Date: 20100826
Docket:
IMM-6076-09
Citation:
2010 FC 846
Montréal,
Quebec, August 26, 2010
PRESENT:
The Honourable Mr. Justice
Boivin
BETWEEN:
LUISA ELENA LEON SANCHEZ
ARANTZA
ANGLES MUNOZ
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, 2001 S.C., c. 27 (the
Act), of a decision dated October 13, 2009, by Pre-Removal Risk Assessment
(PRRA) Officer Virginie Auger of Citizenship and Immigration Canada (CIC), who found
that the applicants would not be subject to a danger of torture or persecution,
or to a risk of cruel or unusual treatment or punishment or to a risk to their
lives if they were to return to their country of origin within the meaning of
sections 96 and 97 of the Act under a PRRA.
Factual background
[2]
The
principal applicant, Luisa Elena Leon Sanchez, and her granddaughter, Arantza
Angles Munoz, are both citizens of Mexico and lived in the city of
Villahermosa. They arrived in Canada on August 7, 2007.
[3]
The
principal applicant alleges that in March 2007, her granddaughter was
harassed by Irving Diego Hernandez, the son of Evaristo Hernandez Cruz, a
well-known political figure in the cities of Villahermosa, Tabasco and Mexico.
[4]
The
applicant alleges that Mr. Hernandez would watch her granddaughter while
she was at school and would follow and call her. She further alleges that she
asked him to not bother them anymore or she would go to the authorities. Mr. Hernandez allegedly answered
that the authorities would do nothing to him because of his father’s importance
and influence.
[5]
The
applicant submits that she was personally threatened with retaliation if she
did not let Mr. Hernandez see her granddaughter or if she made a
complaint. She also states that he threatened to confine and mistreat her
granddaughter.
[6]
The
applicant and her granddaughter went to live with the granddaughter’s mother in
the same city. Then, they left the city to live in the Federal District of
Mexico. However, the applicant submits that Mr. Hernandez was able to find
them and threatened them by telephone. The applicant and her granddaughter then
came to Montréal where the applicant’s daughter has been living since 2004.
[7]
On October 27,
2007, the applicants claimed refugee status, which the Immigration and Refugee
Board (IRB) rejected on November 20, 2008. On April 1, 2009, an
application for leave and judicial review of this decision was dismissed by
Justice Beaudry (IMM-5324-09). On July 21, 2009, the applicants then
applied for a pre-removal risk assessment (PRRA), which was rejected on October 13,
2009. On December 2, 2009, the applicants brought a motion to stay their
removal in docket IMM-6081-09, dismissed by Justice de Montigny on December 7,
2009. Finally, on January 30, 2010, the removal was carried out and the
applicants left Canada for Mexico.
Impugned decision
[8]
In the
PRRA application, dated October 13, 2009, the applicant reiterated that
the reasons given in the narrative for their IRB refugee claim still exist. In
the reasons for the PRRA decision, the officer deciding this matter noted that
the applicant provided eleven pieces of evidence that are all from general
texts that can be accessed on the Internet and that they were all published
before the IRB decision, i.e. before November 20, 2008.
[9]
Since the
applicant gave no explanation as to the reason why these documents were not
accessible or available or why it was unreasonable to expect that she would
provide them as part of her IRB application under section 113(a) of
the Act, the officer refused to accept this evidence.
[10]
In her
analysis, the officer observed the general situation in Mexico, while taking
into account the applicant’s personal profile. She considered four documentary
sources on various topics surrounding the problems in Mexico and found that, in
light of these, the situation in Mexico had not changed considerably since the
IRB decision.
[11]
Finally,
the officer found that the applicant had not discharged her burden of proving
that she and her granddaughter would be at risk, if they were to return to
Mexico, of persecution or that they would have serious reasons to believe that
they could be subject to a danger of torture or to a risk to their lives or to
a risk of cruel or unusual treatment or punishment.
Issue
[12]
In
this application for judicial review, the only issue is whether the officer’s
decision was based on erroneous findings of fact made in a perverse or
capricious manner or without regard to the material before her with regard to
the spirit and intent of the Act.
Standard of review
[13]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, at paragraph 51, recognizes that “questions of fact,
discretion and policy as well as questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of
reasonableness”. The Court also added at paragraph 62 that the process of judicial
review involves two steps and it must first be ascertained “… whether the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
[14]
As
regards a PRRA officer’s decisions, it is well-settled case law that the
standard of review to be applied is reasonableness. As Justice Pinard explained
in Martinez v. Canada (Minister of Citizenship and Immigration),
2010 FC 31, [2010] F.C.J. No. 41, at paragraph 18:
[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).
(See also Figurado v. Canada (Solicitor
General), 2005 FC 347, [2005] F.C.J. No. 458, at paragraph 51; Sani
v. Canada (Minister of Citizenship and Immigration), 2008 FC 913,
[2008] F.C.J. No. 1144).
Analysis
[15]
At
the hearing, the Court heard the parties’ arguments on the fact that this
application could be moot. The Court then decided to hear the parties on the
merits, under advisement.
[16]
After
a careful review of the record and the case law, the Court is of the view that
the application for judicial review has become moot because the applicants were
returned to Mexico. This evidence is in the record (Applicant’s Memorandum at
pp. 51-58) and is not disputed by the applicant.
[17]
More
specifically, in Perez v. Canada (Minister of Citizenship and
Immigration), 2009 FCA 171, [2009] F.C.J. No. 691, Justice Noël of the
Federal Court of Appeal affirmed a decision by Justice Martineau, Perez v.
Canada (Minister of Citizenship and Immigration), 2008 FC 663,
[2008] F.C.J. No. 836, in which Justice Martineau dismissed an application for
judicial review on the ground that the matter was moot because the appellant
was no longer in Canada and the Court refused to exercise its discretion to consider
the judicial review. Justice Martineau certified the following question and
Justice Noël affirmed his decision as follows:
i) Is an
application for judicial review of a PRRA moot where the individual who is the
subject of the decision has been removed from or has left Canada after an
application for stay of removal has been rejected?
…
[5] We agree
that the application for judicial review is moot, and in particular with the
statement made by Martineau J. at paragraph 25 of his reasons where he
says:
... Parliament
intended that the PRRA should be determined before the PRRA applicant is
removed from Canada, to avoid putting her or him at risk in her or his country
of origin. To this extent, if a PRRA applicant is removed from Canada before a
determination is made on the risks to which that person would be subject to in
her or his country of origin, the intended objective of the PRRA system can no
longer be met. Indeed, this explains why section 112 of the Act specifies
that a person applying for protection is a “person in Canada”.
By the same logic, a
review of a negative decision of a PRRA officer after the subject person has
been removed from Canada, is without object.
[6] We also cannot
detect any error in Martineau J.’s exercise of discretion in deciding not to
hear the application despite its mootness.
[7] The appeal
will accordingly be dismissed. The first certified question will be answered in
the affirmative.
…
[18]
As
Justice Martineau stated in the above case, the statutory scheme was not
designed so that a person outside Canada can obtain a pre-removal risk
assessment (section 112 of the Act).
[19]
For
all of the above reasons and having found that the application for judicial
review is moot, the Court refuses to exercise its discretion and consider this
application for judicial review given its mootness. Accordingly, the Court
dismisses this application.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for
judicial review is dismissed.
“Richard
Boivin”
Certified true
translation
Catherine Jones,
Translator
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