Date: 20050128
Docket: IMM-10326-04
Citation: 2005 FC 143
BETWEEN:
Rosa Magdalena CASTILLO ALVAREZ
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
DE MONTIGNY J.
[1] By the motion at bar the applicant is seeking a stay of execution of a removal order issued against her. This motion is accompanied by an application for leave and for judicial review from the decision of an immigration officer dismissing the pre-removal risk assessment application (PRRA) on October 27, 2004.
[2] The applicant is a citizen of Ecuador. She arrived in Canada on December 1, 2001, and claimed refugee status on December 5. She said she feared for her life and maintained that she could be persecuted if she were sent back to Ecuador. Her problems were allegedly associated with her social involvement in the Christian Social Movement (CSM), a local association of about 20 members whose aim is to openly fight social injustice and human rights violations committed by the Ecuadorian military.
[3] This claim was dismissed by the Refugee Protection Division (RPD) on December 16, 2002, on the ground that the evidence submitted in support of the refugee application was not credible.
[4] The applicant did not file an application for leave and for judicial review in this Court from the RPD's negative decision.
[5] She in fact filed a pre-removal risk assessment application (PRRA), which was dismissed on October 27, 2004. The immigration officer responsible for reviewing this application determined that the new evidence submitted by the applicant (essentially a fire at her business in August 2002) did not allow the officer to conclude that she ran an objectively identifiable and personal risk if she were returned to Ecuador.
[6] It is well settled that the PRRA procedure is not an appeal procedure nor a level of review for RPD decisions. The sole purpose of this program is to assess risks to which a person may be subject on removal to his or her country of origin, based on new facts which may have come to light after the decision on the refugee application. Paragraph 113(a) of the Immigration and Refugee Protection Act and subsection 161(2) of the Immigration and Refugee Protection Regulations leave no doubt on this point.
[7] In the case at bar, counsel for the applicant tried to establish that the decision by the immigration officer in the PRRA proceeding was wrong and was essentially based on the same facts that had already been considered by the RPD and the officer responsible for the PRRA in support of the applicant's credibility. Counsel also alleged that the officer did not attach much credibility to three letters written after the RDP's decision by two lawyers and a psychologist tending to establish the applicant's involvement.
[8] It appeared from a careful reading of the decision in the PRRA proceeding that the immigration officer painstakingly reviewed these three letters before arriving at the conclusion that they were self-serving documents and that their lack of accuracy could not corroborate the applicant's claims about her social activities and membership in the CSM. That finding does not appear unreasonable to the Court.
[9] There was not much weight assigned to the only new fact presented to the PRRA officer, namely the fire which allegedly damaged the applicant's business, given that there was nothing to suggest a connection between the fire and the threats allegedly made against the applicant in 2001. Once again, that finding is not unreasonable bearing in mind, in particular, a letter from the fire chief stating that the origin of the fire was unknown.
[10] Finally, counsel for the applicant argued that his client should have been entitled to a hearing before the PRRA officer if her credibility was at issue.
[11] It is well settled that a pre-removal risk assessment is ordinarily made on the basis of written submissions (section 113 of the Immigration and Refugee Protection Act and section 161(1) of the Immigration and Refugee Protection Regulations). A hearing will only be required when the factors listed in section 167 of the Regulations are met. Consequently, a hearing will only be held where the evidence raises an important question about the applicant's credibility and where that evidence is important in making the decision.
[12] All things considered, the Court does not believe that the applicant should have had a hearing before the PRRA officer. Her credibility, which the RPD had strongly questioned, was not the focus of the officer's concerns when he concluded his PRRA. His decision was based instead on the actual risk faced by the applicant if she were to return to her country, and it was essentially because he considered that her part in a movement for social justice was not significant enough to justify her fears that he dismissed her application.
[13] What is more, his analysis of the documentary evidence about the situation existing in Ecuador led him to consider that progress had been made and that the existing problems did not place the applicant at any greater risk than the population in general.
[14] In view of the foregoing, and bearing in mind that the immigration officer did not make any patently unreasonable error in assessing her PRRA application, the Court determines that the applicant has not established the existence of a serious issue to be tried.
[15] This finding suffices in itself to dispose of the application at bar. Additionally, the applicant was unable to establish that she would suffer irreparable harm if her application to stay execution of the removal order were dismissed. There is nothing to suggest that her life would be in danger in Ecuador. Her allegations, which were based on events that occurred in 2001, are the same as those mentioned in the refugee claim which was dismissed by the RPD and against which no judicial review was sought.
[16] Even though the political and social situation in Ecuador is far from ideal and a certain degree of insecurity still exists, the applicant was unable to persuade the immigration officer who carried out the assessment of her PRRA application that she was personally a target. That finding is not patently unreasonable.
[17] As there is no serious issue to be tried and no irreparable harm, the balance of convenience favours the Minister, especially as the applicant has already had an opportunity to make her claim twice, without success.
[18] For these reasons, the application for a stay is dismissed.
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(s) "Yves de Montigny"
Judge |
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10326-04
STYLE OF CAUSE: Rosa Magdalena CASTILLO ALVAREZ v. THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 24, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice de Montigny
DATED: January 28, 2005
APPEARANCES:
Sébastien Dubois FOR THE APPLICANT
Martine Valois FOR THE RESPONDENT
SOLICITORS OF RECORD:
St-Pierre, Grenier FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario