Date: 20040225
Docket: IMM-3013-03
Citation: 2004 FC 327
CALGARY, Alberta, Wednesday, the 25th day of February, 2004.
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
MARIA RUBY HOYOS DE MORENO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of the Pre-removal Risk Assessment ("PRRA") decision dated March 28, 2003 wherein the PRRA officer determined that the Applicant, a citizen of Columbia, was neither a Convention Refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA").
[2] The main issue raised by the Applicant is that the PRRA officer's findings of fact with respect to personalized risk, state protection and an internal flight alternative were patently unreasonable as the PRRA officer failed to consider new evidence of a deleterious change in country conditions, in particular, a September 2002 report by the United Nations High Commissioner for Refugees entitled "International protection considerations regarding Colombian asylum-seekers and refugees" (the "September 2002 UNHCR Report").
[3] The Applicant came to Canada on October 4, 1999, and made a refugee claim that was rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") on August 4, 2000. Her claim was based on a well-founded fear of the Ejercito de Liberacion Nacional (ELN) guerrillas in Columbia, who threatened her and her family after payment to the ELN was less than required. She contended that she cannot receive protection from the state as the guerrillas are powerful and have influence throughout the government. For the same reasons, she claimed she has no internal flight alternative.
[4] The Applicant submitted an application for a Post-determination Refugee Claim in Canada class ("PDRCC") pursuant to the Immigration Act, and submitted a PRRA application after IRPA came into effect. Her PRRA application was rejected on March 28, 2003. The PRRA officer made four important findings:
1) All of the documents submitted by the Applicant contained information that was before the Board or that was readily available to be presented to the Board, therefore, pursuant to s.113(a) of IRPA, no new evidence had been submitted after the rejection of the Applicant's claim by the Board (Applicant's Application Record (A.R.), p. 10);
2) the Applicant is not a person in need of protection as she had not provided evidence to show that she is faced with a risk that is not faced generally by other individuals in Columbia (A.R., pp. 10-12);
3) the Applicant had not provided clear and convincing evidence that the state is not able to provide protection. The PRRA officer quoted the Board's findings with respect to state protection and stated that the Applicant had not provided any further evidence that would cause her to re-consider the Board's finding that the Applicant is able to avail herself to the protection of the state (A.R., pp. 12-13).
4) the Applicant had a viable flight alternative, and the Applicant had not provided evidence that would cause the PRRA officer to re-consider the Board's finding (A.R., p. 13).
[5] With respect to the Applicant's argument that the PRRA officer failed to consider new evidence, in an affidavit sworn July 10, 2003, the PRRA officer states as follows:
3. The Applicant submitted a document to the Minister of Citizenship and Immigration in Calgary, Alberta, on November 14, 2002. The document was a report from the United Nations High Commission on Refugees that was published in September, 2002. A copy of that document is attached and marked as Exhibit "A" to this affidavit.
4. The document listed in paragraph 3 above was read and was considered by me in reaching a decision with respect to Ms. De Moreno's PRAA [sic] application.
[6] The September 2002 UNHCR Report is not mentioned in the PRRA officer's decision. The Applicant therefore argues that, given the Report's probative value, it was given insufficient consideration. In this respect, she referred to the decision of Justice Kelen in Kaybaki v. Canada (M.C.I.), 2004 FC 32 at para. 5 where he states as follows:
The decision of a PRRA officer is to be accorded deference since it involves findings of fact. However, a PRRA officer's decision must be supported by the evidence. Furthermore, the presumption that the decision-maker has considered all the evidence is a rebuttable one, and where the evidence in question is of significant probative value this Court can make a negative inference from the decision-maker's failure to mention it. See Ozdemir v. Canada (MCI) (2001), 282 N.R. 394 (F.C.A); Hassan v. Canada (MEI) (1992), 147 N.R. 317 (F.C.A.); Florea v. Canada (MEI), [1993] F.C.J. No. 598 (C.A.)(QL); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D)...
[7] I find that the evidence contained in the September 2002 UNHCR Report is new evidence under s.113(a) of IRPA which reads as follows:
| 113. Consideration of an application for protection shall be as follows:
(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;
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113. Il est disposé de la demande comme il suit :
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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[8] I agree with the Applicant's argument that the new evidence has significant probative value and, therefore, I make a negative inference, and find the presumption that the decision-maker has considered all the evidence is rebutted.
[9] As a result, I find the PRRA officer's decision was made in reviewable error.
ORDER
Accordingly, I set aside the PRRA officer's decision and refer the matter back to a different PRRA officer for redetermination.
"Douglas R. Campbell"
J. F. C.
APPEARANCES:
Ms. D. Jean Munn FOR APPLICANT
Ms. Carrie Sharpe FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners, LLP FOR APPLICANT
Calgary, Alberta
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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