Date: 20100601
Docket: IMM-5663-09
Citation: 2010 FC 570
Ottawa, Ontario,
June 1, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Guadalupe
HERRERA RIVERA
Karla Esperanza
Renteria HERRERA
Diego Renteria HERRERA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review of a decision,
dated October 27, 2009, of a pre-removal risk assessment officer (the officer) under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C. (2001),
c. 27 (the Act), by Guadalupe Herrera Rivera (the applicant) and her children,
Karla Esperanza Renteria Herrera and Diego Renteria Herrera. The officer refused
their application for permanent residence on humanitarian and compassionate
grounds (‘‘H&C application’’).
* * * * * * *
*
[2]
The
applicants are Mexican citizens. They arrived in Canada in September
2006, accompanied by Jose Wenceslao Renteria Valerio, who was the applicant’s
spouse at the time and who is the father of her children. A few days later they
claimed refugee protection. Their claim for refugee protection was judged not
to be credible. An application for leave and judicial review of that decision
was dismissed.
[3]
On
April 19, 2008, the applicant was the victim of an incident of conjugal
violence on the part of her spouse. She met with the police about the incident
but did not file a complaint. She did, however, leave her husband and from
April 25 to August 1, 2008, she and her children stayed at a shelter for
victims of conjugal violence. She stated that, in fact, her spouse, from whom
she is now divorced, had been violent with her from the first year of their
marriage and had continued to be abusive toward her afterwards. After having
waived a pre-removal risk assessment (PRRA) following the rejection of their
refugee claim, the applicant’s former spouse was deported and is now living in
Los Reyes de la Paz, the same city where the family lived prior to coming to
Canada.
[4]
On
October 27, 2008, the applicants filed an H&C application based on their
establishment in Canada, on the children’s best interests, on the
conjugal violence, and on the risk they might face in Mexico.
* * * * * * *
*
[5]
The
officer dismissed this application, concluding that the applicants would not
face unusual and undeserved or disproportionate hardship if they were to return.
[6]
The
officer noted that the applicants had only been in Canada for three
years, which was not a significant amount of time for the applicant, even
though it would be for the children. Other than the fact that the applicant was
taking French courses, there was little else in terms of information regarding
their establishment. The officer recognized that the applicants’ integration
may have been delayed by their stay at the shelter, but found that, given their
few ties to Canada, returning to Mexico would not cause them
unusual and undeserved or disproportionate hardship.
[7]
The
officer also recognized that the family situation [translation] ‘‘may have been and might continue to be
difficult for the young children concerned’’, given that their parents’
separation had been a difficult experience for them to live through. In
addition, being separated from their friends and having to adjust to the
Mexican school system would probably be stressful for the children. However,
the officer reasoned that [translation]
‘‘the impact on their education and future development would be limited because,
most importantly, they would be with their mother’’. The officer also concluded
that since the applicant’s former spouse had never been violent toward the
children and that it is she who has sole custody of them, their [translation] ‘‘leaving Canada would
not have a negative impact on their physical and psychological health’’.
[8]
Subsequent
to this, while recognizing that the applicant had been the victim of violence
and threats on the part of her former spouse and being aware of the fact that the
applicants had to seek refuge in a shelter, the officer noted that such shelters
also exist Mexico. Furthermore,
the applicants could establish themselves in a city other than the one in which
they had been living before leaving that country.
[9]
Lastly,
as for the risk the applicants would face in Mexico, the officer
rejected the allegations that they had already submitted in support of their
refugee claim. These were allegations regarding, on the one hand, police extortion
against the applicant’s former husband, a businessman, and on the other hand,
his supposed persecution by the family of a man he had killed in an automobile
accident. These allegations were found not to be credible. Furthermore, in
spite of the fact that the documentary evidence on Mexico shows that
there are problems with regard to human rights, and specifically, problems of conjugal
violence, the officer concluded that the applicant and her children would not
be at risk because they would be able to rely on their family and on numerous
organizations for help. In addition, they could move to a part of Mexico City other than the
area where the applicant’s former spouse lives, and there is nothing to
indicate that he would have the resources to find them in that vast city or
elsewhere in Mexico.
* * * * * * *
*
[10] The issues
that arise from this application for judicial review are as follows:
1)
Did
the officer apply the wrong test in reviewing the H&C application?
2)
Did
the officer err in concluding that the applicants would not face unusual and
undeserved or disproportionate hardship, in particular by making his decision
without regard for the evidence before him?
[11] The first
issue, regarding the test applied by the officer, is a question of law and is
reviewable on a standard of correctness (see, for example, Aboudaia v. The
Minister of Citizenship and Immigration, 2009 FC 1169; Singh v. The
Minister of Citizenship and Immigration, 2008 FC 1263).
[12] However, the
officer’s decision with regard to the merits of the application is
discretionary and depends on his or her assessment of the evidence; therefore,
the applicable standard of review is reasonableness (see Kisana v. The
Minister of Citizenship and Immigration, 2009 FCA 189 at paragraph 18, and
the case law cited therein).
* * * * * * *
*
Test applicable to an H&C
application
[13] The
applicants submit that the officer applied the wrong test when he assessed
their H&C application. They criticized him for having mentioned the [translation] ‘‘objectively identifiable
personalized […] risk to their lives or safety’’ as the test applicable to an
H&C application. They submit that an officer charged with reviewing an
H&C application must consider different kinds of risk, and that it is not
only the risk to the applicant’s life or the risk of being subjected to cruel
and unusual treatment or punishment that is relevant when reviewing a claim for
protection under section 97 of the Act or a PRRA application.
[14] The
respondent, for his part, asserts that the officer repeatedly cited the
applicable test, namely, the ‘‘unusual and undeserved or disproportionate
hardship’’ test, and that he applied this test. He noted that the officer
specifically mentioned the fact that [translation]
‘‘ [t]he H&C process is not based on the same criteria [as a
refugee protection claim] for risk assessment’’. Finally, the respondent
submits that the officer was aware that risk was one of several factors that he
had to consider, and that this was what he did.
[15] I concur with
the respondent. The officer was familiar with the ‘‘unusual and undeserved or
disproportionate hardship’’ test. He was also aware that the risk could be one
of the causes of such hardship for an applicant. However, for a risk to cause
hardship to an applicant, logic dictates that the applicant would necessarily
be exposed to that risk. The officer inquired as to whether this was the case
in the file he was reviewing and, in doing so, committed no error.
Merits of the decision
[16] According to
the applicants, the officer erred in his assessment of the risk they would face
in Mexico, in
particular by failing to consider relevant evidence.
[17] In this regard,
I cannot accept any of the applicants’ arguments.
[18] First, I
agree with the respondent that the officer’s error regarding the applicants’
place of residence prior to their departure is not determinative. As the
Supreme Court explained in Law Society of New Brunswick v. Ryan, 2003 SCC
20, [2003] 1 S.C.R. 247 at paragraph 56, an unreasonable finding made by an
administrative decision-maker does not render his or her decision unreasonable
in itself if ‘‘the reasons, taken as a whole, are tenable as support for the
decision’’. In my view, that is the case here. The officer was of the view that
the applicants could move to another part of the Federal District than the one
they were living in before they left for Canada. A
fortiori, if they had been living in a neighbouring city beforehand, they
could move to the Federal District itself and benefit from the protection of
its more advanced laws and regulations, and live in relative anonymity.
[19] Secondly, the
officer’s finding that the applicants could have availed themselves of this
internal flight alternative was not unreasonable. In Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589, the Federal Court of Appeal
clearly stated that ‘‘[a]n IFA cannot be speculative or theoretical only; it
must be a realistic, attainable option. Essentially, this means that the
alternative place of safety must be realistically accessible to the claimant’’
(emphasis added). Furthermore, it is a matter of ‘‘whether one should be expected
to make do in that location’’ (ibid.). The question as to whether the Federal
District would be accessible to the applicants in the event of their removal
from Canada must, by all
accounts, be answered in the affirmative. As to whether the applicants would be
able to make do there, the officer explained his finding in this regard by
noting that the applicant would be able to find suitable work for herself.
[20] Moreover, I
cannot accept the applicants’ argument that the officer made his decision
without regard to the evidence. It is settled law that the onus is on the
person making an H&C application to submit the necessary evidence in
support of the application (see, for example, Sharma v. The Minister of
Citizenship and Immigration, 2009 FC 1006 at paragraph 9 and the numerous
decisions cited therein). Had the applicants wished to draw the officer’s
attention to a particular document, they could have introduced it in evidence.
[21] At any rate,
the documents the officer allegedly neglected to consult or discuss do not have
the importance attached to them by the applicants. As for the Immigration and
Refugee Board’s document, the information it contains about the State of Mexico is not
determinative because the officer had concluded that the applicants would be able
to move to the Federal District. As for the information about the proposed adoption
of regulations that would implement legislation to fight violence against
women, it was already out of date at the time the officer made his decision.
With regard to documents from Amnesty International, Freedom House and US
Country Reports, the officer duly acknowledged that they revealed the
existence of human rights problems in Mexico. He specifically noted
that conjugal violence was one of these problems. It was not necessary for him
to cite a specific passage from the documentary evidence in support of this observation.
For him to have done so would have added nothing to his analysis.
[22] The officer
simply concluded that the measures taken by Mexico would help
ensure that the problems he had acknowledged would not cause the applicants to
face unusual and undeserved or disproportionate hardship. In other words, if
the applicants were to have problems with the applicant’s former spouse, they
could probably rely on the help of the authorities or non-governmental
organizations. (It is from this perspective that the officer’s references to
the possibility of the applicants seeking refuge in a shelter should be
understood. He certainly did not expect the applicants to remain in such a
shelter permanently.) The officer’s reasoning is transparent, intelligible and
justified, and the Court’s intervention would not be warranted (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47).
[23] Lastly, the
officer adequately considered the best interests of the applicant’s children.
He took into account all of the relevant factors that arose from the evidence
that was before him. If this was insufficient, it was up to the applicants to
submit additional evidence which might have satisfied the officer.
[24] In short, the
applicants are asking the Court to re-examine their application and to
substitute its opinion for that of the officer. That is not the function of a
judicial review. For the foregoing reasons, there is no reason that would
justify this Court’s intervention.
* * * * * * *
*
[25] Accordingly,
the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision of the pre-removal risk
assessment officer, dated October 27, 2009, is dismissed.
‘‘Yvon
Pinard’’
Certified true
translation
Sebastian Desbarats,
Translator
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