Date: 20100622
Docket: IMM-5509-09
Citation:
2010 FC 678
Montréal,
Quebec,
June 22, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
BEATRIZ LANDIN BANDA
KIARA MARIEL ARENAS LANDIN
ARIEL ALEXANDRA ARENAS LANDIN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
main issue in this application for judicial review is whether Ms. Landin Banda and
her daughters were given a fair chance to make their submissions in support of
their refugee claim in Canada. The Immigration and Refugee Board’s
Refugee Protection Division dismissed their claim on the ground that it was not
credible. The claim was largely based on the risks to which Ms. Landin Bandin’s
spouse, Ariel Arenas Pareja, would be exposed. He testified on their behalf on
the first day of the hearing, but since he had not finished his testimony at
the end of that day, he was to appear at a later date to finish his testimony. Mr.
Arenas Pareja did not appear on that date because, in the interim, an order for
his removal to Mexico had been issued against him and he had gone
into hiding. In light of the fact that he had received a summons, the
applicants submit that officers of the Canada Border Services Agency violated
not only the Immigration and Refugee Protection Act, but also the
principles of natural justice by placing Mr. Arenas Pareja in an impossible
position whereby he would be unable to finish his testimony on behalf of his
spouse and daughters.
[2]
Had
he not claimed refugee protection in 1990, his most recent claim, as well as
that of his spouse and daughters, would have been treated far differently.
[3]
Mr.
Arenas Pareja’s original refugee claim, which is not related to the applicants’
current claim, was unsuccessful and so he returned to Mexico in 1991. He
came back to Canada in 2007,
accompanied by his spouse and their daughters, and again claimed refugee
protection. However, his claim was ineligible to be referred to the Refugee
Protection Division (RPD) of the Immigration and Refugee Board (IRB), because
section 101 of the Immigration and Refugee Protection Act renders such a
claim ineligible if the person has had a prior claim rejected. He was, however,
entitled to a pre-removal risk assessment and he availed himself of this right.
This assessment turned out to be negative and preparations were made to proceed
with his removal. He did not show up at the airport, and went into hiding. A
warrant for his arrest was issued.
[4]
Mr.
Arenas Pareja claims that, as a former police officer who specialized in drug
enforcement and who more recently worked as a private detective helping police
with various investigations, he is personally targeted by drug traffickers and
corrupt police officers. The negative PRRA decision was issued in early 2008.
He was granted a stay of removal while awaiting the decision on his application
for leave and judicial review. Leave was granted but the application for
judicial review was dismissed on the merits by Deputy Judge Lagacé in December
2008 (2008 FC 1333).
[5]
Deputy
Judge Lagacé found no reason to set aside the decision of the PRRA officer, who
had determined that Mr. Arenas Pareja had not established that he was in danger
and, more specifically, that he was personally targeted by drug traffickers or corrupt
police officers. She had also determined that he had failed to rebut the
presumption that state protection was available to him in Mexico.
[6]
The
following month, the Immigration and Refugee Board issued, at Ms. Landin Banda’s
request, a summons ordering Mr. Arenas Pareja to appear at the hearing of her
case, for which a date had not yet been set. Given that he, in actual fact,
wanted to testify on his spouse’s behalf, the real purpose of the request for the
summons was to keep him in Canada, at least until he had finished giving his
testimony.
[7]
Mr.
Arenas Pareja testified on the first day of Ms. Landin Banda’s hearing on March
10, 2009. He then received an order to appear at the Montréal airport on March 14
for his removal. He filed an application for leave and judicial review of the
decision to remove him while he was still under a summons and applied for a
stay of removal while awaiting the decision on that application. The
application for a stay was dismissed (Docket No. IMM-1342-09). As was
previously mentioned, he failed to appear at the airport and subsequently went
into hiding.
[8]
Ms.
Landin Banda testified on the second day of the hearing on May 27, 2009. In
addition to the risks faced by her husband, she also testified that she and one
of her daughters had been kidnapped in 2007, and that she herself had been
raped. The panel expressed serious doubts about this part of the testimony, given
that this incident had not been mentioned in the Personal Information Form (PIF)
she had previously submitted in support of her claim.
[9]
There
was a long discussion between her counsel and the panel member regarding the
legality of the Minister’s decision not to postpone Mr. Arenas Pareja’s
removal, given that he had not finished his testimony and was still under a
summons. The panel carefully avoided addressing the issue and simply stated
that the matter was before the courts and that justice would run its course. Counsel
for Ms. Landin Banda stated that her spouse was in Canada. The panel suggested
hearing the rest of his testimony via teleconference, but no agreement could be
reached. However, an arrangement was made whereby Mr. Arenas Pareja would be
allowed to finish his testimony by affidavit, which is what he did.
[10]
One
of the panel’s main concerns was that, in spite of the plethora of documents
submitted by Mr. Arenas Pareja, most of which were in Spanish and had not been
translated, he had not submitted a single piece of evidence corroborating his
affiliation with the police after 1997 and was therefore unable to demonstrate
the personalized risk he claimed he would be subject to if he returned to
Mexico.
[11]
In
a subsequent affidavit, he indicated that, given the climate of fear that
prevailed in Mexico, it was difficult for him to obtain corroborating evidence,
even though he had previously stated that there was a great deal of evidence
available in Mexico City.
DECISION UNDER REVIEW
[12]
Ms.
Landin Banda’s claim on behalf of herself and her daughters was dismissed for
lack of credibility. The panel did not believe that the Mexican authorities
would use the services of private detectives in fighting the drug cartels. At
any rate, no corroborating evidence was provided, in spite of the many
opportunities Mr. Arenas Pareja had been given to do so.
[13]
Furthermore,
given that Ms. Landin Banda had not mentioned her kidnapping and rape in her
PIF, the panel was of the view that she was not credible.
DISCUSSION
[14]
The
applicants argued that the panel failed to properly consider the Guidelines on
Women Refugee Claimants Fearing Gender-Related Persecution. Even if Ms. Landin
Banda was reluctant to discuss her rape with her spouse, the panel saw no
reason that would justify the fact that the kidnapping had not been mentioned.
I am of the same view.
[15]
Mr.
Arenas Pareja had over two years to provide evidence in support of his claims
that he was targeted by drug cartels and corrupt police officers. Country conditions
certainly indicate that an honest police officer involved in narcotics
investigations could very well be targeted. However, there is nothing in the
record which would suggest, in any meaningful way, that Mr. Arenas Pareja is
personally at risk.
[16]
While
the panel’s reluctance in believing that the police would hire private
investigators could, if it was perceived as an offhand remark, be taken as pure
speculation, it is tempered by Mr. Arenas Pareja’s inability to provide
evidence in support of his claims, despite his being asked to do so by the
panel on several occasions.
[17]
Therefore,
the panel’s credibility findings are not unreasonable.
[18]
It
is important to remember that Mr. Arenas Pareja’s PRRA application was not
rejected for lack of credibility, but rather for lack of evidence and because
of the availability of state protection. However, even if he himself had been
found not to be credible, this does not mean that he would not have been
believed at his spouse’s hearing. Each case stands alone (Huziak v.
Andrychuk (1977), 1 C.R. (3d) 132 (Sask. Q.B.)).
[19]
The
next issue is to determine if Ms. Landin Banda was denied a fair hearing. If
such is the case, the decision must be set aside, as this Court should not
speculate on what might have happened if Mr. Arenas Pareja had been able to
finish his testimony before the panel (Cardinal v. Director of Kent Institution,
[1985] 2 S.C.R. 643).
[20]
A
decision on the merits in an application for judicial review is final, with no
right of appeal, unless the Court certifies a serious question of general
importance.
[21]
Ms.
Landin Banda proposes the following three questions:
[translation]
a. Is the Canada
Border Services Agency required to respect the summonses that are issued by the
Immigration and Refugee Board pursuant to the right to a fair hearing and section
7 of the Canadian Charter of Rights and Freedoms?
b. Does section
50 of the Immigration and Refugee Protection Act require that this
summons be respected?
c. Does natural
justice require that the removals officer respect such a summons regardless of
the exact wording section 50 of the Act?
[22]
Section
50 of the IRPA reads as follows:
|
50. A removal
order is stayed
(a) if a
decision that was made in a judicial proceeding — at which the Minister shall
be given the opportunity to make submissions
— would be directly
contravened by the enforcement of the removal order;
|
50. Il y a
sursis de la mesure de renvoi dans les cas suivants :
a) une
décision judiciaire a pour effet direct d’en empêcher l’exécution, le
ministre ayant toutefois le droit de présenter ses observations à l’instance;
|
[23]
It
is important to keep in mind that this is Ms. Landin Banda’s application for
judicial review of her refugee protection claim, and not that of her spouse. The
issue is whether she was denied a fair hearing, and not whether Mr. Arenas Pareja
ought to have been deported while he was under a summons. He requested a
postponement; Deputy Judge Teitelbaum refused to grant a stay, and his
application for leave was dismissed by Justice Martineau. There is no right of
appeal from these decisions. Essentially, Ms. Landin Banda is trying to
challenge these decisions indirectly, which is not something this Court can
accept (Toronto
(City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R.
77).
[24]
The
panel has a great deal of latitude, greater than that of this Court, in the
manner in which it receives evidence. Furthermore, even this Court regularly
proceeds by teleconference, and our rules permit evidence by way of affidavit. Mr.
Arenas Pareja’s affidavit, submitted after the first hearing, was received and
considered.
[25]
Given
the circumstances, and the fact that the panel did have the opportunity of
meeting face to face with Mr. Arenas Pareja, that he took the law into his own
hands by failing to report for his removal to Mexico, and that in
his subsequent affidavit he admitted his inability to corroborate his
allegations, Ms. Landin Banda’s hearing was fair.
[26]
Consequently,
it is both unnecessary and inappropriate for this Court to comment upon or to
certify the proposed questions.
ORDER
THE COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
‘‘Sean Harrington’’
Certified
true translation
Sebastian
Desbarats, Translator
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