Date: 20061115
Docket: IMM-373-06
Citation: 2006 FC 1379
Ottawa, Ontario, November 15, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
JULIO ESCALONA PEREZ
DENIS ALEXANDRA
PERES DE ESCALONA
PRADIUMNA ESCALONA PEREZ
GOPY
PRIYA ESCALONA PEREZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The
Applicants, a family of Venezuelan citizens, came to Canada in 1990. In
2002, they claimed refugee status. Julio Enrique Escalona and Denis Alexandra
Perez Escalona (the parents) claim to have fled Venezuela due to their
fears of being prosecuted under that country’s drug laws. In a decision dated
June 9, 2004, a panel of the Refugee Protection Division of the Immigration and
Refugee Board (the RPD) denied their claim. Leave to apply for judicial review
of the RPD decision was denied on October 28, 2004.
[2] On
July 25, 2005, four of the family members – the parents and the two children
named as Applicants in this application – filed an application for a
pre-removal risk assessment (PRRA). In that application, the Applicants
expressed the view that the RPD did not deal with parts of their claim and
request that the PRRA Officer should now assess the credibility of the parents
“on important matters which were left undecided by the IRB”, specifically with
respect to the alleged actions of the Venezuelan police. Secondly, the
Applicants alleged that the parents would satisfy the requirements of s. 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
“because of the inhumane prison conditions to which they will certainly be
subjected in Venezuela”. In support
of their application, the Applicants submitted “new evidence” in the form of a
number of documents.
[3] In
a decision dated December 16, 2005, the PRRA Officer rejected their
application. The Applicants seek judicial review of that decision.
Issues
[4] The
sole issue before me is whether the PRRA Officer erred by failing to take into
account the “new evidence”.
Analysis
[5] It
is well-established that a PRRA is not intended to be an appeal of a decision
of the RPD (Kaybaki v. Canada (Solicitor General
of Canada), 2004 F.C. 32 at para. 11; Yousef v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 1101 at para. 21 (F.C.);
Klais v. Canada (Minister of Citizenship and Immigration), [2004]
F.C.J. No. 949 at para. 14 (F.C.)). The purpose of the PRRA is not to reargue
the facts that were before the RPD. The decision of the RPD is to be considered
as final with respect to the issue of protection under s. 96 or s. 97, subject
only to the possibility that new evidence demonstrates that the applicant would
be exposed to a new, different or additional risk that could not have been
contemplated at the time of the RPD decision. Thus, for example, the outbreak
of civil war in a country or the imposition of a new law could materially
change the situation of an applicant; in such situations the PRRA provides the
vehicle for assessing those newly-asserted risks.
[6] In general, it is the duty of the Court to establish the
appropriate standard of review. However, in this application I conclude that,
on either a reasonableness simpliciter or patently unreasonable
standard, this Court should not intervene. Accordingly, it is not necessary to
establish the precise standard of review.
[7] With these principles in mind, I turn to the RPD decision. It
forms the baseline of the PRRA Officer’s decision. In this case, the RPD
concluded that, as of June 9, 2004, the removal of the Applicants to Venezuela would not
subject them to a risk to their lives or a risk of cruel and unusual punishment
or a danger of torture. In general, the RPD expressed serious concerns
regarding the credibility of the parents. However, the RPD’s key determinations
were that:
- The parents could
expect a fair process of prosecution in respect of the outstanding warrant
for their arrest; and
- There is no serious
possibility that the parents would be “picked up upon their return, and
immediately imprisoned and subjected to a long process of detention, or
held indefinitely”.
[8] These
conclusions are unassailable (particularly so since leave to seek judicial
review was denied). The question, then, is two-fold:
(a) whether
the new evidence placed before the PRRA Officer, some 13 months after the RPD
decision, was properly considered; and
(b) whether
the PRRA Officer’s conclusion that this evidence was not sufficient to
establish that the Applicants would now be at risk was one that was reasonably
open to him on the evidence before him.
[9] The PRRA
Officer found that the Applicants submitted new evidence as per section 113(a)
of the IRPA. However, the PRRA Officer found that the new evidence did
not provide any new risk that had not existed and been considered by the RPD.
The PRRA Officer, after reviewing current country condition documents, was
satisfied that there has not been a deterioration of general country conditions
since the RPD decision in June 2004.
[10] The
basis of the Applicants’ submissions in this application is that the PRRA
Officer failed to take into account the “new evidence” filed by the Applicants.
That evidence consisted of documentary evidence pointing, in general, to
continuing the terrible state of prison conditions. Of particular importance,
in the Applicants’ view, the evidence demonstrates that Venezuela has failed
to put into place certain protections upon which the RPD had relied upon in
reaching its conclusions.
[11] As
I understand the submissions of the Applicants, they are not alleging that the
PRRA Officer ignored or misapprehended any of the evidence before him. Rather
they are taking issue with the PRRA Officer’s conclusions that “the new
evidence does not provide any new risk development since the rejection by the
RPD”. That is, they assert that the “new evidence” establishes that they would
be exposed to horrific prison conditions in Venezuela.
[12] Much
of the new evidence before the PRRA Officer dealt with the state of prison
conditions in Venezuela. The PRRA
Officer acknowledged that prison conditions mentioned in the news articles
submitted by the Applicants were “far from favourable”. However, the PRRA
Officer also examined the evidence that was before the RPD and noted that the
documentation that was before the RPD indicated unfavourable prison conditions
faced by some detainees in Venezuela.
[13] In
other words, the PRRA Officer found that the new evidence did not disclose any new
risk development that was not considered by the RPD in its decision. This is
not an unreasonable conclusion. The new evidence shows that prison
conditions are still inhumane and degrading. Thus the PRRA Officer did not err
when he concluded that the new evidence did not provide any new risk
developments to the Applicants.
[14] Further,
it is important to note that the RPD concluded that the parents were not
seriously at risk of immediate and lengthy detention. Thus, the prison
conditions – whether or not they have deteriorated – are not determinative.
Before me and to the PRRA Officer, the Applicants argue that they would indeed
be thrown immediately into detention. This is simply a disagreement with the
conclusion of the RPD and not a valid ground for review of the PRRA Officer’s
decision.
[15] Finally, the
Applicants point out that the RPD found that the implementation of the Organic
Criminal Procedures Code (COPP) negated the fears of the parents
that they would not receive a fair trial upon returning to Venezuela. This
information was contained in the 2002 United States Department of State Report
(DOS) Report, dated March 31, 2003, and it was before the RPD. The Applicants
submit that they provided the 2004 DOS Report (dated February 28, 2005) to the
PRRA Officer. The 2004 DOS Report states that the civilian judicial system is
struggling to implement the COPP and remains highly inefficient and corrupt,
torture and abuse of detainees persisted and abuse most commonly consisted of
beatings during arrest or interrogation. The Applicants submit that the PRRA
Officer erred in law in failing to note that the RPD’s prediction for
prison conditions for the Applicants was wrong, as the changes the RPD
anticipated did not come to fruition.
[16] I find little
merit in this argument. I first note that the Applicants are taking an
overly-narrow view of the RPD’s decision. In reaching its conclusions on the
availability of due process to the parents, the RPD relied not only on the
existence of the COPP but also on the past treatment of the parents at the
hands of the legal system. Thus, the existence of the COPP was not the only
grounds for the RPD’s findings that the parents are at no serious risk of being
subjected to a long process of detention, or held indefinitely.
[17] Further, as I
read the RPD decision, the RPD was relying on the COPP as it existed as of June
9, 2004. The RPD did not ground its decision on some prediction or speculation
that the situation would improve because of the COPP or any other event.
Rather, the RPD assessed the effectiveness of the COPP as of June 2004 and,
while acknowledging that the current situation was not perfect, determined that
the COPP would assist the parents in obtaining a fair trial and ensuring that
they would not be subjected to arbitrary detention. The fact that the
government continues – as reported in the 2004 DOS Report – to be in the same
position as in March 2003, does not reflect a change in evidence. In short,
vis-à-vis the COPP, the Applicants are in exactly the same position as was
considered by the RPD in June 2004. The “new evidence” was simply a “new
document” that stated that nothing had changed since the RPD decision. The
situation might have been different if the “new evidence” demonstrated that the
COPP had been repealed or that the government had conceded defeat in attempting
to address the problems in its legal system. However, that was not the case;
the same state of implementation of the goals of the COPP (and the weaknesses)
identified in the 2004 DOS Report dealing were contained – almost word for word
– in the 2002 DOS Report considered by the RPD.
[18] In
conclusion, I am satisfied that:
(a) the
new evidence placed before the PRRA Officer, some 13 months after the RPD
decision, was properly considered; and
(b) the PRRA
Officer’s conclusion that this evidence was not sufficient to establish that
the Applicants would now be at risk was one that was reasonably open to him
on the evidence before him.
Accordingly, this
application will be dismissed.
[19] The Applicants propose that the following question be certified:
Does an immigration
officer, conducting a Pre-Removal Risk Assessment, have an obligation to
consider new evidence that post-dates the hearing, regardless of whether this
new evidence relates to new issues arising since the refugee hearing, or issues
that were previously considered by the RPD at the refugee hearing?
[20] I am not persuaded that
this is an appropriate question for certification. On the facts of this
application, the PRRA Officer admitted and considered the “new evidence”.
Accordingly, the answer to the proposed certified question is not
determinative.
ORDER
This Court orders that:
- The application for
judicial review is dismissed; and
- No question of
general importance is certified.
“Judith A. Snider”
___________________________
Judge
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