Docket: IMM-2879-16
Citation:
2017 FC 265
Ottawa, Ontario, March 6, 2017
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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VICTOR EDGARDO
SANTOS CHINCHILLA LESI MARISOL CARDOZA HERNANDEZ VICTOR MAURICIO SANTOS
CARDOZA
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Applicants
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
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Respondent
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ORDER AND REASONS
[1]
The Applicants, a family of three (the principal
applicant, Mr. Chinchilla, his spouse, Ms. Hernandez, and their 12 year
old son, Victor) are citizens of Honduras. They seek judicial review of a
decision of a Senior Immigration Officer, dated April 26, 2016, rejecting their
Pre-Removal Risk Assessment application (PRRA application) on the basis that
they had provided insufficient new evidence of risk.
[2]
The relevant facts can be summarized as follows.
The Applicants entered Canada on August 9, 2011 and claimed Canada's protection
on the basis that they fear persecution and torture in Honduras as a result of
Mr. Chinchilla having witnessed, on November 26, 2003, the murder of a
journalist who was a friend of his.
[3]
More particularly, they alleged that:
a.
A politician might have been involved in the
murder as Mr. Chinchilla had seen him speak with the murdered prior to the
incident;
b.
A few weeks after the journalist’s death, Mr.
Chinchilla attempted to file a police report but the report was not taken;
c.
In July 2006, Mr. Chinchilla began receiving
death threats in various forms, which led him to leave Honduras for the United
States (US) on May 25, 2007;
d.
Following Mr. Chinchilla’s departure for the US,
Ms. Hernandez began receiving threatening phone calls from people looking for
Mr. Chinchilla;
e.
She too, attempted to file a police report but
to no avail; and
f.
Fearing for her life and that of her son’s, Ms.
Hernandez travelled to the US with her son on December 23, 2007 and joined Mr.
Chinchilla.
[4]
On November 7, 2012, the Immigration and Refugee
Board of Canada, Refugee Protection Division (the RPD), dismissed the
Applicants' protection claim. The RPD found that the Applicants had failed to
provide sufficient credible and trustworthy evidence to support their fear of
returning to Honduras. It also held that their failure to claim protection in
the US, where they had lived for more than three years before entering Canada,
was inconsistent with persons who fear of returning to their home country.
Finally, the RPD drew a negative inference from the fact Ms. Hernandez and her
son returned to Honduras in February 2008 and stayed there for nearly a year
before traveling back to the US despite allegedly being afraid of returning to
Honduras.
[5]
Leave to judicially review the RPD's decision
was denied by the Court on March 12, 2013.
[6]
On September 11, 2015, the Applicants filed
their PRRA application. In support of their application, they submitted what
they claimed to be new evidence of the risk they face upon returning to
Honduras. That documentation consists of:
a.
A statement from a local government official,
dated July 7, 2015, indicating that Mr. Chinchilla was forced to leave
Honduras because he is a key witness to the murder of the journalist German
Antonio Morales whose murderers have still not been located;
b.
A statement from the president of the Community
Council of Santa de Copan in Honduras, dated August 14, 2015, indicating that
the Community Council witnessed the threats that led the Applicants to leave
Honduras;
c.
A statement from another witness of the
journalist’s murder, dated January 27, 2015, indicating that he went in hiding
after the murder, that the murderers are still on the run and that Mr.
Chinchilla is most likely to be killed if he returns to Honduras;
d.
Statements from a friend and a neighbour of Mr.
Chinchilla in Honduras, dated January 27, 2015, indicating that the Applicants
suffered serious death threats and had to leave Honduras;
e.
A police report, dated June 23, 2015 (the Police
Report), regarding the murder of one of Mr. Chinchilla’s friends, who was
allegedly shot in front of his son by people who were looking for Mr.
Chinchilla and who afterward stated out loud that they had shot the wrong
person;
f.
News articles about that friend’s murder, as
well as internet news articles on the breakdown of basic human rights and the
high rate of rampant crime and murders in Honduras; and
g.
Letters from Mr. Chinchilla and Ms. Hernandez’s
employers in Canada and from community church leaders about the Applicants’
good character and establishment in Canada.
[7]
The Officer found that the Applicants had not
satisfied the burden set out in paragraph 113(a) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) which provides that a PRRA
applicant whose claim to refugee protection has been rejected “may present only new evidence that arose after the rejection
or was not reasonably available, or that the applicant could not reasonably
have been excepted in the circumstances to have presented, at the time of the
rejection”.
[8]
The Officer held that the Applicants were
restating, materially, the same circumstances which had been articulated before
the RPD and that none of the articles, statements and letters submitted in
support of the PRRA application was evidence of a new risk development which is
personal to the Applicants and which has arisen since the date of the RPD's
decision.
[9]
With respect to the Police Report, the Officer
found it problematic as it did not read like a professional police statement
would be expected to read as some parts sounded as having been written by the
complainant - the victim's son - while others read as if they had been written
by police officers. Furthermore, the Officer noted that the original copy in
Spanish was not signed by anyone whereas the English translation was and that
no typed name appeared for any police officer.
[10]
The Officer, noting that it was not his role to
conduct a second refugee hearing, denied the Applicants' PRRA application.
[11]
The Applicants claim that the Officer's decision
is both unreasonable and procedurally unfair and should, as a result, be
quashed and the matter remitted back to a different immigration officer for
reconsideration. They also contend that the Officer's decision is fatally
flawed as the Officer failed to consider the interest of Mr. Chinchilla and Ms.
Hernandez’s Canadian-born child.
[12]
With respect, I see no reason to interfere with
the Officer's decision.
[13]
It is trite law that, questions related to
procedural fairness are reviewable on the correctness standard (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 43, [2009] 1
SCR 339) whereas “issues relating to the treatment of
the evidence made by a PRRA officer are reviewable on a standard of
reasonableness as such issues are fact-driven and attract deference” (Nguyen
v Canada (Citizenship and Immigration), 2015 FC 59 at para 4 [Nguyen]).
As is well-settled, the standard of reasonableness is concerned mostly with the
existence of justification, transparency, and intelligibility within the
decision-making process and with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[14]
First, the Applicants' claim that the Officer
committed a breach of procedural fairness by failing to consider their new
evidence is without merit. As pointed out by the Court in Nguyen, PRRA
officers benefit from a presumption that they have considered all the evidence
before them (Nguyen, at para 5).
[15]
Here, I am satisfied that the Applicants have
failed to rebut that presumption and that while the Officer may not have quoted
all the documentation, he nevertheless referred to it as appears from this
passage of the Officer's decision:
The submissions I have been provided with
contain attestations and letters from people who knew the applicants in
Honduras as well as here in Canada as well as copies of internet news articles
which have been translated on the internet. I find that none of this
documentation is evidence of a new risk development which is personal to the
applicants and which has arisen since the date of the Board’s decision. The
documentation refers to the incidents which had been considered by the Board.
The news articles do not mention the applicants or refer to their personal
circumstances.
(PRRA decision, p. 4)
[16]
The Officer also referred in detail to the
Police Report. The Applicants' claim that the Officer breached procedural
fairness by failing to consider their new material shall therefore be
dismissed.
[17]
The Applicants also submit that the Officer
failed to provide adequate reasons in reaching his decision. In Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland Nurses], the Supreme Court of Canada held that
reasons are sufficient as long as they allow the reviewing court to understand
why the decision-maker made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, even though they do not
include “all the arguments, statutory provisions,
jurisprudence or other details the reviewing judge would have preferred”
or “an explicit finding on each constituent element,
however subordinate, leading to its final conclusion” (Newfoundland
Nurses, at para 16). It also held that reasons for decision need not be
perfect and that the reviewing court, although it ought not substitute its own
reasons may, if it find it necessary, “look to the
record for the purpose of assessing the reasonableness of the outcome” (Newfoundland
Nurses, at paras 15 and 18).
[18]
Here, I am satisfied that the Officer's reasons
meet the threshold set out in Newfoundland Nurses as they allow the
Court to understand why the Officer made his decision, even though they could
have been more detailed.
[19]
Therefore, I find that there was no breach of
the duty of fairness owed to the Applicants.
[20]
I am also satisfied that it was reasonably open
to the Officer to find that the Applicants, as failed refugee claimants, had
provided insufficient evidence of a new risk, as required by paragraph 113(a)
of the Act which, as indicated previously, limits the evidence PRRA
officers may consider to new evidence that arose after the rejection of the
refugee claim or that was not reasonably available at that time.
[21]
In Raza v Canada (Citizenship and
Immigration), 2007 FCA 385 [Raza], the Federal Court of Appeal set
out the test for determining whether evidence provided by PRRA applicants
qualifies as new evidence under paragraph 113(a):
[13] As I read paragraph 113(a), it 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. Paragraph 113(a) asks a number of questions, some expressly and
some by necessary implication, about the proposed new evidence. I summarize
those questions as follows:
1. Credibility: Is the
evidence credible, considering its source and the circumstances in which it
came into existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving or
disproving a fact that is relevant to the claim for protection? If not, the
evidence need not be considered.
3. Newness: Is the evidence
new in the sense that it is capable of:
(a) proving the current state
of affairs in the country of removal or an event that occurred or a
circumstance that arose after the hearing in the RPD, or
(b) proving a fact that was
unknown to the refugee claimant at the time of the RPD hearing, or
(c) contradicting a finding of
fact by the RPD (including a credibility finding)?
If not, the evidence need not be
considered.
4. Materiality: Is the
evidence material, in the sense that the refugee claim probably would have
succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5. Express statutory
conditions:
(a) If the evidence is capable
of proving only an event that occurred or circumstances that arose prior to the
RPD hearing, then has the applicant established either that the evidence was
not reasonably available to him or her for presentation at the RPD hearing, or
that he or she could not reasonably have been expected in the circumstances to
have presented the evidence at the RPD hearing? If not, the evidence need not
be considered.
(b) If the evidence is capable
of proving an event that occurred or circumstances that arose after the RPD
hearing, then the evidence must be considered (unless it is rejected because it
is not credible, not relevant, not new or not material).
[14] The first four questions, relating
to credibility, relevance, newness and materiality, are necessarily implied
from the purpose of paragraph 113(a) within the statutory scheme of the IRPA
relating to refugee claims and pre removal risk assessments. The remaining
questions are asked expressly by paragraph 113(a).
[22]
Here, I find that the letters and statements
from Canadian residents regarding the Applicants' establishment in Canada were
simply not relevant to the PRRA application and, therefore, do not qualify as
new evidence under paragraph 113(a). The letters and statements made by people
in Honduras regarding the events that led the Applicants to flee that country,
do not qualify either as new evidence under paragraph 113(a) since the
Applicants have failed to establish that this evidence was not reasonably
available at that time the RPD dismissed their refugee claim. This issue was
not even addressed by the Applicants.
[23]
As for the news articles on country conditions,
they do not suggest that there has been a change since the RPD considered the
Applicants' refugee claim. They do not mention either the Applicants or refer
to their particular circumstances. As a result, they do not assist the
Applicants in establishing that they now face a new risk of harm if they were
to return to Honduras.
[24]
With respect to the Police Report, I find that
it was reasonably open to the Officer to assign it little weight. As the
Respondent rightfully points out, the reasons show that the Officer had
concerns about the authenticity and probative value of that document and that
without further evidence to explain it or provide information about the
surrounding circumstances, the Officer's finding that it was insufficient
evidence of a new risk was within the range of reasonable outcomes.
[25]
As we have seen, paragraph 113(a) of the Act
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” (Raza, at para
13). In light of the RPD significant findings in this case, it was open to the
Officer, in my view, to conclude that the Police Report, given its
shortcomings, was insufficient to overcome these findings.
[26]
Finally, the Applicants' contention that the
Officer erred in failing to consider the possible impact of their removal on
their Canadian-born child is without merit. As pointed out by the Respondent,
the Federal Court of Appeal in Varga v Canada (MCIC), 2006 FCA 394 [Varga],
clearly held that immigration officers have no obligation to consider, in the
context of a PRRA application, the interests of a Canadian-born child when
assessing the risks involved in removing at least one of the parents of that
child (Varga, at para 20).
[27]
For all these reasons, the Applicants' judicial
review application will be dismissed. Neither party proposed a question for
certification. None will be certified.
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