[1] This is an application for judicial review of a decision by a Senior Immigration Officer [Officer], dated July 31, 2023 [Decision] rejecting the Applicant’s Pre-Removal Risk Assessment [PRRA]. The Officer determined the Applicant would not be subject to risk of persecution, danger of torture, risk to life, or risk of cruel and unusual treatment or punishment if returned to his country of nationality, Colombia.
[2] The Applicant came to Canada from Columbia with his mother when he was 12 years old. His father was already in Canada.
[3] The uncontested evidence is that while a child in Columbia, he witnessed his mother being repeatedly raped by paramilitaries, he witnessed severe violence from paramilitary groups against others, his childhood best friend was kidnapped and drowned by these paramilitaries, he and his mother hid out in a barn for two years to escape these paramilitaries, and the paramilitaries attacked and kidnapped others including children such that his school was closed.
[4] The same paramilitary leader in charge of that area when he was a child with his mother, is still in charge now. I am not persuaded this fact is irrelevant as submitted by the Respondent.
[5] Notably, his specific evidence and that of his mother is not only not disputed – their evidence is generally supported by Columbian country condition evidence.
[6] He says he has PTSD as a result. He alleges that if he is returned to Colombia, he will be targeted by these groups, either for attempted recruitment or extortion due to perceived wealth as a person returning to Columbia after living in Canada. Further, he says he will be unable to obtain adequate mental health care.
[7] He has no family in Columbia. He notes he had been in Canada for 10 years before he was given the PRRA to complete while detained in relation to criminal charges laid against him, the status of which is unknown. He was then 22 years old.
[8] Judicial review will be granted because of two determinative errors by the decision-maker, one being what I respectfully consider their failure to meaningfully grapple with the central issue of his personal risk on return to Columbia, and the second being the use of an unreasonable test for state protection. Other issues need not be determined.
II. Decision under review and analysis
[9] The Officer recognized the Applicant’s traumatic experiences but held he had not established he would be personally targeted by paramilitary groups if he returned to Colombia, in that his fear of the paramilitary is based on his childhood traumatic experiences and not a direct and personal threat and is speculative.
[10] With respect, this aspect of the Decision is not in accord with governing jurisprudence from the Supreme Court of Canada requiring decisions be justified in the reasons, and to meaningfully grapple with central issues. As the Supreme Court of Canada held in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] at para 86, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies.”
[11] Moreover, Vavilov requires the reviewing court to assess whether the decision subject to judicial review meaningfully grapples with key or central issues:
[127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
[128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.
[Emphasis added]
[12] With respect, in my view the Officer had to deal with a central issue, which as I see it is whether or not the Applicant would face the same risk as the general public. Put another way, a key issue is whether the general population faces the same risk as the Applicant. Instead, the Officer set out a few general observations (with which I do not necessarily disagree) but then does not answer the central questions with a yes or no, nor provide a transparent chain of analysis leading to the conclusions. The Decision in my view unreasonably states:
A claim for protection under section 97 of the IRPA must demonstrate not only a likelihood of being personally subject to a risk, but also that such a risk is not faced generally by others in or from that country. The fact that the perpetrators knew of the Applicant does not mean that he was not a victim of generalized violence. In cases like this, where the general public is subject to the risk of crime, the fact that some individuals are more exposed to the risk, because they live in more dangerous areas, or because they are perceived as being wealthier, does not necessarily make the persons in need of protection.
With respect to section 96 of the IRPA, I find that the Applicant is not a Convention refugee as his fear of persecution is not by reason of any of the five grounds, namely race, religion, nationality, membership in a particular social group or political opinion.
Overall, the Applicant has not established with sufficient evidence that, on a balance of probabilities, he will be personally targeted by the paramilitary in Colombia.
[13] On the second determinative issue, that of state protection, the Decision states:
Should the Applicant return to Colombia and find himself threatened by criminals he can reasonably seek state protection for someone in his personal circumstances.
With respect to state protection, I note that a PRRA officer is not obliged to prove that Colombia can offer the Applicant effective state protection, rather, the Applicant bears the legal burden of rebutting the presumption that adequate state protection exists by adducing clear and convincing evidence which satisfies the PRRA officer on a balance of probabilities. I find that the Applicant s affidavits and news article are insufficient evidence to rebut the presumption of state protection.
[14] Notably, the Officer contemplates the Applicant might require state protection, which on the evidence, particularly given the same paramilitary leadership remains in place, is certainly reasonable.
[15] But and again with respect, the Officer does not reasonably set out how state protection must be assessed, which is at the operational level. Officers must always ask and decide whether state protection is adequate at the operational level. Lest there be any doubt of the requirement that the adequacy of state protection must be assessed at the operational level, this proposition is confirmed in: Bito v Canada (Citizenship and Immigration), 2022 FC 1370 per Brown J [Bito]; Zapata v Canada (Citizenship and Immigration), 2022 FC 1277 per Favel J at paragraphs 15, 25; Mejia v Canada (Citizenship and Immigration), 2022 FC 1032 per McVeigh at paragraphs 25-26, 28 [Mejia]; Rstic v Canada (Citizenship and Immigration), 2022 FC 249 per Favel J at paragraphs 18, 30-31 [Rstic]; Asllani v Canada (Immigration, Refugees and Citizenship), 2020 FC 645 per Crampton CJ at paragraph 25; Newland v Canada (Citizenship and Immigration), 2019 FC 1418 per McHaffie at paragraphs 23-25 [Newland]; Dawidowicz v Canada (Citizenship and Immigration), 2019 FC 258 per Brown J at paragraph 10; Gjoka v Canada (Citizenship and Immigration), 2018 FC 292 per Strickland J at paragraph 30 [Gjoka]; Moya v Canada (Citizenship and Immigration), 2016 FC 315 per Kane J at paragraph 68; Hasa v Canada (Citizenship and Immigration), 2018 FC 270 per Strickland J at paragraph 7; Eros v Canada (Citizenship and Immigration), 2017 FC 1094 per Manson J at paragraph 45 [Eros]; Benko v Canada (Citizenship and Immigration), 2017 FC 1032 per Gascon J at paragraph 18 [Benko]; Koky v Canada (Citizenship and Immigration), 2017 FC 1035 per Gascon J at paragraph 14; Mata v Canada (Immigration, Refugees and Citizenship), 2017 FC 1007 per McDonald J at paragraphs 13-15 [Mata]; Poczkodi v Canada (Immigration, Refugees and Citizenship), 2017 FC 956 per Kane J at paragraph 37; Paul v Canada (Immigration, Refugees and Citizenship), 2017 FC 687 per Boswell J at paragraph 17 [Paul]; and John v Canada (Citizenship and Immigration), 2016 FC 915 at paragraph 14, Whyte v Canada (Citizenship and Immigration), 2023 FC 1420 at paragraph 21 per Turley J [Whyte]. However, to the contrary see Mudrak v Canada (Citizenship and Immigration), 2015 FC 188 per Annis J at paragraphs 50, 81, which and with respect is quite dated now in addition to being incorrect and should not be followed because it is now quite against the weigh of jurisprudence.
[16] Notably in connection with the foregoing, Bito, Mejia, Rstic, Newland, Eros, Benko, Mata, Paul, and Whyte, cited above, are all judicial reviews of PRRAs. See also St. Brice v Canada (Citizenship and Immigration), 2023 FC 1139 at paragraphs 66-70.
III. Conclusion
[17] Judicial review must therefore be granted.
IV. Certified question
[18] Neither party proposes a question for certification, and I agree none arises.
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