Date: 20041130
Docket: IMM-3001-03
Citation: 2004 FC 1680
BETWEEN:
WILLIAM EDUARDO RAMIREZ GRUESO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (the "Officer") wherein the Officer concluded that the Applicant's application for protection under subsection 112(1) of the Immigration and Refugee Protection Act[1] should be rejected because the Applicant had not provided sufficient evidence showing himself, on a balance of probabilities, to be a person in need of such protection. The decision under review is dated the 17th of March, 2003.
BACKGROUND
[2] The Applicant attests that he is a single male citizen of Columbia born the 2nd of May, 1974. He is thus 30 year of age.
[3] In August of 2000, he came to Canada and claimed Convention refugee status. He based his claim on his fear of persecution from a leftist guerilla organization operating in Columbia known as the National Liberation Army (the "ELN").
[4] In February of 1992, the Applicant attests that he moved from Bogota to Yopal, a small city located in the foothills of Columbia where the primary businesses are oil and agriculture. He obtained work in the oil and gas industry and continued to work in that industry until August of 2000.
[5] The Applicant attests that the ELN was active in the region of Yopal throughout the time when he resided there. He further attests that in May of 2000, the ELN, by letter, demanded that he contribute a significant sum to that organization's revolutionary cause. He was threatened that if he failed to comply, his life and those of his common-law spouse and child would be in danger.
[6] The Applicant attests that he sought help and advice from the office of a prosecutor in Bogota. He received no help. Rather, he was told that, should the guerillas contact him again, he should notify the prosecutor's office.
[7] The Applicant returned to Yopal from Bogota. In mid July, 2000, he was contacted by telephone by an individual who identified himself as being a member of the ELN. The demand for financial support of the ELN's cause was repeated. The Applicant was determined not to comply. He hired bodyguards to protect himself and made plans to leave Columbia. On the 1st of August, 2000, the Applicant received a second letter from the ELN. In this letter, he was advised that, if he continued to fail to co-operate, he would be considered a "military target" if he was found in the Yopal region after the 15th of August, 2000. His flight to Canada followed.
[8] The Applicant's application for Convention refugee protection was rejected by the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board in a decision dated the 12th of June, 2001. Among other findings, the CRDD concluded that: first, there was no evidence to indicate that the ELN considered the Applicant to be a military target; secondly, the ELN attempted to extort money from the Applicant only because he had a good job and the financial means to pay; and thirdly, there was no connection between his fear of persecution and any of the Convention refugee grounds. An application for leave and for judicial review with respect to the decision of the CRDD was rejected by a decision dated the 3rd of November, 2001.
[9] On the 19th of June, 2001, the Applicant applied for membership in the Post Determination Refugee Claimant in Canada Class. With the coming into force of the Immigration and Refugee Protection Act, that application was converted to an application for a Pre-Removal Risk Assessment (the "PRRA"). It is the decision on that Assessment that is here under review.
ANALYSIS
[10] As noted, the decision under review followed an application that was converted to a PRRA application for protection under subsection 112(1) of the Immigration and Refugee Protection Act. That subsection reads as follows:
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).
[11] The evidence that may be considered on such an application is described in paragraph 113(a) of the Immigration and Refugee Protection Act. The opening words of section 113 and paragraph (a) of that section reads as follows:
113. Consideration of an application for protection shall be as follows:
(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;
...
[emphasis added]
113. Il est disposé de la demande comme il suit_:
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;
...
[je sousligne]
Certain of the evidence filed on behalf of the Applicant on the application giving rise to the decision under review was not "...new evidence that arose after the rejection" of the Applicant's Convention refugee claim, and was not evidence "not reasonably available" at that time. That notwithstanding, the PRRA Officer notes that he considered all of the material provided, notwithstanding the restriction in paragraph 113(a). I am satisfied that in so doing, he or she acted correctly given that, at the time of the Convention refugee decision in relation to the Applicant, the Convention Refugee Determination Division had no jurisdiction to consider risks other than those based on Convention grounds. Thus, the evidence presented to the PRRA Officer would have been evidence that "...could not reasonably have been expected in the circumstances to have been presented [to the Convention Refugee Determination Division,] at [or prior to] the time of the rejection" by it[2].
[12] As above noted, the PRRA Officer considered all of the material provided for his consideration by the Applicant and his counsel. Later in the decision under review, under the heading, "Personal Risk", the PRRA Officer wrote:
3. The US Country Report (at section 1.a) states that the common guerilla targets are local elected officials, candidates for public office, teachers, civic leaders, business owners, peasants opposed to the guerilla's military or political activities, religious leaders, members of indigenous groups and labour leaders. There is no indication the applicant falls within this list. There is evidence provided indicating that the Applicant was employed by an oil company and the ELN considered such companies as military targets ...but the same evidence does not indicate the guerillas would target employees, instead only stating attacks against the pipelines would resume; and
4. The applicant in his PIF statement indicates the threats by the guerillas are against him and his family. I note from the file that the applicant's common law spouse and his child returned to Columbia over two years ago and there is no evidence to show a continuing threat against them.
In summary, it is my opinion there is insufficient evidence that the applicant is a personal target of the ELN at this time and that, on the balance of probabilities, he was a one time victim of the generalized violence occurring in Columbia.
[13] The PRAA Officer would appear to have overlooked the following paragraph appearing in documentation that was before him and that was presented by or on behalf of the Applicant:
Columbia's guerrilla groups have targeted the oil industry for more than a decade. But the recent wave of assaults - which include the ambushing of army troops protecting petroleum facilities, a sharp increase in pipeline bombings and the kidnapping and murder of oil workers - marks a firm shift in the insurgency's longstanding war against the state.[3]
[underlining added]
The foregoing commentary, from a time when the Applicant was employed in the oil industry in Columbia, would appear to corroborate the Applicant's tale of threats made against him and to lend weight to his allegations, made under oath, that he was personally targeted and was not merely a "...one time victim of the generalized violence occurring in Columbia."
[14] While the PRAA Officer might well have preferred other documentary evidence that was before him or her over the above referenced article, I am satisfied that he or she, having considered all the material before him or her, was under an obligation to acknowledge the foregoing quotation and to explain why he or she chose to reject it, if in fact he or she made such a conscious choice, particularly given its immediate and direct application to the circumstances recounted by the Applicant.
CONCLUSION
[15] For the foregoing reasons, this application for judicial review will be allowed, the decision under review will be set aside, and the Applicant's application for a Pre-Removal Risk Assessment will be referred back to the Respondent for redetermination.
[16] At the close of the hearing of this application for judicial review, counsel were advised of the foregoing outcome. When consulted, neither counsel recommended certification of a question. The Court is satisfied that no serious question of general importance that would be determinative of this application for judicial review arises. In the result, no question will be certified.
"Frederick E. Gibson"
F. C. J.
Calgary, Alberta
November 30, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3001-03
STYLE OF CAUSE: William Eduardo Ramirez Grueso v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 29, 2004
REASONS FOR ORDER : GIBSON J.
DATED: November 30, 2004
APPEARANCES:
Mr. G. Michael Sherritt FOR APPLICANT
Ms. Laura Dunham FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
[1] S.C. 2001 c. 27.
[2] See: Mojzisik v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 33 (QL) at
paragraph 7 and paragraphs 16 to 21.
[3] Tribunal Record, p. 000136, [Raza] Columbian Rebels on the Move, Tuesday, 12 August, 1997.