Date:
20120926
Docket:
IMM-9671-11
Citation:
2012 FC 1134
Ottawa, Ontario,
September 26, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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DIANA PATRICIA ZULUAGA ROBLES
MARIANA MARTINEZ ZULUAGA
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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
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 a
decision of a pre-removal risk assessment (PRRA) officer (the officer), dated
November 8, 2011, rejecting the applicants’ PRRA application. The officer’s
decision was based on the finding that the applicants 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 their country of residence.
[2]
The applicants request that the officer’s decision be set aside
and the matter be remitted back for redetermination by a differently
constituted panel.
Background
[3]
The
principal applicant, Diana Patricia Zuluaga Robles, is a citizen of Colombia. Her daughter, Mariana Martinez Zuluaga, is the other applicant and is a citizen
of the United States.
[4]
The
principal applicant was born in Colombia. On June 19, 1998, her father, who
owned two cattle farms, was abducted by the Ejército de Liberación Nacional
(ELN). The principal applicant helped to secure his release in December 1998.
The ELN commander that she dealt with tried to recruit her to work for the ELN.
The principal applicant refused. When she reported this to her father, he
advised her to leave their home town of Bucaramanga. Thus, she moved to Bogota on January 6, 1999 and began working as a teacher there. On her father’s advice,
she also applied for a U.S. visitor’s visa should the situation with the ELN
worsen.
[5]
On
August 5, 1999, ELN members abducted the principal applicant in Bogota. Her abductees called her father and threatened that if he did not pay an increased
monthly extortion fee, they would kill his daughter. Later that same day, the
principal applicant was released. Her abductees threatened to kill her should
she report them to the authorities. The ELN also warned her that should her
father quit paying them or die, she would then become responsible for paying
the extortion fees.
[6]
After
her abduction, the principal applicant’s father told her to leave Colombia. He purchased her an airplane ticket on the earliest available date. On August 31,
1999, the principal applicant left Colombia and entered the U.S. on a six month visitor’s visa.
[7]
In
September 1999, the principal applicant met Eduardo Martinez Gomez, also a
Colombian citizen living in the U.S. They began dating and moved in together in
January 2000. On October 31, 2000, their daughter (the other applicant in this
application) was born. The couple married in January 2007.
[8]
In
May 2002, the family allegedly paid an immigration consultant to file an
immigration claim for them in the U.S. The immigration consultant turned out to
be fraudulent and the paperwork was never filed with U.S. immigration.
[9]
On
December 1, 2008, the family arrived in Canada and filed refugee claims on
December 3, 2008, based on their fear of persecution by guerrilla movements in
Colombia, specifically ELN and Fuerzas Armadas Revolucionarias de Colombia
(FARC). Their refugee hearings were held on March 19 and 23, 2010. In a
decision dated April 16, 2010, the Refugee Protection Division (the Board)
denied the family’s refugee claims based on its determination that the adult
claimants’ actions in the U.S. were inconsistent with what would be reasonable
for persons who feared murder if returned to Colombia. In addition, the Board
found that the situation in Bogota had changed such that the claimants would
have adequate protection from either ELN or FARC. The Board was also satisfied
that the minor applicant would be provided adequate protection in the U.S. where she is a citizen. Application for leave to challenge the Board’s decision was
denied on September 7, 2010.
[10]
The
principal applicant and her husband are now separated. The principal
applicant’s ex-husband returned to Colombia on November 13, 2010.
[11]
On
November 23, 2010, the principal applicant and her daughter filed PRRA
applications. The principal applicant explained that she fears persecution by
Colombia guerrillas on the basis of her membership in her father’s family (a
particular social group) and as a youth leader in religious and social issues
who refused to work for the ELN guerrillas (perceived political opinion).
[12]
The
principal applicant’s father has recently fallen ill. Due to his poor health,
he has been late in paying the ELN and FARC. As a result, ELN members have
visited his farms and stolen cattle and sheep.
Officer’s Decision
[13]
The
officer issued the decision on November 8, 2011. The reasons are provided in
the accompanying notes to file that form part of the decision.
[14]
The
officer first provided a summary of the applicants’ refugee claims and the Board
decision. The officer then noted that the applicants had provided several
documents including internet news articles and documents on country conditions
in Colombia. With regards to these documents, the officer stated that:
Having
carefully read the principal applicant’s submissions, I note that she has
provided documents from the internet in Spanish. Any documents provided in
Spanish without a translation and/or a statement from an accredited interpreter
attesting to the accuracy of the translations has not been considered.
The
principal applicant provided internet documents that pre-date the rejection of
her refugee claim. She has not provided an explanation as to why they were not
reasonably available for presentation to the RPD. Consequently, they are not
new evidence.
I
acknowledge that I have been presented with documents that post-date the
rejection of the applicant’s claim; nonetheless, I find that they constitute
updates on information that was before and considered by the RPD.
[15]
Relying
on Kaba v Canada (Minister of Citizenship and Immigration), 2007 FC 647,
[2007] FCJ No 874, the officer found that the applicants had provided
insufficient evidence of a personalized risk distinguishable from that of the
general population in Colombia. In addition, the evidence did not persuade the
officer to come to a different conclusion than that of the Board, nor did it
rebut any of the issues raised by the Board.
[16]
The
officer concluded that:
After
a careful review of all the evidence before me, taking into account the personal
circumstances of the applicants, I find that, with respect to the principal
applicant, she has not provided new evidence or evidence of new risk
developments since the RPD rejected her claim to demonstrate that she is now at
risk of persecution, torture, risk to life or risk of cruel and unusual
treatment or punishment if returned to Colombia.
Similarly,
with respect to the minor applicant, Mariana, I have not been presented with
new evidence or evidence of new risk developments since the RPD rejected her
claim to demonstrate that she is now at risk of persecution, torture, risk to
life or risk of cruel and unusual treatment or punishment if returned to the United States.
[17]
For
these reasons, the officer denied the applicants’ PRRA application.
[18]
On
December 22, 2011, the applicants filed an application for leave and for
judicial review challenging the officer’s decision. In an order dated February
28, 2012, Mr. Justice Donald Rennie of this Court ordered that the applicants’
removal, scheduled for March 1, 2012, be stayed until a decision was rendered
in this judicial review of the PRRA decision.
Issues
[19]
The
applicants submit the following point at issue:
Did the officer err in law
in that she misinterpreted the definition of Convention refugee, alternatively
failed to have regard for relevant evidence before her?
[20]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in the assessment of the new evidence filed in the applicants’ PRRA
application?
Applicants’ Written Submissions
[21]
The
applicants note that the new evidence filed in their PRRA application did not
solely consist of documentary evidence. It also included letters from: the
mayor of the principal applicant’s municipality, her parish priest and the
Caldas police department.
[22]
The
applicants submit that the officer’s reasons are devoid of any analysis of the
current documentary evidence that they submitted or that was otherwise publicly
available. The applicants submit that this absence and the officer’s reliance
on Kaba above, indicates that the officer wrongly believed that in no
circumstances can documentary evidence of country conditions alone lead to a
positive risk assessment.
[23]
The
applicants submit that Kaba above, does not stand for that proposition.
Rather, the applicants submit that Kaba requires that there be a link
between the applicants’ situation and the documentary evidence such that the
decision maker may find that there is more than a mere possibility of future
persecution. That link may be alleged by the applicant or may appear from the
documentary evidence.
[24]
The
applicants further submit that the Federal Court of Appeal’s decision in Salibian
v Canada (Minister of Employment and Immigration), [1990] 3 FC 250, [1990]
FCJ No 454 (FCA) teaches that a situation of generalized oppression may result
in a link to the persecution of an individual claimant. Thus, the applicants
submit that the officer erred by not analyzing the country documentation and by
not determining whether it could lead to a different state protection finding
than the Board’s finding on that issue.
[25]
The
applicants cite documentary evidence that post-dates the Board’s decision and
addresses the guerrillas’ capacity to harm individuals in Bogota and the state’s
inability to protect those individuals. As a specifically targeted daughter of
an ELN kidnap victim, the applicants submit that the principal applicant falls
within the targeted group of family members reported in the documentary
evidence. In addition, due to her prior role as a youth leader involved in
religious and social activities, the principal applicant could be identified as
falling within the category of civil society and human rights activities
described in the documentary evidence as at risk of being targeted by
guerrillas.
[26]
The
applicants also note that the documentary evidence addresses the capacity of
guerrillas to target individuals in major Colombian cities and refutes the
notion that Bogota is a safe place.
[27]
In
summary, the applicants submit that the officer failed to mention or address
any of this documentation that post-dated the Board’s decision. Thus, the
officer ignored evidence central to the PRRA decision, which constitutes a
reviewable error.
Respondent’s Written Submissions
[28]
The
respondent submits that the standard of review of PRRA decisions is
reasonableness, except as regards to pure questions of law.
[29]
The
respondent submits that the officer’s PRRA decision was reasonable. The
respondent notes that the applicants bear the onus of presenting new evidence
to the officer. As the duty to consider current country conditions does not
shift this onus to the officer, the officer had no obligation to consider the
documentary evidence that the applicants included to bolster the evidentiary
record.
[30]
The
respondent submits that the officer clearly considered all the evidence,
including country condition documentation that post-dated the Board’s decision.
However, the officer found that this evidence constituted updates on the
information that was considered by the Board. The respondent submits that the
officer properly found that there was insufficient evidence of a personalized
risk. Thus, the officer was unable to come to a different conclusion than the Board
on the section 96 and 97 analysis.
[31]
The
respondent submits that the decision is consistent with jurisprudence that
explicitly declares that a PRRA officer has no duty to rule on each and every
document and that documentary evidence is insufficient alone to warrant a
positive risk assessment where the risk is not individualized.
[32]
In
addition, PRRA officers are presumed to have considered all the evidence
presented to them.
[33]
In
this case, the respondent submits that the applicants have not rebutted this
presumption with evidence that is specific and personal to them. Rather, the
respondent submits that the general documentary evidence that was submitted was
not connected to the applicants’ personal circumstances. Thus, the respondent
submits that the officer’s decision was reasonable given the applicants’
failure to submit new evidence that illustrates a personalized risk to them on
return to their country of residence.
Applicants’ Reply
[34]
In
reply, the applicants submit that the officer erred by not considering any of
the documents that showed a change of country conditions in Colombia on the availability of state protection in Bogota, the very point on which the Board
decided against the applicants. In addition, a mere statement that the officer
had considered all the evidence was insufficient in the absence of any analysis
on the crucial issue of whether the current documentary evidence should lead to
a different conclusion on the availability of state protection against
guerrillas, particularly in Bogota.
[35]
The
applicants also submit that the officer erred in dismissing their evidence
merely because it was an update on the evidence before the Board. The updated
evidence showed that country conditions had changed such that state protection
was now unlikely to be available to individuals targeted by the guerrillas,
particularly in Bogota. The officer erred in failing to consider this evidence.
Analysis and Decision
[36]
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).
[37]
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).
[38]
In
reviewing the officer’s decision on this 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] 1 S.C.R. 339
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).
[39]
Issue
2
Did the officer
err in the assessment of the new evidence filed in the applicants’ PRRA
application?
In the introductory
paragraph of Kaba above, Mr. Justice Michel Shore outlined the law on a
PRRA officer’s review of documentary evidence. This succinct summary bears
repeating at the outset here (see Kaba above, at paragraph 1):
The
pre-removal risk assessment (PRRA) officer has no duty to rule on each and
every document in question.
Contrary
to what was alleged by the applicant, documentary evidence on a country is
insufficient to warrant a positive risk assessment since the risk must be
personal:
[28] That said, the assessment of
the applicant's potential risk of being persecuted if he were sent back to his
country must be individualized. The fact that the documentary evidence shows
that the human rights situation in a country is problematic does not
necessarily mean there is a risk to a given individual (Ahmad v. M.C.I.,
[2004] F.C.J. No. 995 (F.C.); Gonulcan v. M.C.I., [2004] F.C.J. No. 486
(F.C.); Rahim v. M.C.I., [2005] F.C.J. No. 56, 2005 F.C. 18 (F.C.)).
(Jarada
v. Canada (Minister of Citizenship and Immigration), 2005 FC 409, [2005]
F.C.J. No. 506 (QL); see also Rizkallah v. Canada (Minister of Employment
and Immigration) (1992), 156 N.R. 1 (F.C.A.), [2002] F.C.J. No. 412 (QL); Moussaoui
v. Canada (Minister of Citizenship and Immigration), 2004 FC 133, [2004]
F.C.J. No. 146 (QL); Sanusi v. Canada (Minister of Citizenship and
Immigration), 2004 FC 987, [2004] F.C.J. No. 1215 (QL); Zilenko v. Canada (Minister of Citizenship and Immigration), 2003 FC 846, [2003] F.C.J. 1086 (QL); Sivagnanam
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1216, [2003]
F.C.J. No. 1542 (QL).)
Accordingly,
in the case at bar, the general documentary evidence on the economic and
political situation in Guinea cannot of itself establish that the protection
application is valid when the connection between that evidence and the
applicant himself has not been made, under both sections 96 and 97 of the IRPA.
[5] In my opinion, the
applicant's claim is entirely unfounded. It is settled law that an applicant
must demonstrate an objective and subjective fear of persecution. In this case,
it was not sufficient simply to file documentary evidence. It was necessary at
the very least to establish that the applicant himself had a real fear of
persecution. In the absence of such evidence, the Board members were
entitled to conclude as they did.
(Sinora
v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 113,
[1993] F.C.J. No. 725 (QL), at pp. 114 et 115 (per Marc Noël J.); see also Alexibich
v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 53, [2002]
F.C.J. No. 57; Ithibu v. Canada (Minister of Citizenship and Immigration),
2001 FCTD 288, [2001] F.C.J. No. 499 (per Pierre Blais J.).)
The
applicant must necessarily establish a connection between the present situation
in his country and his personal situation. The PRRA officer was not satisfied that the
applicant had made such a connection. [emphasis added]
[40]
In
this case, the applicants submit that the officer erred in analyzing the
documentary evidence that post-dated the Board decision and that concerned
available state protection in Colombia, particularly in Bogota. In the Board
decision, the Board denied the refugee claims in part on its finding that state
protection would be available in urban centres such as Bogota. In rendering
this finding, the Board relied on documentary evidence that it found indicated
that guerrilla activity was largely limited to areas without strong government
presence and that were not heavily populated.
[41]
In
rendering its finding, the Board also noted that “[t]here is no indicaiton
[sic] that any of the main political parties plan to change the approach of the
government” (paragraph 52 of the Board decision). Notably, the documents filed
with the PRRA application indicate that Juan Manuel Santos was inaugurated as
the new Colombian President on August 7, 2010, after the Board’s decision was
issued. The applicants filed a public statement from Amnesty International,
dated September 22, 2010, calling on the new government to protect human right
defenders campaigning for the return of stolen lands. However, in line with the
Board’s projection, there was no evidence that the new president had changed
the prior government’s approach.
[42]
On
review of the applicants’ PRRA submissions, I note that the officer correctly
observed that a number of the newspaper articles were submitted in Spanish
without English translations. In addition, some of the documents pre-dated the Board’s
decision and as they are publicly available, it is reasonable to expect that
the applicants could have previously filed them with their refugee claims. These
would therefore not constitute admissible new evidence under subsection 113(a)
of the Act.
[43]
The
country evidence that post-dated the Board decision does illustrate a strongly
disconcerting situation in Colombia, a country that has been embroiled in more
than forty years of armed conflict between guerrilla groups. The Amnesty
International reports emphasize the targeting of victims of human rights
violations and their families, as well as human rights defenders and other
activists. These reports also indicate that increasing urban violence is
generally limited to armed conflict, drug-related crime and acts of social
cleansing while in rural areas, the main victims continue to be Indigenous
peoples, members of Afro-descendant and peasant farmer communities and their
leaders.
[44]
Some
of the evidence indicated that although the strength of armed guerrilla groups
has diminished, they nonetheless continue to represent a serious threat to
civilians. One Amnesty International report dated September 9, 2010 concluded:
Amnesty
International is of the view that while there have been some military advances
against paramilitary and guerrilla groups in Colombia, these advances do not
translate into state protection for those who have been targeted by the FARC,
ELN or former AUC.
[45]
Another
relevant report that the applicants included in the PRRA submissions was the
Canadian Council for Refugees (CCR), The Future of Colombian Refugees in
Canada: Are we being equitable?, dated March 2011. In this study, the
authors tested themes that had emerged in board decisions refusing refugee
claims from Colombia. These included increased availability of state protection
for civilians in Colombia and the possibility for increased safety in Bogota
for those under threat, themes that were also present in the applicants’ Board’s
decision. The following findings were included in CCR’s report:
1. The urban
security has improved dramatically in the last eight years;
2. The worst of the
conflict has been pushed to the external regions of the country where there is
a strong impact on civilians;
3. The guerrillas do
not need to have many personnel in the main cities of Colombia in order to attack civilians anywhere;
4. There is still a
prevalence of paramilitary groups in Colombia despite state efforts to formally
reduce their numbers and to create the perception that they are demobilized;
and
5. Although they
still extort, the main concern of Colombia’s paramilitary groups now is to take
care of the huge amount of land stolen through many years of terror and to
assure control of that territory for legal and illegal business.
[46]
Another
document included in the applicants’ PRRA submissions was the United Nations
High Commissioner for Refugees (UNHCR) Eligibility Guidelines for assessing
the International Protection needs of Asylum-seekers from Colombia, dated May 27, 2010. In this report, the UNHCR stated:
UNHCR
considers that an internal flight or relocation alternative (IFA/IRA) is
generally not available in Colombia. Nevertheless, an IFA/IRA may be available
in certain circumstances and in accordance with the framework of the relevance
and reasonableness test and the guidance provided in these Guidelines.
[47]
This
report noted that refugee claims from Colombia should be considered on their
individual merits. It then specified main groups at risk. In their submissions,
the applicants alleged that the principal applicant was a member of the “civil
society and human rights activists” category. In the UNHCR report, this
category was described as including individuals who actively promote or defend
human rights in any way and religious workers involved in human rights
activities. In support of the principal applicant’s membership in this group,
the applicants submitted reference letters, with English translations, from
individuals in her home town in Colombia.
[48]
The
Mayor indicated that the principal applicant “stood out in the town as a young
leader, family honest, hardworking, good principles and manners”, who had to
move to seek protection due to the kidnapping of her father and threats made
against her “physical integrity”. Similar statements were made by the commander
of the police station of Marquetalia Caldas. The parish priest of Marquetalia
Caldas indicated that the principal applicant has “always participated in
religious and social activities at a young age” and had been a youth leader of
the municipality. The priest also indicated that “[h]er return to the country
at this time would be even riskier for her life and her daughter’s life”.
[49]
The
officer here stated that the decision was based on a careful review of all the
evidence. However, without explicitly referring to any of the evidence that
post-dated the Board decision, including the above-mentioned reports and
reference letters from individuals in her home town, the officer concluded that
this evidence merely constituted updates on information that was before and
considered by the Board and did not constitute new evidence or evidence of new
risk developments since the Board decision.
[50]
As
mentioned above, the officer was not required to rule on every document in
question (see Kaba above, at paragraph 1). In addition, as the
applicants were required to demonstrate both an objective and a subjective fear
of persecution, documentary evidence of country conditions alone was
insufficient to establish their PRRA submissions (see Kaba above, at
paragraph 1). However, Mr. Justice John Evans’ well-cited statement in Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ
No 1425 is also instructive (at paragraph 17):
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. […] [emphasis added]
[51]
On
my review of the evidence, I do find it relatively sparse with respect to the
principal applicant’s personal risk. However, it does still lend some support
to the principal applicant’s claim that she fell within recognized groups at
risk in Colombia, namely, family members of human rights abuse victims and
civil society and human rights activists. Although this Court owes significant
deference to the officer’s decision on this issue, I find that the officer
unreasonably failed to engage with this evidence and the connection between the
principal applicant’s personal situation and the risks reported in the
documentary evidence. In addition, as the CCR report challenged some of the
basic themes on which the Board based its decision, I find that the officer erred
in not explicitly engaging with it and by not explicitly considering in what
way it differed from the evidence that was previously before the Board.
[52]
In
summary, it is not clear whether the officer considered the totality of the
evidence in assessing the applicants’ PRRA applications. The officer’s decision
lacks transparency and justification in that it fails to clearly address the
evidence. The decision is therefore not reasonable and I would allow this
application for judicial review.
[53]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
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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