Ottawa, Ontario, January 29, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Sarria claimed protection under section 112 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). He alleged that he was at risk due to his student activism in Colombia in 1971. In dismissing his application, a pre-removal risk assessment (PRRA) officer concluded that he did not face a personalized risk in Colombia and that he failed to rebut the presumption of state protection.
[2] Mr. Sarria seeks judicial review of the PRRA decision and contends that because the decision was based on adverse credibility findings, he ought to have been granted an oral hearing. He asserts that there was a breach of procedural fairness.
[3] I conclude that an oral hearing was not required because credibility was not in issue. The PRRA officer’s conclusions were reasonable and ought not be disturbed.
Facts
[4] Mr. Sarria is a 53-year-old citizen of Colombia. His wife, two daughters and grandchild are Canadian citizens. Mr. Sarria has lived in Canada since 1974, when he arrived here with his parents. He became a permanent resident in 1985. He has been employed as a machine operator at a printing company and as a part-time disc jockey. He has a history of substance abuse.
[5] He was convicted of impaired driving in 1986, 1990 and 1993. He was convicted of possession of cocaine for the purpose of trafficking in 1989 and again in 2004. He was sentenced to terms of imprisonment of 2 ½ years and 35 months respectively for the drug offences. His most recent conviction gave rise to a deportation order.
[6] Mr. Sarria applied for a PRRA and claimed to be at risk of torture or cruel and unusual punishment if returned to Colombia. There, as a student, he had participated in protests and marches. These actions led to detention. While detained, he was physically and sexually abused by members of the Cali police force. Upon his release, his family left Colombia for Canada.
[7] Mr. Sarria claimed that the depression he has experienced for years was a result of his experiences in detention. His use of alcohol and drugs enabled him to self-medicate and “blur out” the memories of the torture. He alleged that the security forces that detained him 35 years ago are the same security forces in control today. As a result, he feared similar torture if returned to Colombia. Further, he asserted that “no one is safe in Colombia” due to the excessive violence caused by the fighting between the revolutionary groups and the government forces. He also claimed that returning to Colombia would deepen his depression and cause him to take his own life.
[8] Because Mr. Sarria had received sentences of more than two years, under subsection 112(3) of the IRPA, he became inadmissible for refugee protection. Consequently, the PRRA officer considered the risk under section 97 only (risk of torture, risk to life or risk of cruel and unusual treatment or punishment).
The Decision
[9] The PRRA officer reviewed the documentation submitted in support of the application and concluded that there was insufficient evidence to establish that Mr. Sarria, after a 31-year absence from Colombia, was personally at risk. Specifically, the officer stated:
None of this material refers specifically to the applicant and no explanation has been provided as to how this information demonstrates a personalized risk to the applicant. I find that the information refers to the generalized situation in Colombia which all citizens living there face. I do not find that this is evidence that the applicant, by virtue of his personal circumstances, is at greater risk than any other citizen of Colombia.
[…]
I find the documentary evidence before me shows that the conditions in Colombia are unstable and that the conflict between the government and the paramilitaries is ongoing; however, I find that the applicant has provided insufficient objective evidence that he faces a personalized risk in Colombia. The applicant has lived outside Colombia for over 31 years and he has provided insufficient evidence that he is a person of interest to the security forces or the various paramilitary groups.
[10] Additionally, the PRRA officer, after reviewing the country conditions documentary evidence, determined that Mr. Sarria had failed to rebut the presumption of state protection.
Issue
[11] The issue is whether there was a breach of procedural fairness because Mr. Sarria was not granted an oral hearing.
Standard of Review
[12] The standard of review is not applicable to a breach of procedural fairness. In the circumstances of this matter, if Mr. Sarria is correct, the decision will be set aside. If not, the decision of the PRRA officer is reviewable on a standard of reasonableness.
Analysis
[13] Mr. Sarria asserts that the PRRA officer did not find him credible and therefore ought to have convened an oral hearing. He contends that the negative credibility finding, while not explicit, is implicit in the officer’s reasons. His argument is twofold.
[14] First, he claims that the officer rejected the evidence contained in the psychological report, which was central to his application for protection. Had the psychological report been accepted, the officer would have been justified in allowing his application.
[15] Mr. Sarria refers to the PRRA officer’s comment that Dr. Pilowsky did not have “personal knowledge concerning any events that the applicant may have experienced while living in Colombia more than 30 years ago”. He claims that this comment illustrates that the officer did not believe his chronology regarding his past experiences in Colombia.
[16] Second, he complains that the PRRA officer did not believe that his relatives had been murdered. Additionally, he says that his counsel specifically referred to the requirement for an oral hearing in the PRRA application submissions. Had the hearing been held, he could have addressed the officer’s concerns.
[17] Section 113 of the IRPA provides for an oral hearing on the basis of prescribed factors. Those factors are enumerated in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRP Regulations). The factors in section 167 are cumulative. The first requirement is that the evidence raises a serious issue of the applicant’s credibility. If there is no issue in relation to credibility, the inquiry ends there.
[18] With respect, this matter did not involve credibility. A review of the PRRA officer’s decision leaves no doubt that the PRRA officer accepted Mr. Sarria’s account of what had transpired in Colombia some 30 years ago. The officer did not question his assertion of past abuse. Rather, the officer determined that Mr. Sarria had not demonstrated that he faced a personalized risk in Colombia because there was no evidence that, after 30 years, the government would have any interest in him.
[19] In relation to the psychological report, the PRRA officer’s comment must be read in context. The officer did not question Mr. Sarria’s credibility, by implication or otherwise. The officer merely recognized that Dr. Pilowsky’s diagnosis was based, in part, on what Mr. Sarria told her. Further, the officer recognized that Mr. Sarria may be suffering from clinical depression and symptoms of anxiety. The officer attributed little weight to the psychological report because it did not address, nor did it purport to address, the determinative issue of the existence of a personalized risk in Colombia. Put another way, the report did not deal with the objective aspect of the risk. The report spoke to Mr. Sarria’s history and his psychological problems. Thus, it was of little use to the officer in approaching the task at hand.
[20] In relation to the murders of his relatives, Mr. Sarria did not provide any information regarding his relationship to the murdered people other than to state that the individuals on the list were his relatives. More importantly, he did not provide any evidence to demonstrate how the murders of those individuals related to his risk of danger. In short, he did not establish any link between the murders of the individuals and his personal situation. The assessment of risk is prospective. Section 97 of the IRPA requires that the risk be personal to an applicant. Evidence of a murdered relative does not, without more, demonstrate risk to Mr. Sarria
[21] Additionally, the PRRA officer thoroughly canvassed the documentary evidence in arriving at the conclusion that Mr. Sarria had failed to rebut the presumption of state protection. Aside from the murdered relatives, Mr. Sarria failed to adduce any evidence in this respect. The PRRA officer noted that the homicide reports revealed that investigative action was taken in all cases but one, which was being forwarded for further action.
[22] As for the allegation that his counsel referred to the requirement for a hearing, while technically correct, the statement was a qualified one. Mr. Sarria’s counsel stated “[i]f you believe that credibility is an issue in this case a hearing should be scheduled”. The comment did not constitute a request for a hearing, but more importantly, credibility was not an issue.
[23] To summarize, the PRRA officer did not make any negative credibility findings. Rather, the officer assumed that Mr. Sarria’s account of his experiences 30 years hence was true. The PRRA officer denied the application on the basis of insufficient evidence of personalized risk and failure to rebut the presumption of state protection. While there are cases where the line of distinction between credibility and the insufficiency of evidence may be difficult to draw, this matter is not one of them.
[24] The PRRA officer’s determination cannot be faulted on the record. Consequently, the application for judicial review must be dismissed. Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1685-06
STYLE OF CAUSE: REINALDO TRUJILLO SARRIA
v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 25, 2007
AND ORDER: Layden-Stevenson J.
APPEARANCES:
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Mr. Paul McLennan
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Ms. Linda H-C. Chen
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SOLICITORS OF RECORD:
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Mr. Paul McLennan Barrister and Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |