Docket: IMM-5003-14
Citation:
2015 FC 768
Ottawa, Ontario, June 19, 2015
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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ADRIANA CAICEDO
HURTADO AND
ANDREW VALENCIA
(BY HER LITIGATION GUARDIAN,
ADRIANA CAICEDO
HURTADO)
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND
IMMIGRATION AND
THE MINISTER OF
SAFETY AND
EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
[1]
This is an application for the judicial review
of a Pre-Removal Risk Assessment [PRRA] decision by which the protection claims
of Adriana Caicedo Hurtado and her son, Andrew Valencia, were denied.
[2]
Ms. Hurtado is a citizen of Colombia and
her son is a citizen of the United States. Ms. Hurtado brought her claim
to protection on the basis of an alleged risk of persecution at the hands of
the Revolutionary Armed Forces of Colombia [FARC] and on the basis of her
ethnicity as an Afro-Colombian single parent. She claimed that she had been
attacked and wounded by the FARC during an assault on the family home in 1996.
At the same time her mother was killed.
[3]
Within weeks Ms. Hurtado left Colombia for the
United States. For almost 14 years she lived in the United States without
status. During that time she lived under a false identity and amassed a
significant criminal record under her alias.
[4]
Ms. Hurtado and her son entered Canada in 2010
and claimed refugee protection. Their claims were denied by the Refugee
Protection Division [RPD] on December 14, 2012. Ms. Hurtado’s claim was
denied on the basis of serious criminality and her son’s because he has American
citizenship.
[5]
In this proceeding, the Applicants challenge a
Pre-Removal Risk Assessment [PRRA] decision which denied their claims to
relief.
[6]
The PRRA Officer refused the Applicants’
claims, in part, because he did not believe that the 1996 assault on Ms.
Hurtado was connected to the FARC and because he rejected Ms. Hurtado’s “contention that the 1996 attack(s) indicate a significant
threat to her now”. Ms. Hurtado’s asserted ethnicity-based risk was
denied on the following basis:
There is discrimination against
Afro-Colombians but this is largely in the context of persons displaced by FARC
or other actors. That is not Ms. Caicedo Hurtado’s situation.
She alleged risk as a single mother or
Afro-Colombian single mother but did not provide persuasive evidence of a
personalized risk on this basis.
[7]
As a citizen of the United States, Andrew was
found not to be at risk on a return to that country.
[8]
Counsel for Ms. Hurtado argues with considerable
conviction that the Officer had a legal obligation to conduct an oral hearing
before dismissing these claims. I agree with counsel for the Minister that the
standard of review that applies to the Officer’s discretion under section 113
of the Immigration Refugee and Protection Act, SC 2001, c 27, [IRPA] and
section 167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations] is reasonableness: see Kioko v Canada, 2014
FC 717 per Justice George Locke at paras 15-19, 244 ACWS (3d) 175.
[9]
In support of Ms. Hurtado’s argument for an
oral hearing, she points to several negative credibility references in the
decision including the statement “[t]here are
credibility problems with Ms. Caicedo Hurtado’s evidence”. There is not
much doubt that the Officer did not believe those parts of Ms. Hurtado’s story
that linked the 2006 attack to the FARC. This is the type of finding that could
justify an oral hearing under section 113 of the IRPA.
[10]
The Officer did not, however, base the decision
only on his assessment of Ms. Hurtado’s credibility. He also determined that,
even if Ms. Hurtado’s evidence about the involvement of the FARC was true,
there was nothing before him to indicate that the FARC would have the means or motivation
to pursue her after 19 years.
[11]
It strikes me that after being away from
Colombia for almost two decades without apparent incident, it was entirely
reasonable for the Officer to conclude that any personal risk had fully
dissipated. Because the Officer found there to be no extant FARC risk in
Colombia his credibility findings were not determinative of the claim to relief
and no oral hearing was required.
[12]
Counsel for Ms. Hurtado also takes issue with
the thinness of the Officer’s reasons for rejecting the asserted ethnicity risk
and the risk to Andrew. It is true that the reasons the Officer gave are sparse
but in the context of the tendered evidence they were sufficient to reasonably
dispose of these arguments. The country-condition evidence disclosed only
generalized risks of harm arising mostly in the context of ongoing armed
conflict. For those not caught up directly in hostilities, the problems faced
by Afro-Colombian women and their children were described as forms of
discrimination. There was also absolutely no factual basis to support an
argument that at seven years of age Andrew would face a risk of forced
recruitment into the FARC. The Officer noted the presence of Ms. Hurdato’s five
sisters in Colombia and it is reasonable for him to assume the family can
provide support and assistance if and when it is required.
[13]
It is also argued that the Officer erred by
citing the lack of expected corroborating evidence in support of Ms. Hurtado’s
risk narrative. It is, however, not an error for a decision-maker to consider
the absence of readily available corroboration in assessing the merits of a
claim. Ms. Hurtado had an extended family network in Colombia who would have
first-hand knowledge of her history. Furthermore, given the serious nature of
the events she described, the failure to produce verifiable third-party reports
establishing a link to the FARC (eg. newspaper accounts) and to include this
information in the employment reference letter are inexplicable. It was not an
error for the Officer to have expected more and to discount the claim when this
expected evidence was not produced.
[14]
For the foregoing reasons, this application for
judicial review is dismissed.
[15]
Neither party proposed a certified question and
no issue of general importance arises on this record.
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