Docket: IMM-1913-11
Citation: 2012 FC 29
Ottawa, Ontario, January 16, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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RAMIRO ARTEAGA
SARABIA,
ERIKA APONTE
GOMEZ, and
ANGELICA SOFIA
ARTEAGA APONTE,
ANA PAULA
ARTEAGA APONTE, ALEJANDRA ARTEAGA APONTE, and ERIKA ARTEAGA APONTE,
by their
litigation guardian
RAMIRO ARTEAGA
SARABIA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
decision pertains to an application for judicial review of a February, 11 2011,
decision by Citizenship and Immigration Canada’s Pre-Removal Risk Assessment
Office (PRRA) which rejected the applicants’ PRRA application. For the reasons
that follow, the application is granted.
Facts
[2]
The
principal applicant (applicant), Ramiro A. Sarabia, a political official and a
journalist, claimed to be a target of politically-motivated violence in Mexico. The
applicant also claimed that he had been wrongly accused by the Governor of the
State of Guerrero of a murder
that took place in Mexico. He fled Mexico for Canada, along with
his family, and arrived here in August 2008. His claim for refugee status was
denied by the Refugee Protection Division (RPD) of the Immigration and Refugee
Board (the Board) in November 2009 due to credibility concerns, delay in flight
and the failure to rebut the presumption of state protection. On April 6,
2010, his application for leave to seek judicial review in this Court was
denied.
[3]
In
August 2010, the applicant submitted his PRRA application. The applicant
submitted twelve documents, mostly consisting of country reports, photographs
from newspapers and a threatening note that his father, still in Mexico, had
received in July 2010. On February 11, 2011 the PRRA Officer communicated his decision
to the applicant. That decision stated:
For the purposes of this assessment, I
have reviewed and considered the applicants’ PRRA applications, PRRA
submissions, the RPD decision and reasons as well as the documentary evidence
submitted by these applicants. In their PRRA applications and documentation the
applicants have not enumerated any new risks or risk developments since their
RPD rejection; they have simply submitted a substantial package of documentation
on Mexico regarding political killings,
drug cartel killings, travel warnings to American citizens planning a trip to Mexico and an Amnesty International
report for 2010. These issues were considered by the RPD panel. No new risks
have been enumerated nor have the findings of the RPD panel been rebutted.
Also….they have failed to persuade me that a new risk has developed between the
rejection by the RPD and their PRRA assessment. In the absence of evidence to
the contrary, I am not persuaded to arrive at a conclusion different from that
of the RPD panel….
Issue
[4]
The
issue in this case is whether the decision of the PRRA Officer that the
applicant had not submitted new evidence as to risk was made in accordance with
applicable legal principles; hence the standard of review is correctness. The
applicant’s primary argument is that the PRRA Officer erred in failing to
mention, consider or otherwise reference the photographs and the threatening
note left with his father. The threatening note, according to the translation,
indicated that “we are waiting for you”. It was accompanied by
photographs of decapitated bodies.
Analysis
[5]
Section
113(a) of the Immigration and Refugee Protection Act, (SC 2001, c 27), (IRPA)
provides as follows:
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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;
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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;
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[6]
The
jurisprudence on this section of IRPA is well-settled. In Perez v Canada (Minister of
Citizenship and Immigration), 2006 FC 1379 at para 5, Justice Judith
Snider held:
It is well-established that a PRRA is not
intended to be an appeal of a decision of the RPD….The purpose of the PRRA is
not to reargue the facts that were before the RPD. The decision of the RPD is
to be considered as final with respect to the issue of protection under s. 96
or s. 97, subject only to the possibility that new evidence demonstrates that
the applicant would be exposed to a new, different or additional risk that
could not have been contemplated at the time of the RPD decision.
[7]
In
Raza v Canada (Minister of Citizenship &
Immigration), 2006 FC 1385, Justice Richard Mosley held, to the same
effect, that:
It must be recalled that the role of the
PRRA officer is not to revisit the Board’s factual and credibility conclusions
but to consider the present situation. In assessing “new information” it is not
just the date of the document that is important, but whether the information is
significant or significantly different than the information previously
provided….Where “recent” information (i.e. information that post-dates the
original decision) merely echoes information previously submitted, it is
unlikely to result in a finding that country conditions have changed. The
question is whether there is anything of “substance” that is new….
[8]
In
the submissions received by the PRRA Officer the applicant attached a schedule
which explained his submissions, thus discharging the burden imposed upon him
in section 161(2) of the Immigration and Refugee Protection Regulations,
(SOR/2002-227) (Regulations), which states as follows:
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New evidence
(2) A person who makes written
submissions must identify the evidence presented that meets the requirements
of paragraph 113(a) of the Act and indicate how that evidence relates to
them.
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Nouveaux éléments de preuve
(2) Il désigne, dans ses observations écrites, les
éléments de preuve qui satisfont aux exigences prévues à l’alinéa 113a) de la
Loi et indique dans quelle mesure ils s’appliquent dans son cas.
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[9]
The
PRRA Officer found that with the submission of this evidence, “the applicants
have not enumerated any new risks or risk developments since their RPD
rejection,” and that “[n]o new risks have been enumerated nor have the findings
of the RPD panel been rebutted. Also….they have failed to persuade me that a
new risk has developed between the rejection by the RPD and their PRRA
assessment.” As a matter of first impression, these findings are reasonable,
as the information submitted in support appears, in the main, to have only
merely echoed the information previously submitted.
[10]
However,
there is no evidence in the decision that the PRRA Officer considered the
photographs and the note. The failure to consider material and relevant evidence
cannot be saved, in this case, by reference to a general statement that the
decision maker considered all of the evidence. Here, the Officer expressly
considered all the evidence, save the two critical pieces of new evidence. This
case thus falls squarely within the decision of Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration) 1998 FCJ 1425 where,
at paras 16 and 17 Justice John Evans wrote:
On the other hand, the reasons given
by administrative agencies are not to be read hypercritically by a court (Medina
v. Canada (Minister of Employment and Immigration), (1990), 12 Imm. L.R. (2d) 33
(F.C.A.)), nor are agencies required to refer to every piece of evidence that
they received that is contrary to their finding, and to explain how they dealt
with it (see, for example, Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317
(F.C.A.). That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. A statement by the agency in its reasons for decision that, in
making its findings, it considered all the evidence before it, will often
suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
However, the more important the
evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact “without regard to the evidence”: Bains
v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency's burden of explanation increases with
the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency's finding of fact. Moreover, when the agency
refers in some detail to evidence supporting its finding, but is silent on
evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
.
[11]
The
note and the photographs are evidence which came into the applicant’s possession
after his refugee claim had been decided. In the absence of reasons for
rejecting, or otherwise not considering this evidence, it is impossible to tell
from the PRRA Officer’s decision whether an additional risk that could not have
been contemplated at the time of the RPD decision would have been established.
[12]
Counsel
for the respondent contended that if viewed in the context of the findings of
the Board, which found against the applicant on credibility on most aspects of
the claim, the PRRA Officer was not required to address the evidence. Put
otherwise, the PRRA Officer was entitled to discount the evidence, indirectly,
given the credibility issues that pervaded the claim itself. Here, however,
the new evidence was material and related to a new risk; hence it fell squarely
within the purpose for which the pre-removal risk assessment must be conducted.
The evidence was central to the issue of risk, and if accepted, could have
changed the outcome of the PRRA Officer’s assessment.
[13]
The
respondent also contends that the application should be rejected on the basis
that it simply amounts to a request that this Court re-weigh the evidence.
While that is indeed a valid argument in many cases, in this case it does not
apply. The applicant does not seek a re-weighing of the evidence; rather the
applicant seeks that it be weighed.
[14]
The
application is granted. The PRRA decision is set aside and sent back for redetermination
by a different officer.
[15]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that the
application for judicial review is granted. The matter is referred back to the
Pre-Removal Risk Assessment Office for reconsideration before a different officer.
No question for certification has been proposed and the Court finds that none
arises.
"Donald
J. Rennie"
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