Date: 20081124
Docket: IMM-1032-08
Citation: 2008 FC 1309
Ottawa, Ontario, November
24, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
JOAQUIN
RAMIREZ ARAGON
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Ramirez is a citizen of El Salvador who came to Canada in August
2006 with a visa to attend an international conference on AIDS and took advantage
of the opportunity to apply for refugee protection. His claim as an
HIV-positive individual subject to persecution in El Salvador was denied
by the Refugee Protection Division (“RPD”) in May 2007 and an application for
leave for judicial review of that decision was dismissed by this Court in
August 2007. A Pre-Removal Risk Assessment (“PRRA”) issued on January 11, 2008
was negative. In these proceedings, Mr. Ramirez seeks judicial review of the PRRA
decision.
[2]
The
applicant submits that the PRRA officer erred in assuming that the RPD had
assessed the risk of persecution that he faced in El Salvador by reason of
his profile as a gay, HIV-positive male. As a result, he submits, the PRRA
officer failed to assess risk based on his identity as a homosexual and
misinterpreted the new evidence limitation in subsection 113 (a) of the Immigration
and Refugee Protection Act, S.C.
2001, c. 27 (“IRPA”). In addition, the applicant contends that the
officer applied too high a standard for considering a sur place claim
based on statements he had made which were reported in the Canadian and El Salvador press. He
argues further that the officer erred in concluding that the applicant did not provide
sufficient evidence to demonstrate that he had suffered physical and sexual
abuse.
[3]
The
respondent takes the position that the RPD findings extend to both the specific
and general risks alleged by the applicant. The board had acknowledged the
applicant’s fear of returning to El Salvador as it referred to his statements
that "he cannot have the freedom to be himself and cannot receive
protection from the authorities as a gay person" and that "there is
no protection for gays and lesbians in El Salvador". The respondent
submits that the RPD considered the evidence tendered by Mr. Ramirez in support
of his claim, including the country condition reports, and rejected or gave no
weight to it, as it was entitled to do.
[4]
The
applicant's claim for protection was based on both a specific risk of
retaliation by a police officer who he alleged had sexually assaulted him and
contracted HIV from the rape and the general risk he faces as a gay man in El Salvador. The RPD had
found that the claim of a specific risk was not credible and that the
presumption of state protection was not rebutted because the applicant had made
no effort to report the incident in the months that had passed prior to his
departure for Canada. The
applicant submits that the RPD gave no consideration as to whether it would
have been reasonable to access state protection in light of the documentary
evidence regarding the abuse of homosexuals by persons in authority in El Salvador.
[5]
The
PRRA officer found that the applicant had not tendered sufficient new evidence
for a different conclusion to be reached with respect to the credibility of the
applicant’s statements about the alleged sexual assault and threat of
retaliation. With regard to the newspaper reports, the officer concluded that
there was no evidence to establish that the articles had come to the attention
of the authorities in El Salvador or that they had
expressed an intention to target the applicant. The officer found that medical
care and drugs would continue to be available for the treatment of the
applicant’s condition in El Salvador.
[6]
This
case turns, in my view, on the question of whether the applicant’s claim of a
risk of persecution by reason of his status as a gay male has ever been
properly assessed.
[7]
The
jurisprudence supports the conclusion that risk assessments conducted by PRRA
officers should be reviewed on the standard of reasonableness by virtue of
their role as specialized administrative tribunals, and that significant
deference is owed to their decisions, in particular to their decisions
regarding the weight to be given to the evidence presented before them: A.B.
v. Canada (Minister of Citizenship and Immigration), 2008 FC 394 (T.D.).
If, in this instance, I had deemed it necessary to consider whether the officer
correctly interpreted IRPA subsection 113 (a) the standard of correctness would
have been appropriate.
[8]
The
PRRA officer proceeded on the assumption that the RPD decision considered all
of the risks raised by the applicant and thus directed his mind to whether the
applicant had submitted any new evidence with regard to risks which may have
developed in the interim. The officer did not err in his interpretation of
subsection 113 (a) but misapplied it to a context in which the limitation did
not arise.
[9]
The
framework for determining whether evidence is admissible under 113 (a) was set
out by the Federal Court of Appeal in Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385. The object of
the legislation is to avoid the relitigation of issues which were dealt with in
the refugee determination process. A PRRA application is not an appeal or
reconsideration of the decision of the RPD to reject the claim. However, as
Madame Justice Karen Sharlow states in paragraph 12 of Raza, a PRRA
determination may require consideration of some or all of the same factual and
legal issues as a claim for refugee protection.
[10]
It
is clear from a close reading of both the RPD and the PRRA decisions that
neither expressly consider how the objective country condition information set
out in a United States Department of State report, an Amnesty International
report, a March 2007 article in the New Statesman and an Immigration and
Refugee Board Response to Information Request might support the applicant’s
fear of persecution. This is not a case in which I would wish to rely upon the
presumption that a tribunal has considered all of the evidence before it as
there are significant indications to the contrary.
[11]
The
applicant had complained of a long history of persecution because of his sexual
orientation. The documentary evidence contains information which could be
construed as supporting his claim of risk if returned to El Salvador. Apart from
a passing reference to evidence of employment difficulties, the RPD
concentrated its analysis on the one specific incident alleged by the applicant
and his failure to seek state protection from the threat of retaliation. That
was the starting point for the PRRA officer’s assessment. The PRRA officer
makes a reference to the country condition documents tendered by the applicant
on two occasions but simply states that he has noted the evidence about
discrimination based on sexual orientation. There is no apparent analysis as to
how this evidence may relate to a person with the applicant’s profile.
[12]
I
find that it was unreasonable for the PRRA officer to have assumed that the RPD
had conducted a complete risk assessment and not to have considered whether on
all of the evidence, including the objective documents, the applicant faced a
risk of persecution and to his safety if returned to El Salvador.
[13]
The
applicant proposed that I certify as a question of general importance whether
PRRA officers have an obligation to consider a risk that is not addressed by
the RPD and to consider all of the evidence with respect to the issue. The
respondent proposed no question. In my view, the legal question was settled by
the Court of Appeal in Raza and the proposed question would not
transcend the interests of the parties in this matter.
JUDGMENT
IT IS THE JUDGEMENT OF
THIS COURT that the application is granted
and the matter is remitted for reconsideration by a different PRRA Officer. No
questions are certified.
“Richard
G. Mosley”
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