Date: 20041201
Docket: IMM-10221-03
Citation: 2004 FC 1683
Ottawa, Ontario, this 1st day of December, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ARNULFO FIALLO MARIN
PAULA SILENIA ORDONEZ ESCOBAR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] This is an application for judicial review of the decision of a Pre-Removal Risk Assessment ("PRRA") Officer, dated June 3, 2003, wherein the Applicants' PRRA application was rejected.
Background
[2] The Applicants are husband and wife who first arrived in Canada in January 2001. They fear persecution in Colombia because of their membership in a particular social group, namely family members of a business executive who has been targeted by the guerrillas in Colombia for his perceived political opinion. The Applicants state that the FARC guerrillas have targeted them because of the family connection to the male applicant's brother, Nelson Fiallo. After Nelson left Colombia, the attention of the FARC shifted and the Applicants and their families became the subject of extortion that had originally been directed at Nelson. Nelson and his two sisters have been accepted as Convention refugees in Canada; another brother was a refugee claimant at the time of the PRRA decision.
[3] The Applicants commenced refugee claims early in 2001 when they arrived in Canada. However, both returned to Colombia later that year; Paula returned in August when her father became very ill and Arnulfo returned in November to assist his wife. Paula withdrew her refugee claim in August, 2001; Arnulfo withdrew his on November 1, 2001.
[4] Until June 2002 they lived with the wife's family without incident. On June 15, 2002, Arnulfo received a threatening call from FARC warning him to pay his brother's debt. On February 11, 2003, Arnulfo sought aid from the security agency, DAS, who informed him that they did not have the means to protect him. On February 13, 2003, a threatening letter, allegedly from the FARC, was slipped under the door of their residence. On February 15, 2003, the Applicants purchased tickets to return to Canada.
Because the Applicants had withdrawn their refugee claims, their claims were ineligible to be referred to the Refugee Protection Division (Immigration and Refugee Protection Act , S.C. 2001, c.27, s. 101(1)(c)). This left the PRRA as the only mechanism for them to claim protection in Canada.
PRRA Officer's Decision
[5] The PRRA Officer, in her decision, acknowledged that the documentary evidence includes details of the horrific violence imposed by guerilla groups, including the FARC, in Colombia. However, in spite of the situation described in the documentary evidence, the Officer found that the Applicants had not established a personalized risk to them. On this basis, the Officer concluded that the Applicants had neither a well-founded fear of persecution under s. 96 of the Immigration and Refugee Protection Act ("IRPA"), nor were they in need of protection pursuant to s. 97 of IRPA.
[6] The key determinations of the Officer were as follows:
The letter from FARC: The Officer was "not convinced", that the FARC, a guerrilla organization known for its brutality and that had been trying to extort this money since December 1998, would only slip a letter under the door demanding payment.
Lack of State Protection: The Applicants stated that the security agency DAS did not have the means to protect him from the FARC, however, the Officer noted that they waited for eight months (from June 15, 2002 when the FARC made a threatening call until February 11, 2003 when the Applicant approached the DAS) to seek protection. In the Officer's view, the Applicants have not provided sufficient persuasive evidence that state protection is not available to them.
Brother's accepted refugee claim: The Officer was not persuaded by the positive refugee decision for the brother of the male Applicant to make a similar finding in this case, stating that each application must be determined on its own merits.
[7] Although s. 113(b) of the IRPA and s. 167 of the Regulations provide that a hearing may be held, in this case, the decision of the Officer was made on the basis of the written submissions of the Applicants.
Issues
[8] The issues raised by this application are as follows:
1. Was the decision patently unreasonable in the PRRA Officer ignored or misapprehended evidence?
2. Did the Officer err by not holding a hearing?
3. Did the Officer err by not providing the Applicants an opportunity to respond to the concerns of the Officer?
4. Is Regulation 167 of the Immigration and Refugee Protection Act Regulations, SOR/2002-227, 11 June 2002 (the "Regulations") constitutionally valid?
Analysis
Issue #1: Was the decision patently unreasonable in the PRRA Officer ignored or misapprehended evidence?
[9] The Applicant argues that the PRRA Officer erred by not referring explicitly to the United Nations High Commissioner for Refugees ("UNHCR") report entitled "International protection considerations regarding Colombian asylum-seekers and refugees" dated September 2002. The Respondent argues that a reading of the decision as a whole indicates that the Officer gave serious consideration to conflicting documentation on state protection and that she acknowledged the brutality of the FARC.
[10] It is not necessary for a PRRA Officer to refer to every piece of documentary evidence. There is a presumption that the Officer has considered all of the evidence. A review of the decision as a whole will normally inform the reviewing judge as to whether the Officer was aware of and considered all of the evidence. Nevertheless, circumstances arise where the judge cannot be satisfied that certain information was considered. This is one of those cases.
[11] The UNHCR report made a number of serious observations about the situation in Colombia. Three of those observations are directly relevant to the Applicants:
1. The guerillas often kidnap or extort persons to finance political or military objectives, targeting members of the middle or upper classes;
2. Family background is important in assessing the risk to persons in Colombia; and
3. "In the current context of Colombia, acts by or attributable to the armed actors . . . may be considered persecution in the meaning of the refugee definition given the inability of the state to provide protection." (UNHCR Report, p. 12, para. 43.)
[1] In this case, the Applicants are members of the middle class, they have family members who have been recognized by Canada as targets of the FARC and they claim that the state may be unable to protect them. In my view, the UNHCR observations were not adequately addressed by the PRRA Officer. The situation is much as it was in Polgari v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 957, at para. 32 where Justice Hansen commented as follows:
. . . the documents tendered by the applicants and those contained in the RCO disclosure materials cast doubt and indeed contradict the availability and effectiveness of state protection for Hungarian Roma. While it may have been reasonably open to the panel to make the findings it did, the absence of any analysis of the extensive documentation contained in the Hungarian Lead Case Information Package and the materials in the RCO disclosure package or the documents submitted by the applicants coupled with the failure to adequately address the contradictory documents and explain its preference for the evidence on which it relied warrants the Court's intervention.
[2] A similar view was expressed by Justice O'Reilly in Harsanyi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 409, at para. 9:
In my view, the Board had an obligation at least to refer to the documentary evidence that supported the foundation of Mr. Harsanyi's claim and explain why it discounted it. As Evans J. explained in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, "the more important the documentary evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact 'without regard to the evidence'". (Citing Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). The documentary evidence tendered by Mr. Harsanyi reinforced the essence of his claim and merited some consideration by the Board.
[3] In this case, it was not apparent to me that the PRRA Officer understood the basis of the Applicants' claim. The foundation of their claim was their relationship with family members who had been targeted by the FARC. It was not enough to simply acknowledge the brutal ways of the FARC without a clear assessment of the risks alleged by the Applicants.
[4] On this issue, I conclude that the Officer erred by ignoring the UNHCR Report and its relationship to the particular circumstances of the Applicants.
Conclusion
[5] My conclusion with respect to the first issue is determinative of this application and there is no need to consider the other issues raised.
[6] The Applicants propose that I certify a number of questions concerning the obligations of the PRRA Officer to hold an oral hearing and to disclose notice of her decision to the Applicants and concerning the standard of proof under s. 97 of the IRPA.
[7] Given that none of these questions is determinative of this application, I decline to certify any of them.
ORDER
THIS COURT ORDERS THAT:
1. The application is allowed and the matter referred back for reconsideration by a different pre-removal risk assessment officer; and,
2. No question is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10221-03
STYLE OF CAUSE: ARNULFO FIALLO MARIN et al v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION et al
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 23, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: December 1, 2004
APPEARANCES:
Mr. Jack C. Martin FOR APPLICANTS
Mr. Robert Bafaro FOR RESPONDENTS
SOLICITORS OF RECORD:
Mr. Jack C. Martin FOR APPLICANTS
Toronto, Ontario
Morris Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada