Date: 20110202
Docket: IMM-1017-10
Citation: 2011
FC 106
Ottawa, Ontario,
February 2, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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CARLOS HERNAN OLIVEROS RUBIANO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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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, S.C. 2001, c. 27 (the Act), for judicial review of a decision
of a pre-removal risk assessment officer (the officer), dated January 22, 2010,
wherein the officer determined that the applicant would not be subject to risk
of torture, risk to life or risk of cruel and unusual treatment or punishment
if returned to Colombia.
[2]
The
applicant requests an order quashing the decision of the officer and remitting
the matter back for redetermination by a different officer in accordance with
such directions as the Court considers appropriate.
Background
[3]
Carlos
Hernan Oliveros Rubiano (the applicant) was born on March 14, 1968 and is a
citizen of Colombia.
[4]
The
applicant was one of the targets of an extortion scheme by the Revolutionary Armed
Forces of Colombia (FARC). The applicant states that he and his extended family
were often approached for money by the FARC and the United Self-Defence Forces
of Colombia (AUC), which they refused to provide. In October 2001, the
applicant and his cousins informed the Colombian Army about the attempted
extortion. In its response, the Colombian Army killed one of the perpetrators
of the extortion attempt. Subsequently, the applicant was detained allegedly by
three armed members of FARC who requested banking and personal information
about his cousin, Alfonso Cruz, and other businessmen. The applicant worked as
assistant manager of operations at the Bank Bilbao Vizcaya Argentaria Colombia. It was
because of this position and his access to financial records, that the
applicant believes FARC demanded this information from him. In 2002, Alfonso
Cruz and two of the applicant’s other cousins were murdered. Over the period of
several years, the applicant received phone calls continuing to demand
financial records and indicating that he knew the consequences of not
cooperating with the FARC.
[5]
In
2005, the applicant was shot at by two men on a motorcycle while driving a
taxi. He went to the Unidad de Reaccion Inmediata de la Fiscalia (URI), the
Office of the Public Prosecutor, and filed a report on the incident. He was
told that the URI would undertake an investigation.
[6]
The
applicant and his family fled to Ecuador in September 2005. They
did not file for asylum because they found out that they were not able to work
or get financial help with accommodation. They returned to Colombia after ten
days.
[7]
In
April 2006, the applicant and his family entered the United States on visitor
visas. On April 26, 2006, the applicant sought refugee protection at the
Canada/U.S. border. He was prevented from making an application because of the
Safe Third Country Agreement. The applicant applied for and was denied refugee
protection in the United States. He then entered Canada illegally
and attempted to make a refugee claim which was refused.
[8]
The
applicant filed a pre-removal risk assessment (PRRA) in November 2009. In the
PRRA application he requested an oral hearing, which was not afforded to him.
Officer’s
Decision
[9]
The
officer concluded that the applicant had provided insufficient objective
evidence to substantiate the risk in his application. The officer found that
the applicant does not face a danger of torture, a risk to life, or a risk of
cruel and unusual treatment or punishment and is not a person in need of
protection.
[10]
The
officer found that the applicant had not established that he faced an
individualized risk. While the applicant’s cousins had been murdered, these
people were land owners or employees of land owners and there was insufficient
evidence that the applicant was similarly situated to these victims. The
officer found that the evidence did not show that the applicant was a person of
interest to FARC or AUC. The officer did not find that the applicant was
similarly situated to those who are actively pursued by FARC or the National
Liberation Army (ELN).
[11]
The
officer gave minimal weight to affidavits submitted by the applicant’s mother
and cousins. He found that these people had a vested interest in a positive
outcome of the hearing for the applicant. He found that these affidavits
establish the familial relationship between the applicant and his cousins who
were murdered and they restate the occurrences alleged by the applicant but
that they are not supported by objective evidence that the applicant is
personally at risk of harm in Colombia.
[12]
The
officer found that the applicant’s actions were not consistent with someone who
fears for his and his family’s life. The applicant fled Colombia for Ecuador
to seek asylum but returned to Colombia after ten days. The
officer found that Ecuador had a developed refugee protection system.
[13]
The
officer found that the applicant’s mother and brother continue to reside in Colombia and are not
victims of harassment, crime or violence.
[14]
The
officer found that the applicant had not established that the Colombian state
was unable or unwilling to protect him. He found that the URI interviewed the
applicant regarding the incident when he was shot at and made a report, indicating
that it would investigate. The officer found this was evidence that the
authorities in Colombia are willing to assist citizens when
approached. The officer found that the applicant did not exhaust all avenues
of state protection available to him and did not provide clear and convincing
evidence that the state was unable to protect him.
[15]
The
officer then reviewed the country condition information on Colombia. He found
that Colombia is a
multiparty democracy which suffers from a sustained internal armed conflict. He
found that groups such as FARC and ELN commit numerous human rights abuses. He
noted that the courts have been investigating the Colombian Congress members’
collaboration with these paramilitaries.
Issues
[16]
The
applicant submitted the following issues for consideration:
1. The
decision of the PRRA officer was on the credibility of the applicant (without
the word being explicitly used) and the officer thereby erred in not acceding
to the applicant’s request for a hearing.
2. The
PRRA decision unreasonable in that the officer failed to consider relevant and
probative evidence of the risks faced by the applicant, or if such evidence was
considered, no explanation was given for rejecting such evidence as probative
of the applicant’s case.
3. The
PRRA officer applied an incorrect standard to his assessment of the availability
of state protection to the applicant.
[17]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the PRRA officer err by not holding a hearing pursuant to subsection 113(b) of the
Act?
3. Did
the officer ignore probative evidence?
4. Did
the officer apply the wrong test in assessing the availability of state
protection?
Applicant’s Written
Submissions
[18]
The
applicant submits that the issue of an oral hearing is a question of procedural
fairness and should be assessed on the standard of correctness. For the other
issues, the appropriate standard is reasonableness.
[19]
The
applicant submits that an oral hearing is required when an issue of credibility
is central to the decision in question. Although the officer did not state that
he explicitly rejected the applicant’s credibility, his reference to
insufficient objective evidence and the minimal weight given to the applicant’s
documentary evidence were essentially findings of credibility. Further, the
applicant submits that credibility is in issue because the officer questioned
the applicant’s subjective fear and refused to accord weight to the applicant’s
story without corroborating evidence. As such, an oral hearing should have been
provided.
[20]
The
applicant submits that the officer failed to consider all the evidence before
him. The officer found that the applicant was not similarly situated to the
members of his family who were murdered. He further found that the applicant
was not a person of interest to the FARC or AUC. However, both of these issues
were discussed in the affidavits from the applicant’s mother and cousin. The
officer did consider these affidavits and gave them minimal weight because they
were prepared by relatives who had a vested interested in the outcome of the
proceedings. The applicant submits that the case law has established that the
mere fact that evidence is from relatives who want to assist the applicant in
the proceedings is not a reason for assigning it minimal weight.
[21]
The
applicant submits that the officer applied an incorrect standard in his
analysis of the availability of state protection. The officer indicated that
the applicant did not exhaust all avenues of state protection available to him.
The applicant submits that the test is whether the applicant made reasonable
efforts to seek state protection. In addition, the applicant submits that
simply because the officer found that Colombia is a multiparty
democracy, does not mean that it can protect its nationals. The extensive corruption
in the Colombian government demonstrates that it cannot provide the same
protection as other democratic states. The applicant submits that the officer
recited the country conditions of Colombia and stated his
conclusion without providing any analysis of how the country conditions
affected the applicant’s ability to access state protection.
Respondents’
Written Submissions
[22]
The
respondents submit that the applicant failed to establish a personalized risk
of harm. The officer reasonably made the following findings which demonstrate
the lack of personalized risk: the applicant was in a different profession than
those targeted by the FARC, his mother and brother continue to reside in
Colombia without issue, the applicant has not proven he is a person of interest
to the FARC and the applicant’s profile does not fit that of people commonly
targeted by the FARC.
[23]
The
respondents submit that the officer considered the affidavits of the
applicant’s mother and cousins and gave them little weight. The officer reviewed
the contents of the affidavits but found that they only restated the
occurrences alleged by the applicant and outlined his lineage but were not
supported by objective evidence. The respondent submits that it is open to an
officer to give affidavits little weight when they are self-serving and not
from objective sources.
[24]
The
respondents submit that the applicant did not show that he took reasonable
steps to seek state protection. The applicant only approached the URI after
three years of harassment and threats and then he left Colombia eleven days
after he filed a report with the URI. The respondents submit that the officer’s
reasons must be read as a whole. While the officer found that the applicant
must exhaust all possible avenues of protection, it is evident from the reasons
that he was concerned that the applicant had failed to provide clear and
convincing evidence of his reasonable efforts to seek state protection.
[25]
The
respondents submit that the applicant did not establish subjective fear. The
officer determined that the applicant’s actions were inconsistent with a person
who fears for his life. He could have sought asylum in Ecuador but failed
to do so.
[26]
Finally,
the respondents submit that the officer did not err in not providing an oral
hearing. In the determination of the PRRA application, an oral hearing is
exceptional. The officer did not find that the applicant lacked credibility; the
officer found that the applicant had failed to establish through his
documentary evidence that he faced a personalized risk of harm. The officer is
permitted to determine the issue of the weight given to the evidence before the
issue of credibility. The officer found that even if the applicant’s evidence
was credible, the applicant had tendered insufficient evidence of probative
value to establish a personal risk, so the officer was not obligated to hold an
oral hearing.
Analysis and
Decision
[27]
Issue
1
What is
the appropriate standard of review?
The standard
of review for an ultimate decision on a PRRA is that of reasonableness.
However, any issues of procedural fairness will be determined on the
correctness standard (see Wang v. Canada (Minister of
Citizenship and Immigration), 2010 FC 799, at paragraph 11).
[28]
The
applicant submits that the decision not to hold an oral hearing is one of
procedural fairness. Generally, the right to be heard is an issue of procedural
fairness. However, as stated by Mr. Justice Yves de Montigny in Iboude c. Canada (Ministre de
la Citoyenneté et de l'Immigration), 2005 FC 1316 at
paragraph 12, paragraph 113(b) of the Act is clear that the Minister is not
obligated to grant a hearing. The PRRA officer has the discretion to hold a
hearing based on an application of the facts at issue to the factors outlined
in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Thus, this is
generally a question of mixed fact and law and should be reviewed on the
standard of reasonableness.
[29]
Notwithstanding
this analysis, in the case at bar, there is no indication that the officer
turned his mind to the issue of whether to hold an oral hearing and this could
be a breach of procedural fairness. As such, the absence of an oral hearing in
this case will be reviewed on the standard of correctness. The other issues
raised will be reviewed on the standard of reasonableness.
[30]
I
wish to first deal with Issue 4.
[31]
Issue
4
Did the officer
apply the wrong test in assessing the availability of state protection?
The
applicant submits that the officer erred in law by applying the wrong test for
assessing the availability of state protection in Colombia.
[32]
In
Ward v. Canada (Minister of Employment and Immigration), [1993] 2 S.C.R.
689, the Supreme Court of Canada held that the presumption of state protection
may only be rebutted through clear and convincing evidence of the state's inability
to provide protection. This evidence may include testimony of similarly
situated individuals to the applicant let down by the state protection
arrangement or the applicant’s own testimony of the incidents where the state
did not provide protection.
[33]
The
Federal Court of Appeal added to the test in Ward above, that where the
state is a functioning democracy, the presence of democratic institutions will
increase the burden on the claimant to prove that the claimant exhausted “. . .
all the courses of action open to him or her” (see Kadenko v. Canada
(Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532, [1996]
F.C.J. No 1376 (QL) (F.C.A.) at paragraph 5).
[34]
However,
Mr. Justice Michael Kelen held in Farias v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1035, 75 Imm. L.R. (3d) 31 at
paragraph 19 that:
…recent Federal Court jurisprudence has
held that Kadenko cannot be interpreted as requiring refugee claimants
to exhaust "every conceivable recourse" available to them in order to
rebut the presumption of state protection. This is especially true where the
state is alleged to be involved in the persecution. For example, in Chaves,
above, Madam Justice Tremblay-Lamer held at paragraph 15:
¶15 In my view, however, [Ward], supra
and Kadenko, supra, cannot be interpreted to suggest that an individual
will be required to exhaust all avenues before the presumption of state
protection can be rebutted.... Rather, where agents of the state are themselves
the source of the persecution in question, and where the applicant's
credibility is not undermined, the applicant can successfully rebut the
presumption of state protection without exhausting every conceivable recourse
in the country. The very fact that the agents of the state are the alleged
perpetrators of persecution undercuts the apparent democratic nature of the
state's institutions, and correspondingly, the burden of proof. ...
[35]
Likewise,
Federal
Court jurisprudence has held that democracy alone does not ensure effective
state protection (see Katwaru v. Canada (Minister of
Citizenship and Immigration) 2007 FC 612, at paragraph 21).
[36]
The
officer in this case stated that “the onus is on the applicant to show that he
has exhausted all avenues of redress available to him in his country of
nationality.” Finally, he reiterated that, “in the case before me, the
applicant has failed to indicate that he has in fact exhausted all avenues
available to him in his country of nationality”.
[37]
The
applicant stated in his PRRA application that he had approached the Colombian
Army for assistance with the extortion threats he received from the FARC and
AUC. He also submitted that he had filed a report with the URI, the Office of
the Public Prosecutor, when he was shot at in a taxicab, allegedly by members
of FARC. It is evident that the applicant did approach the authorities for
protection on several occasions.
[38]
The
applicant further submitted documentary evidence that indicated that more than
60 members of the Colombian Congress are under investigation for collaborating
with the paramilitaries. Given this level of corruption in the government, the
officer’s finding that Colombia is a multiparty democratic state should not necessarily
signify that it is able to protect its citizens (see Gilvaja v. Canada
(Minister of Citizenship and Immigration), 2009 FC 598, 81 Imm. L.R. (3d)
165 at paragraph 43).
[39]
Based
on this evidence, the officer erred in law by requiring the applicant to show
that he had exhausted all avenues of state protection, as the applicant did
establish that he had made reasonable efforts to seek state protection in a
state where the authorities are not often able to provide protection to their
nationals.
[40]
As a
result, the application for judicial review must be allowed and the matter is
referred to a different officer for redetermination.
[41]
Because of
my finding on this issue, I need not deal with the other issues.
[42]
As a
result of my decision, neither party wished to submit a proposed serious
question of general importance for my consideration.
JUDGMENT
[43]
IT IS
ORDERED that the
application for judicial review must be 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, 2001, c. 27
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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.
113. Consideration
of an application for protection shall be as follows:
. . .
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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.
113.
Il est disposé de la demande comme il suit :
. . .
b)
une audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
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Immigration
and Refugee Protection Regulations, SOR/2002-227
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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.
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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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