Docket: IMM-4863-14
Citation:
2015 FC 183
Vancouver, British Columbia, February 13, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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GILBERTO MICOLTA
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for leave to commence an
application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of Senior
Immigration Officer D. Takhar [the PRRA Officer] of Citizenship and Immigration
Canada, dated May 26, 2014, which rejected the Pre-Removal Risk Assessment
[PRRA application] of Gilberto Micolta, the Applicant.
II.
Facts
[2]
The Applicant is a citizen of Colombia. He made his way to Seattle in the United States as a stowaway in May 2009.
[3]
He entered Canada on July 4, 2009, and made a
refugee claim on July 6, 2009, which was denied on November 8, 2012, by
the Refugee Protection Division [RPD]. The Applicant’s application for leave
and judicial review of the RPD decision was denied on March 5, 2013.
[4]
A deferral of removal order was granted and the
Applicant made a PRRA application in January 2014, which was refused in May
2014. This is the decision under review.
III.
Contested Decision
[5]
The PRRA Officer states that the alleged risk
submitted by the Applicant is materially the same as was presented to the RPD,
namely that the Applicant faces a personalized risk of being killed by members
of the Fuerzas Revolucionarias de Colombia [the FARC] if he is to return
to Colombia and that there is no recourse to state protection for someone in
the Applicant’s position.
[6]
The PRRA Officer evaluates the events the
Applicant noted in his affidavit as having taken place since April 2013 along
with letters submitted in support of his PRRA application and finds that his
submissions are insufficient to connect the killing of Juan, the Applicant’s
nephew, to the Applicant’s fear of the FARC. The PRRA Officer also evaluates
newspaper articles submitted by Applicant. Again, the killings listed in those
articles do not make any mention of the aggressors being members of the FARC.
There is also insufficient evidence to overcome the RPD’s finding of state
protection in Colombia.
[7]
The PRRA Officer further finds that the three
letters submitted in relation to the Applicant’s mental health are simply a
continuation of the facts presented to the RPD. The letters therefore
do not meet the new evidence criteria of subsection 113(a) of IRPA.
[8]
The PRRA Officer concludes that the Applicant,
if returned to Colombia, faces no more than a mere possibility of persecution
as described in section 96 of IRPA and that the Applicant would not likely be
at risk of torture or likely to face a risk to his life or cruel and unusual treatment
or punishment pursuant to section 97 of IRPA.
IV.
Parties’ Submissions
[9]
The Applicant submits that the PRRA Officer made
a veiled credibility finding and should have held a hearing as the PRRA Officer
had doubts as to the evidence presented by the Applicant. The PRRA Officer
also erred in failing to address the allegations made before the RPD in
light of the new evidence or to interpret the new evidence in light of the
Applicant’s history. The Respondent retorts by arguing that no oral hearing was
required because the Applicant’s evidence is not enough to overcome the RPD
findings.
[10]
The Applicant further argues that the PRRA Officer
erred in excluding the medical letters based on the test set out in Elezi v
Canada (Minister of Citizenship and Immigration), 2007 FC 240 [Elezi]
and Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA
385 [Raza]. The Respondent, on the other hand, states that the PRRA
Officer assessed the Applicant’s mental health along with his vulnerability as
an Afro-Colombian and properly concluded that both had been considered by the
RPD. The recent evidence provided did not describe any material change to the
Applicant’s condition.
[11]
Finally, the Applicant submits that the PRRA Officer’s
conclusion that the Applicant had not rebutted the findings of the RPD that he
lacked subjective fear or rebutted the presumption of state protection is
unreasonable since he presented new evidence regarding the murder of people
close to him and the disappearance of his son. The Respondent argues, for his
part, that the Applicant never sought state protection in Colombia.
V.
Issues
[12]
I have reviewed the parties’ record and
respective submissions and state the issues as follow:
•
Did the PRRA Officer err in not holding an oral
hearing?
- Did the PRRA Officer
err in denying the PRRA application?
VI.
Standard of Review
[13]
The standard of review to be applied to the
question of whether or not a hearing ought to have taken place is a question of
procedural fairness and should be reviewed on the correctness standard (Ahmad
v Canada (Minister of Citizenship and Immigration), 2012 FC 89 at para 18; Lai
v Canada (Minister of Citizenship and Immigration), 2007 FC 361 at
para 55). The question as to whether or not the PRRA decision is reasonable is a
question of mixed fact and law and should be reviewed on the reasonableness
standard. The Court shall only intervene if it concludes that the decision is
unreasonable, and falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47).
VII.
Analysis
A.
Did the PRRA Officer err in not holding an oral
hearing?
[14]
The Applicant first submits that the PRRA
Officer should have held an oral hearing and that the PRRA Officer made a veiled
credibility finding. Paragraph 113(b) of IRPA clearly establishes that an oral
hearing is to be held only in exceptional circumstances. The relevant factors
to be considered are found in section 167 of the Immigration and Refugee
Protection Regulations (SOR/2002-227) [the Regulations]. The factors set
out in section 167 of the Regulations are:
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.
[15]
In the case at bar, the PRRA Officer evaluated
all of the evidence provided by the Applicant and found that it was
insufficient to overcome the RPD findings. No negative credibility findings
were made. The PRRA thus did not err in not conducting an oral hearing. Indeed,
the PRRA Officer properly considered the affidavit of Jairo and the letter
provided by the Applicant’s sister. The PRRA Officer discussed how both of
these documents do not make any reference to the FARC or to any information
connecting the incidents discussed in those documents to the Applicant’s fear
of the FARC. Moreover, the PRRA Officer noted that these individuals also have
an interest in the outcome of the Applicant’s PRRA application and are not
objective sources (Applicant’s Record, page 11). Thus, the PRRA Officer
properly explained why it afforded little weight to these documents (Sayed
v Canada (Minister of Citizenship and Immigration), 2010 FC 796 at para 24 [Sayed]).
As for the newspaper articles and the death certificates provided by the
Applicant, the PRRA Officer properly concluded that these documents do not
connect the alleged murders to the FARC. The PRRA Officer also analysed the
information provided regarding the Applicant’s son’s situation and adequately
concluded that the evidence provided is not enough to overcome the RPD’s
finding of state protection in Colombia. With regard to the Applicant’s
mental health supporting documentation, again, the PRRA Officer assessed
the letters and concluded that they reiterate the same information presented
before the RPD. Contrary to the facts set out in Lopez v Canada (Minister of
Citizenship and Immigration), 2010 FC 464 [Lopez], cited by the
Applicant in support of his position, the PRRA Officer had more than only the
Applicant’s sworn affidavit in order to make his decision.
[16]
Furthermore, the PRRA Officer evaluated the
information provided in the Applicant’s affidavit in parallel with all of the
other documents submitted by the Applicant, such as the death certificates,
the affidavit of Jairo, the letter from the Applicant’s sister and the newspaper
articles. The PRRA Officer relied on the entirety of the documentation provided
and its content and concluded that there was insufficient information to rebut
any of the issues raised by the RPD (AR, page 193 at para 25). The PRRA Officer
considered each piece of evidence and document presented in support of the
PRRA application along with publicly available documentation concerning the
country conditions in Colombia before coming to his conclusion to deny the PRRA
application. Therefore, the PRRA Officer did not make a veiled credibility
finding and there was therefore no need for an oral hearing. The intervention
of this Court is not warranted.
B.
Did the PRRA Officer err in denying the
Applicant’s PRRA application?
[17]
A PRRA application by a failed refugee claimant
is not an appeal or a reconsideration of the decision of the RPD to reject
a claim for refugee protection (Raza supra at para 12; Sayed supra
at para 37). That being said, a PRRA application may require consideration of
some or all of the same factual and legal issues as a claim for refuge
protection (Raza supra at para 12). Paragraph 113(a) of IRPA is “based on the premise that a negative refugee determination
by the RPD must be respected by the PRRA Officer, unless there is new evidence
of facts that might have affected the outcome of the RPD hearing if the
evidence had been presented to the RPD” (Ibid at para 13). A PRRA
Officer may properly reject evidence that addresses the same risk issue
considered by the RPD 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 (Ibid at para 17).
[18]
In the case at bar, the PRRA Officer concluded
that the letters regarding the Applicant’s mental health and his submissions of
his vulnerability as an Afro-Columbian are essentially a repetition of the same
information that was before the RPD. After reviewing the medical letters and
the documentation pertaining to Afro-Colombians, I find the PRRA Officer’s
conclusion to reject those documents as new evidence reasonable. The
medical letters reiterate the same concerns that were presented and evaluated
by the RPD (AR, pages 78-79, 80, 181-184) and the documentation
regarding Afro-Colombians predates the RPD decision and was also properly considered
by the RPD. The Applicant did not demonstrate that his mental state was
inadequately assessed by the RPD or that his vulnerability as an Afro-Colombian
had not been properly evaluated before the RPD. The PRRA decision is thus
reasonable.
[19]
With regard to state protection, the documents
presented by the Applicant and analysed by the PRRA Officer did not demonstrate
that state protection in Colombia would not be available to the Applicant. Indeed,
the only information regarding state protection was presented via the
Applicant’s son’s request for police protection and letters provided explaining
that his son had to leave Buenaventura because of threats from violent
groups. There is even evidence indicating that the son of the Applicant sought
state protection and that the request by police was that “the necessary actions be taken to provide police protection
and avoid future risk to the safety…” of the son (Tribunal Record,
page 119). The information provided did not demonstrate that the Applicant’s
son had exhausted all means of state protection or that there was a lack of interest
or action by the authorities in Colombia. To the contrary, the newspaper
articles presented by the Applicant even mention that the authorities are
conducting investigations with regard to the murders they discuss (AR, pages
54, 63, 70). No intervention from this Court is warranted.
VIII. Conclusion
[20]
The PRRA Officer did not need to hold an oral
hearing as there were no circumstances justifying holding an oral hearing.
Moreover, the decision to reject the Applicant’s PRRA application is reasonable
since the evidence presented by the Applicant is essentially a continuation of
the evidence presented before the RPD. There is no need for this Court to
intervene.
[21]
Neither party proposed a question for
certification.
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