Docket: IMM-485-17
Citation:
2017 FC 928
Ottawa, Ontario, October 19, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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CARLOS ROSALES
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Applicant
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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
[1]
This is a review of a decision of a Senior Immigration
Officer rejecting Mr. Rosales’ Pre-Removal Risk Assessment [PRRA] application.
The Officer found that he would not face a risk described in sections 96 or 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 if removed
to Guatemala.
BACKGROUND
[2]
Carlos Rodolfo Rosales [Carlos] was born in
Guatemala in 1988. He came to Canada as a permanent resident in 1992, at the
age of four.
[3]
Carlos shares a name and the date of his birth
with his father Carlos Rodolfo Rosales Morales [Mr. Rosales Sr.]. Mr. Rosales
Sr. was detained and tortured by Guatemalan authorities during the civil war
(1960-1996). Moreover, his family was targeted by the Guatemalan regime
beginning in the late 1950s. Four of his uncles were kidnapped and murdered as
a result of their human rights advocacy and opposition to the Guatemalan
government. Another of his uncles was detained by Guatemalan authorities and
accused of being a student opposition leader. This uncle was eventually released,
but was subsequently kidnapped, tortured, and murdered in 1970.
[4]
In the late 1980s Mr. Rosales Sr. was kidnapped
by Guatemalan security forces. He was beaten, accused of murdering a student,
and accused of being a political opponent. He was detained for 14 months
awaiting his trial, during which time he was interrogated and tortured. He was
acquitted of all charges at trial. The judge who acquitted him was found
murdered in his home three months after the trial.
[5]
Shortly after the release of Mr. Rosales Sr.
armed men attempted to kidnap him and his wife Reyna Giron Recinos [Reyna], who
was injured in this attempt. She complained to the police and was told by them
to stay away from Mr. Rosales Sr. and that they wanted to kill him. Mr.
Rosales and Reyna fled Guatemala City for another region in Guatemala, and
eventually fled the country altogether. They were resettled in Canada in 1991
after being recognized as Convention Refugees by the United Nations. They
subsequently sponsored Carlos and his siblings Henry and Randall to come to
Canada.
[6]
In December 2010, Carlos was convicted of a
number of criminal offences. As a result of these convictions he was found
inadmissible for serious criminality pursuant to paragraph 36(1)(a) of the Act
and was issued a deportation order by the Immigration Division. He appealed
this order to the Immigration Appeal Division, but the appeal was denied.
[7]
Carlos submitted a PRRA application in May
2015. The application was rejected on November 27, 2015. He filed an application
for leave and for judicial review. Before the application for leave was
adjudicated, the Minister agreed to reconsider his PRRA application. Carlos filed
additional documentary evidence and made new submissions in support of his renewed
application in June 2016. On November 21, 2016, the PRRA application was
refused again. He was notified of the refusal on January 18, 2017.
[8]
Five main issues were addressed by the Officer:
Carlos’ health, his ability to provide for himself in Guatemala, his concern
that he would be targeted as a deportee, his concern that he will be targeted
as a result of his family or perceived political opinion, and the availability
of state protection.
Health
[9]
The Officer noted that Carlos has been diagnosed
with autoimmune hepatitis, but found that this did give rise to a risk to his
life pursuant to sections 96 or 97 of the Act.
Economic Concerns
[10]
The Officer noted Carlos’s submission that he
would not be in a position to provide for himself in Guatemala as a result of
his medical condition, but the Officer found that economic hardship is not a
risk that falls within sections 96 or 97 of the Act.
Targeted as a Deportee
[11]
The Officer noted that Carlos provided reports
and articles confirming that kidnapping and violence are serious problems in
Guatemala. However, the Officer found that Carlos had provided insufficient
objective evidence that he, in particular, would be perceived as a wealthy
individual, or that his family in Guatemala would be perceived as wealthy. The
Officer also found that there was insufficient objective evidence that he would
be unable to avail himself of state protection if threatened.
Targeted Because of his Family
[12]
The Officer acknowledged Carlos’ concerns that
long-standing grudges are still held against his family. However, he noted
that much of the violence and torture that Carlos fears occurred many years
ago. The Officer further noted that there is a new regime in Guatemala. He
concluded that there was insufficient objective evidence to show that Carlos
would be targeted as a result of his family.
[13]
The Officer accepted that Carlos’ brother Henry,
who had been deported to Guatemala in 2007, was attacked and shot in Guatemala
by unknown individuals. The Officer acknowledged that both Carlos and his
parents indicated that his attackers told Henry that they targeted him because
of his father and that they intended to kill Henry. However, the Officer found
there was insufficient corroborating evidence to substantiate that this attack
was the result of Henry’s family. The Officer further found there was
insufficient recent evidence to show the applicant would be similarly attacked
or shot if he returned to Guatemala.
State Protection
[14]
The Officer concluded that Carlos had not
rebutted the presumption of state protection. The Officer noted that there was
no evidence that Henry had sought state protection after being attacked. The
Officer quoted the Supreme Court in Ward v Canada (Minister of Employment
& Immigration), [1993] 2 S.C.R. 689, for the proposition that a
state is presumed to be capable of protecting their citizens.
[15]
The Officer found that the evidence presented by
Carlos did not show that state protection would be withheld from him in
particular. The Officer further found that the evidence did not indicate the
government permits or condones violence, crime, or corruption. Finally, the
Officer determined there was not a “total breakdown of
state apparatus” such that protection would not be afforded to individuals
such as the applicant.
ISSUES
[16]
Carlos submits that:
1.
The Officer’s decision is unreasonable because
it was made without regard to the evidence; and
2. The Officer’s findings regarding the sufficiency of the evidence were
unreasonable and were veiled credibility findings entitling Carlos to a
hearing, and failing to do so amounted to a breach of procedural fairness.
[17]
Carlos submits that the first issue should be
decided on the reasonableness standard of review, and the Minister agrees. He
submits that the second issue is to be decided on the standard of correctness.
The Minister submits that the Officer made no veiled credibility findings and
thus his assessments of sufficiency of evidence are to be weighed on the
reasonableness standard. As I have found the Officer’s analysis of the
evidence to be unreasonable, I will not address the submission that he or she
made veiled credibility findings.
ANALYSIS
[18]
I have concluded that it would be unfair to
Carlos for the Minister to rely on the Officer’s decision. I find that this
Officer failed to conduct a full and impartial review of the evidence that
Carlos submitted with his application. In particular, I agree with Carlos’
submissions at paragraphs 36 to 39 of his written submissions, which are as
follows:
The Officer makes no serious effort to
address the issues and evidence before him.
The Officer does not cite a single
piece of country condition documentation to support his conclusion that the Applicant
would not face a risk under s. 96 and s. 97 of the IRPA and that state
protection would be available to him.
The Officer does not analyse any of
the evidence submitted by the Applicant that contradicts his findings,
particularly regarding state protection, other than to acknowledge once that
the “applicant has provided numerous reports and articles to confirm that
kidnapping and violence are serious problems in Guatemala”.
The entirety of the over 300 pages of
documentary evidence submitted by the Applicant, and his counsel’s written
submissions connecting that evidence to his particular circumstances, are left
without mention by the Officer.
[citations omitted, emphasis in original]
[19]
The following, brief passages from two of the
documents submitted appear to be directly contrary to the Officer’s conclusions
and support Carlos’ assertion that he would not have state protection in
Guatemala, but they were not addressed by the Officer:
4. Effectiveness of Complaints Mechanisms
The official from the Embassy of Canada to
Guatemala stated that "[m]any people do not bother to report crime or
fraud as the authorities here do very little in terms of investigating and
prosecuting, due to limited resources and/or corruption" (Canada 3 Mar.
2015). Similarly, the associate at Permuth y Asociados said that there are
many complaints that are not investigated due to police corruption and other
"influences" (Associate 26 Feb. 2015b). Several sources state that
impunity rates are high (DCAF 16 Jan. 2015; US 14 May 2014; Human Rights Watch
2014). According to a report published by the Geneva Centre for the Democratic
Control of Armed Forces (DCAF), "an international foundation whose mission
is to assist the international community in pursuing good governance and reform
of the security sector" (n.d.), the rate of impunity is estimated to be
at around 90 percent and may be as high as 98 percent for crimes such as
homicide, "with only two out of 100 cases making it to court" (DCAF
16 Jan. 2015). The US Department of State's Guatemala 2014 Crime and
Safety Report states that 70 percent of murders in Guatemala City went
unpunished in 2012, while the rate was 97 percent in 2010 (US 14 May 2014, 8).
[emphasis added]
IRB Response to Information Request,
Guatemala GTM105110.E, April 14, 2015
3.3 Police, army, and the penitentiary
system
An important quota of human rights
violations and the violation of other laws occur directly by the National
Civilian Police (PNC). …. The PNC is the public security institution with the
highest number of complaints registered against it in regard to acts that
violate human rights and its links to organized crime. … But all too often
citizens distrust and fear the police – widely dismissed as inefficient,
corrupt and abusive – as much as the criminals. [emphasis added]
Guatemala – Background Paper, UNHCR, October
2013
[20]
I am very troubled by the following statement of
the Officer: “I have read and carefully considered all
of the documentary material presented in association with and in support of
this application in addition to conducting my own independent research into
country conditions in Guatemala as they relate to the applicant.”
[21]
The Minister concedes that the Officer’s “own independent research” was the U.S. Department
of State, 2015 Human Rights Reports: Guatemala, 13 April 2016 which the
Officer lists at the end of his report under the heading “Sources Consulted.”
[22]
Given that this report is one of the documents
submitted in support of Carlos’ application, two conclusions must be drawn: No independent
research by the Officer was required, and he could not have “read and carefully considered all of the documentary
material presented” or he would have noted that it was in the package
presented to him.
[23]
I am satisfied that this Officer, in fact, did
not read, consider, and weigh the evidence presented with this PRRA
application.
[24]
I am also very troubled by this Officer’s
characterization of some of the evidence submitted in support of the PRRA
application; in particular, the evidence related to Carlos’ brother Henry being
attacked in Guatemala. The Officer writes that he:
[C]arefully considered the applicant’s
narrative and the letters from his parents. …
The applicant and his parents have indicated
that his brother Henry was attacked in Guatemala in February 2007 and that his
attackers had stated that they knew he was the son of the applicant’s father
and that they were going to kill him; however, no corroborating evidence has
been submitted to substantiate this statement. I acknowledge that Henry was
attacked and shot by unknown individuals; however there is insufficient
corroborating evidence submitted to substantiate that the attack was based on
who his father is or to indicate that the applicant would also be attacked
and/or shot for any reason upon his return to Guatemala. [emphasis added].
[25]
First, what the Officer describes as “letters” were sworn affidavits submitted by both of
Carlos’ parents attesting to the facts of Henry’s attack as he described it to
them. This evidence benefits from the presumption of truthfulness: Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FCR 302.
[26]
Second, there are only two parties who could
provide the corroborative evidence the Officer sought: the attacker and Henry.
The attacker is unknown and, in any event, is unlikely to swear an affidavit
that he tried to murder Henry. Henry survived and went into hiding, but could
provide an affidavit. However, his explanation for not doing so is set out in
his father’s affidavit:
We have asked Henry to provide a statement
in support of this application, but he is too scared. He is afraid to send
something in the mail because he is worried about getting found and having
people come after him again.
[27]
The Officer fails to engage with this
explanation. Given that Henry had been previously attacked, shot at, and gone
into hiding, this explanation of him not providing his evidence might well seem
acceptable, and in fact understandable, to any reasonable person knowledgeable
of the conditions in Guatemala and the fact that the rate of impunity for
murder is 90% or more.
[28]
In summary, I find the Officer’s decision to be
unreasonable because he or she failed to independently and fully engage with
the evidence submitted and because he or she mischaracterized some of the
evidence that was considered.
[29]
Neither party proposed a question for
certification nor is there one on these facts.
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