Date: 20070129
Docket: IMM-1685-06
Citation: 2007
FC 98
Ottawa, Ontario, January 29, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
REINALDO
TRUJILLO SARRIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Sarria
claimed protection under section 112 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA). He alleged that he was at risk due to his
student activism in Colombia in 1971. In dismissing his application, a
pre-removal risk assessment (PRRA) officer concluded that he did not face a
personalized risk in Colombia and that he failed to
rebut the presumption of state protection.
[2] Mr.
Sarria seeks judicial review of the PRRA decision and contends that because the
decision was based on adverse credibility findings, he ought to have been
granted an oral hearing. He asserts that there was a breach of procedural
fairness.
[3] I
conclude that an oral hearing was not required because credibility was not in
issue. The PRRA officer’s conclusions were reasonable and ought not be
disturbed.
Facts
[4] Mr.
Sarria is a 53-year-old citizen of Colombia. His wife, two
daughters and grandchild are Canadian citizens. Mr. Sarria has lived in Canada since 1974,
when he arrived here with his parents. He became a permanent resident in
1985. He has been employed as a machine operator at a printing company and as
a part-time disc jockey. He has a history of substance abuse.
[5] He
was convicted of impaired driving in 1986, 1990 and 1993. He was convicted of
possession of cocaine for the purpose of trafficking in 1989 and again in
2004. He was sentenced to terms of imprisonment of 2 ½ years and 35 months
respectively for the drug offences. His most recent conviction gave rise to a
deportation order.
[6] Mr.
Sarria applied for a PRRA and claimed to be at risk of torture or cruel and
unusual punishment if returned to Colombia. There, as a student,
he had participated in protests and marches. These actions led to detention.
While detained, he was physically and sexually abused by members of the Cali police
force. Upon his release, his family left Colombia for Canada.
[7] Mr.
Sarria claimed that the depression he has experienced for years was a result of
his experiences in detention. His use of alcohol and drugs enabled him to
self-medicate and “blur out” the memories of the torture. He alleged that the
security forces that detained him 35 years ago are the same security forces in
control today. As a result, he feared similar torture if returned to Colombia. Further,
he asserted that “no one is safe in Colombia” due to the excessive
violence caused by the fighting between the revolutionary groups and the
government forces. He also claimed that returning to Colombia would deepen
his depression and cause him to take his own life.
[8] Because
Mr. Sarria had received sentences of more than two years, under subsection
112(3) of the IRPA, he became inadmissible for refugee protection.
Consequently, the PRRA officer considered the risk under section 97 only (risk
of torture, risk to life or risk of cruel and unusual treatment or punishment).
The Decision
[9] The
PRRA officer reviewed the documentation submitted in support of the application
and concluded that there was insufficient evidence to establish that Mr.
Sarria, after a 31-year absence from Colombia, was personally at
risk. Specifically, the officer stated:
None of this material refers specifically
to the applicant and no explanation has been provided as to how this
information demonstrates a personalized risk to the applicant. I find that the
information refers to the generalized situation in Colombia which all citizens living there face. I
do not find that this is evidence that the applicant, by virtue of his personal
circumstances, is at greater risk than any other citizen of Colombia.
[…]
I find the documentary evidence before me
shows that the conditions in Colombia are unstable and that the conflict between
the government and the paramilitaries is ongoing; however, I find that the
applicant has provided insufficient objective evidence that he faces a
personalized risk in Colombia. The applicant has lived
outside Colombia for over 31 years and he has
provided insufficient evidence that he is a person of interest to the security
forces or the various paramilitary groups.
[10] Additionally,
the PRRA officer, after reviewing the country conditions documentary evidence,
determined that Mr. Sarria had failed to rebut the presumption of state
protection.
Issue
[11] The
issue is whether there was a breach of procedural fairness because Mr. Sarria
was not granted an oral hearing.
Standard of Review
[12] The
standard of review is not applicable to a breach of procedural fairness. In
the circumstances of this matter, if Mr. Sarria is correct, the decision will
be set aside. If not, the decision of the PRRA officer is reviewable on a
standard of reasonableness.
Analysis
[13] Mr.
Sarria asserts that the PRRA officer did not find him credible and therefore ought
to have convened an oral hearing. He contends that the negative credibility
finding, while not explicit, is implicit in the officer’s reasons. His
argument is twofold.
[14] First,
he claims that the officer rejected the evidence contained in the psychological
report, which was central to his application for protection. Had the
psychological report been accepted, the officer would have been justified in
allowing his application.
[15] Mr.
Sarria refers to the PRRA officer’s comment that Dr. Pilowsky did not have
“personal knowledge concerning any events that the applicant may have
experienced while living in Colombia more than 30 years
ago”. He claims that this comment illustrates that the officer did not believe
his chronology regarding his past experiences in Colombia.
[16] Second,
he complains that the PRRA officer did not believe that his relatives had been
murdered. Additionally, he says that his counsel specifically referred to the
requirement for an oral hearing in the PRRA application submissions. Had the
hearing been held, he could have addressed the officer’s concerns.
[17] Section
113 of the IRPA provides for an oral hearing on the basis of prescribed
factors. Those factors are enumerated in section 167 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the IRP Regulations).
The factors in section 167 are cumulative. The first requirement is that the
evidence raises a serious issue of the applicant’s credibility. If there is no
issue in relation to credibility, the inquiry ends there.
[18] With
respect, this matter did not involve credibility. A review of the PRRA
officer’s decision leaves no doubt that the PRRA officer accepted Mr. Sarria’s
account of what had transpired in Colombia some 30 years ago. The
officer did not question his assertion of past abuse. Rather, the officer
determined that Mr. Sarria had not demonstrated that he faced a personalized
risk in Colombia because
there was no evidence that, after 30 years, the government would have any
interest in him.
[19] In
relation to the psychological report, the PRRA officer’s comment must be read
in context. The officer did not question Mr. Sarria’s credibility, by
implication or otherwise. The officer merely recognized that Dr. Pilowsky’s
diagnosis was based, in part, on what Mr. Sarria told her. Further, the
officer recognized that Mr. Sarria may be suffering from clinical depression
and symptoms of anxiety. The officer attributed little weight to the
psychological report because it did not address, nor did it purport to address,
the determinative issue of the existence of a personalized risk in Colombia. Put
another way, the report did not deal with the objective aspect of the risk.
The report spoke to Mr. Sarria’s history and his psychological problems. Thus,
it was of little use to the officer in approaching the task at hand.
[20] In
relation to the murders of his relatives, Mr. Sarria did not provide any
information regarding his relationship to the murdered people other than to
state that the individuals on the list were his relatives. More importantly,
he did not provide any evidence to demonstrate how the murders of those
individuals related to his risk of danger. In short, he did not establish any
link between the murders of the individuals and his personal situation. The
assessment of risk is prospective. Section 97 of the IRPA requires that the
risk be personal to an applicant. Evidence of a murdered relative does not,
without more, demonstrate risk to Mr. Sarria
[21] Additionally,
the PRRA officer thoroughly canvassed the documentary evidence in arriving at
the conclusion that Mr. Sarria had failed to rebut the presumption of state
protection. Aside from the murdered relatives, Mr. Sarria failed to adduce any
evidence in this respect. The PRRA officer noted that the homicide reports
revealed that investigative action was taken in all cases but one, which was
being forwarded for further action.
[22] As
for the allegation that his counsel referred to the requirement for a hearing, while
technically correct, the statement was a qualified one. Mr. Sarria’s counsel
stated “[i]f you believe that credibility is an issue in this case a hearing
should be scheduled”. The comment did not constitute a request for a hearing,
but more importantly, credibility was not an issue.
[23] To
summarize, the PRRA officer did not make any negative credibility findings.
Rather, the officer assumed that Mr. Sarria’s account of his experiences 30
years hence was true. The PRRA officer denied the application on the basis of
insufficient evidence of personalized risk and failure to rebut the presumption
of state protection. While there are cases where the line of distinction
between credibility and the insufficiency of evidence may be difficult to draw,
this matter is not one of them.
[24] The
PRRA officer’s determination cannot be faulted on the record. Consequently,
the application for judicial review must be dismissed. Counsel did not suggest
a question for certification and none arises.
ORDER
THIS COURT
ORDERS THAT the application for judicial review is dismissed
“Carolyn
Layden-Stevenson”
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