Date: 20060824
Docket: IMM-347-06
Citation: 2006 FC 1004
Ottawa, Ontario, August 24, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
CESAR AUGUSTO SALOMON HERRADA
CARMEN LUZ RAZETO SILVA
ERICKA PAOLO SALOMON RAZETO
CESAR ABDEL SALOMON RAZETO
CESAR NAIF SALOMON RAZETO
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The Federal Court of
Appeal pointed out that where the only evidence before a tribunal linking the
applicant to his claim is that of the applicant himself (in addition, perhaps,
to “country reports” from which nothing about the applicant's claim can be
directly deduced), a tribunal's perception that he is not a credible witness
effectively amounts to a finding that there is no credible evidence.
(As
specified in Sheikh v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 238 (F.C.A.), [1990] F.C.J. No. 604 (QL).)
NATURE OF THE JUDICIAL PROCEEDING
[2]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of the decision by an
immigration officer dated December 13, 2005, dismissing the applicants’
pre-removal risk assessment (PRRA) application.
FACTS
[3]
The applicants, Cesar
Augusto Salomon Herrada, his wife, Carmen Luz Razeto Silva, and their three
children, Ericka Paola Salomon Razeto, Cesar Abdel Salomon Razeto and Cesar
Naif Salomon Razeto, are all citizens of Peru.
[4]
They came to Canada
on September 22, 2002, to claim refugee status, since they allege that they
were persecuted in Peru by members of the “Shining Path”. The claims of
Mrs. Razeto Silva and their children were based on Mr. Salomon Herrada’s
claim.
[5]
Mr. Salomon
Herrada worked as counsel and legal advisor in two universities in Peru.
Mrs. Razeto Silva is a psychologist by training. Their daughter, Ericka,
is a surgeon and worked in a hospital in Peru. Their sons were both studying
before they left for Canada: Abdel was studying law and Naif was completing his
secondary studies.
[6]
In June 2002, a
student at the faculty of law at the San Martin de Porres University (where
Mr. Salomon Herrada was working) was allegedly arrested, accused of being
a member of the Shining Path. The student in question (Carlos Garcia Robles)
admitted that in 2000 he had been involved in a murder of an accountant working
in the accounting faculty, with the complicity of two students from the same
faculty (i.e. Willy Martinez Ramos and Moïses Begazo Malpartida).
[7]
The rector of the
University, Antonio Chang Escobedo, instructed Mr. Salomon Herrada to
review Mr. Garcia Robles’ case in order to find out whether there were other
active Shining Path members at San Martin de Porres University.
[8]
In his research,
Mr. Salomon Herrada noted that the names of Willy Martinez Ramos and
Moïses Begazo Malpartida appeared in Mr. Garcia Robles’ file and he so informed
the rector of the University.
[9]
Around 7 :00
p.m. on June 28, 2002, Willy Martinez Ramos and Moïses Begazo Malpartida went
with three other individuals to Mr. Salomon Herrada’s home and went inside
the house. Mr. Martinez Ramos allegedly held Mr. Salomon Herrada at
gunpoint and threatened to kill him and his family if he continued to
investigate the Shining Path.
[10]
The next day,
Mr. Salomon Herrada says that he filed a complaint with the police and
asked for personal protection for himself and his family. He also reported the
incident to the rector of the University, who gave him the choice of continuing
or abandoning the review of the matter. Mr. Salomon Herrada allegedly
decided to continue his investigation but he took leave from his employment at
the University and hired a bodyguard and a chauffeur to protect him.
[11]
On September 6, 2002,
when he was leaving home to go to work, a gunshot allegedly hit his bodyguard,
who was killed while trying to protect Mr. Salomon Herrada from an attack.
Later the same day, Mr. Salomon Herrada allegedly received a telephone
call telling him that he, not the chauffeur, was the target and that the Shining
Path would kill him and his family.
[12]
Following the death
of his bodyguard, Mr. Salomon Herrada filed a second report with the
police.
[13]
On September 16,
2002, Mr. Salomon Herrada allegedly found a letter on his door threatening
him with death if he failed to withdraw the reports that he had filed.
[14]
In view of the death
of his bodyguard and the threats that he had received, Mr. Salomon Herrada
decided to leave Peru. He withdrew his children from the professional training centres where they were studying and asked his
daughter to leave her job. The entire family left Peru and arrived in Canada on
September 22, 2002, via the United States. They claimed refugee status
immediately upon their arrival in Canada.
[15]
On October 15, 2003,
their refugee claim was denied; the Refugee Protection Division (RPD) of the
Immigration and Refugee Board had determined that their story was not credible
and that State protection was available for them in Peru. Their application for
leave to apply for judicial review was dismissed on March 4, 2004.
[16]
On February 21,
Mr. Salomon Herrada and his family filed a PRRA application. On February
25, they filed an application for permanent residence on humanitarian and
compassionate considerations pursuant to subsection 25(1) of the Act. Both of
these applications were refused by the same immigration officer on December 13,
2005. This is an application for judicial review of the refusal of the PRRA
application. Mr. Salomon Herrada and his family also filed an application
for judicial review of the refusal of the application for permanent residence
on humanitarian and compassionate grounds (docket IMM-346-06).
IMPUGNED DECISION
[17]
The PRRA officer
denied the family’s PRRA application since he determined that they did not face
a danger of torture, or a risk of persecution, or the
risk of cruel and unusual treatment or a risk to their life if they were to
return to Peru.
[18]
Despite the fact that
the PRRA officer accepted evidence establishing that the Shining Path was still
active in Peru, in his opinion Mr. Salomon Herrada had not established
that the Shining Path posed a risk to him and his family personally. To the
contrary, the Shining Path poses a general risk to certain parts of Peru’s
population.
[19]
Further, relying on
the evidence before him, the PRRA officer determined that the Peruvian State is
able to protect its citizens.
ISSUE
[20]
The only issue in
this case is the following:
1. Did the PRRA officer make a reviewable
error in denying the PRRA application of Mr. Salomon Herrada and his
family?
ANALYSIS
Legislative context
|
112. (1) A person in
Canada, other than a person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister for protection if they
are subject to a removal order that is in force or are named in a certificate
described in subsection 77(1).
|
112. (1) La personne se trouvant au Canada et
qui n’est pas visée au paragraphe 115(1) peut, conformément aux
règlements, demander la protection au ministre si elle est visée par une
mesure de renvoi ayant pris effet ou nommée au certificat visé au
paragraphe 77(1).
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[22]
Section 113 of the
Act reads as follows:
|
113. Consideration
of an application for protection shall be as follows:
|
113. Il est disposé de la demande comme il
suit:
|
|
(a) an 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 expected in the circumstances to have presented, at
the time of the rejection;
|
a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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(b) a hearing may be held if the
Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required;
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b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
|
|
(c) in the case of an applicant not
described in subsection 112(3), consideration shall be on the basis of
sections 96 to 98;
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c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
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(d) in the case of an applicant
described in subsection 112(3), consideration shall be on the basis of the
factors set out in section 97 and
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d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des
éléments mentionnés à l’article 97 et, d’autre part:
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(i)
in
the case of an applicant for protection who is inadmissible on grounds of
serious criminality, whether they are a danger to the public in Canada, or
|
(i)
soit du fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
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(ii)
in
the case of any other applicant, whether the application should be refused because
of the nature and severity of acts committed by the applicant or because of
the danger that the applicant constitutes to the security of Canada.
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(ii)
soit, dans le cas de tout autre demandeur, du fait que la demande devrait
être rejetée en raison de la nature et de la gravité de ses actes passés ou
du danger qu’il constitue pour la sécurité du Canada.
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Standard of review
[23]
The standard of
review for determinations bearing on credibility, at the heart of the PRRA
decision, is the standard of patent unreasonableness. The standard of review
for specific determinations of fact falls under the purview of
paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7, which provides that the Court must be persuaded that
the tribunal’s decision or order was based on an “erroneous finding of fact
that it made in a perverse or capricious manner or without regard for the
material before it” (Tekie v. Canada (Minister of Citizenship and
Immigration), 2005 FC 27, [2005] F.C.J. No. 39 (QL), at paragraph 6;
Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] F.C.J.
No. 458 (QL), at paragraph 51; Kim v. Canada Minister of
Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540
(QL), at paragraph 22).
[24]
With respect to the
overall PRRA decision, i.e. the application of the law to the facts by the
immigration officer, the standard of review in this case is that of
reasonableness simpliciter since it is a mixed question of fact and law (Figurado,
supra; Kim, supra, at paragraphs 19-20).
Preliminary remarks
[25]
Mr. Salomon
Herrada and his family filed several documents into evidence which were not
before the PRRA officer, more recent documents that they obtained recently. In
the context of an application for judicial review, this Court can consider only
the evidence which was before the PRRA officer. If these documents were
relevant to their application, Mr. Salomon Herrada and his family should
have sent them to the PRRA officer as soon as they were received, before the
decision was made, so that he could consider them in his review of the
application.
[26]
Mr. Salomon
Herrada and his family allege that since a letter had been sent to them
summoning them to a meeting on January 10, 2006, to update their file, they
expected to be able to file at that meeting additional evidence that they had
just received. However, the decision had already been made on December 13,
2005. Despite the significance of this letter for Mr. Salomon Herrada and
his family, it was not included in the applicant’s record or in the tribunal
record. This Court is therefore not in a position to determine whether there
was a breach of natural justice in that regard.
1. Did
the PRRA officer make a reviewable error in denying the PRRA application of Mr.
Salomon Herrada and his family?
[27]
The only objective of
the PRRA program is to assess the risks that a person could face if they were
to be removed to their native country, in light of new facts arising after the
RPD’s decision on the refugee claim. Paragraph 113(a) of the Act leaves
no room for ambiguity on that point.
[28]
Paragraph 113(a)
of the Act states that an applicant can only file evidence arising after the
refugee claim has been rejected – evidence which had not been reasonably
available.
[29]
Contrary to what is
required by the Act, Mr. Salomon Herrada and his family simply submitted
the same allegations in support of their PRRA application as the allegations
that they presented to the RPD.
[30]
The PRRA officer
nevertheless pointed out that the RPD had determined that these allegations
were not credible. Further, Mr. Salomon Herrada and his family tried to
dispute these findings before this Court, but this Court refused to intervene.
[31]
Mr. Salomon
Herrada and his family seem to be of the view that by adding documents to the
record at the stage of their PRRA application, the RPD’s findings will be
reversed or forgotten. However, the officer deciding a PRRA application is not
sitting on appeal or review of the RPD’s decision (Hussain v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 751
(F.C.T.D.) (QL), at paragraph 12; Ahmed c. Canada (Minister of
Citizenship and Immigration), [2001] 1 C.F. 483, at paragraph 27):
In my opinion, the PCDO process is an administrative one.
As such, the officer's role is limited to a review of the evidence in the
record, including any new documents and submissions presented by the
applicants. Thus, it is not open for the officer to conduct a new assessment of
an applicant's credibility and to reverse the credibility findings of the Refugee
Division. Just as Nadon J. stated in Hussain v. Canada (Minister of
Citizenship and Immigration), that an immigration officer does not sit in
appeal or review of the Refugee Board's decision in a humanitarian and
compassionate application, where its purpose is not to reargue the facts which
were originally before the Refugee Board, I am of the view that the same
applies to a PDRCC application.
(Ahmed, supra)
[32]
Accordingly, when
deciding the PRRA application, the officer was not entitled to proceed to reassess
the credibility of Mr. Salomon Herrada and his family or to set aside the
RPD’s credibility findings. More specifically, the PRRA officer could not rely
on the fact that Mr. Salomon Herrada and his family had been targeted
by the Shining Path, given the RPD’s findings on that issue.
[33]
The PRRA officer
could reasonably dismiss evidence that did not relate personally to
Mr. Salomon Herrada and his family, even if this evidence was subsequent
to the RPD hearing and even if the evidence suggested that the Shining Path was
a powerful organization. This is the case because the evidence does not in any
way corroborate a personalized and objectively identifiable risk for
Mr. Salomon Herrada and his family. They have never managed to persuade
any tribunal that they were actually targeted by the Shining Path.
[34]
In fact, in Sheikh
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238
(F.C.A.), [1990] F.C.J. No. 604 (QL), the Federal Court of Appeal
pointed out that where the only evidence before a tribunal linking the
applicant to his claim is that of the applicant himself (in addition, perhaps,
to “country reports” from which nothing about the applicant's claim can be
directly deduced), a tribunal's perception that he is not a credible witness
effectively amounts to a finding that there is no credible evidence.
[35]
In any event, the
PRRA officer acknowledged that the Shining Path was a powerful organization,
but he noted that the documentary evidence did not suggest that the State was
unable to protect its citizens.
[36]
Having noted that
Mr. Salomon Herrada and his family had not brought any new evidence
suggesting that they would be at risk in their native country, the PRRA officer
could reasonably deny their PRRA application.
[37]
Further, the PRRA
officer noted that the RPD had denied their refugee claim not only because it
had determined that Mr. Salomon Herrada and his family were not credible,
but also because they could avail themselves of State protection.
[38]
After
considering all
of the evidence in the record, the PRRA officer made the same finding. In
his opinion, Mr. Salomon Herrada and his family had not rebutted the
presumption that the State was able to protect them, which was essential for
their application to be accepted.
[39]
Mr. Salomon
Herrada and his family had to adduce clear and convincing evidence that the
State is unable to protect its nationals (Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, at paragraphs 49-50).
[40]
There is nothing that
would suggest that the PRRA officer erred in determining that Mr. Salomon
Herrada and his family had not rebutted this presumption. This Court should not
intervene when the specialized tribunal has assessed the facts by relying on
the evidence before it, even if the Court would have made a different finding.
[41]
In several recent
decisions, this Court has confirmed that there is adequate State protection for
those fearing the Shining Path (Bustamente v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 499, [2002] F.C.J. No. 643
(QL); Mejia v. Canada (Minister of Citizenship and Immigration), 2004 FC
925, [2004] F.C.J. No. 1148 (QL); Mendiz v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1708, [2004]
F.C.J. No. 2100 (QL); Valencia v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1136, [2005] F.C.J. No. 1536 (QL); Villanueva
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1320, [2004]
F.C.J. No. 1619 (QL)).
CONCLUSION
[42]
The PRRA officer had
to assess the risks faced by Mr. Salomon Herrada and his family if they
were to return to Peru. If the PRRA officer considered all of the evidence in
the record and the decision was reasonable, this Court cannot intervene, even
if it would have arrived at a different result. The application for judicial
review of the PRRA decision is therefore dismissed.
JUDGMENT
THE
COURT ORDERS that
1. The
application for judicial review be dismissed;
2. No
serious question of general importance be certified. The parties did not
propose any question for certification and the Court finds that this matter
turns solely on its own facts.
“Michel M.J. Shore”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
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