Docket: IMM-5038-15
Citation:
2017 FC 13
Ottawa, Ontario, January 4, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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MARIA DIAZ
CASTRO
BRIGETTE LORENA
BALLESTEROS DIAZ
JULIETTE JOHANA
ESPITIA DIAZ
MARIAN ESPITIA
DIAZ
JUAN ALEJANDRO
MONTOYA ESPITIA
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Applicants
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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.
Overview
[1]
Ms. Maria Brigitte Diaz Castro [principal
applicant], her daughter Brigette Lorena Ballesteros Diaz, her niece Juliette
Johana Espitia Diaz and Juliett’s two children Mariana Espitia Diaz and Juan
Alejandro Montoya Espitia [the applicants] are citizens of Colombia. They
arrived in Canada in March 2013 and initiated a refugee claim on arrival
alleging they had been targeted by the Revolutionary Armed Forces of Colombia
[FARC].
[2]
The claim was rejected by the Refugee Protection
Division [RPD] of the Immigration and Refugee Board of Canada on the basis that
aspects of the principal applicant’s testimony were not credible and the
applicants had failed to rebut the presumption of adequate state protection.
The RPD decision was upheld on judicial review by this Court.
[3]
The applicants applied for a Pre-Removal Risk
Assessment [PRRA] and submitted a number of documents in support of their
application. The applicants submit that in rejecting the application, The PRRA
Officer [Officer] erred in failing to address their request for an oral hearing
and that the state protection findings were unreasonable in light of the
evidence. They ask that the negative decision be set aside and the matter returned
for redetermination.
[4]
This application raises the following issues:
A.
Did the Officer identify and apply the correct
test when considering the adequacy of state protection?
B.
Did the Officer err by not addressing the
request for an oral hearing?
[5]
I am of the opinion that the Officer applied a
state efforts test when considering the question of state protection. The
decision must be set aside on this basis alone. The application is granted for
the reasons that follow.
II.
Standard of Review
[6]
Justice John O’Keefe in Dawidowicz v Canada
(Citizenship and Immigration), 2014 FC 115 and Chief Justice Paul Crampton
in Ruszo v Canada (Minister of Citizenship and Immigration), 2013 FC
1004 [Ruszo], concluded that in considering whether or not a
decision-maker identified the appropriate test for state protection, the
correctness standard is to be applied by the Court.
III.
Analysis
A.
Did the Officer identify and apply the correct
test when considering the adequacy of state protection?
[7]
The respondent argues that the Officer
reasonably concluded that the applicants had failed to rebut the presumption of
adequate state protection. In advancing this position, the respondent notes
that the Officer assessed the 2014 United States Department of State Human
Rights Practices Report [US DoS Report] and based on that review, concluded
that Columbia is actively addressing issues pertaining to FARC criminality and
corruption. The respondent further argues that the Officer did consider the documentary
evidence the applicants relied on to argue inadequate state protection but assigned
it little weight as it did not relate to the applicants’ personalized risks or demonstrate
that anyone in Colombia had a continued vested interest in the applicants. In
effect, the respondent argues that the Court is being asked to reweigh the
evidence. I am not convinced.
[8]
After reviewing the applicants’ evidence and
determining that it deserved little weight, the Officer then quoted at length
from the US DoS Report. The extracts taken from the Report highlight problems
in Columbia relating to the justice system in general and more specifically to
the state’s limited ability to prosecute individuals accused of human rights
abuses and the occurrence of extrajudicial killings. The extracts make express
reference to the FARC, noting FARC involvement in the infringement of citizens’
privacy rights, restrictions on movement and the responsibility of illegal
armed groups for most instances of forced displacement in Colombia. The report
describes recent state efforts in the area of state protection of citizens. It references
continued efforts to increase resources for the Attorney General’s office, the
prioritization of human rights cases and the implementation of a new strategy
when analyzing human rights and other cases. Despite these efforts the Report
concludes “[n]onetheless, a high rate of impunity
persisted.”
[9]
In Kumati v Canada (Minister of
Citizenship and Immigration), 2012 FC 1519, Justice O’Keefe stated at
paragraphs 27 and 28:
[27] … “adequate protection” and “ serious
efforts at protection” are not the same thing. The former is concerned with
whether the actual outcome of protection exists in a given country, while the
latter merely indicates whether the state has taken steps to provide that
protection.
[28] It is of little comfort to a
person fearing persecution that a state has made an effort to provide
protection if that effort has little effect. For that reason, the Board is
tasked with evaluating the empirical reality of the adequacy of state
protection.
[10]
The Officer correctly identified the applicants’
burden of providing clear and convincing evidence to rebut the presumption of
state protection and the requirement to approach the state for protection in
situations where that protection might be reasonably forthcoming. However, I am
not convinced that the Officer recognized that in assessing the adequacy of
state protection and whether the burden had been satisfied, there was a
requirement to do more than simply consider state efforts. The Officer did not
address how state efforts might provide operational level protection to the
applicants and individuals in a similar situation, a necessary step in the
analysis if the Officer had been applying an adequacy of state protection test (Camargo
v Canada (Minister of Citizenship and Immigration), 2015 FC 1044 at para
35).
[11]
The failure to address the adequacy of state efforts
at the operational level is a reviewable error and on that basis alone, the
application is granted.
B.
Did the Officer err by not addressing the
request for an oral hearing?
[12]
It is not necessary that I consider the
Officer’s failure to address the request for an oral hearing. However, I am of
the opinion that the failure to do so in the specific context of this application
is troubling.
[13]
The applicants sought an oral hearing in part
because this Court, on judicial review of the RPD decision, held that the
negative credibility findings rendered by the RPD were unreasonable (Castro
et al v Canada (Minister of Citizenship and Immigration), 2015 FC 132 at
paras 9 - 11).
[14]
In the PRRA decision, there is no
acknowledgement of the request for an oral hearing and the issue is not
addressed. While it may well have been reasonably open to the Officer to refuse
the request for an oral hearing, the failure to acknowledge and address the
request in the unique circumstances of this case undermines the transparency of
the decision.
IV.
Conclusion
[15]
I am of the opinion that the Officer erred in
addressing the issue of state protection and on that basis the decision is set
aside.
[16]
The parties have not identified a question of
general importance, and none arises.
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