Date:
20120719
Docket:
IMM-8190-11
Citation:
2012 FC 914
Ottawa, Ontario, July 19, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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PEDRO LAINEZ
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Applicant
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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
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of the
decision of a pre-removal risk assessment (PRRA) officer (the officer), dated
September 26, 2011, rejecting the applicant’s PRRA application. The officer’s
decision was based on the finding that the applicant would not be subject to
risk of persecution, danger of torture, risk to life or risk of cruel and
unusual treatment or punishment if returned to Honduras.
[2]
The applicant requests that the officer’s decision be quashed and
the matter be remitted back for redetermination by a differently constituted
panel for a new hearing.
Background
[3]
The
applicant, Pedro Lainez, is a citizen of Honduras. His family operated a cattle
business in Honduras. In or around November 1998, the Maras Salvatruchas (MS)
gang targeted the applicant’s grandfather for extortion, demanding payment of a
war tax. The applicant’s grandfather initially complied, but the MS gang
eventually began demanding higher payments. The applicant’s grandfather refused
and unsuccessfully sought police protection. On October 8, 2000, the
applicant’s grandfather was killed for not complying with the MS gang’s
demands.
[4]
The
applicant and his sister Elizabeth reported the murder to the police. The
police detained some suspects. However, death threats were made against them
and the applicant and Elizabeth therefore did not pursue the case. Elizabeth continued making the payments until she could no longer afford to. She discussed
the situation with a judge, an ex-brother-in-law. The judge recommended that
the family flee. Thus, Elizabeth fled to the United States in 2001.
[5]
Thereafter,
the applicant and his brothers went to Tegucigalpa to seek protection. One at a
time, Elizabeth began sending for her brothers. On April 28, 2003, the
applicant was shot at by a man that he recognized as one of the individuals who
used to collect the war tax from his grandfather. The applicant did not report
this attack to the police. Rather, two days later, he fled Honduras and he arrived in the U.S. the following month.
[6]
On
September 11, 2008, the applicant went to Canada. He filed a refugee claim on
arrival and his refugee hearing was held on January 13, 2011. In a decision
dated February 24, 2011, the Refugee Protection Division (RPD) denied the
applicant’s refugee claim. The RPD found that the applicant was a victim of
crime which did not provide a link to a Convention ground and that the risks he
feared are risks generally faced by other citizens in Honduras. Leave to judicial review this decision was denied on June 6, 2011.
[7]
The
applicant filed a PRRA application on July 26, 2011, with written submissions made
on August 12, 2011. In his application, the applicant included a psychological
report from Dr. Halim B. Bishay of Phoenix Psychological-Vocational and
Rehabilitation Services. Based on his assessment, Dr. Bishay stated that the
applicant suffered from severe depression and severe anxiety and would be
retraumatized and suffer irreparable psychological injury if returned to Honduras.
[8]
The
applicant also included two letters, with English translations, in his PRRA
application. The first letter was written by the applicant’s uncle, Rafael
Molina Vasquez. Mr. Vasquez explained that, as with the applicant’s
grandfather, Mr. Vasquez’s son Danilo was murdered by criminals because he
reported the extortion to the police. Mr. Vasquez warned the applicant not to return
to Honduras because criminal organized groups would kill him if he did.
[9]
The
second letter was written by Santiago De Jesus Puentes, ex-judge of Criminal
and Penal Processing of the Judicial Section of Juticalpa, Department of
Olancho. Mr. Puentes explained that organized crime was rampant in Honduras with no effective police system. Mr. Puentes stated that he knew the applicant’s
family and that the grandfather had been murdered when the family refused to
pay the war tax. Mr. Puentes also stated that it was known that members of the
gang had searched for the applicant both in his home town and in Tegucigalpa where he lived before leaving Honduras. Should he return, Mr. Puentes stated
that those same criminals would surely kill the applicant. Mr. Puentes also
explained that he had had to remove himself as judge and had fled in fear of
similar criminals. Since his return to Honduras, the threats had begun again
and Mr. Puentes feared for his life.
Officer’s Decision
[10]
The
officer issued the decision on September 26, 2011. The reasons were provided in
the accompanying notes to file that form part of the decision.
[11]
In
the decision, the officer individually assessed the documents included in the
applicant’s PRRA application.
[12]
First,
the officer noted that the applicant stated in his PRRA submissions that the
risk he faced in Honduras was not generalized, but rather personalized. In
addition, he characterized his refusal to pay the MS gang as an expression of
political opinion. However, the officer found that the applicant did not
provide any new information in his PRRA submissions, rather, the events
described therein had all been assessed by the RPD. Thus, the officer found
that the PRRA submissions did not contain any new information nor did they
support the applicant’s allegations of risk. As such, the officer concluded
that these submissions had little probative value and assigned them little
weight.
[13]
Secondly,
the officer considered the death certificate of Danilo Alberto Molina Avilez,
the “Record of Removing a Dead Body”, and the letter from the applicant’s uncle
(Danilo’s father). The officer accepted that Mr. Avilez was murdered in
February 2009, even though the record of body removal stated that the body was
picked up in February 2011. The officer also accepted that that Mr. Avilez was
the applicant’s cousin and that Mr. Avilez was murdered in a violent manner by
members of organized crime.
[14]
However,
the officer was unable to conclude that the death was connected to the
applicant. In support, the officer noted the absence of evidence that Mr.
Avilez: worked with the applicant or his grandfather; was connected with the
grandfather’s business; was murdered by the same people that extorted money
from the applicant and his siblings and killed their grandfather; or, that his
killers belonged to the MS gang. Thus, the officer concluded that these
documents had little probative value and also assigned them little weight.
[15]
Thirdly,
the officer reviewed the psychological report. The officer noted Dr. Bishay’s
findings that the applicant suffers from anxiety and depression due to his
persecution in Honduras and that he would be retraumatized if returned. The
officer accepted that the applicant exhibits some symptoms of anxiety and
depression. However, based on a disclaimer in the report, the officer noted
that the findings therein were based on the applicant’s statements to the
psychologist. The officer highlighted that Dr. Bishay had not personally
witnessed any of the events. Thus, the officer found that this evidence was
hearsay and also granted it little weight.
[16]
Fourthly,
the officer considered the letter from Mr. Puentes. The officer noted that
there was little evidence that the author was indeed a judge. Nevertheless, the
officer accepted that the author held a post in the Honduran judiciary system
and that he was personally threatened for some reason by some delinquent
groups. However, the officer noted that this did not demonstrate personalized
risk to the applicant. The officer further noted that there was a lack of
information on how the author knew of the risks faced by the applicant. Thus,
the officer concluded that the letter only contained hearsay evidence on the
applicant’s personal situation. As such, the officer found that it had little
probative value and granted it little weight.
[17]
Based
on this review, the officer concluded that the applicant provided insufficient
new evidence to support the allegations that he now faces personalized risk on
return to Honduras.
[18]
The
officer then considered general country conditions to determine if the
situation in Honduras had changed to a sufficient degree since the RPD’s
decision. Based on a review of publicly available documents, the officer
acknowledged that organized criminality and gang violence remain a serious
ongoing issue in Honduras. However, the officer observed that these were
general country conditions that apply to all residents.
[19]
The
officer also noted that there is a presumption that the state is able to
protect its citizens. The applicant did not provide objective evidence showing
that he was unable to secure state protection in Honduras. The documentary
evidence indicated that Honduras has established law enforcement agencies and a
functioning judiciary. The government is also making a serious effort to combat
gang violence. Thus, the officer concluded that state protection would be
available to the applicant should he encounter problems with the MS gang on his
return.
[20]
The
officer therefore found that there had not been a significant change in country
conditions in Honduras since the RPD considered the applicant’s case. As such,
the officer concluded that the applicant is not a person in need of protection
as defined in sections 96 and 97 of the Act. The officer therefore rejected the
applicant’s PRRA application. This decision was communicated to the applicant
on October 27, 2011.
[21]
In
an order dated November 25, 2011, Mr. Justice Donald Rennie of this Court
ordered that the applicant’s removal, scheduled for November 28, 2011, be
stayed pending a final resolution of this judicial review of the PRRA decision.
Issues
[22]
The
applicant submits the following points at issue:
1. Did the officer
make a perverse finding of fact, without reference to the materials before him,
or err in law, when he found both, that the risks faced by the applicant were
generalized in Honduras and that he could avail himself of state protection?
2. Did the officer
make a perverse finding of fact, without reference to the materials before him,
or err in law, when he gave little weight to the psychiatrist’s report
submitted on the PRRA, because the events described by the applicant to the
psychiatrist were self-reported?
[23]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in granting the psychological report little weight?
3. Did the officer
err in the state protection analysis?
Applicant’s Written Submissions
[24]
The
applicant notes that it is implicit in the RPD’s decision, which was accepted
by the officer, that no state protection is available to him. The applicant
submits that the risk of being extorted and murdered by the MS gang if he is
unable to pay, coupled with the risk he faces as a person who has already
refused to pay and is therefore marked for retribution by the MS gang, is so
common that it is a generalized risk in Honduras. The applicant submits that
being a national of a country where one faces a generalized risk of being
killed in every part of the country is logically inconsistent with being able
to avail oneself of state protection. Thus, for the officer to find that the
applicant had failed to rebut the presumption of state protection, the officer
must have grossly misunderstood the RPD decision or failed to take proper
notice of the evidence submitted with the PRRA application.
[25]
The
applicant submits that the danger of irreparable psychological injury,
particularly the “severe depressive episode” reported in the psychological
report, is a risk to life. The applicant asks this Court to take judicial notice
that suicide is the major cause of death for those suffering from major
depression and accounts for 15% to 20% of all deaths in patients with severe
mood disorders. The applicant further submits that death caused by mental
illness must be considered equal to the risk of physical illness. Protection
should therefore not be denied on the basis that the illness is mental, not
physical.
[26]
The
applicant notes that the officer found that the self-reported events were
suspect, even though these same events were accepted as true by the RPD and
were adopted by the officer by reference to the RPD decision. The officer also
granted the report little weight because Dr. Bishay’s only knowledge of the
events came from the applicant and therefore Dr. Bishay did not have first-hand
knowledge of the risks faced and the events suffered by the applicant.
[27]
The
applicant submits that the PRRA process and decision are both based on the
officer accepting the RPD decision as correct when it was made. The truth of
the events that the applicant described to the psychiatrist and to the RPD was
confirmed in the RPD’s decision. It was therefore absurd for the officer to
subsequently grant little weight to Dr. Bishay’s report solely on the basis
that he relied on the applicant’s self-reporting of these events.
Respondent’s Written Submissions
[28]
The
respondent submits that the applicant’s critique of the officer’s findings on
generalized risk and state protection pertain to two separate findings. The
officer first assessed the risk faced by the applicant and found it generalized
and then considered country conditions and found that state protection would be
available to the applicant should he encounter problems. As similar conclusions
have been upheld by this Court on several occasions, the respondent submits
that the applicant has failed to demonstrate that the officer erred in making
these findings.
[29]
The
respondent submits that the applicant failed to provide clear and convincing
evidence to rebut the presumption of state protection. The respondent notes
that the applicant did not report the alleged attempt on his life to the
police. Moreover, the respondent submits that there was evidence on which the
officer could conclude that state protection is available to the applicant,
including evidence that Honduras has established law enforcement agencies, a
functioning judiciary and was making serious efforts to combat gang violence.
Thus, there was no reviewable error.
[30]
The
respondent also submits that the officer reasonably assigned the psychological
report little weight. The respondent highlights that the psychological
assessment was based on the applicant’s psychological state and his
self-reported status. It was not an assessment on whether the applicant
experienced certain events in Honduras. As the report was based on a single
meeting between the psychologist and the applicant, it was open to the officer
to assign it little weight. In so doing, the officer did not make a
determination on whether the events themselves were suspect.
[31]
Nevertheless,
the respondent submits that even if this Court finds that the officer erred in
assigning the report little weight, this Court should consider whether the
reviewable error affects the decision maker’s final decision. Where the error
does not impact the ultimate decision, it should not be quashed.
[32]
In
summary, the respondent submits that the applicant is essentially taking issue
with the weight that the officer granted to the evidence. The applicant is
asking this Court to reweigh the evidence. This Court should not intervene on
that basis. Thus, this application should be dismissed.
Analysis and Decision
[33]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the Court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[34]
It
is trite law that the standard of review of PRRA decisions is reasonableness
(see Wang v Canada (Minister of Citizenship and Immigration), 2010 FC
799, [2010] FCJ No 980 at paragraph 11; and Aleziri v Canada (Minister of Citizenship and Immigration), 2009 FC 38, [2009] FCJ No 52 at paragraph 11).
Similarly, issues of state protection and of the weighing, interpretation and
assessment of evidence are reviewable on a reasonableness standard (see Giovani
Ipina Ipina v Canada (Minister of Citizenship and Immigration), 2011 FC
733, [2011] FCJ No 924 at paragraph 5; and Oluwafemi v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at paragraph
38).
[35]
In
reviewing the officer’s decision on the reasonableness standard, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] SCJ No 12 at paragraph 59). It is not up to a
reviewing Court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing Court to reweigh the evidence (see Khosa
above, at paragraphs 59 and 61).
[36]
Issue
2
Did the officer err in
granting the psychological report little weight?
The applicant submits that
the officer erred in granting the psychological report little weight on the
basis that Dr. Bishay’s knowledge of the risks events was not first-hand. The
applicant notes that the danger of irreparable psychological injury reported
therein is a risk to life and that mental illness warrants the same protection
as physical illness. Conversely, the respondent submits that the psychological
assessment was based on the applicant’s psychological state and his
self-reported status. It was not an assessment on whether the applicant
experienced certain events in Honduras and the officer did not make a
determination that the events reported therein were suspect.
[37]
In
the decision, the officer did note Dr. Bishay’s findings that the applicant
suffers from anxiety and depression and that he would be retraumatized if
returned. However, the officer ultimately made the following finding:
I
accept that the applicant exhibits some symptoms of anxiety and depression.
However, I also note that this report is based on the applicant’s statements as
given to the psychologist. In fact, the report states: “Please note that the
information contained in this report are professional opinions based primarily
from [sic] the patient’s self-reported status and the available battery of
psychometric assessments.” Dr. Bishay has not personally witnessed any of
the events described by the applicant. I find this evidence is hearsay and has
little probative value. I assign little weight to this letter. [emphasis
added]
[38]
Dr.
Bishay’s described the events that occurred in Honduras in the “Relevant
Background History” section of the report. Admittedly, Dr. Bishay did not
witness those events and the description of them was based on the applicant’s
description and on what was written in his Personal Information Form (PIF).
However, the report is not limited to a repetition of the applicant’s
statements. Rather, it provides a medical assessment of the applicant and
merely outlines the events that he described as a means of contextualizing the
applicant’s background. Based on the assessment and observations, Dr. Bishay
concluded that:
Coupled
to the incidents of emotional, and psychological abuse committed against him,
it is clear that Mr. Lainez has developed symptoms consistent with a trauma
diagnosis.
[39]
Dr.
Bishay also described the results of three psychometric tests conducted on the
applicant. Two of these tests, the Beck Depression Inventory and the Beck
Anxiety Inventory, were described as widely used and reliable measures of the presence
and intensity of depression and anxiety, respectively. These are thus the
“battery of psychometric assessments” that Dr. Bishay relied on in conjunction
with the “patient’s self-reported status”, in reaching the conclusions reported
in the psychological report.
[40]
Generally,
the weight assigned to medical evidence is a task assigned to the officer and
does not raise a serious issue where the officer makes accurate observations of
the reported treatment (see Padda v Canada (Minister of Citizenship and
Immigration), 2003 FC 1081, [2003] FCJ No 1353 at paragraph 12). However,
in Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC
462, [2009] FCJ No 1058, a case that concerned a stay of removal, Mr. Justice
Michel Shore also acknowledged the accepted jurisprudence of this Court that “a
non-expert decision-maker errs when she rejects expert psychological evidence
without basis” (at paragraph 46).
[41]
As
mentioned above, the officer granted the psychological report little weight
because the events described therein were not based on Dr. Bishay’s first-hand
knowledge. However, Dr. Bishay clearly included the events as described by the
applicant solely for the purpose of provided contextual background. The
conclusions are based both on professional observations and on widely used and
reliable assessment tests. These findings stress the severity of the
applicant’s condition, as evidenced by the following concluding paragraphs of
the psychological report:
Given
the degree of the patient’s trauma and the period with which he has had to
ensure such horrific experiences, it is my opinion that should the patient
return to Honduras, he would become re-traumatized and suffer from irreparable
psychological injury. Furthermore, returning to Honduras would undoubtedly
place the patient in a scenario with a very high likelihood of harm, further
abuse, and possible death.
It
is imperative that we do not underestimate the severity of the patient’s
current psychological condition.
From our psychometric assessments and observations, it is clear that Mr.
Lainez is in dire need of psychological intervention. […] [emphasis added]
[42]
Based
on these medical findings, I find that the officer unreasonably granted the
psychological report little weight solely on the basis that the events
described therein were not based on Dr. Bishay’s first-hand knowledge. The
jurisprudence clearly provides that a non-expert decision maker, such as the
officer, errs when he or she rejects expert psychological evidence without
basis. Relying on the events being hearsay was not a reasonable basis to reject
the psychological report or Dr. Bishay’s professional findings presented
therein. I would therefore allow this judicial review application on this
basis.
[43]
Because
of my finding on this issue, I need not deal with the remaining issue.
[44]
The
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
[45]
The
applicant proposed the following question of general importance for my
consideration for certification as a serious question of general importance:
Does
a finding of a generalized risk to the applicants include the implicit finding
that state protection is not available?
I am not prepared to certify this
question as this issue has already been determined by this Court in earlier
decisions.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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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