Docket: IMM-1172-15
Citation:
2015 FC 1114
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 25, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ALBA ARGENIS
ARANGO CHIRIVI
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EDWARD ALIRIO
CORTES FUQUENE
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VALERIA YESICA
CUELLAR ARANGO
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FERNANDO DIEGO
CUELLAR ARANGO
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) for
judicial review of a decision by a senior immigration officer with Citizenship
and Immigration Canada (PRRA officer), dated January 28, 2015, rejecting a
pre-removal risk assessment (PRRA) application on the grounds that the principal
applicant and her family would not be subject to risk of persecution, danger of
torture, risk to life or risk of cruel and unusual treatment or punishment if
they were removed to Colombia.
II.
Facts
[2]
The principal applicant, Alba Argenis Arango
Chirivi, her two children, Valeria Yesica Cuellar Arango and Fernando
Diego Cuellar Arango, and her spouse, Edward Alirio Cortes Fuquene
(together “the applicants”), are citizens of
Colombia. They arrived in Canada on April 24, 2013, via the United States, with
visitors’ visas and they made a claim for refugee protection shortly after they
arrived.
[3]
The applicants’ refugee protection claim was
rejected on July 30, 2013, by the Refugee Protection Division (RPD) of the
Immigration and Refugee Board. That decision was brought before the Refugee
Appeal Division, which dismissed the appeal for lack of jurisdiction on
August 26, 2013. An application for leave and judicial review was
filed with this Court. On December 11, 2013, the application for leave was
dismissed by the Court. Therefore, in July 2014, the applicants filed a
PRRA application, which was rejected on January 28, 2015. This is the
judicial review of that decision.
[4]
In support of their PRRA application, the
applicants alleged the following facts.
[5]
The principal applicant’s family is originally
from the municipality of El Paujil, Colombia. The principal applicant alleges
in her memorandum that her mother, Graciela Chirivi, was an influential member
of the Colombian Liberal Party (Liberal Party). The Revolutionary Armed
Forces of Colombia (FARC) consider the Liberal Party an enemy and the FARC put
pressure on the principal applicant’s mother to resign—which she apparently
refused to do. After that refusal, members of the FARC killed the principal
applicant’s maternal uncle in December 1999 and the principal applicant’s
cousin in January 2000. Then, the principal applicant’s mother was killed by members
of the FARC in March 2000 in front of the principal applicant and the
principal applicant’s sister. The principal applicant’s sister fled to Canada
and obtained refugee protection in 2002.
[6]
In August 2002, one of the principle applicant’s
other cousins was killed. It was also during that time that the principal
applicant separated from her children’s biological father. The biological
father obtained custody of their son and the two of them lived in the
municipality of El Paujil. The female applicant obtained custody of their
daughter and left the municipality of El Paujil for Bogota.
[7]
After a period of relative calm, two other
members of the Chirivi family were killed in February 2009.
[8]
Then, in 2011, the principal applicant
participated in an identification session in connection with the investigation
into her mother’s murder and recognized one of the men who was involved in the
murder. After that identification session, the applicant apparently received
threats to her safety and that of her family from FARC members.
[9]
The authorities offered the applicants protection
under the witness protection program, but the principal applicant refused that offer.
[10]
Fearing for his son’s safety, the biological
father granted custody of their son to the principal applicant in the beginning
of 2013. In early April, the principal applicant’s son joined her in Bogota. Then,
on April 23, 2013, the applicants left Colombia to finally arrive in Canada,
via the United States, on April 24 with visitors’ visas. They filed a
refugee protection claim after arriving on Canadian soil.
III.
Impugned decision
[11]
In her decision dated January 28, 2015, the PRRA
officer rejected the applicants’ PRRA application, finding that they do not
face the risks set out in sections 96 and 97 of the IRPA should they return to
Colombia.
[12]
In support of their PRRA application, the
applicants submitted new facts and new evidence.
[13]
Regarding the new facts, the applicants alleged
that the political situation in Colombia has evolved since the RPD decision and
that on August 21, 2013, one of the uncles of the principal applicant’s
children was killed.
[14]
Regarding the new evidence, in her assessment, the
PRRA officer only considered documentation subsequent to the RPD decision,
noting [translation] “that the sole purpose of a PRRA application is to assess the
risks based on the new evidence”. In doing so, articles and
documentation on the situation in Colombia, as well as on the FARC, were not
taken into consideration, because the officer was of the opinion that the
applicants had not justified why those documents, dated before the RPD decision,
had not been submitted to the RPD.
[15]
The PRRA officer considered the following documents:
•
Statement from the murdered uncle’s daughter,
Nayibe Alcira Sanchez Polo, dated July 14, 2014;
•
Statement from the former mayor of El Paujil,
who had worked with the principal applicant’s mother, dated July 9, 2014;
•
Statements from Halinson Valbuena Valencia and
Ricardo Elin Roa Calderon, dated July 8, 2014;
•
Letter from the Chairperson of El Paujil’s
Municipal Council, dated June 6, 2014;
•
Copy of an excerpt from the civil registry on
the death of Charry Jose Mielar Sanchez, the uncle of the
principal applicant’s children, dated August 21, 2013;
•
Copy of the death certificate for Neifer Sanchez
Correa, the cousin of the principal applicant’s children, dated February 1,
2013, as well as photos of the crime scene;
•
Statements by Yudy Prada Perdono and Jorge
Eduardo Henao Ciruentes, dated June 16, 2014;
•
Statement from the children’s biological father,
dated July 14, 2014.
[16]
The PRRA officer rejected the applicants’ PRRA
application for several reasons.
[17]
First, the PRRA officer recognized that even
though the situation in Colombia is not perfect, the applicants had not
discharged their burden of proving that they face the risks stated in sections 96
and 97 of the IRPA.
[18]
Regarding the above-mentioned new evidence, the
PRRA officer rejected all of it, finding that it lacked probative value, was
not credible, was not supported by the objective evidence or was imprecise.
[19]
With respect to the statement from Nayibe Alcira
Sanchez Polo, the officer drew a negative inference from the fact that neither
the original nor a certified copy was submitted and, among other things, that
the statements in the letter lack precision and are not supported by the
objective evidence.
[20]
With respect to the statement from the former
mayor of El Paujil, Huber Bustos Hurtado, the officer drew a negative inference
from the fact that that neither the original nor a certified copy was submitted
and, among other things, that the statements in the letter are vague with
respect to the threats referred to. He did not demonstrate that he witnessed
the events directly. Also, the officer found that the applicants did not
explain why they were unable to obtain that statement before the RPD decision.
[21]
With respect to the out-of-court statements by
Halinson Valbuena Valencia and Ricardo Elin Roa Calderon, the officer drew
a negative inference from the fact that the two statements bear the same number
and are practically identical, that neither the originals nor certified copies
were submitted and, among other things, that the signatories do not explain their
connection to the principal applicant and her family. They do not explain how
they were informed of the threats to the applicants. Also, the officer found
that the applicants did not explain why they were unable to obtain those statements
before the RPD decision.
[22]
With respect to the letter from the Chairperson
of El Paujil’s Municipal Council, the officer drew a negative inference from
the fact that neither the original nor a certified copy was submitted and, among
other things, that the author of the letter wrote that there is a threat to the
principal applicant and her family but did not, however, specify the source of
that information. Furthermore, the officer found that the applicants did not
explain why they were unable to obtain that letter before the RPD decision.
[23]
With respect to the copy of the excerpt from the
civil registry on the death of the children’s uncle, Charry Jose Mielar
Sanchez, the officer drew a negative inference from the fact that the cause of
death is not specified and, among other things, that that document does not
support the allegations of the risks the applicants face because the
circumstances of the death are not specified in the content of the document. Furthermore,
the officer found that the applicants did not explain why they could not submit
the original excerpt.
[24]
With respect to the copy of the death
certificate for the children’s cousin, Neifer Sanchez Correa, and the
photos of the crime scene, the officer drew a negative inference from the fact
that the deceased was not identified on the photos. It is therefore difficult
to connect the death certificate and the photos. Furthermore, even though the certificate
establishes that the victim suffered a violent death, it does not specify, in
particular, whether the crime was committed for ideological or political
reasons.
[25]
With respect to the statements by Yudy Prada
Perdono and Jorge Eduardo Henao Ciruentes, the officer drew a
negative inference from the fact that the two statements are practically identical,
that neither the originals nor certified copies were submitted and, among other
things, that the signatories do not explain their connection to the principal
applicant and her family. They do not explain how they were informed of the
threats to the applicants. Furthermore, the officer found that the applicants
did not explain why those statements could not be obtained before the RPD
decision.
[26]
With respect to the statement by the children’s
biological father, the officer drew a negative inference from the fact that the
signatory is not a disinterested party and, among other things, from the fact
that he does not explain how he was informed of the threats to the principal
applicant and her family. Furthermore, the officer found that the female
applicant did not explain why those statements could not be obtained before the
RPD decision.
[27]
Finally, the officer found that there have been
no significant changes in Colombia since the RPD decision that would result in
them facing a personalized risk if they were to return to Colombia.
IV.
Issues
[28]
The Court finds that the application raises the
following issues:
(1)
Did the officer err in her interpretation of
section 113 of the IRPA by rejecting the new evidence?
(2)
Does the applicants’ deportation that follows
the rejection of the PRRA application violate sections 7 and 12 of the Canadian
Charter of Rights and Freedoms and Canada’s international law obligations?
V.
Statutory provisions
[29]
The following statutory provisions of the IRPA
apply:
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Consideration of application
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Examen de la demande
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113.
Consideration of an application for protection shall be as follows:
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113. Il est disposé de la demande
comme il suit :
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(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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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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(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
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b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
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(c) in the case of an applicant not described in subsection
112(3), consideration shall be on the basis of sections 96 to 98;
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c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
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(d) in the case of an applicant described in subsection
112(3) — other than one described in subparagraph (e)(i) or (ii) —
consideration shall be on the basis of the factors set out in section 97 and
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d) s’agissant du demandeur visé au
paragraphe 112(3) — sauf celui visé au sous-alinéa e)(i) ou (ii) —,
sur la base des éléments mentionnés à l’article 97 et, d’autre part :
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(i) in the case of an applicant for protection who is
inadmissible on grounds of serious criminality, whether they are a danger to
the public in Canada, or
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(i) soit du fait que le demandeur interdit de territoire
pour grande criminalité constitue un danger pour le public au Canada,
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(ii) in the case of any other applicant, whether the
application should be refused because of the nature and severity of acts
committed by the applicant or because of the danger that the applicant
constitutes to the security of Canada; and
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(ii) soit, dans le cas de tout autre demandeur, du fait que
la demande devrait être rejetée en raison de la nature et de la gravité de
ses actes passés ou du danger qu’il constitue pour la sécurité du Canada;
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(e) in the case of the following applicants, consideration
shall be on the basis of sections 96 to 98 and subparagraph (d)(i) or
(ii), as the case may be:
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e) s’agissant des demandeurs ci-après,
sur la base des articles 96 à 98 et, selon le cas, du sous-alinéa d)(i)
ou (ii) :
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(i) an applicant who is determined to be inadmissible on
grounds of serious criminality with respect to a conviction in Canada
punishable by a maximum term of imprisonment of at least 10 years for which a
term of imprisonment of less than two years — or no term of imprisonment —
was imposed, and
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(i) celui qui est interdit de territoire pour grande
criminalité pour déclaration de culpabilité au Canada pour une infraction à
une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et
pour laquelle soit un emprisonnement de moins de deux ans a été infligé, soit
aucune peine d’emprisonnement n’a été imposée,
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(ii) an applicant who is determined to be inadmissible on
grounds of serious criminality with respect to a conviction of an offence outside
Canada that, if committed in Canada, would constitute an offence under an Act
of Parliament punishable by a maximum term of imprisonment of at least 10
years, unless they are found to be a person referred to in section F of
Article 1 of the Refugee Convention.
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(ii) celui qui est interdit de territoire pour grande
criminalité pour déclaration de culpabilité à l’extérieur du Canada pour une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans, sauf s’il
a été conclu qu’il est visé à la section F de l’article premier de la
Convention sur les réfugiés.
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VI.
Position of the parties
[30]
Regarding the first issue, the applicants argue
that the PRRA officer erred in her assessment of the new evidence submitted at
the hearing, namely concerning the assessment of the danger to the applicants. The
PRRA officer cannot exclude material evidence on the risk to the applicants’ lives
without substantial legal grounds for doing so. The applicants argue that
paragraph 113(a) of the IRPA must be interpreted in a systemic and
logical manner, given, in particular: the principles and objectives of the IRPA
as stated in section 3 of the IRPA, the case law and Canada’s duty to respect
its international obligations (Raza v Canada (Minister of Citizenship and Immigration),
2007 FCA 385 (Raza)). In doing so, the new evidence should not have been
excluded for such minimal reasons by the PRRA officer. The applicants refer to L.O.M.T. v
Canada (Minister of Citizenship and Immigration), 2013 FC 957 at paras
26-27, in which Justice Catherine M. Kane stated that the RPD’s refusal to
accept a letter by the applicant’s family member because that member was
apparently self-serving is not reasonable. The new evidence also should not be
rejected for purely technical reasons (Elezi v Canada (Minister of
Citizenship and Immigration), [2008] 1 FCR 365, 2007 FC 240 at para 45). Furthermore,
the applicants argue that their removal from Canada while they face a risk of torture
in Colombia would be a violation of sections 7 and 12 of the Charter, the Geneva Convention,
the Convention Against Torture and the International Covenant on
Civil and Political Rights (Suresh v Canada (Minister of Citizenship and
Immigration), [2002] 1 SCR 3, 2002 SCC 1). Finally, the
Court should draw on recent decisions of the European Court of Human Rights and
the Inter-American Court of Human Rights.
[31]
The respondent argues that the documents
submitted by the applicants do not meet the criteria set out in the case law
concerning paragraph 113(a) of the IRPA (see Raza, above at para 13).
The respondent contends that the PRRA officer proceeded with an analysis of the
documents submitted by the applicants and determined that they were to be given
little weight. Thus, the respondent argues that the PRRA officer’s finding with
respect to the new evidence was reasonable. The respondent finds the decisions
of the Inter-American Court of Human Rights and the Chahal decision,
cited by the applicants, to be irrelevant in this case.
[32]
Regarding the second issue, the applicants argue
that the PRRA officer’s decision was arbitrary and unfounded, thus violating
their right to fundamental justice, guaranteed in section 7 of the Charter. Furthermore,
the removal of the applicants to their country would be a violation of the
guarantees set out in sections 7 and 12 of the Charter—that is, the right to
life and security of the person and the right not to be subjected to any cruel
and unusual treatment or punishment (Reference Re Public Service
Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at p 349; Slaight
Communications Inc v Davidson, [1989] 1 S.C.R. 1038 at pp 1056-1057). The
applicants support those arguments with international law, noting that
paragraph 3(3)(f) of the IRPA states that the IRPA must be construed in
light of Canada’s duty to comply with international human rights instruments to
which Canada is signatory.
[33]
The respondent argues that the Supreme Court of Canada
has already determined in Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3 (Chieu); Al Sagban v Canada (Minister of
Citizenship and Immigration), 2002 SCC 4 (Al Sagban); Suresh v
Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (Suresh),
that removal after a PRRA does not contravene the guarantees in sections 7 and
12 of the Charter or Canada’s international obligations.
VII.
Standard of review
[34]
The reasonableness standard of review applies to
the PRRA officer’s findings of fact and findings of fact and law (Belaroui v
Canada (Minister of Citizenship and Immigration), 2015 FC 863 at
paras 9-10; Kandel v Canada (Minister of Citizenship and Immigration),
2014 FC 659 at para 17; Hamida v Canada (Minister of Citizenship and
Immigration), 2014 FC 998 at para 36). Note that the analysis of
the evidence in the record is within the expertise of the PRRA officer, thus
deference is owed (Aboud v Canada (Minister of Citizenship and Immigration),
2014 FC 1019 at para 33; Ferguson v Canada (Minister of Citizenship and
Immigration), 2008 FC 1067, [2008] FCJ 1308 at para 33).
VIII.
Analysis
[35]
It is important to note that a PRRA application
is not an appeal or a reassessment of the RPD decision to reject a refugee
claim (Nebie v Canada (Minister of Citizenship and Immigration), 2015 FC
701 (Nebie); Raza, above at para 12). The purpose of a PRRA is to
assess new risks developments between the RPD hearing date and the removal date,
in order to ensure that Canada does not remove people to a country where they
would face the risks set out in sections 96 and 97 (Raza, above at para
10; Kulanayagam v Canada (Minister of Citizenship and Immigration), 2015
FC 101 at para 23). Thus, the RPD decision regarding sections 96 and 97
of the IRPA became res judicata, “subject only
to the possibility that new evidence demonstrates that the applicant would be
exposed to a new, different or additional risk that could not have been
contemplated at the time of the RPD decision” (Perez v Canada (Minister
of Citizenship and Immigration), 2006 FC 1379 at para 5).
[36]
Because the RPD decision was res judicata,
it was reasonable for the PRRA officer to rely on the RPD’s findings with
respect to the applicants’ lack of credibility on several aspects of their
testimony before the RPD.
A.
New evidence and the PRRA
(1)
The case law and the Raza test
[37]
Paragraph 113(a) of the IRPA sets out the
limits for the new evidence that can be presented for a PRRA. The reason is
simple: because the PRRA is not an appeal of the RPD decision, Parliament wants
to avoid the risk of wasteful and potentially abusive relitigation (Raza,
above at para 12; Nebie, above at para 36). Paragraph 113(a) of
the IRPA “is based on the premise that a negative
refugee determination by the RPD must be respected by the PRRA officer, unless
there is new evidence of facts that might have affected the outcome of the RPD
hearing if the evidence had been presented to the RPD.” [Emphasis
added.] (Raza, above at para 13; Nebie, above at para 36). Thus,
at paragraph 13 of Raza, the Federal Court of Appeal stated the
questions that a PRRA officer must address to admit new evidence:
1. Credibility: Is the evidence
credible, considering its source and the circumstances in which it came into
existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving or
disproving a fact that is relevant to the claim for protection? If not, the
evidence need not be considered.
3. Newness: Is the evidence new in
the sense that it is capable of:
(a) proving the current state of affairs in
the country of removal or an event that occurred or a circumstance that arose
after the hearing in the RPD, or
(b) proving a fact that was unknown to the
refugee claimant at the time of the RPD hearing, or
(c) contradicting a finding of fact by the
RPD (including a credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the evidence
material, in the sense that the refugee claim probably would have succeeded if
the evidence had been made available to the RPD? If not, the evidence need not
be considered.
5. Express statutory conditions:
(a) If the evidence is capable of proving
only an event that occurred or circumstances that arose prior to the RPD
hearing, then has the applicant established either that the evidence was not
reasonably available to him or her for presentation at the RPD hearing, or that
he or she could not reasonably have been expected in the circumstances to have
presented the evidence at the RPD hearing? If not, the evidence need not be considered.
(b) If the evidence is capable of proving an
event that occurred or circumstances that arose after the RPD hearing, then the
evidence must be considered (unless it is rejected because it is not credible,
not relevant, not new or not material).
[38]
The PRRA officer must therefore consider all
evidence that is presented, unless it is excluded on one of the grounds stated
above (Raza, above at para 15; Nebie, above at para 36).
(2)
The rejection of the new evidence and paragraph
113(a) of the IRPA
[39]
The newness of a piece of evidence cannot be
tested solely by the date on which the document was created. What is important
is the event or circumstance sought to be proved by the documentary evidence (Raza,
above at para 16). In her decision, the PRRA officer stated that she considered
only the evidence that was dated subsequent to the RPD decision given that the
applicants had not met the 5(a) criterion in Raza at paragraph 13—that
is, that that evidence was not reasonably available for them for presentation
at the RPD hearing, or that they could not reasonably have been expected in the
circumstances to have presented the evidence at the RPD hearing. Therefore, the
officer was correct to refuse it.
[40]
Regarding the evidence dated subsequent to the
RPD decision, the officer provided reasons as to why she had attached little or
no probative value to it. It is important to remember that unless the officer
failed to consider relevant factors or considered irrelevant factors, the Court
must show significant deference (Mikhno v Canada (Minister of Citizenship
and Immigration), 2010 FC 385 at para 27; Nebie, above at para 40).
[41]
In this case, the PRRA officer analyzed the
evidence in the record and found that if the applicants were sent back to Colombia,
they would not be likely to face the risks set out in sections 96 and 97 of the
IRPA. It appears that, in her assessment of the evidence, the PPRA officer
should have considered the family’s violent history to determine whether they would
face the risks set out in sections 96 and 97 of the IRPA. Note that several
members of the principal applicant’s family died a violent death, including the
principal applicant’s mother. Her mother had an important job in a political
organization, which apparently resulted in her murder. Also note that the
principal applicant’s sister obtained refugee status for events related to
their mother’s murder.
[42]
In short, given the history of several violent
deaths in the Chirivi family in the village of El Paujil, a more in-depth
review of the evidence on record is necessary to determine whether there are
indeed risks, as set out in sections 96 and 97 of the IRPA, for the applicants
should they return to Colombia. In light of the potential risk to the family,
it appears, nevertheless, in the view of the Court, as though a number of key
issues were not considered and the evidence on record was not sufficiently assessed
in relation to these significant unaddressed issues.
B.
The PRRA, the Charter and Canada’s international
obligations
[43]
The Court agrees with the respondent that the
Supreme Court of Canada has already determined in Chieu, above; Al
Sagban, above; and Suresh, above, that removal after a PRRA does not
infringe on the guarantees set out in sections 7 and 12 of the Charter.
IX.
Conclusion
[44]
Given the circumstances of this case, the
potential risks are so significant that without an in-depth analysis of the
matter, risk assessment would not be adequately carried out. The result remains
to be seen following reassessment by a PRRA officer.
[45]
The Court finds that the PRRA officer’s decision
was unreasonable. Consequently, the application for judicial review is allowed.
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