Ottawa, Ontario, October 30, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MIRIAM DEL ROSARIO PORTILLO FAJARDO
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the Minister’s negative Pre-Removal Risk Assessment (PRRA) decision dated November 24, 2005 wherein it was determined that the applicants would not be subject to risk of torture or persecution and do not face risk to life or cruel and unusual treatment or punishment if removed to Guatemala, their country of citizenship. The PRRA decision considered whether the applicants are at risk of persecution if returned to Guatemala based on the family name and home town they share with an unpopular past President of that country.
Background
[2] The applicants have lived in a common-law relationship since January 2000. The principal applicant, Miriam del Rosario Portillo Fajardo, was born and lived in the Guatemalan city of Zacapa. The past President of Guatemala, Alfonso Portillo Cabrera, shares her family name Portillo. The past President was also born and lived in Zacapa. Although not related to the past President, Ms Portillo Fajardo claims that she and her family members have been persecuted in Guatemala because of a perceived family relationship with the past President. This perception is reportedly fuelled by local knowledge of the political involvement of Ms Portillo Fajardo’s father, Freddy Portillo.
[3] In June 2000, then President Portillo became involved in a controversy surrounding the execution of four ex-gang and ex-guerrilla members. President Portillo declined to exercise his discretion to commute the gang members’ death sentences. The applicants assert that the President’s controversial decision sparked a period of intimidation, political persecution and kidnappings throughout Guatemala and in particular against the President’s family members.
[4] The applicants outline several examples of this persecution and its effect on them and their family members. The examples range from having their home vandalized and car tires slashed to receiving threatening phone calls to being chased and attacked by armed government security agents while driving home from the cinema. After coming to Canada, the applicants learned that Ms. Portillo Fajardo’s brother-in-law had been assassinated in the same Guatemala City home in which Ms Portillo Fajardo lived after leaving Zacapa. According to Guatemalan news sources, the assassination was reported as involving the husband of President Portillo’s niece.
[5] The applicants raised the issue of surname confusion before the Refugee Protection Division of the Immigration and Refugee Board (RPD). The RPD found several issues which discredited the applicants’ testimony and the trustworthiness of certain documents. The RPD found the applicants’ claim not to be plausible or credible.
[6] Mr. Justice Phelan dismissed the applicants’ application for judicial review of the RPD determination: Quiroa v. Canada (Minister of Citizenship and Immigration), 2005 FC 271; 30 Admin. L.R. (4th) 316. At paragraph 7, Justice Phelan found that the RPD was alive to the issue of name confusion and sensitive to the father’s political involvement.
[7] In the PRRA decision under review, the PRRA officer concluded that there was insufficient credible new evidence to persuade her to arrive at a different conclusion than the original RPD panel.
Issue
[8] Did the PRRA officer err in ignoring new evidence presented by the applicants to explain discrepancies or concerns in their evidence before the RPD?
Analysis
[9] The applicants argued that the PRRA officer failed to take into account as new evidence explanations provided by the applicants in response to concerns raised by the RPD in its negative decision. The applicants argued that the PRRA officer’s references in its decision to some but not all facts stated within the applicants’ statutory declaration demonstrate that the PRRA officer failed to consider all of the new evidence.
[10] The PRRA officer refers at page 5 of her reasons to the applicants’ statutory declaration:
The document accepted as new evidence from Brief 4 is a joint statutory declaration by the applicants dated 30 May 2005. A significant portion of this declaration repeats the happenings before the RPD and the FCTD (paragraphs 1-70); the remainder speaks of new developments (p. 71-80).
The PPRA officer then reviews various statements contained within the declaration including the applicants’ allegations of threats made against their family members since December 2004. It was not necessary for the PRRA officer to provide a line-by-line account of the applicants’ declaration to demonstrate that she considered its contents.
[11] The statutory declaration was not the only evidence submitted for consideration by the PRRA officer. At page 4 of the decision, the PRRA officer identifies five briefs submitted for her consideration:
Brief 1 – Identity documents (2 pgs)
Brief 2 – Personal documents for IRB Hearing (55 pgs.)
Brief 3 – Personal documents for IRB Hearing continued (57 pgs.)
Brief 4 – Personal documents “New Evidence” (94 pgs.)
Country Documents Brief “New Evidence”) (26 documents; 90 pages)
The PRRA officer then described at page 4 of her decision the scope of her review and the relevance of various sections of the briefs:
A significant portion of the applicants’ submission relates to the process before the RPD. The applicants submit that these documents submit that the refugee hearing was “tremendously flawed” … These were the grounds for their application for judicial review which was heard and denied by the Federal Court in early 2005. The FCTD found nothing in appropriate with the member’s conduct or analysis….
PRRA is not intended to be a re-hearing of the original refugee claim, instead its purpose is to consider new evidence and risk developments between the RPD hearing and the removal date: Veysel Kaybaki v. The Solicitor General of Canada, 2004 FC 32. I have considered the applicants’ submissions and while the information on the RPD hearing and the FCTD application aid in establishing the background of the case I have not reassessed the material provided in Briefs 1, 2, 3, or 4, with the exception of one document [Brief 4 pages 1-11], as they are not material to new risk developments.
[Footnote converted; emphasis added]
[12] Based on the PRRA officer’s reasons, I am satisfied that the she assessed the relevant evidence presented by the applicants. The PRRA officer correctly identified the purpose of a PRRA, which is as I stated in Kaybaki, above:
1. the PRRA officer under section 113(a) of the IRPA should only consider “new evidence” that arose after the rejection of the refugee claim; or
2. that was not reasonably available at the time of the refugee board hearing; or
3. could not reasonably be expected to have been presented before the refugee board.
The PRRA application cannot be allowed to become a second refugee hearing. It is intended to assess new risk developments between a hearing and the removal date. The PRRA officer is not to act as a court of appeal from a prior refugee board decision.
[13] In the case at bar, I am satisfied the concerns raised by the applicants were properly the subject of the application for judicial review of the RPD decision. That decision, and the decision of the Federal Court dismissing the application for judicial review, are res judicata. The applicants cannot before the PRRA officer in this case lead new evidence which could have been raised before the RPD. I do not find that any of the new evidence fits within the category of “evidence not reasonably expected to have been presented to the refugee board” so as to permit this new evidence to be accepted by the PRRA officer.
[14] For these reasons, this application for judicial review must be dismissed.
Certified Question
[15] The applicant proposed a serious question of general importance for certification, namely “If the Refugee Board makes findings not anticipated or findings not based on the evidence, can the applicants present new evidence before the PRRA officer to respond to the unanticipated or erroneous findings?” The Court objects to this question being certified. The Court finds that this question has already been considered and answered in the jurisprudence so that it is not a new issue or question warranting certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
This application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-436-06
STYLE OF CAUSE: JOSE JULIAN RODRIGUEZ QUIROGA ET AL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: OCTOBER 24, 2006
APPEARANCES:
Michael F. Loebach FOR APPLICANT
SOLICITORS OF RECORD:
Michael F. Loebach FOR APPLICANT
Barrister and Solicitor
London, Ontario
John H. Sims, QC FOR RESPONDENT
Toronto, Ontario