
decision depends on findings of fact or credibility. However, in Zhang v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1377 (T.D.) (QL) at
paragraph 11, Mr. Justice Gibson of this Court interpreted the Supreme Court’s
statement as only requiring an oral hearing when an issue of credibility is
“central to the decision in question”.
[27]
Section
113 of the Act now codifies some of the procedural rules in relation to
considering PRRA applications. Subsection 113(b) provides that a hearing may be
held if the Minister, on the basis of prescribed factors, is of the opinion
that a hearing is required.
[28]
These
prescribed factors are set out in section 167 of the Regulations which can be
found in the annex.
[29]
In
Tekie v. Canada (Minister of Citizenship and Immigration), 2005 FC 27,
50 Imm. L.R. (3d) 306, Mr. Justice Phelan at paragraph 16, held that section
167 becomes operative where credibility is an issue which could result in a
negative PRRA decision and that the intent of the provision is to allow an
applicant to face any credibility concern which may be put in issue.
After reviewing Tekie above, I held
in Ortega v. Canada (Minister of Citizenship and Immigration), 2007 FC
601, [2007] F.C.J. No. 816 at paragraph 29, that an oral hearing was required
because in that case, “The officer found that absent the principal applicant’s
lack of credibility before the Board, the circumstances were such that the
state would not be able to protect the applicants.”
[30]
In
my opinion, section 167 describes two types of circumstances where issues of
credibility will require an oral hearing. Paragraph (a) relates to the
situation where evidence before the officer directly contradicts an applicant’s
story. Paragraphs (b) and (c), on the other hand, essentially outline a test
whereby one is to consider whether a positive decision would have resulted but
for the applicant’s credibility. In other words, one needs to consider whether
full and complete acceptance of the applicant’s version of events would
necessarily result in a positive decision. If either test is met, an oral
hearing is required.
[31]
I
therefore reject the respondents’ submission that an applicant must meet all
the criteria under section 167 before an oral hearing is required.
[32]
In
the case at bar, the officer did not make any express findings that the
applicant’s story was untrue, nor did the officer allude to any evidence that
contradicted the applicant’s evidence. Thus, an oral hearing was not required
under subsection 167(a) of the Regulations.
[33]
But
did the officer implicitly question the applicant’s credibility by stating
frequently throughout the decision that the applicant had not provided
“sufficient evidence” to support his claim? Similarly, did the officer
implicitly question the applicant’s credibility when he stated that he was
putting “little weight” on the documents provided by the applicant “because the
source of the information was the applicant himself”?
[34]
The
respondents claim that the officer was not necessarily questioning the
applicant’s credibility. The applicant bears the onus to establish that his
fear is well-founded both on an objective and subjective basis. While the
applicant provided evidence of his fear in a sworn affidavit, it was open for
the officer to find that the evidence, even if fully accepted, was
insufficient.
[35]
The
officer felt that the evidence of the applicant’s repeated trips back to Colombia indicated he
lacked the subjective fear component. I find that this is clearly an issue of
credibility. Only the applicant himself would know how much he feared his
alleged agents of persecution. To question his subjective fear is essentially
finding him not to be credible.
[36]
The
test for an oral hearing under subsections 167(b) and (c) of the Regulations
requires that a positive decision would likely have resulted ‘but for’ the
credibility issue. Thus, the applicant must show that he would have likely been
able to establish the objective component as well.
[37]
The
officer held the applicant’s evidence failed to establish the objective component
of the test.
[38]
The
objective component, in my view, cannot always be fully established simply by
relating one’s story in an affidavit. Sometimes, depending on the
circumstances, additional evidence will be required. The issue of credibility
may not be determinative of an issue if the evidence submitted, whether
credible or not, would simply not have sufficient probative value (see
Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA
94, [2008] 4 F.C.R. 636 at paragraph 30).
[39]
By
saying that the evidence was “insufficient” to establish the objective
component, the officer was not necessarily questioning the applicant’s
truthfulness. It is open for an officer to be of the opinion that a reasonable
person having gone through what the applicant alleges to have gone through,
would not have had a well-founded fear.
[40]
The
nub of this case lies in the admission by the officer when he stated that:
I accept that the FARC continues to
operate in Colombia, commit violent acts and are
responsible for serious human rights violations. I also accept that adequate
state protection or an Internal Flight Alternative is not available for those
targeted by the FARC….
[41]
The
only reasonable conclusion from this admission is that, in the officer’s view,
anyone targeted by the FARC would have established the objective component of
the well-founded fear required by sections 96 or 97 of the Act.
[42]
When
this statement by the officer is compared to the sworn evidence of the
applicant, which in several places described clearly how the applicant was
being targeted by the FARC, it becomes clear the officer’s conclusion that “…
The evidence does not support that the applicant’s fear of the FARC is
objectively founded” could only have been reached with a negative credibility
finding.
[43]
Since
the officer’s rejection of both the subjective and objective components of the
applicant’s fear relied on a lack of belief in the applicant’s sworn evidence,
in my view, an oral hearing was required pursuant to subsection 113(b) of the Act
and section 167 of the Regulations.
[44]
It
was a reviewable error for the officer not to grant an oral hearing. As a
result, the application for judicial review must be allowed and the matter
referred back to a different officer for redetermination.
[45]
Because
of my finding on this issue, I need not deal with the remaining issues.
[46]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[47]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the officer is set aside and the matter is referred to a different officer
for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27:
|
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.
|
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.
|
The Immigration
and Refugee Protection Regulations, SOR/2002/227:
|
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.
|
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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