Date: 20061030
Docket: IMM-436-06
Citation: 2006 FC 1306
Ottawa, Ontario, October 30,
2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JOSE JULIAN RODRIGUEZ QUIROGA
MIRIAM DEL ROSARIO PORTILLO FAJARDO
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of
the Minister’s negative Pre-Removal Risk Assessment (PRRA) decision dated
November 24, 2005 wherein it was determined that the applicants would not be
subject to risk of torture or persecution and do not face risk to life or cruel
and unusual treatment or punishment if removed to Guatemala, their country of
citizenship. The PRRA decision considered whether the applicants are at risk of
persecution if returned to Guatemala based on the family name and home town they share with an unpopular
past President of that country.
Background
[2]
The applicants have lived in a common-law
relationship since January 2000. The principal applicant, Miriam del Rosario
Portillo Fajardo, was born and lived in the Guatemalan city of Zacapa. The past President of Guatemala, Alfonso Portillo Cabrera, shares
her family name Portillo. The past President was also born and lived in Zacapa.
Although not related to the past President, Ms Portillo Fajardo claims that she
and her family members have been persecuted in Guatemala because of a perceived family relationship with the past President.
This perception is reportedly fuelled by local knowledge of the political
involvement of Ms Portillo Fajardo’s father, Freddy Portillo.
[3]
In June 2000, then President Portillo became involved
in a controversy surrounding the execution of four ex-gang and ex-guerrilla
members. President Portillo declined to exercise his discretion to commute the gang
members’ death sentences. The applicants assert that the President’s
controversial decision sparked a period of intimidation, political persecution
and kidnappings throughout Guatemala and in particular against the President’s family members.
[4]
The applicants outline several examples of this
persecution and its effect on them and their family members. The examples range
from having their home vandalized and car tires slashed to receiving
threatening phone calls to being chased and attacked by armed government
security agents while driving home from the cinema. After coming to Canada, the applicants learned that Ms. Portillo
Fajardo’s brother-in-law had been assassinated in the same Guatemala City home in which Ms Portillo
Fajardo lived after leaving Zacapa. According to Guatemalan news sources, the
assassination was reported as involving the husband of President Portillo’s
niece.
[5]
The applicants raised the issue of surname
confusion before the Refugee Protection Division of the Immigration and Refugee
Board (RPD). The RPD found several issues which discredited the applicants’
testimony and the trustworthiness of certain documents. The RPD found the applicants’
claim not to be plausible or credible.
[6]
Mr. Justice Phelan dismissed the applicants’
application for judicial review of the RPD determination: Quiroa
v. Canada (Minister of Citizenship and Immigration), 2005 FC 271; 30 Admin. L.R. (4th)
316. At paragraph 7, Justice Phelan found that the RPD was alive to the
issue of name confusion and sensitive to the father’s political involvement.
[7]
In the PRRA decision under review, the PRRA
officer concluded that there was insufficient credible new evidence to persuade
her to arrive at a different conclusion than the original RPD panel.
Issue
[8]
Did the PRRA officer err in ignoring new evidence
presented by the applicants to explain discrepancies or concerns in their
evidence before the RPD?
Analysis
[9]
The applicants argued that the PRRA officer
failed to take into account as new evidence explanations provided by the applicants
in response to concerns raised by the RPD in its negative decision. The applicants
argued that the PRRA officer’s references in its decision to some but not all
facts stated within the applicants’ statutory declaration demonstrate that the
PRRA officer failed to consider all of the new evidence.
[10]
The PRRA officer refers at page 5 of her
reasons to the applicants’ statutory declaration:
The
document accepted as new evidence from Brief 4 is a joint statutory declaration
by the applicants dated 30 May 2005. A significant portion of this declaration
repeats the happenings before the RPD and the FCTD (paragraphs 1-70); the
remainder speaks of new developments (p. 71-80).
The PPRA officer then reviews various
statements contained within the declaration including the applicants’
allegations of threats made against their family members since December 2004. It
was not necessary for the PRRA officer to provide a line-by-line account of the
applicants’ declaration to demonstrate that she considered its contents.
[11]
The statutory declaration was not the only
evidence submitted for consideration by the PRRA officer. At page 4 of the
decision, the PRRA officer identifies five briefs submitted for her
consideration:
Brief
1 – Identity documents (2 pgs)
Brief
2 – Personal documents for IRB Hearing (55 pgs.)
Brief
3 – Personal documents for IRB Hearing continued (57 pgs.)
Brief
4 – Personal documents “New Evidence” (94 pgs.)
Country
Documents Brief “New Evidence”) (26 documents; 90 pages)
The PRRA officer then described at page 4 of
her decision the scope of her review and the relevance of various sections of
the briefs:
A significant portion
of the applicants’ submission relates to the process before the RPD. The
applicants submit that these documents submit that the refugee hearing was
“tremendously flawed” … These were the grounds for their application for
judicial review which was heard and denied by the Federal Court in early 2005.
The FCTD found nothing in appropriate with the member’s conduct or analysis….
PRRA is not intended to
be a re-hearing of the original refugee claim, instead its purpose is to
consider new evidence and risk developments between the RPD hearing and the
removal date: Veysel Kaybaki v. The Solicitor General of Canada, 2004 FC 32. I have considered
the applicants’ submissions and while the information on the RPD hearing
and the FCTD application aid in establishing the background of the case I
have not reassessed the material provided in Briefs 1, 2, 3, or 4, with the
exception of one document [Brief 4 pages 1-11], as they are not material to new
risk developments.
[Footnote converted; emphasis added]
[12]
Based on the PRRA officer’s reasons, I am
satisfied that the she assessed the relevant evidence presented by the applicants.
The PRRA officer correctly identified the purpose of a PRRA, which is as I stated
in Kaybaki, above:
1.
the PRRA officer under section 113(a) of the
IRPA should only consider “new evidence” that arose after the rejection of the
refugee claim; or
2.
that was not reasonably available at the time of
the refugee board hearing; or
3.
could not reasonably be expected to have been
presented before the refugee board.
The
PRRA application cannot be allowed to become a second refugee hearing. It is
intended to assess new risk developments between a hearing and the removal
date. The PRRA officer is not to act as a court of appeal from a prior refugee board
decision.
[13]
In the case at bar, I am satisfied the concerns
raised by the applicants were properly the subject of the application for
judicial review of the RPD decision. That decision, and the decision of the
Federal Court dismissing the application for judicial review, are res judicata.
The applicants cannot before the PRRA officer in this case lead new evidence
which could have been raised before the RPD. I do not find that any of the new
evidence fits within the category of “evidence not reasonably expected to have
been presented to the refugee board” so as to permit this new evidence to be
accepted by the PRRA officer.
[14]
For these reasons, this application for judicial
review must be dismissed.
Certified
Question
[15]
The applicant proposed a serious question of
general importance for certification, namely “If the Refugee Board makes
findings not anticipated or findings not based on the evidence, can the
applicants present new evidence before the PRRA officer to respond to the
unanticipated or erroneous findings?” The Court objects to this question being
certified. The Court finds that this question has already been considered and
answered in the jurisprudence so that it is not a new issue or question
warranting certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial
review is dismissed.
“Michael
A. Kelen”
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