Date: 20100118
Docket: IMM-2557-09
Citation: 2010 FC 31
Ottawa, Ontario,
January 18, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Maria
Isabel POZOS MARTINEZ
Sergio Omar HERNANDEZ
POZOS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review under subsection
72(1) of the Immigration and Refugee Protection Act, S.C. (2001), c. 27 (the
Act) of a decision rendered by Officer Mélanie Daigle, dated April 7, 2009,
denying the application for a pre-removal risk assessment (‘‘the PRRA
application’’)
of the applicants.
* * * * * * * *
[2]
The
principal applicant, Maria Isabel Pozos Martinez, is a citizen of Mexico. Sergio Omar
Hernandez Pozos is the applicant’s son. Mr. Hernandez Pozos’ claim is based
entirely on his mother’s allegations.
[3]
The
female applicant was born on December 26, 1964, in the city of Cordoba, in the
State of Veracruz in Mexico. She claimed refugee protection in Canada
alleging a well-founded fear of persecution based on her membership in a
particular social group, namely, women who are victims of conjugal violence in
Mexico, and because her spouse was a member of the judicial police in Mexico.
[4]
All
of the facts regarding the incidents of conjugal violence by the female
applicant’s former spouse, Armando Salina Vera, as well as the circumstances
under which the female applicant filed a complaint, are disputed.
[5]
The
female applicant had apparently tried to end her relationship with Mr. Salina
Vera towards the middle of the year 2000 because he had become very violent
with her: [translation] ‘‘[he] hit
me, leaving me with injuries which required me to go [to] the Hospital’’. Their
relationship had started in 1998. On January 15, 2000, the abuse allegedly
reached the point where the female applicant had to be hospitalized. She
apparently convinced him to leave the family home in June 2000 and did not hear
from him for the following five years. In 2005, he allegedly began showing up
at their home in an erratic way, saying that he wanted to come back and live
with the female applicant and her son. He also allegedly harassed her.
[6]
Towards
the beginning of 2006, the female applicant allegedly found out that Mr. Salina
Vera had killed someone and suspected that he was working for the judicial
police. In February 2006, he apparently stopped showing up at their home. She
allegedly travelled to Canada from July 2005 to August 2006 with her
son. The reason for their trip was that her son wanted to visit Canada because of his
own interest as a student in a tourism program.
[7]
Mr.
Salina Vera apparently was waiting for the applicants upon their return from Canada. He
allegedly began showing up at their home. He then allegedly threatened the
female applicant that he would go after her son if she did not meet his
demands. After a particularly violent incident in November 2006, she allegedly
filed a complaint against her former spouse with the municipal authorities of
her city, and her situation apparently received coverage on local television.
In her affidavit, the female applicant explained her decision to call the
television station: [translation]
‘‘I had a better chance of getting protection’’. In spite of this, her former spouse
allegedly stepped up his threats against the female applicant and her son. She
claimed to have fled to Canada with her son because she feared for their
lives.
[8]
The
applicants arrived in Canada on November 17, 2006, and the female
applicant claimed refugee protection in 2007, a few months after arriving in Canada. Her claim
was heard on March 25, 2008, and on May 22, 2008, was denied by the
Refugee Protection Division of the Immigration and Refugee Board (the Board).
The Board determined that the applicants were not credible. An application for
leave and for judicial review of that decision was dismissed on September 15,
2008.
[9]
The
applicants filed a PRRA application on November 4, 2008. Several extensions
were granted to allow for the translation of the majority of documents
submitted in support of the application. On April 7, 2009, PRRA Officer Daigle
rendered a decision in which she determined that the female applicant would not
be at risk in her country if she were to be returned there. This decision
applied to her son as well. The applicants were informed of the decision on
April 20, 2009. In between the time the officer issued the decision, on April 7,
2009, and the date on which the applicants were informed of the decision, the
applicants submitted new evidence to the PRRA officer. The officer granted the
request by the applicants’ counsel to reconsider the matter in light of the new
evidence submitted on April 17, 2009.
* * * * * * *
*
[10] In support of
her PRRA application, the female applicant submitted four new pieces of
evidence. However, the PRRA officer found that she was retelling the same story
and making the same allegations as those she had made before the Board.
[11] The PRRA
officer did not assign any probative value to the new evidence submitted, namely,
a letter dated November 16, 2008, by Israel Noriega B., a reporter for the Televisa
television network. In the letter, Mr. Noriega B. stated that he had
interviewed the female applicant about the violence she had allegedly suffered.
He explained that he was unable to obtain a recording, given that the television
network was no longer located in that city. He failed to mention the date of the
interview or when it was broadcast.
[12] The female
applicant had testified that she had given an interview about the conjugal
violence of which she claimed to be a victim. Yet before the Board, the female
applicant was unable to name the reporter who had featured her story. In her
reasons, the PRRA officer found that the female applicant had not explained how
she was able to find the name of the reporter or how she had contacted him.
Furthermore, the PRRA officer found that [translation]‘‘most
of the major television networks have archive departments’’. The PRRA officer
also noted that Mr. Noriega had not explained [translation]‘‘in
detail what steps he allegedly took to try and obtain a videocassette of the
interview from his current employer’’.
[13] Consequently,
the PRRA officer drew a negative inference with regard to the probative value
of the letter, noting the lack of information about the interview itself.
[14] The second
new piece of evidence taken into consideration by the PRRA officer was the
letter dated November 14, 2008, by Ms. Blanca Castillo Pérez of the Municipal
Executive Committee – Women’s Secretariat. In her letter, Ms. Castillo Pérez
referred to a hearing before the Executive Committee and Secretariat held in
November 2006. The PRRA officer indicated that this fact was not mentioned in
the applicant’s Personal Information Form or during her hearing before the
Board. Due to this omission, the PRRA officer did not assign any probative
value to this document.
[15] Moreover, the
Board did not assign any probative value to the documents Ms. Castillo Pérez
referred to in her letter, other than [translation]‘‘the
investigation’s logbook data sheet’’. In addition, the PRRA officer did not
admit the investigation’s logbook data sheet because Ms. Castillo Pérez failed
to explain why this document was not in the record when she had claimed to have
it in her possession.
[16] One of the
purposes of this letter was to prove that the female applicant had filed a
complaint against her former spouse. Yet the PRRA officer noted that the female
applicant, in box 51 of her
PRRA form, had stated having given a television interview because she [translation]‘‘could not file a
complaint’’. Therefore, the PRRA officer clearly doubted whether the female
applicant had filed a complaint and gave no weight to the document because of
this contradiction.
* * * * * * *
*
[17] The
applicants raise the following issues:
1. Does the decision rendered by the PRRA
officer contain findings that are unreasonable or that were made without regard
for the evidence, in a perverse or capricious manner, regarding the female
applicant’s credibility?
2. Did the PRRA officer err in law by not
applying the guidelines for women fleeing gender-related persecution in her
decision (‘‘Gender Guidelines’’)?
[18] The standard
of reasonableness applies to the findings of fact in the PRRA officer’s
decision because the pre-removal risk assessment of the PRRA officer is an
assessment of the facts to which this Court must accord great deference (see,
among others, Pareja v. The Minister of Citizenship and Immigration,
2008 FC 1333, at paragraph 12 and Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190).
[19] In the case
at bar, after hearing counsel for the parties and reviewing the evidence, I am
not persuaded that the inferences drawn by the PRRA officer are among those
that could not have been reasonably drawn (see Aguebor v. Canada (M.E.I.) (1993), 160
N.R. 315).
[20] It should be
recalled that a PRRA application made by someone who has been denied refugee
status is not an appeal or a reconsideration of the Board’s decision. In Raza
v. The Minister of Citizenship and Immigration, 2007 FCA 385, at paragraph
12, the Federal Court of Appeal wrote as follows:
[12] A PRRA application by a failed refugee claimant is not an appeal or
reconsideration of the decision of the RPD to reject a claim for refugee
protection. Nevertheless, it may require consideration of some or all of the
same factual and legal issues as a claim for refugee protection. In such cases
there is an obvious risk of wasteful and potentially abusive re-litigation. The
IRPA mitigates that risk by limiting the evidence that may be presented to the
PRRA officer. The limitation is found in paragraph 113(a) of the IRPA,
which 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; [...].
|
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;
[...].
|
[21] Here, the
PRRA officer’s decision appears to me to be completely transparent and
intelligible. The issue is not whether the Court would have assessed the facts
differently, but rather whether the officer’s assessment is reasonable. The
applicants also failed to establish that the decision under review is based on
an erroneous finding of fact made in a perverse or capricious manner or without
regard for the material before the officer (paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. (1985), c. F-7).
[22] As to whether
the PRRA agent erred in not taking into account the Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution, given that she made no mention of
them in her decision, the applicants’ argument does not hold up. The suggestion
that there may be a reviewable error in law should the guidelines not be
mentioned is not sustainable. As my colleague Justice Michel Shore stated in Munoz
v. The Minister of Citizenship and Immigration, 2006 FC 1273, at paragraph 33,
the purpose of the Guidelines is to ‘‘ensure that gender-based claims are
heard with sensitivity’’ and ‘‘in some circumstances, the RPD is not even
required to mention the Guidelines in its decision’’ (at paragraph 30).
[23] In this case,
the respondent is right in arguing that the officer must be assumed to have
considered the guidelines in her decision, even though she does not
specifically mention them. In fact, the respondent correctly criticizes the
applicants for not specifying how the PRRA officer allegedly neglected to apply
Guideline 4 and how this might have changed her decision.
[24] Finally, the
applicants invoke international law and the Canadian Charter of Rights and
Freedoms, alleging that they face a risk to their safety and to their lives
should they return to Mexico. In this regard, I need only mention what
I stated in Singh v. The Minister of Citizenship and Immigration, 2007 FC
963, at paragraph 7:
As for the
applicant’s arguments based on the Canadian Charter of Rights (the Charter)
and international law, it is trite law that the removal of a person after
proper risk assessment is not contrary to sections 7 and 12 of the Charter
(see Suresh v. Canada (Minister of Citizenship and Immigration), [2002]
S.C.J. No. 3 (QL), [2002] 1 S.C.R. 3; Chieu v. Canada (Minister of
Citizenship and Immigration), [2002] S.C.J. No. 1 (QL), [2002] 1 S.C.R. 84;
and Al Sagban v. Canada (Minister of Citizenship and Immigration),
[2002] S.C.J. No. 2 (QL), [2002] 1 S.C.R. 133). As for specific Article 3 of
the Convention against Torture, Martineau J. stated the following in Sidhu,
supra:
[26] Paragraph
97(1)(a) of the Act refers specifically to the notion of torture
contained in Article 1 of the Convention and therefore integrates the
principles contained in Article 3 of the Convention. Consequently, the
answer to this question is contained in the law itself and does not require
certification. [Our emphasis.]
* * * * * * *
*
[25] For all these
reasons, the Court’s intervention is not warranted and the application for
judicial review is dismissed.
[26] The
applicants propose the following question for certification:
[translation]
Does the examination of evidence
regarding a risk to life or a risk of death in the context of an application on
humanitarian and compassionate grounds or the risk of return require an
analysis under the constitutional standard pursuant to section 24 of the Canadian
Charter of Rights and Freedoms when an attempt is being made to establish a
Charter violation?
[27] The
respondent opposes the certification of this question on the ground that it does
not apply to the facts at issue and therefore fails to meet the criteria for
certification as set out in Canada (M.C.I.) v. Liyanagamage (1994), 176
N.R. 4. I agree with the respondent.
[28] In fact, it seems
clear from these reasons that the applicants’ version of the facts was given no
credence.
[29] Furthermore,
it is clear from Singh, above, and the case law cited therein
that section 24 of the Canadian Charter of Rights and Freedoms does not
apply to this case.
[30] The proposed question
is therefore not certified.
JUDGMENT
The
application for judicial review of a decision rendered by Officer Mélanie
Daigle, dated April 7, 2009, denying the applicants’ application for a
pre-removal risk assessment is dismissed.
‘‘Yvon
Pinard’’
Certified true translation
Sebastian Desbarats, Translator
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