Ottawa, Ontario, August 24, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
CARMEN LUZ RAZETO SILVA
ERICKA PAOLO SALOMON RAZETO
CESAR ABDEL SALOMON RAZETO
CESAR NAIF SALOMON RAZETO
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] The Federal Court of Appeal pointed out that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to “country reports” from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence.
(As specified in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.), [1990] F.C.J. No. 604 (QL).)
NATURE OF THE JUDICIAL PROCEEDING
[2] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of the decision by an immigration officer dated December 13, 2005, dismissing the applicants’ pre-removal risk assessment (PRRA) application.
FACTS
[3] The applicants, Cesar Augusto Salomon Herrada, his wife, Carmen Luz Razeto Silva, and their three children, Ericka Paola Salomon Razeto, Cesar Abdel Salomon Razeto and Cesar Naif Salomon Razeto, are all citizens of Peru.
[4] They came to Canada on September 22, 2002, to claim refugee status, since they allege that they were persecuted in Peru by members of the “Shining Path”. The claims of Mrs. Razeto Silva and their children were based on Mr. Salomon Herrada’s claim.
[5] Mr. Salomon Herrada worked as counsel and legal advisor in two universities in Peru. Mrs. Razeto Silva is a psychologist by training. Their daughter, Ericka, is a surgeon and worked in a hospital in Peru. Their sons were both studying before they left for Canada: Abdel was studying law and Naif was completing his secondary studies.
[6] In June 2002, a student at the faculty of law at the San Martin de Porres University (where Mr. Salomon Herrada was working) was allegedly arrested, accused of being a member of the Shining Path. The student in question (Carlos Garcia Robles) admitted that in 2000 he had been involved in a murder of an accountant working in the accounting faculty, with the complicity of two students from the same faculty (i.e. Willy Martinez Ramos and Moïses Begazo Malpartida).
[7] The rector of the University, Antonio Chang Escobedo, instructed Mr. Salomon Herrada to review Mr. Garcia Robles’ case in order to find out whether there were other active Shining Path members at San Martin de Porres University.
[8] In his research, Mr. Salomon Herrada noted that the names of Willy Martinez Ramos and Moïses Begazo Malpartida appeared in Mr. Garcia Robles’ file and he so informed the rector of the University.
[9] Around 7 :00 p.m. on June 28, 2002, Willy Martinez Ramos and Moïses Begazo Malpartida went with three other individuals to Mr. Salomon Herrada’s home and went inside the house. Mr. Martinez Ramos allegedly held Mr. Salomon Herrada at gunpoint and threatened to kill him and his family if he continued to investigate the Shining Path.
[10] The next day, Mr. Salomon Herrada says that he filed a complaint with the police and asked for personal protection for himself and his family. He also reported the incident to the rector of the University, who gave him the choice of continuing or abandoning the review of the matter. Mr. Salomon Herrada allegedly decided to continue his investigation but he took leave from his employment at the University and hired a bodyguard and a chauffeur to protect him.
[11] On September 6, 2002, when he was leaving home to go to work, a gunshot allegedly hit his bodyguard, who was killed while trying to protect Mr. Salomon Herrada from an attack. Later the same day, Mr. Salomon Herrada allegedly received a telephone call telling him that he, not the chauffeur, was the target and that the Shining Path would kill him and his family.
[12] Following the death of his bodyguard, Mr. Salomon Herrada filed a second report with the police.
[13] On September 16, 2002, Mr. Salomon Herrada allegedly found a letter on his door threatening him with death if he failed to withdraw the reports that he had filed.
[14] In view of the death of his bodyguard and the threats that he had received, Mr. Salomon Herrada decided to leave Peru. He withdrew his children from the professional training centres where they were studying and asked his daughter to leave her job. The entire family left Peru and arrived in Canada on September 22, 2002, via the United States. They claimed refugee status immediately upon their arrival in Canada.
[15] On October 15, 2003, their refugee claim was denied; the Refugee Protection Division (RPD) of the Immigration and Refugee Board had determined that their story was not credible and that State protection was available for them in Peru. Their application for leave to apply for judicial review was dismissed on March 4, 2004.
[16] On February 21, Mr. Salomon Herrada and his family filed a PRRA application. On February 25, they filed an application for permanent residence on humanitarian and compassionate considerations pursuant to subsection 25(1) of the Act. Both of these applications were refused by the same immigration officer on December 13, 2005. This is an application for judicial review of the refusal of the PRRA application. Mr. Salomon Herrada and his family also filed an application for judicial review of the refusal of the application for permanent residence on humanitarian and compassionate grounds (docket IMM-346-06).
IMPUGNED DECISION
[17] The PRRA officer denied the family’s PRRA application since he determined that they did not face a danger of torture, or a risk of persecution, or the risk of cruel and unusual treatment or a risk to their life if they were to return to Peru.
[18] Despite the fact that the PRRA officer accepted evidence establishing that the Shining Path was still active in Peru, in his opinion Mr. Salomon Herrada had not established that the Shining Path posed a risk to him and his family personally. To the contrary, the Shining Path poses a general risk to certain parts of Peru’s population.
[19] Further, relying on the evidence before him, the PRRA officer determined that the Peruvian State is able to protect its citizens.
ISSUE
[20] The only issue in this case is the following:
1. Did the PRRA officer make a reviewable error in denying the PRRA application of Mr. Salomon Herrada and his family?
ANALYSIS
Legislative context
[21] Subsection 112(1) of the Act states that an individual subject to a removal order may apply for protection:
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112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1). |
112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1). |
[22] Section 113 of the Act reads as follows:
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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), 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), 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. |
(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. |
Standard of review
[23] The standard of review for determinations bearing on credibility, at the heart of the PRRA decision, is the standard of patent unreasonableness. The standard of review for specific determinations of fact falls under the purview of paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, which provides that the Court must be persuaded that the tribunal’s decision or order was based on an “erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it” (Tekie v. Canada (Minister of Citizenship and Immigration), 2005 FC 27, [2005] F.C.J. No. 39 (QL), at paragraph 6; Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458 (QL), at paragraph 51; Kim v. Canada Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (QL), at paragraph 22).
[24] With respect to the overall PRRA decision, i.e. the application of the law to the facts by the immigration officer, the standard of review in this case is that of reasonableness simpliciter since it is a mixed question of fact and law (Figurado, supra; Kim, supra, at paragraphs 19-20).
Preliminary remarks
[25] Mr. Salomon Herrada and his family filed several documents into evidence which were not before the PRRA officer, more recent documents that they obtained recently. In the context of an application for judicial review, this Court can consider only the evidence which was before the PRRA officer. If these documents were relevant to their application, Mr. Salomon Herrada and his family should have sent them to the PRRA officer as soon as they were received, before the decision was made, so that he could consider them in his review of the application.
[26] Mr. Salomon Herrada and his family allege that since a letter had been sent to them summoning them to a meeting on January 10, 2006, to update their file, they expected to be able to file at that meeting additional evidence that they had just received. However, the decision had already been made on December 13, 2005. Despite the significance of this letter for Mr. Salomon Herrada and his family, it was not included in the applicant’s record or in the tribunal record. This Court is therefore not in a position to determine whether there was a breach of natural justice in that regard.
1. Did the PRRA officer make a reviewable error in denying the PRRA application of Mr. Salomon Herrada and his family?
[27] The only objective of the PRRA program is to assess the risks that a person could face if they were to be removed to their native country, in light of new facts arising after the RPD’s decision on the refugee claim. Paragraph 113(a) of the Act leaves no room for ambiguity on that point.
[28] Paragraph 113(a) of the Act states that an applicant can only file evidence arising after the refugee claim has been rejected – evidence which had not been reasonably available.
[29] Contrary to what is required by the Act, Mr. Salomon Herrada and his family simply submitted the same allegations in support of their PRRA application as the allegations that they presented to the RPD.
[30] The PRRA officer nevertheless pointed out that the RPD had determined that these allegations were not credible. Further, Mr. Salomon Herrada and his family tried to dispute these findings before this Court, but this Court refused to intervene.
[31] Mr. Salomon Herrada and his family seem to be of the view that by adding documents to the record at the stage of their PRRA application, the RPD’s findings will be reversed or forgotten. However, the officer deciding a PRRA application is not sitting on appeal or review of the RPD’s decision (Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 (F.C.T.D.) (QL), at paragraph 12; Ahmed c. Canada (Minister of Citizenship and Immigration), [2001] 1 C.F. 483, at paragraph 27):
In my opinion, the PCDO process is an administrative one. As such, the officer's role is limited to a review of the evidence in the record, including any new documents and submissions presented by the applicants. Thus, it is not open for the officer to conduct a new assessment of an applicant's credibility and to reverse the credibility findings of the Refugee Division. Just as Nadon J. stated in Hussain v. Canada (Minister of Citizenship and Immigration), that an immigration officer does not sit in appeal or review of the Refugee Board's decision in a humanitarian and compassionate application, where its purpose is not to reargue the facts which were originally before the Refugee Board, I am of the view that the same applies to a PDRCC application.
(Ahmed, supra)
[32] Accordingly, when deciding the PRRA application, the officer was not entitled to proceed to reassess the credibility of Mr. Salomon Herrada and his family or to set aside the RPD’s credibility findings. More specifically, the PRRA officer could not rely on the fact that Mr. Salomon Herrada and his family had been targeted by the Shining Path, given the RPD’s findings on that issue.
[33] The PRRA officer could reasonably dismiss evidence that did not relate personally to Mr. Salomon Herrada and his family, even if this evidence was subsequent to the RPD hearing and even if the evidence suggested that the Shining Path was a powerful organization. This is the case because the evidence does not in any way corroborate a personalized and objectively identifiable risk for Mr. Salomon Herrada and his family. They have never managed to persuade any tribunal that they were actually targeted by the Shining Path.
[34] In fact, in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.), [1990] F.C.J. No. 604 (QL), the Federal Court of Appeal pointed out that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to “country reports” from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence.
[35] In any event, the PRRA officer acknowledged that the Shining Path was a powerful organization, but he noted that the documentary evidence did not suggest that the State was unable to protect its citizens.
[36] Having noted that Mr. Salomon Herrada and his family had not brought any new evidence suggesting that they would be at risk in their native country, the PRRA officer could reasonably deny their PRRA application.
[37] Further, the PRRA officer noted that the RPD had denied their refugee claim not only because it had determined that Mr. Salomon Herrada and his family were not credible, but also because they could avail themselves of State protection.
[38] After considering all of the evidence in the record, the PRRA officer made the same finding. In his opinion, Mr. Salomon Herrada and his family had not rebutted the presumption that the State was able to protect them, which was essential for their application to be accepted.
[39] Mr. Salomon Herrada and his family had to adduce clear and convincing evidence that the State is unable to protect its nationals (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, at paragraphs 49-50).
[40] There is nothing that would suggest that the PRRA officer erred in determining that Mr. Salomon Herrada and his family had not rebutted this presumption. This Court should not intervene when the specialized tribunal has assessed the facts by relying on the evidence before it, even if the Court would have made a different finding.
[41] In several recent decisions, this Court has confirmed that there is adequate State protection for those fearing the Shining Path (Bustamente v. Canada (Minister of Citizenship and Immigration), 2002 FCT 499, [2002] F.C.J. No. 643 (QL); Mejia v. Canada (Minister of Citizenship and Immigration), 2004 FC 925, [2004] F.C.J. No. 1148 (QL); Mendiz v. Canada (Minister of Citizenship and Immigration), 2004 FC 1708, [2004] F.C.J. No. 2100 (QL); Valencia v. Canada (Minister of Citizenship and Immigration), 2005 FC 1136, [2005] F.C.J. No. 1536 (QL); Villanueva v. Canada (Minister of Citizenship and Immigration), 2004 FC 1320, [2004] F.C.J. No. 1619 (QL)).
CONCLUSION
[42] The PRRA officer had to assess the risks faced by Mr. Salomon Herrada and his family if they were to return to Peru. If the PRRA officer considered all of the evidence in the record and the decision was reasonable, this Court cannot intervene, even if it would have arrived at a different result. The application for judicial review of the PRRA decision is therefore dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified. The parties did not propose any question for certification and the Court finds that this matter turns solely on its own facts.
“Michel M.J. Shore”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-347-06
STYLE OF CAUSE: CESAR AUGUSTO SALOMON HERRADA
CARMEN LUZ RAZETO SILVA
ERICKA PAOLO SALOMON RAZETO
CESAR ABDEL SALOMON RAZETO
CESAR NAIF SALOMON RAZETO
v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 15, 2006
REASONS FOR JUDGMENT
DATE OF REASONS: August 24, 2006
APPEARANCES:
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Jean-François Fiset
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FOR THE APPLICANTS |
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Alexandre Tavadian
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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JEAN-FRANÇOIS FISET Montréal, Quebec
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FOR THE APPLICANTS |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |