Date: 20041015
Docket: IMM-2308-03
Citation: 2004 FC 1412
Ottawa, Ontario, this 15th day of October, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
HERNAN EVELIO RISCO-FLORES and
TULA LILA QUIROZ-VELASQUEZ and
CARMEN NATALY RISCO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Hernan Risco-Flores came to Canada from Peru in 2000 with his wife and daughter. He claimed that members of the Shining Path terrorist group threatened and assaulted him, and tried to extort money from him in 1999. Mrs. Tula Quiroz-Velasques said that she and her daughter were assaulted in 2000 by men who were looking for her husband. Mr. Risco-Flores believed the assailants were Shining Path members.
[2] The applicants sought refugee protection in Canada, but a panel of the Immigration and Refugee Board turned them down. An immigration officer then carried out a pre-removal risk assessment and concluded that the family would not be in danger if it returned to Peru.
[3] The applicants argue that the officer failed to consider evidence supporting their claim that the Shining Path was still looking for Mr. Risco-Flores. They ask me to order a new assessment by a different officer. I agree that the officer overlooked important evidence and must, therefore, allow this application for judicial review.
I. Issue
Did the immigration officer fail to consider highly relevant evidence?
II. Analysis
[4] Mr. Risco-Flores claimed that the Shining Path was particularly interested in him because of his involvement in repairing electrical towers that the terrorists had bombed. He supplied a police report that backed up his claim. It described an incident that took place in the city of Chiclayo in June 2002, more than two years after the applicants had left Peru. Members of the Shining Path visited relatives of the applicants who continue to reside in Peru. The visitors asked about the applicants' whereabouts and assaulted Mr. Risco-Flores's father. The report states that these persons continue to look for Mr. Risco-Flores and his family in order to punish him for his work on the electrical towers. Their objective, according to police, is to kill the applicants. The author of the report recommended that the remaining family members in Peru receive police protection.
[5] It appears to me that the officer who conducted the pre-removal risk assessment did not deal with the substance of this report. She made passing reference in her reasons to a police report but did not consider its obvious significance as evidence of ongoing risk to the applicants.
[6] There is a presumption that decision-makers have considered all of the evidence before them, even if they do not refer specifically to each item: Gourenko v. Canada (Solicitor General), [1995] F.C.J. No. 682 (T.D.)(QL). However, the more central a document is to the issue to be decided, the greater the obligation on the decision-maker to deal with it specifically: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL). This is particularly so when the document in question contradicts the decision-maker's own conclusions: Cepeda-Gutierrez.; Cin Lam Thang v. The Solicitor General of Canada, 2004 FC 457, [2004] F.C.J. No. 559 (T.D.)(QL).
[7] Here, the document in issue contains an analysis of the risk that the Shining Path poses to the applicants. It derives from a credible source and states a conclusion contrary to the officer's findings. In my view, she had a duty to refer to that report in her reasons. It was, of course, open to her to discount the report or find it to be inauthentic. But any such conclusion would require explanation in her reasons. The officer offered no grounds for ignoring the substance of the report.
[8] I must, therefore, allow this application for judicial review and order that a new risk assessment be carried out by a different officer.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed and a new risk assessment by a different officer is ordered.
"James W. O'Reilly"
F.C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2308-03
STYLE OF CAUSE: HERNAN EVELIO RISCO-FLORES and
TULA LILA QUIROZ-VELASQUEZ and
CARMEN NATALY RISCO v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 26, 2004 and June 4, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
APPEARANCES:
Chantal Tie FOR THE APPLICANTS
Derek Rasmussen FOR THE RESPONDENT
SOLICITORS OF RECORD:
SOUTH OTTAWA COMMUNITY
LEGAL SERVICES FOR THE APPLICANTS
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada