Date: 20080521
Docket: IMM-4483-07
Citation: 2008
FC 634
Toronto, Ontario, May 21, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
GUSTAVO RUIZ HURTADO
AYDA LUCIA HURTADO LEON
STEVEN RUIZ HURTADO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
an immigration officer dated September 27, 2007, dismissing the Applicants’
Pre-Removal Risk Assessment (PRRA) application.
I. Facts
[2]
The
principal Applicant (the Applicant) and his wife are both citizens of Colombia whereas their son was born in
the United States. The couple also has a
daughter who was included in the PRRA application; however, as she was born in Canada, she was not considered in
the PRRA officer’s assessment. Both children are entitled to Colombian
citizenship by descent through their parents.
[3]
The Applicants
left Colombia in November 1998 for the United States. They did not seek asylum in the United States. They arrived in Canada from the United States on March 9, 2004, and
immediately made a claim for refugee protection. The refugee application is
based on the Applicant’s fear of persecution from the FARC (Revolutionary Armed
Forces of Colombia). The Applicant alleged that as the owner of a farm in an
area controlled by the FARC, he was pressured into paying a vacuna tax. When he
refused to pay the vacuna, he began receiving written threats from the FARC and
as such, he fled the country. On March 7, 2006, the Refugee Protection Division
determined that the Applicants were neither “Convention refugees” nor “persons
in need of protection”.
[4]
In the
PRRA application, the Applicant alleges that the FARC would seek him out and
harm him for refusing to pay the vacuna tax. The Applicant also submits that
state protection would not be forthcoming to him in Colombia as the police have been infiltrated by
the guerrillas. The Applicant alleged that his brother returned to work at the
farm in October 2006, and that in January 2007, the FARC requested that he
plant 5 acres of coca as “collaboration for them”. The principal Applicant
submitted that his brother refused the request and was killed in February 2007.
As new evidence in support of the PRRA application, the Applicant presented a
note from the FARC, dated January 10, 2007, requesting that 5 hectares of coca plants be planted as
a contribution towards their cause, and his brother’s death certificate dated
February 12, 2007, indicating that he died of a gunshot wound to the head.
II. The PRRA Officer’s Decision
[5]
In a
decision dated September 27, 2007, the PRRA officer dismisses the Applicants’
application and concludes that the Applicants had not provided sufficient
evidence to establish that there was more than a mere possibility that they
would face persecution should they be returned to Colombia.
III. Issues
[6]
The Applicant
submitted the following issues for the Court’s consideration:
1. Did the PRRA officer err in
discounting the new evidence provided by the Applicant in support of his PRRA?
2. Did the PRRA officer err in
finding that the Applicant did not fit the “profile” of persons targeted by the
FARC?
3. Did the PRRA officer breach
the duty of fairness to the Applicants by failing to provide adequate reasons
in support of the finding that state protection was available to the Applicant?
If not, did the PRRA officer err in finding adequate state protection existed?
IV. Standard of Review
[7]
The first
and second issues raised by the Applicants are questions of fact to be reviewed
on a standard of patent reasonableness. As decided in the Supreme Court of Canada’s recent decision in Dunsmuir
v. New Brunswick, 2008 SCC 9, there is a need for reconsideration. At
paragraph 47 of Dunsmuir, above the Supreme Court defined reasonableness
as:
[47] …a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[8]
In applying the
standard of review analysis as described in Dunsmuir, above, the
appropriate standard of review for the first two issues raised by the
applicants is reasonableness. The questions at issue are factual in nature and
fall within the expertise of the PRRA officer; as a result deference is owed.
The same is true for the PRRA officer’s finding on state protection.
[9]
As for the question of
adequacy of reasons, this is a question of procedural fairness reviewable on a
standard of correctness (Canadian Union of Public Employees (C.U.P.E.) v.
Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100).
V. Analysis
Did the PRRA officer err in discounting
the new evidence provided by the Applicant in support of his PRRA?
[10]
In the reasons for the
decision, the PRRA officer made the following comments regarding the new
evidence presented by the Applicants:
As evidence the PA has submitted a note from the FARC, dated 10
January 2007, requesting 5 hectares of coca plants be planted as a contribution
towards their cause; as well as his brother’s (Gerardo RUIZ HURTADO) death
certificate, dated 12 February 2007, indicating that he died of a gunshot wound
to the head. I afford these documents little probative value, in that, the note
from the FARC is typed, there is no indication of previous demands or failure
to make payments in the past, or why after all this time, as the (Applicant)
has been outside of Colombia
for approximately 9 years, would the FARC remain interested in him. I find this
evidence to be self-serving. There is no explanation provided by the (Applicant)
informing as to how he received this letter in Canada. In terms of the death certificate of his brother, the document
itself indicates death by a gunshot to the head. No further substantiating
evidence was provided by the (Applicant) linking the FARC to the death of his
brother.
[11]
The Applicants
submitted that the PRRA officer’s considerations do not support the finding
that the documents deserve little probative value, nor do they provide a
rational basis for dismissing the corroborative evidence. The Respondent
submitted that the Applicants or the Court may have weighed the documents
differently, but this is not sufficient reason for intervention by this Court
when the PRRA officer is acting within his jurisdiction to assess and weigh the
evidence as he deems appropriate (Malhi v. Canada (M.C.I.), 2004 FC 802
at paragraph 7).
[12]
This Court finds that
the PRRA officer’s weighing of the evidence was reasonable. The PRRA officer’s
principal concern appears to have been the absence of an actual connection
between the new evidence submitted and the threat to the principal Applicant.
This is illustrated in the PRRA officer’s comments that the note failed to
mention previous requests and that there was no evidence presented to link the
principal Applicant’s brother’s death to the FARC. These concerns on the part
of the PRRA officer fall within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.
[13]
These were reasonable
concerns on the part of the PRRA officer which are defensible in respect of the
facts and law and as a result, the Court sees no reason to interfere with this
finding.
Did the PRRA officer err in finding that
the Applicant did not fit the “profile” of persons targeted by the FARC?
[14]
In his negative
decision, the PRRA officer cites portions of the United States Department of
State Country Reports on Human Rights Practices – 2006 for Colombia that
list groups of people targeted by security forces, particularly FARC. The PRRA
officer goes on to conclude that the evidence did “not indicate that the (Applicant)
would be personally targeted by guerrillas in Colombia. He does not meet the profile of persons being targeted (teachers, journalists,
religious leaders, union members, human rights activists, candidates for public
office, elected officials and other politicians, alleged paramilitary
collaborators, and members of the government security forces).”
[15]
The Applicants submit
that the PRRA officer’s finding is patently unreasonable for two reasons:
·
First, section 96 does
not require that the Applicant be personally targeted; and
·
Second, the Refugee
Division’s “Persuasive Decision” in MA4-04467 clearly states that individuals
who refuse to bow to FARC’s demands become targets as their refusal is seen as
a political opinion opposed to FARC. Therefore the applicant would clearly be
personally targeted by FARC if returned to Colombia.
[16]
In reply to these
arguments the respondent submits that it is well established that section 96
consists of both a subjective and objective element. Moreover, the Respondent
argued that this Court held in Rios v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1437 that the Refugee Division made
no reviewable error in failing to acknowledge and follow a “Persuasive
Decision”, and as such, the Court should not interfere with the PRRA officer’s
finding.
[17]
This Court concludes
that the PRRA officer’s finding that the principal Applicant did not meet the
profile of persons being targeted by FARC is reasonable. The officer canvassed
the documentary evidence and it indicates that FARC targeted certain groups of
people. The officer considers in his decision whether the principal Applicant
meets the description provided by the documentary evidence and finds that he
does not. While persuasive decisions can be useful in helping a PRRA officer to
make his decision, there is no obligation on the officer to expressly consider
or rely on the information and recommendations therein (Rios, above). As
to the applicants’ argument that there is no subjective element in the legal
test for section 96, there is no merit to this argument. It is trite law that
the analysis under section 96 of the Act is subjective. Therefore the Court
sees no reason to interfere with this other finding since it is acceptable and
defensible in respect of the facts and law.
Did the PRRA officer breach the duty of
fairness to the Applicants by failing to provide adequate reasons in support of
the finding that state protection was available to the Applicant? If not, did
the PRRA officer err in finding adequate state protection existed?
[18]
The Applicants argue
that the PRRA officer breached procedural fairness in failing to provide
adequate reasons for concluding that Colombia “is attempting
to deal with extortion and kidnappings by paramilitary groups”. The Applicant
further submits that regardless of whether the reasons were adequate, the
finding on state protection was unreasonable.
[19]
Having reviewed the
PRRA officer’s decision, the Applicants have failed to convince this Court that
any reviewable error was made with regards to the PRRA officer’s reasons and
finding on state protection. The PRRA officer clearly engages in his decision in a thorough analysis of state
protection. The officer canvassed the objective documentary evidence for Colombia, and highlighted relevant considerations such as the
political atmosphere, respect for human rights, and measures taken to prevent
corruption in state protection forces in Colombia. While the Court acknowledges that the PRRA officer’s consideration of
this evidence is intermingled with his consideration of the likelihood of
persecution, the Court is still satisfied that sufficient reasons were provided
to support the PRRA officer’s finding on state protection. As such, no breach
of procedural fairness occurred and moreover, the PRRA officer’s finding on
state protection was reasonable given the evidence on the record.
[20]
Contrary to the Applicants’
submissions, this Court finds that it was open to the PRRA officer and
reasonable for her to conclude, on the totality of the evidence before her,
that the Applicant “did not meet the profile of persons being targeted” in Columbia. The Applicant and his family had been outside
Columbia for nearly 9 years, he had lived with his family problem-free in Columbia for almost a year after the initial alleged threats
from the FARC, and he and his family were not among the group of people
typically targeted by the FARC such as teachers, journalists, union members and
politicians.
[21]
It is well established
that there is both a subjective and objective element to the analysis under
s.96 of the Act. The PRRA officer after a thorough analysis finally determined
that there was “no more than a mere possibility that (the applicants) would
face persecution, should they be returned to Columbia…” It was for the PRRA officer to make this assessment and the Applicant
failed to convince the Court that this assessment is not defensible in respect
of the facts and law.
[22]
The application will
therefore be dismissed.
[23]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS THE COURT dismisses the application.
"Maurice E. Lagacé"
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