Date: 20101102
Docket: IMM-1309-10
Citation: 2010 FC 1074
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 2,
2010
PRESENT:
The Honourable Madam Justice Bédard
BETWEEN:
REYNA
ISABEL MATUTE ANDRADE
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of
an immigration officer (the PRRA officer) dated January 18, 2010, rejecting
the applicant’s pre‑removal risk assessment (PRRA) application.
Background
[2]
The
applicant is a citizen of Honduras.
[3]
She
came to Canada for the
first time on December 14, 1999, and claimed refugee status, alleging that
she was the victim of domestic violence by her ex‑spouse. In March 2000,
she gave birth to her son. Her claim for refugee protection was rejected on
June 15, 2000. On November 10, 2000, the Federal Court dismissed her
application for leave and for judicial review.
[4]
On
March 3, 2003, the applicant’s first PRRA was rejected.
[5]
Knowing
she was to leave soon and not wanting to force her son to return to her
country, the applicant awarded legal custody of him to her sister, who,
however, had learned in 2002 that she was HIV‑positive.
[6]
Having
exhausted all courses of action open to her, the applicant returned to Honduras in
April 2003.
[7]
The
applicant alleged that, after returning, she worked as a nanny for Ramon Lobos
Sosa, an engineer who was at that point an elected official for the
city of San Pedro Sula; more specifically, she cared for his then‑18‑year‑old
daughter, Margarita Lobos.
[8]
She
alleged that, at that time, Margarita Lobos had been seeing a man named Jorge
Alberto Ramos Echevarria, nicknamed “El coque”.
[9]
She
claimed that, on October 5, 2003, while she was accompanying Ms. Lobos
and her boyfriend, Mr. Echevarria, to a party, Arnulfo Vargas, a member of
a criminal group known as “Los Cachiros”, tried to force her to dance with him,
in spite of her refusal. Mr. Echevarria then allegedly intervened with his
four bodyguards, hitting Mr. Vargas. She stated that, later, outside the
site of this first incident, Mr. Echevarria coldheartedly cut the ear of Mr. Vargas,
who responded by threatening to kill the applicant and declaring that she [translation] “would be his” before he
died.
[10]
On
October 18, 2003, while the applicant was travelling to San Padro Sula with
Ms. Lobos and Mr. Echevarria, they were allegedly stopped by two cars
and shot at by the occupants. They were allegedly all wounded and brought to
the Cenesa de San Pedro Sula hospital.
[11]
The
applicant then left Honduras for Guatemala, where she stayed for
approximately two years. While in Guatemala, she allegedly learned
that Mr. Echevarria had been killed. She stated that she decided to leave
Guatemala then, for the United States, where she lived
illegally from June 2005 to May 2008.
[12]
On
May 16, 2008, the applicant returned to Canada and filed a
claim for refugee protection that was deemed to be ineligible under
paragraph 101(1)(b) of the IRPA, on the ground that her prior claim
for refugee protection had already been rejected.
[13]
The
applicant then filed a PRRA application, which was processed on January 18,
2010. That decision is the subject of this application for judicial review.
Impugned
decision
[14]
The
PRRA officer identified the risks alleged by the applicant as follows:
[translation]
The applicant feared being raped and
murdered by Honduras drug traffickers, just as “El
Coque, Jorge Echevarria” and several of his family members had been.
She could not rely on the protection of her
country’s authorities, as they were corrupt and scared of drug traffickers.
Moreover, she would not have been protected, being a woman and mere citizen.
The applicant added that, besides for protection,
she had come to Canada to join her son, whom she had
left in the custody of her sister, Ada,
who has AIDS. She would like to be able to care for her and for her Canadian
son. If something were to happen to her sister, she would not know to whom she
could leave her son and would not want to put his life in danger were they to
return to Honduras.
[15]
The
PRRA rejected the application for the following reasons:
- The
officer attached little probative value to the applicant’s allegation regarding
her employment with the elected official Lobos Sosa, given that she had
adduced no evidence and provided no details attesting to the job that she
had allegedly held for several years, and given that this job alleged contradicted
her Personal Information Form, in which she had stated that she had been a
merchant during that same period.
- The
officer attached little probative value to the applicant’s allegation that
she had been the victim of a shooting, given that the applicant’s
documentary evidence in support of her allegation consisted of a partially
translated newspaper article, which the officer found he could not assess
in its entirety, and given that he had been unable to find on the Internet
the second article that had been filed and that had been taken from the Internet.
- The
applicant produced no medical or police report to corroborate the shooting
incident.
- The risk
that the applicant was subjected to was not personalized and represented
the risk faced by the entire population of Honduras.
- The
applicant could have obtained protection from the authorities.
Issues
[16]
The
applicant’s allegations against the PRRA officer raise the following issues:
1) Did the
PRRA officer err by not calling the applicant to a hearing under
paragraph 113(b) of the IRPA?
2) Did the
PRRA officer assess the evidence in an unreasonable manner, such as by refusing
to accept the two newspaper articles submitted by the applicant, not taking into
consideration the applicant’s medical report and finding that the applicant had
failed to reverse the presumption of state protection?
Analysis
[17]
For
the reasons below, I am of the opinion that the application for judicial review
should be dismissed.
Standards of
review
[18]
The
standard of review applicable to decisions of a PRRA officer differs according
to the nature of the issues raised.
[19]
The case
law is divided on the standard of review that applies to a PRRA officer’s
decision whether or not to hold a hearing. In some judgments, the Court applied
the standard of correctness, because hearings raise an issue of procedural
fairness (Hurtado Prieto v. Canada (Minister of Citizenship and Immigration),
2010 FC 253, [2010]
F.C.J. No. 307;
Zemo v. Canada (Minister of Citizenship and Immigration), 2010 FC 800, [2010] F.C.J.
No. 981;
Latifi v. Canada (Minister of Citizenship and Immigration), 2006 FC
1388, [2006]
F.C.J. No. 1738;
Lewis v. Canada (Minister of Citizenship and Immigration), 2007 FC 778, [2007] F.C.J.
No. 1042).
[20]
In other
judgments, the Court adopted an approach that varied depending on the nature of
the issue and found that a PRRA officer’s failure to consider the appropriateness
of a hearing was a breach of procedural fairness and that the decision was
therefore reviewable on a correctness standard.
[21]
However,
analyzing the appropriateness of a hearing on the basis of the specific context
of a case and the factors prescribed in section 167 of the Immigration and
Refugee Protection Regulations, SOR/2002‑227 (the Regulations), involves
an exercise of discretion that attracts deference and is subject to the
standard of reasonableness (Kazemi v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1010, [2007] F.C.J. No. 1289; Iboude v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1316, [2005] F.C.J. No. 1595; Puerta v. Canada (Minister
of Citizenship and Immigration), 2010 FC 464, [2010] F.C.J. No. 546).
[22]
Here, I am
of the view that whether the PRRA officer made findings on the applicant’s
credibility and, if so, whether he was required to hold a hearing based on the
factors prescribed in section 167 of the Regulations are questions of
mixed fact and law that are subject to the standard of reasonableness (Borbon
Marte v. Canada (Minister of Public Safety and Emergency Preparedness),
2010 FC 930, [2010]
F.C.J. No. 1128).
[23]
The second
issue involves the PRRA officer’s assessment of the evidence. In this regard,
it is well established that the Court’s role is not to substitute its own
appreciation for that of administrative decision makers and that it must show
deference to their weighing of the evidence and assessment of credibility. The
standard of review that applies to findings of administrative decision makers
is also reasonableness, and the Court will intervene only where a finding of
fact is erroneous and made in a perverse or capricious manner or where a
decision was made without regard for the evidence (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339; Martinez v. Canada (Minister of Citizenship and
Immigration),
2009 FC 798, [2009]
F.C.R. No. 933;
Allinagogo v. Canada (Minister of Citizenship and
Immigration),
2010 FC 545, [2010]
F.C.R. No. 649.
Analysis
1)
Did the PRRA officer err by not calling the applicant to a hearing under
paragraph 113(b) of the IRPA?
[24]
The
applicant submitted that, as the PRRA officer questioned her credibility, he
should have called her to a hearing before making his decision, in accordance
with paragraph 113(b) of the IRPA and the factors prescribed in
section 167 of the Regulations.
[25]
The
respondent argued that the PRRA officer had not called the applicant’s
credibility into question but, rather, had found that her evidence in support
of her allegations was insufficient.
[26]
Alternatively,
the respondent contended that, even if the PRRA officer had impugned the
applicant’s credibility, he was not required to hold a hearing, as her credibility
was not central to his decision.
[27]
I
agree with the respondent’s alternative contention.
[28]
Generally,
PRRA applications are processed on the basis of written submissions and
documentary evidence submitted by the applicant. Moreover, paragraph 113(b)
of the IRPA provides that a hearing may be held if the Minister, “on
the basis of prescribed factors, is of the opinion that a hearing is required”.
[29]
Section 167
of the Regulations sets out the factors to be considered in determining whether
a hearing is required:
|
Hearing —prescribed
factors
167. For the purpose of determining whether a
hearing is required under paragraph 113(b) of the Act, the factors are
the following:
(a)
whether there is evidence that raises a serious issue of the applicant's
credibility and is related to the factors set out in sections 96 and 97 of the
Act;
(b)
whether the evidence is central to the decision with respect to the
application for protection; and
(c)
whether the evidence, if accepted, would justify allowing the application for
protection.
|
Facteurs pour la
tenue d’une
audience
167. Pour l’application de l’alinéa 113b)
de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience
est requise:
a) l’existence d’éléments de preuve relatifs
aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une
question importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour
la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de
preuve, à supposer qu’ils soient admis, justifieraient que soit accordée la
protection.
|
[30]
It is well
established that, for a hearing to be required, the applicant’s credibility
must be called into question and must be a determinative factor in the
issue that the PRRA officer is to decide (Tekie v. Canada (Minister of Citizenship and
Immigration),
2005 FC 27, [2005]
F.C.J. No. 39;
Abdou v. Canada (Solicitor General), 2004 FC 752, [2004] F.C.J. No. 916.
[31]
To
determine whether a PRRA officer’s decision was based on credibility, the Court
must analyze the decision by looking beyond the words used by the officer
himself or herself. For example, while an officer may state that the decision
was based on the insufficiency of the evidence, the officer may in fact have
called into question the applicant’s credibility (Hurtado Prieto (above);
Ferguson v. Canada (Citizenship and Immigration), 2008 FC 1067, [2008]
F.C.J. No. 1308.
[32]
Conversely,
even when a PRRA officer states in the decision that the officer questioned the
applicant’s credibility, the Court must identify the true basis of the decision
before determining whether it turned on lack of credibility or insufficient
evidence (Wang v. Canada (Minister of Citizenship and Immigration), 2010
FC 799, [2010]
F.C.J. No. 980; see also Zemo (above)).
[33]
Thus,
the decision may have been based on the insufficiency of the evidence, even
though the officer nonetheless doubted the applicant’s credibility. See
paragraph 33 of Hurtado Prieto.
[34]
In
Ferguson (above), Justice Zinn
suggested a method for making a distinction between decisions based on
credibility and those based on insufficient evidence. I endorsed this method in
Borbon Marte. At paragraph 25 of Ferguson, Justice Zinn
argued that a finding that a decision is not credible may in truth be a
determination that the evidence is not reliable.
[35]
In
addition, an officer’s findings that previous statements of the witness
contradict or are inconsistent with the new evidence, that the applicant failed
to tender this important evidence at an earlier opportunity or that the
documentary evidence (such as self‑serving reports) is unreliable may be findings
based on credibility.
[36]
In
this case, while the PRRA officer did not refer to the applicant’s “credibility”
in so many words, a thorough analysis of his decision nevertheless reveals that
he did, in fact, call it into question.
[37]
The
officer found that the applicant had contradicted herself, for her new allegation
that she had been employed by deputy Ramon Lobos was inconsistent with the allegation
that she was self‑employed from 1990 to 1999, made in her Personal
Information Form submitted for her initial application for protection.
[38]
He
also found that, in addition to this contradiction, there was a lack of objective
and reliable evidence supporting her version.
[39]
Moreover,
the PRRA officer attached very little probative value to the two newspaper
articles submitted by the applicant as evidence corroborating her allegations.
It is my view that, here, by taking issue in this way with the probative value
of the documentary evidence adduced by the applicant to corroborate her allegations,
the PRRA officer implicitly called into question her credibility.
[40]
I
also understand from reading the decision as a whole and, more specifically,
the passages referring to previous decisions in the applicant’s file, that the
PRRA officer did not believe the applicant. Therefore, the first condition for
the application of section 167 has apparently been met.
[41]
However, a hearing is required only if
credibility was central to the officer’s decision. In other words, a hearing is
necessary only if the applicant’s PRRA application might likely have had a
different outcome, had the applicant’s credibility not been called into
question. Here, the doubts as to the applicant’s credibility did not, in and of
themselves, warrant a hearing.
[42]
In Beca v. Canada (Minister of Citizenship and
Immigration), 2006 FC 566, [2006] F.C.J.
No. 714, Justice Strayer observed
the following, at paragraph 9:
. . . The factors to be
taken into account in determining if a hearing on the new evidence is required
are cumulative: there must be “a serious issue of the applicant’s credibility”;
the evidence must be central to the decision; and the evidence if accepted
would justify allowing the application for protection.
[43]
In Sylla v. Canada (Minister of Citizenship and
Immigration), 2004 FC 475, [2004] F.C.J.
No. 589, Justice Noël wrote
the following:
[6] The right
to a hearing in the context of PRRA proceedings exists when credibility is the
key element on which the officer bases his or her decision and without which
the decision would have no basis. . . .
[44]
This interpretation of the notion of serious
issue was also endorsed in several other decisions of this Court (Karimi v.
Canada (Minister
of Citizenship and Immigration), 2007 FC 1010, [2007] F.C.J. No. 1289; Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FC 872, [2004] F.C.J. No. 1134; Lewis, Latifi and Tekie).
[45]
Here, in my opinion, the fact that the applicant’s
credibility was at issue was not determinative, as the PRRA officer also found
that the applicant’s risk was not personalized and that state protection had
been available to her. Each of these issues alone was determinative and enough
to reject the application.
[46]
Therefore, there is no basis for intervening on
this ground.
2) Did
the PRRA officer assess the evidence in an unreasonable manner?
[47]
I
will begin with the last two alleged errors, which, in my view, involve
determinative issues.
Absence of a
personalized risk
[48]
It
is well established that, to be considered a “person in need of protection”
within the meaning of section 97 of the IRPA, a person must be subjected
to a personalized risk, that is, a risk that is more significant than the one
faced generally by the population of the country of origin (Prophète v. Canada
(Citizenship and Immigration), 2008 FC 331, [2008] F.C.J. No. 415; Innocent
v. Canada (Citizenship and Immigration), 2009 FC 1019, [2009] F.C.J. No. 1243, and Gonzalez).
[49]
The
PRRA officer found that the applicant had not proved that she was subjected to
a personalized risk that was more acute than the risk faced generally by the Honduras population.
He wrote the following:
[translation]
The reference documents do report
problems of violence, corruption, abuse, impunity and drug trafficking in Honduras. However, this is a general
situation borne by the entire Honduras population, not a personal
situation of the applicant.
. . .
After reviewing the applicant’s file and the
documentary evidence consulted, I find that there is no serious possibility or
reasonable chance that, upon her return to Honduras, she would be subjected to personalized
risks of persecution that would not be faced generally by other individuals in
or from that country.
In addition, I find that there are no
substantial grounds for believing that she would be personally subjected to a
danger of torture, to a risk to her life or to a risk of cruel and unusual
treatment or punishment that would not be faced generally by other individuals
in or from that country.
[50]
This
finding seems reasonable in light of the evidence, even assuming that all of
the events described by the applicant were true.
[51]
The
applicant referred to the following passage in support of her allegation that
the PRRA officer called into question her credibility, because of his use of
the words [translation] “there is
no reason to believe”:
[translation]
Given the events described by the
applicant, and all of the other evidence, including country conditions at the
time of the decision, there is no reason to believe that she would be
personally targeted by drug traffickers, corrupt police officers or any other
group . . . .
[52]
With
respect, when these words are read in the context of the above‑quoted passages
from the decision and in the overall context of the paragraph in which they
were used, I find that their meaning is rather “there is no reason to think” and
that, to draw this conclusion, the PRRA officer assumed that the facts alleged
were true. Moreover, he begins his sentence with [translation] “the events described” and then refers to the conditions
in Honduras. In my
opinion, it indicates that he accepted as fact the applicant’s allegations. My
view is reinforced by the above‑quoted passages from the decision.
[53]
Therefore,
in my opinion, the PRRA officer’s finding that the applicant was not subjected
to a personalized risk greater than the risk faced generally by the Honduras population
was reasonable and warranted in and of itself the rejection of the application
in accordance with section 97 of the IRPA.
[54]
Even
though the PRRA officer did not conduct a separate analysis of the application
from the standpoint of section 96, and the applicant did not claim
membership in a social group, the officer stated that he had carried out an
analysis under both sections. I will therefore analyze the issue of the
presumption of state protection.
Presumption of state
protection
[55]
The
applicant submitted that the Board undertook a superficial and selective analysis
of the evidence on Guatemala’s ability to protect its
citizens and that it failed to consider the documentary evidence that was
submitted and that constituted clear and convincing proof of Honduras’ inability to protect her.
[56]
In Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, at page 725, the
Supreme Court clearly established that, except where there has been a complete
breakdown of the state apparatus, there is a presumption that a country is capable
of protecting its citizens and that individuals must avail themselves of the
protective measures in their countries before seeking asylum in foreign
countries. The PRRA officer must analyze the application in light of the
evidence submitted by the applicant, and the application for judicial review
must be made in light of the evidence before the PRRA officer (Gosal v. Canada
(Minister of Public Safety and Emergency Preparedness), 2010 FC 620, [2010]
F.C.J. No. 773).
[57]
The presumption of the availability of state
protection can be rebutted only when applicants advance “clear and convincing”
proof of their country of origin’s inability to offer them effective protection
(Ward). In Carillo v. Canada (Minister of Citizenship and Immigration),
2008 CAF 94, [2008]
F.C.J. No. 399, the Federal
Court of Appeal addressed the quality of the evidence that was required and
specified the following at paragraph 30:
. . . In other
words, a claimant seeking to rebut the presumption of state protection must
adduce relevant, reliable and convincing evidence which satisfies the trier of
fact on a balance of probabilities that the state protection is inadequate.
[58]
Generally, individuals must seek help from the
authorities before concluding that the State is unable to offer them adequate
protection, but this is not necessary in all cases, as the Supreme Court noted
in Ward, at paragraph 48:
A refugee may establish a
well‑founded fear of persecution when the official authorities are not
persecuting him if they refuse or are unable to offer him adequate protection
from his persecutors . . . however, he must show that he sought their
protection when he is convinced, as he is in the case at bar, that the official
authorities ‑‑ when accessible ‑‑ had no involvement ‑‑
direct or indirect, official or unofficial ‑‑ in the persecution
against him. (José Maria da Silva Moreira, Immigration Appeal Board Decision
T86‑10370, April 8, 1987, at 4, per V. Fatsis.)
This is not true in all
cases. Most states would be willing to attempt to protect when an objective
assessment established that they are not able to do this effectively. Moreover,
it would seem to defeat the purpose of international protection if a claimant
would be required to risk his or her life seeking ineffective protection of a
state, merely to demonstrate that ineffectiveness.
[59]
However, to justify their failure to seek their
country’s protection, applicants bear the burden of showing that it was
unreasonable to require them to do so.
[60]
Here, the applicant justified her failure to
seek help from the authorities by stating that they were corrupt, feared drug
traffickers and were unable to protect her as a woman.
[61]
In my opinion, the applicant’s documentary
evidence does not constitute clear and convincing proof of the State’s
inability to protect her, considering her allegations.
[62]
The applicant’s documentary evidence refers to
general problems in Honduras and, more specifically, sexual violence against women. The
PRRA officer acknowledged these problems. However, the applicant feared drug
traffickers, and her explanations refer to very general allegations. The
applicant’s documentary evidence does not constitute clear and convincing proof
that the authorities were corrupt, that they feared drug traffickers and that,
as a woman, she would not be protected.
[63]
Nor does the documentary evidence contradict
the PRRA officer’s findings. He recognized that, while there were problems, the
evidence showed that Honduras was an independent, constitutional and democratic republic,
with an independent judicial system and institutions.
[64]
PRRA officers are presumed to have considered
all of the evidence and need not mention all of the documentary evidence before
them (Florea v. Canada (Minister of Employment and Immigration) (F.C.A.),
[1993] F.C.J. No. 598; Ramirez Chagoya v. Canada (Citizenship and
Immigration), 2008 FC 721, [2008] F.C.J. No. 908).
[65]
My opinion here is that this is not a case
where the officer had to specifically address the applicant’s evidence, as is required
by case law whenever applicants submit evidence on an important element, which
evidence contradicts the conclusions drawn by the decision maker (Cepeda‑Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J.
No. 1425, 157 F.T.R. 35).
[66]
Therefore,
in my view, the PRRA officer’s finding that state protection was available to
the applicant falls within the range of reasonable outcomes with respect to the
evidence.
[67]
As
the issue of state protection is determinative, it does not seem necessary to
pursue the analysis of the applicant’s other allegations.
[68]
For
these reasons, the application for judicial review will be dismissed.
[69]
The
parties did not propose any important questions for certification, and no
question will be certified.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed. No question
is certified.
“Marie-Josée
Bédard”
Certified
true translation
Tu-Quynh
Trinh
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