Date:
20120810
Dockets: IMM-6260-11
IMM-8634-11
IMM-8749-11
Citation:
2012 FC 980
Ottawa, Ontario, August 10, 2012
PRESENT: The Honourable Mr. Justice Near
Docket: IMM-6260-11
BETWEEN:
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REYNA AUDELI ULLOA MEJIA
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Applicant
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and
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MINISTER OF CITIZENSHIP
& IMMIGRATION
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Respondent
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Docket: IMM-8634-11
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AND BETWEEN:
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JOSHUA OTTONIEL MURILLO ULLOA,
KRIZZIA MUNILLO ULLOA
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Applicants
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and
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MINISTER OF CITIZENSHIP
& IMMIGRATION
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Respondent
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Docket: IMM-8749-11
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AND BETWEEN:
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REYNA ULLOA MEJIA,
JOSHUA OTTONIEL MURILLO ULLOA,
KRIZZIA MUNILLO ULLOA
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Applicants
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and
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MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
These
are three applications for judicial review of decisions dated July 20, 2011,
October 21,
2011 and November 30, 2011. The decisions consist of the refusal of Reyna
Audeli Ulloa Mejia’s (Reyna) Pre-Removal Risk Assessment (PRRA) by Officer K.
Bilkevitch (the first PRRA Officer), the refusal of her children’s PRRA by
Officer I. Fonkin, and the refusal of the request to defer all of their removal
by Officer C. Annamunthodo (the Enforcement Officer).
I. Facts
[2]
The
Applicants, Reyna, Joshua Ottoniel Murillo Ulloa, and Krizzia Munillo Ulloa,
are citizens of Honduras; Reyna is Joshua’s and Krizzia’s mother. Reyna came
to Canada in 1996 with her then husband and they claimed refugee protection;
while they were in Canada, Reyna gave birth to a third child who is a Canadian
citizen. They alleged persecution by a high-ranking military officer, but the
Board found that they were not credible and did not have a well-founded fear of
persecution. After the claim was refused, a removal order was issued against
the Applicant and her husband.
[3]
On
December 19, 2000, they left Canada and returned to Honduras. As time went on,
Reyna alleges that her husband began working for a powerful political figure in
Honduras who is known for being corrupt. She became increasingly suspicious
about her husband’s activities and began noticing strange men at their house
and strange cars in the neighbourhood.
[4]
In
July 2009, Reyna contacted the police because she was suspicious about her
husband’s activities. The police did nothing to assist her.
[5]
Some
time thereafter, Reyna learned that her husband was involved with the Maras. Around the same time, he became verbally and physically abusive towards Reyna and
threatened to kill all three of the Applicants if she reported him to the
police or tried to leave him.
[6]
Eventually,
Reyna took her children and left her husband. She lived in hiding for
approximately two years, and eventually went to live in San Pedro Sula with her
father. Her husband found her there and beat her severely until a neighbour
intervened.
[7]
In
March 2010, Reyna contacted the police again and told them of her husband’s
involvement with the Maras. Rather than take action against him, the police
visited him and they sat together and had a drink. After the police left,
Reyna’s husband beat her for reporting him.
[8]
Fearing
for her children’s safety and her own life, Reyna arranged for her Canadian
daughter to come to Canada, where Reyna’s parents live. Afraid of what her
husband would do when he learned that the child was gone, the Applicants
followed and arrived in Canada on June 8, 2010 and
claimed refugee protection.
[9]
Reyna
was excluded from refugee protection because she was subject to a valid removal
order from her prior claim, and the children’s claim was refused on March 18,
2011. Reyna filed her PRRA on June 29, 2010 and her children filed theirs on
September 22, 2011. Reyna also made an application for permanent residence
from within Canada based on humanitarian and compassionate (H&C) grounds on
September 23, 2011.
[10]
Both
PRRAs were refused and the Applicants were directed to report for removal
scheduled on December 7, 2011. They applied for a deferral of that removal,
and were refused on November 30, 2011.
[11]
Justice
Donald Rennie stayed the Applicants’ removal on December 6, 2011 and granted
leave to commence these applications on March 27, 2012.
II. Decisions
under Review
A. First
PRRA
[12]
The
first PRRA Officer found that Reyna had not provided sufficient detail or any
corroborating evidence to support her allegations. The first PRRA Officer also
found that Reyna had not rebutted the presumption of state protection by way of
objective evidence about the lack of adequate protection. The PRRA was
therefore refused.
B. Second
PRRA
[13]
The
second PRRA Officer considered the negative refugee decision, which considered
essentially the same allegations as were raised in the children’s PRRA. The
second PRRA Officer then turned to the affidavit of Jene Sanchez, provided by
the Applicants as corroborating evidence. The second PRRA Officer gave the
affidavit little weight because it did not explain how Jene Sanchez
knew the Applicants or how the affiant knew that Reyna’s husband was involved
with the Maras. The second PRRA Officer researched country conditions in Honduras and found based on the evidence that state protection is available in Honduras. The PRRA was therefore denied.
C. Deferral
Request
[14]
The
Enforcement Officer noted that there were several reasons put forward for the
referral request: the outstanding application for judicial review of the first
PRRA, the pending H&C application, the interests of the children, the
psychological state of all of the Applicants, and the poor health of Reyna’s
father. The Enforcement Officer also noted that the discretion to defer removal
is extremely limited.
[15]
The
Enforcement Officer found that neither the application for review of the first
PRRA nor the pending H&C request were sufficient to justify the referral,
given that the deferral request is not a review mechanism for the PRRA and the
H&C was not filed until after the children’s PRRA was refused, 15 months
after the Applicants were deemed ready for removal.
[16]
The
Enforcement Officer also rejected the children’s interests and the
psychological effect on them as justification for deferring removal, noting
that the family was aware of their possible removal since June 15, 2010 and had
already therefore had ample time to prepare for their departure.
[17]
Finally,
the Enforcement Officer noted that there was no evidence that Reyna’s father was
actually dying, and found that even if the Applicants were removed, the father
would have adequate care, as he is a Canadian citizen.
[18]
The
requested deferral was therefore denied.
III. Issues
[19]
The
Applicants’ submissions are fairly similar in all three applications,
particularly their submissions about the second PRRA and the deferral request. However,
their characterization of the issues is vague and unhelpful. I suggest that
these three applications raise the following issues:
(a) Did the second PRRA
Officer err in giving little weight to the supporting affidavit?
(b) Are the PRRA Officers’
state protection findings unreasonable?
(c) Is the deferral request
moot?
(d) If it is not moot, is the
deferral decision reasonable?
[20]
The
Applicants also argue that, as the second PRRA Officer referenced the Board’s
decision, the children’s PRRA relied on their refugee decision, and that the
fact that several current Board members failed a qualification exam that is
being administered to new members, the PRRA is therefore unreasonable because
the Board is not competent. I have not dealt with this argument further as it
is totally devoid of merit and was already rejected in Justice Rennie’s stay
order in IMM-8634-11.
[21]
They
also reference a failure to apply the Gender Guidelines in considering the
PRRAs but do not actually explain this submission and the Respondent did not
address it. There was no hearing in any of the decisions below, and it is
unclear how the Gender Guidelines would apply. This argument has therefore not
been addressed further.
IV. Standard
of Review
[22]
The
first, second, and fourth issues are reviewable on the reasonableness standard (see Yousef
v Canada (Minister of Citizenship and Immigration), 2006 FC 864,
[2006] FCJ No 1101 at para 19, Castillo Mejia v Canada (Minister
of Citizenship and Immigration), 2010 FC 530, [2010] FCJ No 631
at para 10, and Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at
para 51, respectively). The question of mootness is a preliminary issue
that arises with respect to the deferral request and therefore standard of
review does not apply.
V. Analysis
[23]
The
Applicants submit that it was unreasonable to reject their PRRAs on the basis
of a lack of corroborating evidence alone and that, in the absence of contradictory
evidence, their evidence should have been accepted as true.
[24]
The
Respondent submits that the Applicants’ arguments are misplaced, as they simply
failed to provide sufficient evidence or sufficient detail to establish their
claims.
A. Weight
Given to the Supporting Affidavit
[25]
The
Applicants submit that the second PRRA Officer erred in rejecting the affidavit
because it is self-serving.
[26]
The
Respondent submits that the second PRRA Officer reasonably decided to give the
affidavit little weight and simply re-states the reasons for doing so that are
listed in the second PRRA.
[27]
The
Respondent has not actually argued that the second PRRA Officer’s reasons for
rejecting the supporting affidavit are reasonable. Rather, the Respondent
seems to argue that the second PRRA Officer did not reject the affidavit
because it was self-serving evidence.
[28]
It
was not unreasonable for the second PRRA Officer to give little weight to the
affidavit for the reasons listed. Although the fact that the affidavit was
sworn in San Pedro Sula suggests that the affiant may be the neighbour who
intervened when Reyna’s ex-husband found her and was beating her, this is not
stated in the affidavit or in counsel’s submissions. There is other
corroborating evidence in the record, but it was put forward in the refugee
claim.
B. State
Protection
[29]
The
Applicants submit that the PRRA Officers erred by failing to consider the
lowered evidentiary burden to rebut the presumption of state protection that
results from the fledgling democracy in Honduras, failing to consider the
evidence of similarly situated individuals who did not receive protection, and
failed to consider whether there is adequate protection on an operational level
rather than simply a willingness to protect citizens. The Applicants’ PRRA
submissions specifically referenced a recent coup in Honduras and argued that
the presumption of state protection was therefore lessened.
[30]
The
Respondent submits that the PRRA Officers’ factual determinations attract
significant deference and that the PRRA Officers did consider the evidence
about the political uncertainty in Honduras. The Respondent also reiterates
the fact that Applicants bear the burden of providing evidence that rebuts the
presumption of state protection.
[31]
The
first PRRA Officer found that the Applicant had not provided clear and
convincing evidence that state protection would not be forthcoming. Given the
evidence before the first PRRA Officer, in my view, this finding was reasonable
given the circumstances of this case. With respect to the second PRRA, the
certified record contains evidence not referenced by the second PRRA Officer:
namely two police reports dated July 22, 2009 and March 6, 2010 (at pages 40
and 43 of the Certified Tribunal Record). These reports were both considered
in the refugee decision, but were considered in the context of whether the fear
of Reyna’s ex-husband is well-founded; the Board found that the reports
suggested that her ex-husband may be a “deadbeat dad” but does not pose a risk
to the children’s lives or safety as the disputes both involved payment of
child support. While this application is not a review of the refugee decision,
I note that neither police report references child support and, in any event,
the refugee decision does not actually reference the police reports in the
context of state protection and its state protection finding is made in the
alternative to the finding that the fear is not well-founded.
[32]
Although
both PRRA Officers may have erred, as the Applicants allege, in failing to
explicitly recognize the lower evidentiary burden that is required to rebut the
presumption of state protection where, as is the case here, the state is
unstable and experiencing documented problems protecting its citizens, this
error alone does not render the decisions unreasonable. The second PRRA
Officer was dealing with a matter that was already considered in the refugee
decision, and it was not unreasonable to find that the Applicants had not
provided sufficient new evidence to justify a different finding.
C. Mootness
[33]
The
Applicants do not address whether the deferral request is now moot.
[34]
The
Respondent submits that the deferral of removal is moot. In particular, it
argues that the 60-day deferral that was requested is moot, as the reasons for
the deferral no longer exist
[35]
I
agree that the question of the 60-day deferral is moot, as the grounds for that
requested delay no longer exist. Specifically, the 60-day deferral was sought
so that the children could spend Christmas with their family and so that they
could finish the school term. Both of these events have now come to pass.
[36]
The
Respondent cites Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342,
[1989] SCJ No 14 noting that the test for mootness has two stages: determining
whether there remains a live dispute, and then determining whether to proceed
with a decision even if there is no live dispute. The Respondent submits that
judicial review of the deferral decision will have no practical effect, as the
60 days have elapsed with the Applicants remaining in Canada thanks to Justice Rennie’s stay. It argues that judicial economy favours declining to deal
with the matter.
[37]
Though
the deferral request in general is still a live issue. Contrary to the
Respondent’s argument, the fact that the scheduled date for removal has passed
does not render the deferral decision moot (see Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA
81, 2009 FCA 81 at paras 27 to 29).
[38]
It
is unclear how declining to address the deferral promotes judicial economy, as
the hearing will proceed regardless of whether the deferral application is
moot.
D. Reasonableness
of the Deferral Decision
[39]
The
Applicants submit that a permanent deferral of their removal was warranted
based on their psychological condition, as evidenced by the letter from their
psychiatrist. They further submit that the Enforcement Officer failed to
address the 60-day deferral they sought to allow their children time to adjust
and to complete the school term.
[40]
They
do acknowledge that the discretion to defer removal is limited, but cite Ramada
v Canada (Solicitor General), 2005 FC 1112, [2005] FCJ No 1384 which held
that deferral decisions must consider the exigent personal circumstances that
could justify the deferral.
[41]
They
also cite cases about the best interests of the child and argue that the
Enforcement Officer failed to meet the requirements set out in those cases. Finally,
the Applicants cite decisions of this Court about how a pending application
that was delayed through no part of the Applicant can warrant a deferral if a
decision is imminent. They argue that, where the pending application is only
one of the grounds put forward, the deferral should be granted. They cite
decisions in stay motions.
[42]
The
Respondent submits that the mere existence of an H&C does not warrant
removal, citing Baron, above. It also notes that the H&C
application will continue to be processed if the Applicants leave Canada.
[43]
In
the application for review of Reyna’s negative PRRA, the Applicants have
provided a letter from the Commissary of National Police in Honduras and a
translation thereof (see affidavit from their counsel dated December 5, 2011,
which is separate from the record). This letter was forwarded to the
Enforcement Officer’s attention. The Affidavit also includes a letter from the
Enforcement Officer that states its authenticity is difficult to assess because
the Enforcement Officer had not been provided with an original. The deferral
decision is therefore affirmed.
[44]
The
deferral decision is not unreasonable. As both parties acknowledge, the
discretion to defer removal is extremely limited, and the Applicants have not
shown a reviewable error in the Enforcement Officer’s decision. Rather, they
seem to be disputing the weight given to the evidence they put forward, which
does not warrant this Court’s intervention.
VI. Conclusion
[45]
For
these reasons, the applications are dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that these
applications for judicial review are dismissed.
“
D. G. Near ”
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