Date: 20110622
Docket: IMM-3627-11
Citation: 2011 FC 753
Toronto, Ontario,
June 22, 2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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LILIANA RAMIREZ TRIANA
OSCAR ESTEBAN CANAS GOMEZ
SOFIA CANAS RAMIREZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
UPON hearing this motion for a stay of removal at Toronto on Monday,
June 20, 2011;
AND UPON hearing counsel
for the parties and reviewing the material filed;
AND UPON considering the
tripartite test recognized by the decision in Toth v. Canada (1988), 86
N.R. 302 (F.C.A.);
AND UPON reserving
decision;
AND UPON determining
that this motion be dismissed for the following reasons:
[1]
I
am not satisfied that the Applicants have established a serious issue in their
underlying application for judicial review. My assessment of the impugned PRRA
decision indicates that the Officer was quite thorough in her assessment of
both the RPD findings and of the evidence submitted to her.
[2]
The
Officer correctly observed that the risk allegations made by the Applicants
were “essentially the same as those heard and considered by the RPD.” The
decision also correctly states that a PRRA is not a forum for rearguing or
reassessing RPD findings. Rather it presents an opportunity to provide new
evidence not considered by the RPD or which was not available to be presented
by an applicant.
[3]
The
Officer took appropriate note of the RPD’s credibility concerns including the
absence of corroborative and expected linkages among the events relied upon by
the Applicants, by their failure to seek timely protection in Spain and by their
reavailment to Colombia in 2009. The Officer also cited the RPD’s
rejection of Applicants’ “incredible” explanation for not seeking protection at
the first available opportunity in Spain.
[4]
The
Officer then went on to consider the “new evidence” presented by the Applicants
in the form of a private investigator’s letter. The Officer was clearly
unimpressed by this evidence, describing its contents in the following way:
In the letter, Mr. Garcia Correa informs
that he is a private investigator. He was engaged by the PA’s counsel to
investigate the PA’s situation in Colombia.
He submits that he interviewed Liliana Restrepo, a front desk agent at the Dann
Carlton Hotel. He states that Ms. Restrepo told him that she had heard of a
disturbance between the PA and some hotel guests but that she was not a
witness. She did see the PA go pale after getting a phone call and she believed
that the phone calls were the reason that the PA and the PA’s spouse resigned
from the hotel. He also writes that Ms. Restrepo told him that there was no way
of confirming the identity of the guest at the hotel with whom the PA was
believed to have had a disagreement.
I note that the investigator is repeating
information that he submits was told to him. The information is not first hand
nor has it been further corroborated by evidence such as an affidavit from Ms.
Restrepo. The investigator has not indicated that he approached anyone who was
present on the night of the incident (such as the hotel security) and if not,
why not. I further note that his recounting of the interview he states he had
with Ms Restrepo does not confirm the PA’s submission that she received threats
from Daniel Mejia (or his associates), that Mr. Mejia (or his associates) were
responsible for the death of her colleague Omar Caicedo or that Mr. Mejia’s
associates were currently interested in the PA’s whereabouts.
The investigator also writes that he
interviewed an officer “who identified himself as Jorge Eduardo Mesias”…of
the Criminal Analysis unit. The officer advised the investigator that he was
only speaking “off the record because he had to comply with the law and
treat [sic] such information as confidential.” Information as to how
the officer was contacted or on what objective evidence the investigator
believed the person to be an officer involved in the investigation of the death
of Omar Caicedo, has not been provided.
I note that the letter indicates that the
investigator asked, “…for information on some facts around the killing of
Mr. OMAR ALONSO CAICEDO RESTREPO.” (The emphasis is as quoted from the
letter.) Comments regarding the similarity to the hotel clerk’s last name have
not been offered by either the applicant or the investigator. Nonetheless, the
investigator states that the officer refused to provide an official statement.
I find that the statements attributed to the officer are unsupported by the
objective evidence. They are relayed through a third party who is not
disinterested in the evidence. Nonetheless, the investigator has indicated the
officer’s remarks that “it was impossible to demonstrate”… that Daniel
Mejia was involved in threats against the PA or other hotel staff. Mr. Mejia
had died in gang related violence and the authorities were unable to confirm
his involvement in the death of Mr. Caicedo.
The final part of the letter is a
narrative of the investigator on what he believes to be the “larger picture
of organized crime in the area.” He has not indicated on what objective
evidence he has based his explanation; nor, has he indicated his credentials,
own experiences or first hand information such that he is knowledgeable of the
social structure of paramilitary gangs or the history of the community in Colombia.
The letter from the investigator does not
provide first hand or personal knowledge of the PA’s submission of risks. The
report is vague, speculative, lacking in details and based on the
investigator’s interpretation of statements by a third party. The investigator
has injected descriptive statements (such as the feeling of staff or the “atmosphere”
at the hotel) which are subjective and unsupported by objective evidence and he
makes references (such as “a lamentable crime”) which are not explained.
For all the reasons noted above, I find the letter from the investigator of low
probative value in this assessment.
While I accept the PA’s assertion that
she could not afford the services of a Colombian lawyer or private investigator
prior to the RPD, the evidence before me does not support that the information
such as a statement from colleagues at the hotel could not reasonably have been
obtained without the services of an investigator. Nor does the evidence inform
as to forward looking personalized risk for the applicants such that it could
not reasonably have been contemplated by the RPD.
I do not give consideration to the
evidence that predates the finding of the RPD, as the information could
reasonably have been considered by the panel and it is not the purpose of the
PRRA to reargue the findings of the RPD. All other evidence has been considered
and assessed in this application.
[5]
The
above assessment of this supposed new evidence is reasonable if not compelling.
The investigator’s report had little, if any, probative value precisely because
it contained uncorroborated hearsay (in part, hearsay twice removed) in
circumstances where far more probative and authoritative evidence ought to have
been readily and freely available. If, in fact, the primary Applicants had left
their employment at this apparently prestigious hotel because of workplace
threats of death and by the murder of a co-worker, a letter from hotel management
verifying that history and the status of the resulting police investigation
could have been requested. Instead, the only information from the hotel was in
the form of simple letters of reference. I would add that this type of evidence
could easily have been put to the Court as proof of irreparable harm but it was
not. The inference I draw from that failure is that the Applicants knew that
the hotel management would not confirm material elements of their story.
[6]
My
reading of the PRRA decision satisfies me that the Officer refused to accept
those parts of the investigator’s report that addressed the Applicants’
allegations of personal risk because this was the type of evidence that could
have been obtained in advance of the RPD hearing from readily available
sources. The Officer’s further characterization of that evidence as vague and
speculative was certainly reasonable and well supported by the reasons she
gave.
[7]
I
accept Mr. Boulakia’s point that the Officer’s observation about the similarity
of surnames between the investigator and one of the witnesses he claims to have
interviewed is speculative; but there is no indication that this observation
had any significance to the final decision.
[8]
The
Applicants complain that the Officer erred by rejecting those parts of the
investigator’s report which were based on hearsay. There is, however, nothing
in the decision to suggest that this evidence was found to be inadmissible for
that reason. The Officer simply discounted this evidence because it was
uncorroborated and because more reliable evidence ought to have been available.
That was a reasonable conclusion.
[9]
The
Applicants contend that an oral interview ought to have been offered to them in
the face of the evidence they had presented. I agree with Ms. Singer that the Applicants’
credibility was not an open issue on the evidence before the Officer. The
Officer was faced with an adverse credibility finding made by the RPD – a
finding that the Officer found had not been “overcome” by the evidence
produced. The supposed new evidence about personal risk adduced by the private
investigator was based on his interview with two witnesses. The Applicants were
in no position to comment on the veracity of that evidence beyond restating the
testimony that they had either given or could have given to the RPD.
Accordingly, even if the Officer did overlook the Applicants’ request for an interview
there was no basis to convoke one because the Applicants were not privy to the
investigator’s work, because this evidence was not “new evidence” and because
the Officer had no basis to look behind the RPD’s previous credibility
determination. Further, I do not agree with the Applicants that the existence
of any new evidence in a PRRA opens up all of the evidence before the RPD to
reconsideration.
[10]
An
oral hearing my be required where there is new and compelling evidence from an
applicant that is sufficient to cast doubt upon an earlier credibility finding
but that was not the situation here.
[11]
This
decision is clear and comprehensive and I can identify no serious issue with
respect to either the reasonableness of the Officer’s findings or the fairness
of the process that was followed.
[12]
Having
found no serious issue it is unnecessary to consider irreparable harm or the
balance of convenience.
ORDER
THIS COURT
ORDERS that this motion is dismissed.
"R.L.
Barnes"
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