Date: 20070706
Docket: IMM-5987-06
Citation: 2007 FC 717
Ottawa, Ontario, the 6th day of July 2007
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
RICARDO
CHACON COLINDRES
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review filed pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a
decision of a Pre-Removal Risk Assessment (PRRA) officer dated October 13, 2006
in which the PRRA application of Ricardo Chacon Colindres (the applicant)
was dismissed.
I. Facts
[2]
The
applicant is a citizen of Honduras.
[3]
In 2002,
the applicant, in conjunction with friends who were small farmers, founded a
cooperative called “Tacamiche” to farm lands assigned to them by the national
agrarian institute.
[4]
The
cooperative began having problems with a large landowner in the area named
Javier Maldonado, who was suspected of having ties with drug traffickers.
Mr. Maldonado threatened Mr. Chacon and other members of the cooperative
to get them to give up their land.
[5]
In
February 2003, Mr. Maldonado had part of the cooperative’s harvest burnt.
[6]
In
September 2004, the applicant and his colleagues were invited to discuss their problems
with Mr. Maldonado. At that meeting, Mr. Chacon and his colleagues were fired
on by soldiers sent by Mr. Maldonado and three individuals were wounded.
[7]
The
applicant and his colleagues decided to protest in front of the police station
to denounce Mr. Maldonado’s actions. During the protest, the applicant and
his colleagues were beaten by the police. The next day four men came to the
applicant’s home, beat him and raped his wife.
[8]
The
applicant accordingly left Honduras for Canada via the U.S. The applicant’s
wife and children stayed in Honduras, where they live at a secret location that
is inaccessible by car.
[9]
The
applicant came to Canada on December 20, 2004 and claimed refugee status the
same day.
[10]
On July
28, 2005, the Refugee Protection Division (RPD) of the Immigration and Refugee
Board of Canada found that the applicant was neither a refugee nor a person in
need of protection under the IRPA. The reason for dismissing the application
was that the panel attached “no credibility to his
story because of the serious contradictions, inconsistencies and
improbabilities noted during the hearing, for which no satisfactory
explanations were provided”
(Panel file, RPD decision dated July 28, 2005, page 198). In arriving at this
finding, the panel noted at least seven findings of fact which contradicted the
applicant’s story.
[11]
On
November 14, 2005, the Federal Court dismissed the applicant’s application for
leave for judicial review of the RPD decision.
[12]
On May 24,
2006, the applicant filed a PRRA application. This was denied on October 13,
2006. The PRRA officer concluded that the application did not show that the
applicant was at risk of torture, cruel and unusual treatment or punishment or
death if he returned to Honduras. That decision is the subject of the judicial
review at bar.
II. Issues
(1) What is the
appropriate standard of review to be applied to decisions by PRRA officers?
(2) Did the
PRRA officer err in his assessment of the evidentiary value of the documents
filed?
(3) Did the
PRRA officer err in finding that the applicant had not shown that he could not
seek state protection in Honduras?
(4) Did the
PRRA officer’s decision infringe sections 7 and 12 of the Canadian Charter
of Rights and Freedoms or article 3 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment?
(5) Is the PRRA
process constitutional?
III. Analysis
(1) What is the
appropriate standard of review to be applied to decisions by PRRA officers?
[13]
In Kandiah
v. Canada (Solicitor General), 2005 FC 1057, at paragraph 6, Madam Justice
Dawson considered the question of the standards of review applicable to
decisions by PRRA officers and she concluded as follows:
As to the appropriate standard
of review to be applied to a decision of a PRRA officer, in Kim v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, Mr.
Justice Mosley, after conducting a pragmatic and functional analysis, concluded
“the appropriate standard of review for questions of fact should generally be
patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter,
and for questions of law, correctness”. Mr. Justice Mosley also endorsed the
finding of Mr. Justice Martineau in Figurado v. Canada (Solicitor General),
[2005] F.C.J. No. 458, that the appropriate standard of review for the decision
of a PRRA officer is reasonableness simpliciter when the decision is
considered “globally and as a whole”. This jurisprudence was followed by Madam
Justice Layden-Stevenson in Nadarajah v. Canada (Solicitor General),
[2005] F.C.J. No. 895, at paragraph 13. For the reasons given by my colleagues,
I accept this to be an accurate statement of the applicable standard of review.
[14]
In the
case at bar, the applicant alleges that two errors were made by the PRRA
officer. The first is that the PRRA officer erred in determining the
evidentiary value of the documents filed by the applicant. This question
requires analysis of the decision as a whole and therefore the standard of
reasonableness applies. The second alleged error concerns state protection. In
considering a PRRA application, the reasonableness standard of review applies
to the question of whether an applicant can avail himself of state protection
(B.R. v. Canada (Minister of Citizenship and Immigration), 2006 FC 269,
at paragraph 17; Dervishi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 364, at paragraph 15).
[15]
The
appropriate standard of review for the fourth issue is correctness, as this
issue raises a question of law.
(2) Did the
PRRA officer err in his assessment of the evidentiary value of the documents
filed?
[16]
The
applicant alleges that the PRRA officer erred in his assessment of the evidence
presented. However, I do not take this view. My reading of the decision
suggests that the officer took time to analyze the documents filed by the
applicant in support of his PRRA application and carefully explained his
findings as to their evidentiary value.
[17]
The fact
that the applicant may disagree with the inferences drawn by the PRRA officer
does not make the officer’s decision unreasonable. In my opinion, the applicant
is asking the Court in his submissions to substitute its assessment of the
evidence for that already made by the PRRA officer. That is not the Court’s
function in a judicial review (Gonzalez v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1274, at paragraph 17; Maruthapillai
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 761).
[18]
Further,
I would point out that the PRRA application does not allow an officer to
reassess facts which have already been the subject of an assessment by the RPD:
the PRRA proceeding is not an appeal from RPD decisions. Consequently, the
applicant’s submissions that the PRRA officer erred in not taking Exhibits P-2,
P-3, P-5, P-7 and P-10 into account in his analysis are not persuasive, as
those exhibits were filed before the RPD and the latter had already rendered a
decision on the applicant’s application. The IRPA is clear: a PRRA officer must
rely on “new evidence”
(Kaybaki v. Canada (Minister of Citizenship and Immigration), 2004 FC
32, at paragraph 11; Hausleitner v. Canada (Minister of Citizenship and
Immigration), 2005 FC 641, at paragraph 32).
[19]
With
regard to the new evidence submitted, the PRRA officer commented on it, referring
to it and commenting on the respective contents of the documents. It can be
seen simply from reading the PRRA decision that the officer gave this new
evidence the necessary attention. He even concluded in his analysis that there
was only one relevant new fact, namely, the visit to the applicant’s residence
and the fact that the other coop members were not seen. The officer also found
that the evidence in the record did not show that the applicant would be at
risk if he were to return to Honduras. Despite that finding, the officer
proceeded with an analysis of the objective situation in that country.
(3) Did the
PRRA officer err in finding that the applicant had not shown that he could not
seek state protection in Honduras?
[20]
The courts
have clearly held that the state should be presumed capable of protecting its
nationals (Ward v. Canada, [1993] 2 S.C.R. 689, at 724). That said, the
applicant alleges that he had submitted abundant evidence indicating that
Honduras could not protect him.
[21]
The
respondent, for his part, maintains that the applicant did not submit clear and
persuasive evidence that Honduras would not or could not protect him. In
particular, the respondent argues that the PRRA officer was right to find that
the applicant had not exhausted his domestic remedies before seeking
international protection, as he submitted no evidence that he had filed a
complaint with the police. Further, there was no indication in the evidence
that the applicant had complained to the national authorities of the treatment
he had received from the police and soldiers in Honduras.
[22]
I note
that the PRRA officer referred to independent and objective documentation in
finding that even though Honduras is a constitutional democracy, corruption in
the police is still rife. The PRRA officer referred in particular to the U.S.
Department of State Country Reports 2005 – Honduras and the Amnesty
International – International Report on Honduras in arriving at this
conclusion. That said, the PRRA officer also noted that the documentary
evidence indicates that the Government of Honduras is making efforts to fight
police corruption and the impunity with which the police is treated.
[23]
I
therefore feel that although the documentary evidence shows that there are
corruption problems in Honduras, the fact that no evidence indicates that the
applicant tried to obtain state protection seems conclusive. In this regard,
the applicant was confused as to whether he filed a complaint with the police
in 2003 (following the events) or in 2004. In its decision of
July 28, 2005, the RPD noted this confusion and observed that no
evidence was presented to support the filing of complaints. By not supporting
his evidence, the applicant did not satisfy the PRRA officer that state
protection was not available to him. In the circumstances, this finding is
reasonable.
(4) Did the
PRRA officer’s decision infringe sections 7 and 12 of the Canadian Charter
of Rights and Freedoms or article 3 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment?
[24]
The courts
have clearly held that the removal of an individual from Canada is not contrary
to the principles of fundamental justice and the enforcement of a deportation
order is not contrary to sections 7 and 12 of the Charter (Canada (Minister
of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, at
733-735; see also Medovarski v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 539, at para. 46).
[25]
As to the
applicant’s argument that the PRRA officer infringed article
3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (the Convention), section 97 of
the IRPA, which was the basis for the analysis by the PRRA officer under
paragraph 113(d), incorporates the principles set out in article 3 of that Convention. In particular, section 97
prohibits the removal of an individual to a country where he or she is at risk
of mistreatment, torture or death, which is precisely the kind of protection
that article 3 of the Convention requires (see Li
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1).
[26]
Accordingly,
the applicant’s arguments that the PRRA officer’s decision infringes the
Charter or Canada’s international obligations as a signatory of the Convention are
ill-founded.
(5) Is the PRRA
process constitutional?
[27]
In the oral argument, counsel for the applicant stated that
he withdrew this question, as the notices to the Attorneys General had not been
served.
IV. Questions for
certification
[28]
The parties were invited to submit a question for
certification. The applicant submitted the following two questions:
a. Should
article 3 of the Convention be taken into account before the Immigration
and Refugee Board and in the PRRA process? What effect should the criteria in
paragraph 2 of that article concerning the existence of a “consistent pattern
of gross, flagrant or mass violations of human rights” have in the assessment
of the risk of return?
b. In view of
the human rights situation in Honduras and the human rights reports in
evidence, is it possible to conclude that state protection is available and
effective for peasant leaders in Honduras? Can the PRRA decision-maker find
that effective protection exists in the absence of any evidence in this regard?
[29]
The respondent objected to the request for certification on
the ground that the questions did not transcend the interests of the immediate
parties to the litigation, were not determinative of the appeal and did not
contemplate issues of broad significance or general application, as required by
case law (see MCI
v. Liyanagamage
(1994), 176 N.R. 4 (F.C.A.)).
[30]
Specifically, the applicant argued that in Isomi v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1394, the Court
refused to certify a question almost identical to question (a). Concerning
question (b), the respondent said that this question should not be certified,
as the rules underlying the concept of state protection are well known and were
set out by the Supreme Court in Ward, supra.
[31]
I agree with the respondent’s submissions. In Isomi,
supra, at paragraph 39, I in fact refused to certify a question almost
identical to question (a) since the said question had “already been dealt with
by the case law of this Court [and the Court of Appeal] (see Liyanagamage,
supra). The principles of section 3 of the Convention Against Torture are
incorporated into section 97 of the IRPA. The question as stated does not
warrant certification”. In view of the similarity between question (a) and the
question raised in Isomi, I will not certify question (a).
[32]
I
also agree with the respondent’s submissions on question (b). I do not see how
the question, as stated, merits certification. As stated, the question implies
a reassessment of the facts in the case. Consequently, the question does not
transcend the interests of the immediate parties to the litigation, is not
determinative of the appeal and does not contemplate issues of broad
significance or general application. Consequently, question (b) will not be
certified.
V. Conclusion
[33]
In view of
the foregoing reasons, the application for judicial review is dismissed and no
question is certified.
JUDGMENT
THE COURT ORDERS AND DIRECTS THAT:
-
The
application for judicial review be dismissed;
-
No
question is certified.
“Simon Noël”
Certified
true translation
Susan
Deichert, Reviser
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