Docket: IMM-567-16
Citation:
2016 FC 938
Ottawa, Ontario, August 17, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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LUIS CARLOS
SANCHEZ JIMENEZ MARTHA LUCIA PAZ PAREDES
JUAN SEBASTIAN
SANCHEZ PAZ AND MARIA JOSE SANCHEZ PAZ
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicants apply pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c-27
[IRPA], for leave to commence an application for judicial review of a negative
decision of a Pre-Removal Risk Assessment [PRRA] Officer dated December 9,
2015, finding that the Applicants are neither Convention Refugees nor are
persons in need of protection under sections 96 and 97(1) of the IRPA.
II.
Background
[2]
The background facts leading up to the
Applicants’ failed PRRA application are set out in the negative decision of
this Court concerning the Applicants’ judicial review of their Refugee
Protection Division [RPD] claim, dated December 5, 2014, in IMM-3854-13, as
follows:
- The Applicants are citizens of
Colombia;
- In December 2006, Mr. Jimenez started
operating Compusales and Supplies Inc., a business which imported computers
from the United States to Colombia;
- In November 2008, Mr. Jimenez started
to receive threatening phone calls from individuals of a paramilitary group,
requesting him to refund a debt owed to them by his deceased business partner
[the debt];
- On November 27, 2008, while standing
next to his car on the side of the road, Mr. Jimenez was assaulted by members
of the Baez Clan, a paramilitary group, riding motorcycles, who also attempted
to abduct him;
- In January 2009, seven members of the
Baez Clan requested Mr. Jimenez to launder money through his business in the
United States as part of the refunding of the debt;
- On February 2, 2009, Mr. Jimenez
travelled to the United States for a six-day business trip, did not then seek
refugee protection and returned to Columbia;
- Between February and March 2009,
illegal funds were transferred to Mr. Jimenez’s American bank accounts and he
received harassing phone calls from individuals asking him for payments. As per
the January 2009 arrangement, Mr. Jimenez purchased computers in the United
States to return the laundered money to the Baez Clan;
- From March to April 2009, Mr. Jimenez
received more that 150 phone calls and he was told in April that his failure to
deliver the money would lead to his death or to the kidnapping of his family;
- In response, Mr. Jimenez closed his
American bank accounts;
- In May 2010, Mr. Jimenez notified the
Colombian police anonymously about his predicament, but decided not to follow
through with the meeting proposed by the police officer as he found said
proposal unreliable;
- Mr. Jimenez wrote to both the
President’s Office and the Information and Financial Analysis Unit about his
predicament, but received no support;
- On July 14, 2010, Mr. Jimenez met with
his lawyer, two agents of the United States Drug Enforcement Administration
[the DEA] in Columbia, Jimmy Alverio and Luis Perez where it was decided that
the Applicants would travel to the United States and enter a protection
program;
- On July 21, 2010, a DEA agent informed
Mr. Jimenez that the DEA had started an investigation related to the activities
of the narcotics traffickers that he had been involved with involuntarily, and
that he was interested in his information, but because the investigation was
related to narcotics-trafficking rather that money laundering, the Applicants
may not access the protection program in the United States as previously
expected;
- On July 27, 2010, the Applicants fled
from Colombia to the United States;
- On August 12, 2010, the Applicants left
the United States, requested entry into Canada and claimed refugee protection;
- The Applicants based their claim on
the risk to their life or a risk of cruel and unusual treatment or punishment,
on membership in a particular social group and on political opinion;
- On May 9, 2013, the RPD rejected the
Applicants’ claim based on “issues of credibility, failure to claim protection
elsewhere, and re-availment”;
[3]
To support their continued risk before the PRRA
Officer, the Applicants submitted new evidence. The PRRA Officer indicated that
he accepted all of the new evidence, except for:
- a documentation
package presented to the RPD during their hearing in May 2013, because it
pre-dates the decision of the RPD; and
- the letter of Dr.
Ana Margarita Duran De Leon, dated March 24, 2011, because it also pre-dates
the decision of the RPD.
[4]
However, it appears that the PRRA Officer failed
to consider or analyze the official letter from the DEA’s Acting/Regional
Director, Andean Region, Mr. Donahue, dated February 5, 2015 [the DEA Letter].
[5]
The PRRA Officer found that the accepted new
evidence did not overcome the credibility concerns of the RPD, nor provide
sufficient evidence of a forward-looking risk to the Applicants.
[6]
In addition, the PRRA Officer reviewed the
documentary evidence and found that the Applicants submitted country condition
documents that were not linked to their personalized forward-looking risks. The
documentary evidence regarding Colombia and the country conditions did not
support that the Applicants personally faced a risk to life, or of cruel and
unusual treatment or punishment. The Applicants faced generalized risk.
Consequently, the PRRA Officer refused the application.
III.
Issues
[7]
The issues are:
- Was the PRRA Officer’s decision in rejecting certain evidence
as not being new reasonable?
- Was the PRRA Officer’s
decision that the Applicants failed to link country documentation to their
specific circumstances reasonable?
IV.
Standard of Review
[8]
The standard of review is reasonableness.
V.
Analysis
A.
Was the PRRA Officer’s decision in rejecting
certain evidence as not being new reasonable?
[9]
Evidence is not new merely because it arises
after the Board hearing. It must relate to “new
developments, either in country conditions or in the applicant's personal
situation.” The focus is not on the date the evidence was produced (Raza
v Canada (MCI), 2007 FCA 385 [Raza]; Elezi v Canada (MCI),
2007 FC 240 [Elezi]; Win v Canada (MCI), 2008 FC 398 [Win]).
[10]
Evidence does not have to disclose new risks. It
can relate to risks that an applicant claimed at his or her Board hearing.
Where there is evidence that arises after the Board decision, it is an error
for a PRRA officer not to assess that evidence if the reason the officer gives
for not doing so is that the Board had already assessed the alleged grounds to
which the evidence relates (Elezi, above; Win, above; Adeshina
v Canada (MCI), 2015 FC 15 at para 11; Djordevic v Canada (MCI),
2014 FC 13 at para 17).
[11]
A negative refugee determination by the Board
must be respected by the PRRA Officer, if the evidence presented to the PRRA
Officer had been presented to the Board, that is, unless there is new evidence
of facts that might have affected the outcome of the Board hearing. Subsection
113(a) of the IRPA asks a number of questions, including whether the evidence
is relevant, whether it is new and whether it is material (Raza, above,
at para 13).
[12]
Whether evidence is “new”
depends on a number of factors. Does the evidence:
a)
prove the current state of affairs in the
country of removal, or an event that occurred or a circumstances that arose
after the hearing in the RPD;
b)
prove a fact that was unknown to the refugee
claimant at the time of the RPD hearing; or
c)
contradict a finding of fact by the RPD
(including a credibility finding)?
[13]
The Respondent takes the position that the
letters of the Colombian prosecutor, Dr. Ana Margarita Duran De Leon, and the
DEA Officer, Mr. Donahue, were not new because they could have been made
available before the RPD hearing.
[14]
However, the RPD had rejected the Applicants’
claim entirely on inter-related grounds of credibility and a lack of subjective
fear. One of the RPD’s key credibility findings was that there was no “official” corroborative evidence from the DEA. The
RPD noted that much of the evidence from the DEA, adduced before the RPD, was
in the form of informal emails.
[15]
As a material document in support of their PRRA
application, the Applicants obtained and adduced the DEA Letter, which appears
to corroborate their forward-looking risk scenario in Colombia and their need
for protection.
[16]
The PRRA Officer erred on focusing on whether
there was a new risk, as opposed to whether there was new evidence concerning a
risk that the Applicants had asserted before the RPD.
[17]
The PRRA Officer refused to consider the DEA Letter,
because she was of the view that it did not comply with the definition of new
evidence. The PRRA Officer stated that the risks the Applicants had identified
in their PRRA submissions were “essentially the same”
as those assessed by the RPD. The PRRA Officer noted that the Applicants’
credibility had been “thoroughly impugned” by
the RPD and that the Applicants “have simply re-stated
their case, and they have not addressed this issue”.
[18]
This is simply wrong. The PRRA Officer
misapprehended the law, which allows the Applicants to assert new evidence on a
PRRA application that seeks to refute credibility findings of the RPD.
[19]
Moreover, while the Respondent argues that there
was insufficient linkage between the DEA Letter and the specific risk faced by
the Applicants due to the Baez Clan and their paramilitary group, I find that
while there is no specific linkage between the DEA Letter, the Baez Clan, and
the specific risk to the Applicants because of the Baez Clan, the record
implicitly, if not clearly, indicates that such a linkage exists.
[20]
The Applicants also adduced a letter from a
Colombian prosecutor, with whom the Applicants had dealings with while in
Colombia, who appears to corroborate the risk the Applicants face, and who made
submissions as to why the information in the letter should be considered new
evidence. The PRRA Officer also did not deal with this evidence, because she
was of the view that it was not new.
[21]
I find that the PRRA Officer was wrong in her
conclusion that the Applicants had not addressed the RPD’s adverse credibility
determination through new evidence consisting of the above two impugned
letters. The Applicants provided an explanation of why the DEA Letter and the
prosecutor’s letter contradicted key adverse credibility findings of the RPD,
and why the prosecutor’s letter was not available earlier.
B.
Was the PRRA Officer’s decision that the
Applicants failed to link country documentation to their specific circumstances
reasonable?
[22]
The PRRA Officer found that the Applicants’
submissions “describe the general country conditions in
Colombia, and they have not linked this evidence to their personalized,
forward-looking risks”.
[23]
The Applicants argue that they linked the
country documentation they adduced in their PRRA application to their own personal
situation. They submitted that there was continued risk and a lack of
protection for people in their circumstances and who fit their risk profile.
[24]
The record shows that there was a direct linkage
of country documentation to the Sanchez Jimenez family. In addition, given I
find that the DEA Letter from Mr. Donahue is accepted as new evidence, it is
also apparent that, notwithstanding country conditions in Colombia offering
safe refuge to some people at risk from paramilitary groups, such is probably
not the case for the Applicants. The PRRA Officer failed to deal with this
argument and the two letters. The rejection of the two letters as new evidence
was unreasonable.
[25]
I agree with the Applicants that the PRRA
Officer’s finding that their personalized risk was not present is not
reasonable.
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