Date: 20110623
Docket: IMM-3917-10
Citation: 2011 FC 756
Ottawa, Ontario, June 23, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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CESAR PEREZ ARIAS
MARIA ANGELICA RODRIGUEZ
JEMIO
and KAREN VALERIA PEREZ
RODRIGUEZ
and ERLAN AUGUSTO PEREZ RODRIGUEZ
(by their litigation guardians
CESAR PEREZ ARIAS and
MARIA ANGELICA RODRIGUEZ JEMIO)
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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 JUDGMENT AND
JUDGMENT
[1]
The
applicants seek judicial review of the decision made on May 17, 2010 rejecting
the applicants’ pre-removal risk assessment application. This was the third
risk assessment decision respecting the applicants’ claim for protection, in
addition to a refugee determination. For the reasons that follow, this
application is dismissed.
[2]
The
applicants are citizens of Bolivia. The principal
applicant, Mr. Perez was a teacher in La Paz, Bolivia and was active
in the teachers’ union. He was also an activist who represented his school at
the local federation and helped to organize demonstrations. After allegedly
being targeted and threatened, he and his family came to Canada in 2000 and
remained here until February 2005 when they were removed.
[3]
During
their time here, the family made a claim for refugee status which was denied. Their
application for leave to judicially review the negative refugee decision was
dismissed. A pre-removal risk assessment (“PRRA”) was denied. The applicants
applied for permanent residence on humanitarian and compassionate (“H&C”) grounds
on May 17, 2004. This was refused on July 28, 2006. In the interim they were
removed from Canada. They
returned on September 29, 2008 and were found to be ineligible to make a second
refugee claim. They made a second H&C application in April 2009. That
application was refused on May 17, 2010 and is the subject of a judicial review
decision issued separately in Court file IMM-3918-10.
[4]
Upon
their return to Bolivia, the principal applicant re-engaged in union
activism. The female applicant alleges she was raped by government agents
looking for the principal applicant. They left Bolivia in March 2005 and went
to the United
States
where they remained until September 2008. They re-entered Canada at that time
and made another refugee claim on September 29, 2008. On the same date, an
exclusion order was issued against them and they were found to be ineligible to
make a refugee claim.
[5]
The
applicants applied for a second PRRA which was refused in March 2009. This was
judicially reviewed and sent back for re-determination: Perez Arias et al v.
Canada (Minister of
Citizenship and Immigration) 2009 FC 1207. The applicants filed new
evidence in January 2010 to supplement the material submitted with their application.
A negative decision was issued on May 17, 2010. This is the decision which they
are seeking to review in this application.
[6]
The
PRRA officer found that the applicants would not be subject to a risk of
persecution, danger of torture, risk to life or risk of cruel and unusual
treatment or punishment if returned to Bolivia. In making
this determination, the officer considered a number of country reports and
documentary evidence, as well as letters and notarized declarations submitted
by the applicants. The officer found the applicants failed to rebut the
presumption of state protection and did not face a personalized risk if
returned.
[7]
The
issues raised are whether the officer erred in his consideration of the
evidence and whether his findings were reasonable.
[8]
The
standard of review is reasonableness: Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437, 30 Admin. L.R. (4th)
131; Perea v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1173 at paras. 22-24.
[9]
The
applicants argue that the officer erred in finding that state protection is
available for women victims of violence in Bolivia. They point
to their detailed submissions citing consistent and recent evidence about impunity
in Bolivia for
aggression against women. The applicants take issue with the officer’s reliance
on a United States Department of State Report to find that Bolivia is serious
in dealing with rape, and that laws and legal services exist. The applicants
also submit that the officer erred in relying on a 2009 report on women’s
rights by the Inter-American Commission on Human Rights (“IAHCR”) rather than
the applicant’s documents on this issue, and selectively chose references in
that report to support his conclusion.
[10]
The
presumption of state protection applies equally to cases where the agent of
persecution is a non-state entity: Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th)
413 at para. 54. As such, the applicants had an obligation to demonstrate that Bolivia could not
adequately protect them. The officer reasonably concluded that the applicants
failed to rebut this presumption and referenced the documentary evidence such
as the US DOS Report to suggest that state protection was available in Bolivia: “Bolivia is a
constitutional, multiparty democracy” where “Civilian authorities generally
maintained effective control of the security forces”. It also says that the
government generally respected the human rights of its citizens.
[11]
The
officer suggested that if the applicants did not want to seek protection in La Paz, they had
other avenues of recourse which they could have exhausted. They did not do
this. The officer found that Bolivia is a functioning
democracy at least to the extent that there is not a complete breakdown of the
state apparatus. Therefore, the applicants were required to attempt to seek
protection.
[12]
The
applicants take issue with the officer’s finding that there was no evidence to
support the conclusion that the applicants would be of interest in Bolivia
after having been absent for five years. They point to the fact that the last
time they were absent for five years and returned, they were again attacked. Thus,
they argue that their time away has no real bearing on whether or not they would
be again targeted.
[13]
The
officer noted that the applicants have entered and exited Bolivia with valid
passports and in doing so have never had an issue. It was reasonable to infer
that they do not appear to be watched or wanted. The officer also made it clear
that although the evidence established that the female applicant was in fact
raped, there was insufficient evidence to prove that the rape was from agents
of the Ministry. This was not a veiled credibility finding but rather an
acknowledgement that there was no evidence linking the government to the
incident other than the female applicant’s speculation that officials were
responsible.
[14]
Although
the officer noted the applicants’ concerns regarding Bolivia’s response
to women victims of violence and the serious issue of sexual violence in that
country, he did not fully address them. He gave what may be fairly described as
a selective analysis of the IAHRC Follow Up Report. However, that shortcoming
was not material. There is no evidence that the female applicant had been
targeted or would be targeted personally, apart from her speculation, or that
the attackers would be interested in seeking her out again.
[15]
There
was no evidence linking the rape to the government and so it cannot be
confirmed that the abuse was not an act of general criminality. Contrary to the
applicants’ argument at the hearing, it does matter in a claim for protection
who the assailants were. Alternatively, even if it could be established, or was
accepted, that this rape was linked to the principal applicant’s political
activism, there is no evidence on the record to suggest the female applicant
would be targeted again upon her return.
[16]
Overall,
the officer recognized the concerns of the applicants and took them into
consideration. He consulted an extensive number of documents as is evidenced by
his Notes to File. Those notes demonstrate his understanding of the concerns
raised in relation to the Convention on the Elimination of All Forms of
Discrimination Against Women. He also took into account new evidence submitted
by the applicants such as medical certificates and letters. In so doing, he
reasonably concluded that the evidence did not support a finding of
personalized risk to the applicants.
[17]
It
is clear from reading the decision and from reviewing the documentary evidence
submitted by the applicants that the officer properly examined the evidence on
file. For example, he referred to the two notarized declarations dated July 8,
2008 by the female applicant’s father and his neighbour, relating to the
incident that had occurred in La Paz on February 21, 2005. Based on this
evidence, the officer accepted that the female applicant was abused, although he
fairly noted that the evidence did not indicate by whom. The priest’s letter also
corroborated the claim of abuse.
[18]
The
officer also referred to the medical certificate submitted by Doctor Ariel Chipana
regarding the rape and the two psychology reports (one from 2002 and one from
2009). It was noted that the one from 2002 predated the applicants’ departure
from Canada. The
officer accepted these reports but reasonably found that the evidence submitted
does not support that the applicants would be unable to obtain psychological
counselling in Bolivia. This was conceded at the hearing.
[19]
In
looking at the evidence regarding Bolivian trade union political activity, the
officer reasonably concluded that although tensions between the unions and
government exist, the evidence does not indicate that the unionists suffer
repercussions as a result. According to the US DOS Report 2009, the officer
noted that there are laws “allowing workers to associate and join trade unions”.
The same report states that the law provides for freedom of peaceful assembly
and that although teachers were prohibited from striking, they frequently did
strike and were not penalized for doing so. To support this, the officer referenced
the example of the teachers’ union protest against the government in 2005 in
which the principal applicant participated. He noted that although the police
initially surrounded the protesters, they were able to mediate the right to
assemble. No one was hurt and the protest lasted into the evening.
[20]
The
officer’s decision, while flawed in some respects, fell within the range of
acceptable outcomes that are defensible in the light of the facts and the law. Accordingly,
the application is dismissed.
[21]
The
applicants have requested that I certify the following question:
Where
applicants who were found not credible by the RPD present new evidence on a
PRRA application that the officer finds to be credible evidence, may (or must)
the officer revisit the RPD's findings of lack credibility?
[22]
I
agree with the respondent that the proposed question would not be dispositive
of an appeal as the determinative finding in the PRRA decision had to do with
state protection. The officer's consideration of the credibility findings made
by the refugee protection division had no bearing on the finding that the
applicants had not rebutted the presumption of adequate state protection.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified
“Richard
G. Mosley”
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