Docket: IMM-1007-11
Citation: 2011 FC 1372
Ottawa, Ontario, November 28,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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OMAR FERNANDO RICO ESPEJO
CHRISTOPHER DAN RICO
ANGELICA BEBEL RICO
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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]
The
applicants seek judicial review of a decision by a Pre-Removal Risk Assessment
(PRRA) Officer of the respondent Minister of Citizenship and Immigration Canada.
The Officer found the applicants had not satisfied section 113(a) of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA) and
therefore rejected the applicants’ PRRA application. For the reasons that
follow, the application for judicial review is dismissed.
Facts
[2]
The principal
applicant is Mr. Omar Fernando Rico Espejo, a 34-year old citizen of Colombia. Mr. Espejo has two
children, a son aged 14, and a daughter aged 9 both of whom are citizens of the
U.S. Mr. Espejo’s refugee
claim was heard jointly with that of his brother-in-law’s, Mr. Alfonso Pardo
Espinosa on January 26, 2010. In support of his claim, Mr. Espejo relied on
the evidence presented by Mr. Espinosa at his refugee claim hearing. Mr. Espejo
did not adduce any evidence of his own.
[3]
Mr.
Espinosa’s claim was predicated on a fear that he would be targeted by the
Autodefensas Unidas de Colombia (AUC), due to his insubordination of his
commanding officer, a Captain, who was allegedly cooperating with AUC in 2004. Mr.
Espinosa submitted a report to the Lieutenant Colonel at his battalion
headquarters which detailed this Captain’s instructions not to destroy coco
crops and Mr. Espinosa’s eye-witness account of the Captain’s receipt of
cash-in-hand from the AUC. It was Mr. Espinosa’s claim that the action of
filing the report against his commanding officer made him a target of AUC and
other officers within the battalion.
[4]
The Refugee
Protection Division (RPD) determined that Mr. Espinosa’s claim lacked
credibility as his evidence was marked by a number of inconsistencies in both
his oral and written evidence. Mr. Espinosa’s refugee claim was therefore
rejected on February 12, 2010 and, as a result, so too was Mr. Espejo’s and his
two children’s. This Court denied their application for leave for judicial
review on August 17, 2010.
[5]
Mr.
Espejo claimed before the PRRA Officer that he had been extorted by Fuerzas
Armadas Revolucionarias de Colombia (FARC) in 2007 and fears that he and his
children will be kidnapped by this organization should they return to Colombia.
He claims that he has already met an extortionary demand by paying to them
10,000,000 Colombian pesos, following which, he faced a demand for another
payment of 20,000,000 Colombian pesos. Instead of paying on the second demand,
Mr. Espejo returned to the U.S.
Mr. Espejo claims that FARC is still looking for him and maintains a fear that
FARC will attempt to recruit his children into the organization.
[6]
The
PRRA Officer rejected Mr. Espejo’s PRRA application on the basis that Mr.
Espejo had not satisfied section 113(a) of the IRPA, because the
evidence presented in support of the PRRA application could have been presented
at the refugee hearing. Additionally, the PRRA Officer found that there was no
more than a mere possibility that Mr. Espejo would suffer persecution should he
be returned to Colombia and similarly that there was no more than a mere
possibility that Mr. Espejo’s children would face persecution if returned to
the U.S. The PRRA Officer found that there were no reasonable grounds to
believe that any of the applicants would face a risk to life or of cruel and
unusual punishment if returned to Colombia, in the case of Mr. Espejo, or the U.S., in the case of his
children. The documentary evidence filed in support was given no weight by the
PRRA Officer because none of it was original and none of it was accompanied by
an affidavit of translation from the translator.
Issue
[7]
The
issue in this case is therefore whether the evidence of such events constituted
“new evidence” within the meaning of section 113(a) as interpreted in Raza v Canada
(Citizenship and Immigration), 2006 FC 1385, and whether in refusing to consider this
evidence because it did not amount to a “new risk development”, the PRRA
Officer misconstrued section 113(1) of the IRPA and thereby erred in
law.
Analysis
[8]
Section
113(a) of the IRPA states 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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[9]
The
jurisprudence of this Court with respect to the meaning of section 113(a) is
unambiguous. As Justice Judith Snider held in Perez v Canada (Minister of
Citizenship and Immigration), 2006 FC 1379 at para 5:
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.
[10]
This
view has been endorsed in other decisions of this Court such as Mehesa v
Canada, 2011 FC 338; Selduz v Canada (Minister of Citizenship &
Immigration), 2010 FC 583; and Narany v Canada (Minister of Citizenship
& Immigration), 2008 FC 155 at para 7, identify but three.
[11]
In
assessing whether evidence presented in a PRRA application qualifies as new
evidence, more than the date of the evidence is relevant. The PRRA officer can
consider whether anything of substance is new. As Justice Mosley stated in Raza:
…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: Selliah, above
at para. 38. 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…
[12]
In
dismissing the appeal from Justice Mosley’s decision, the Federal Court of
Appeal agreed with this statement. Justice Sharlow stated in Raza v Canada (Citizenship
and Immigration), 2007 FCA 385:
One of the arguments considered by Justice Mosley in this
case is whether a document that came into existence after the RPD hearing is,
for that reason alone, “new evidence”. He concluded that the newness of
documentary evidence cannot be tested solely by the date on which the document
was created. I agree. What is important is the event or circumstance sought to
be proved by the documentary evidence.
Counsel for Mr. Raza and his family argued that the evidence
sought to be presented in support of a PRRA application cannot be rejected
solely on the basis that it “addresses the same risk issue” considered by the
RPD. I agree. However, a PRRA officer may properly reject such evidence if it
cannot prove that the relevant facts as of the date of the PRRA application are
materially different from the facts as found by the RPD.
[13]
Counsel
for Mr. Espejo submits that in the application of section 113(a) a distinction
is to be made between adducing a “new risk” and adducing “new evidence” to the
PRRA officer. In my view, however, it is difficult to sustain a claimed “new
risk” to a PRRA applicant should he or she be removed to his or her home
country without adducing “new evidence” in support of that “new risk” claim. To
some degree, they are of necessity, co-dependant, a point made by Justice
Michael Kelen in Kaybaki v Canada (Minister of
Citizenship and Immigration), 2004 FC 32.
[14]
Here,
however, the PRRA Officer reasonably concluded that Mr. Espejo had knowledge
and belief that he was, allegedly, a target of FARC before and during his
refugee claim hearing. It will be remembered that section 113(a) compels a
PRRA applicant to adduce “new evidence that arose after the rejection or [that]
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.” In the present case, Mr. Espejo’s evidence was not new, nor did it
arise after the rejection of his claim, nor was it unreasonably unavailable to
him and nor was it unreasonable to expect him to present it at the time of his
hearing or at the time his claim was rejected.
[15]
Appropriately,
the PRRA Officer wrote:
The
principal applicant’s problems with the FARC occurred in 2007, well before his
refugee hearing in January 2010. While I acknowledge that it was held jointly with
that of his brother-in-law, the applicant could have raised this issue at the
hearing. He has provided no reasonable explanation as to why he did not raise
his family’s encounter with the FARC at the hearing.
Moreover,
I note that his Counsel raised the issue of the applicant’s brother-in-law
possibly being a person of interest to the FARC. Reasonably, at that time, the
principal applicant could have raised the issues his family faced with respect
to the FARC back in 2007 when in Colombia. Moreover, the risk with respect to fear
of kidnapping and recruitment has been a longstanding problem in Colombia and therefore irrespective of the minor applicants’ age,
this was reasonably known to the principal applicant and could have been
presented for consideration.
Any
risks with respect to the FARC could have reasonably been raised at the time
the applicants had their refugee hearing. The mere fact that the principal
applicant presented a protection claim before a panel of the RPD indicates to
me his awareness that this was his opportunity to seek Canada’s protection by specifying all the risks feared.
[16]
The
Officer analyzed the evidence before her in a manner consistent with the
decision of the Court of Appeal in Raza. No error of law arises. To
the extent the Officer made determinations of fact they fell within the range
of possible, acceptable outcomes defensible in respect of the facts and law.
The intervention of this Court is not warranted.
[17]
In
conclusion, I note that the Officer nonetheless analyzed the substance of the
evidence in support of the claim and found that it did not meet the threshold
of either section 96 or section 97 of the IRPA. I note as well that
while the Notice of Application is in the name of Omar Espejo alone, all of the
subsequent documents filed before the Court refer to him as the principle
applicant and to his two children, as applicants. The Court therefore directs,
of its own motion, that the style of cause be amended to add Christopher Dan
Rico and Angelica Bebel Rico as applicants to reflect the documents and
proceedings as they have in fact been filed and unfolded.
[18]
For
the foregoing reasons, the application is dismissed.
[19]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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