Date: 20120615
Docket:
IMM-8309-11
Citation:
2012 FC 759
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 15, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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FELIPE DE JESUS
MORENO CORONA
CECILIA CORTES
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application for judicial review submitted pursuant to
subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (IRPA) of a decision by a pre-removal risk assessment
(PRRA) officer, Sophie Bisaillon, dated August 3, 2011, rejecting the application
for a stay of removal of Felipe De Jesus Moreno Corona (Mr. Corona) and his
spouse, Cecilia Cortes (Ms. Cortes) (applicants).
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
applicants are citizens of Mexico.
[4]
They
filed a refugee protection claim upon their arrival in Canada. That claim was
rejected on March 8, 2010, on the grounds that they did not exhaust their
internal remedies before leaving Mexico. In its decision, the Immigration and
Refugee Board (IRB) also pointed out that the applicants lack credibility.
[5]
On
January 6, 2011, Justice Pinard dismissed the applicants’ application for
judicial review.
[6]
On
April 20, 2011, the applicants filed an application for permanent residence on
humanitarian and compassionate grounds.
[7]
The
applicants also filed a PRRA application on May 9, 2011, which was rejected on
August 3, 2011. In her decision, the PRRA officer found that the applicants did
not submit new evidence to rebut the findings by the IRB. She added the
following, [translation] “after .
. . consulting the recent, reliable and objective documentation on Mexico, I
have come to the conclusion that Mr. Corona and his family have not established
that there is more than a mere possibility that they would be persecuted in
Mexico or that there are substantial grounds to believe they would be
personally subjected to a danger of torture or to a risk of cruel and unusual
punishment in their country, Mexico” (see the PRRA officer’s decision at page
11 of the Applicants’ Record).
[8]
On
November 15, 2011, the applicants filed an application for leave and judicial
review of the PRRA officer’s decision.
III. Legislation
[9]
Section
113 of the IRPA specifies the following:
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113. Consideration
of an application for protection shall be as follows:
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113.
Il est disposé de la demande comme il suit :
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(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;
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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;
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(b) a
hearing may be held if the Minister, on the basis of prescribed
factors, is
of the opinion that a hearing is required;
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b) une audience peut être tenue
si le ministre l’estime requis
compte tenu des facteurs
réglementaires;
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(c) in
the case of an applicant not described in subsection 112(3), consideration
shall be on the basis of sections 96 to 98;
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c) s’agissant du
demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
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(d) in
the case of an applicant described in subsection 112(3), consideration shall
be on the basis of the factors set out in section 97 and
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d) s’agissant du
demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à
l’article 97 et, d’autre part :
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(i) in
the case of an applicant for protection who is inadmissible on grounds of
serious criminality, whether they are a danger to the public in Canada, or
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(i) soit du fait que le
demandeur interdit de territoire pour grande criminalité constitue un danger
pour le public au Canada,
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(ii) in
the case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of
Canada.
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(ii) soit, dans le cas de
tout autre demandeur, du fait que la demande devrait être rejetée en raison
de la nature et de la gravité de ses actes passés ou du danger qu’il
constitue pour la sécurité du Canada.
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IV. Issues
and standard of review
A. Issues
1.
Did the PRRA officer fail to consider some
important evidence in the record?
2.
Did the PRRA officer make findings of
fact not based on the evidence in the record?
3.
Did the PRRA officer err by failing to
analyze state protection in Mexico?
B. Standard
of review
[10]
In
Selduz v Canada (Minister of Citizenship and Immigration), 2009 FC 361,
[2009] FCJ No 471 at paragraphs 9 and 10, Justice Kelen wrote the following
with respect to the appropriate standard of review for decisions by PRRA
officers:
[9] The
Court has held that the appropriate standard of review for a PRRA officer’s
findings of fact and on issues of mixed fact and law is reasonableness: see Erdogu
v. Canada (Minister of Citizenship and Immigration), 2008 FC 407, [2008]
F.C.J. No. 546 (QL); Elezi v. Canada, 2007 FC 40, 310 F.T.R. 59. In Ramanathan
v. Canada (Minister of Citizenship and Immigration), 2008 FC 843, 170
A.C.W.S. (3d) 140 at paragraph 18, I held that where an applicant raises issues
as to whether a PRRA officer had proper regard to all the evidence when
reaching a decision, the appropriate standard of review is reasonableness.
[10] Accordingly, the Court will review the PRRA
officer’s findings with an eye to "the existence of justification, transparency
and intelligibility within the decision-making process” and “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” (Dunsmuir v. New Brunswick,
2008 SCC 9, 372 N.R. 1 at paragraph 47). However, where the PRRA officer fails
to provide adequate reasons to explain why relevant, important and probative
new evidence was not considered, then the court will consider that an error of
law reviewed on the correctness standard.
[11]
The
standard of review in this case is reasonableness. However, as Justice Kelen
points out, the omission of an important piece of evidence constitutes an error
of law reviewable on the correctness standard.
[12]
Reasonableness “is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (see Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at paragraph
47).
V. Position
of the parties
A. Position
of the applicants
[13]
The
applicants claim that the PRRA officer rejected pieces of evidence in the
record because they did not meet the definition of paragraph 113(a) of
the IRPA. The rejection also concerned the index of the IRB’s National
Documentation Package dated September 29, 2010, because its content would not
be relevant to the context of the case. The applicants contend that those
findings are unreasonable because the PRRA officer failed to explain the
reasons causing her to reject those pieces of evidence submitted in support of
their claim.
[14]
The
applicants rely on the findings of Justice Sharlow in
Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385,
[2007] FCJ No 1632 at paragraph 12 (Raza) and those of Justice
Mosley in Aragon v Canada (Minister of Citizenship and Immigration),
2008 FC 1309, [2008] FCJ No 1710 at paragraphs 9 and 10 (Aragon), that “a
PRRA determination may require consideration of some or all of the same factual
and legal issues as a claim for refugee protection”.
[15]
The
applicants also allege that the PRRA officer made en erroneous finding of fact with
respect to the filing of the complaint submitted by Mr. Corona to the Texcoco office.
The PRRA officer pointed out the following in her decision: [translation] “[on] the copy of the
complaint, there is no relevant information linking the applicant to the said
document. The applicant’s name does not appear on either of the two pages
submitted. I therefore believe that it cannot be concluded that this
documentary evidence is linked to the applicant”. The applicants state that the
PRRA officer’s finding is arbitrary and goes against their submissions that
they took the necessary steps to obtain a copy of the complaint in question.
[16]
Finally,
the applicants submit that the PRRA officer failed to analyze state protection
in Mexico, relying instead on the IRB’s finding in the decision dated March 8,
2010. The applicants argue that one of the documents the IRB referred to in its
analysis of state protection is no longer in the National Documentation Package
on the State of Mexico. Because the document in question was withdrawn from the
package and because state protection is still the primary issue in their claim,
the PRRA officer committed an error of law that must be reviewed on the
correctness standard or, alternatively, because such an error is patently
unreasonable.
B. Position
of the respondent
[17]
The
respondent maintains that the PRRA officer correctly analyzed the applicants’
PRRA application record. The PRRA officer did not give any weight to the
evidence submitted by the applicants. It is settled law that it is up to the
PRRA officer to assess the probative value of the evidence in the record. In Malhi
v Canada (Minister of Citizenship and Immigration), 2004 FC 802 at paragraph
7 (Malhi), the Court specified the following: “[c]onsidering that the
assessment of the evidence is within the purview of the PRRA officer who has
the discretion to rely on the evidence that she deems appropriate, the
intervention of this Court is not justified”. The assessment of the probative
value of the complaint filed at the Texcoco office is reasonable in this case in
the opinion of the respondent, who points out that the PRRA officer was
entitled to find that Mr. Corona could have obtained a copy of his
complaint through his past employer, Mario Moncada.
[18]
The
respondent alleges that the rejection of the IRB’s National Documentation Package
index is justifiable because those documents are not consistent with paragraph 113(a)
of the IRPA. The respondent points out that the PRRA procedure is not “an
appeal or an application for review of the [IRB] decision given that Parliament
clearly intended to limit the [pieces of] evidence presentable in the context
of such a procedure” (see Abdollahzadeh v Canada (Minister of Citizenship
and Immigration), 2007 FC 1310 at paragraph 26). The applicants cannot
submit the same evidence a second time on the basis of new arguments before the
PRRA officer.
[19]
Finally,
the respondent maintains that the new evidence in the record does not make it
possible to rebut the IRB’s finding that they did not exhaust all avenues of
recourse in Mexico before claiming international protection.
VI. Analysis
1. Did
the PRRA officer fail to consider some important evidence in the record?
[20]
The
PRRA officer did not fail to consider some important evidence in the record.
[21]
At
paragraph 32 of their written submissions, the applicants acknowledge that the
objective documents submitted in support of their claim were before the IRB.
The applicants do not meet the criteria in paragraph 113(a) of the IRPA.
The Court wishes to point out that “[a] PRRA
application by a failed refugee claimant is not an appeal or reconsideration of
the decision of the [IRB] to reject a claim for refugee protection” (see Raza,
above, at paragraph 12). Consequently, the copy of the complaint cannot be
admissible under paragraph 113(a) of the IRPA. The PRRA officer’s
erroneous findings of fact on the content of the document cannot change its admissibility.
[22]
The applicants also claim that the PRRA officer’s decision to
reject the IRB’s National Documentation Package index is unreasonable. The
applicants specify that they relied on the index to [translation] “establish
that the only objective evidence raised by the [IRB] member in the context of
her assessment of the protection offered by the Mexican State to citizens who
wish to file a complaint was deleted from the National Documentation Package on
Mexico by the IRB on September 29, 2010” (see paragraph 31 of
the Applicants’ Memorandum of facts and law attached to the Applicants’ Record).
They also cite Justice Sharlow in Raza, above, at paragraph 12, where
she specifies the following: “[n]evertheless, it may require consideration of
some or all of the same factual and legal issues as a claim for refugee
protection”.
[23]
Even
though, in Aragon, above, Justice Mosley determined that it “is clear
from a close reading of both the [IRB] and the PRRA decisions that neither
expressly consider how the objective country condition information . . . might
support the applicant’s fear of persecution. This is not a case in which I
would wish to rely upon the presumption that a tribunal has considered all of
the evidence before it as there are significant indications to the contrary”. However,
nothing indicates that the IRB failed to carry out such analysis in the case at
bar.
[24]
Furthermore,
Justice Pinard, on judicial review of the IRB’s decision, wrote that “while
accepting the fact that the applicant had filed a complaint, the panel found
that his efforts in seeking state protection were inadequate” (see Corona v
Canada (Minister of Citizenship and Immigration), 2011 FC 4 at paragraph
12). The IRB’s finding is primarily based on the fact that the applicants did
not exhaust their internal remedies before claiming refugee protection in Canada.
Even though the IRB based part of its decision on the documentation on the
State of Mexico, its finding was not based strictly on that single piece of
evidence. Because a decision-maker is presumed to have considered all of the
evidence before it (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598 (CA)) and that it is up to the decision-maker to assess its
probative value (see Malhi, above, at paragraph 7), the PRRA officer’s
finding is reasonable in this case.
2. Did
the PRRA officer make findings of fact not based on the evidence in the record?
[25]
The
PRRA officer did not make findings of fact not based on the evidence in the
record.
[26]
The
Court notes that the applicants submitted a copy of Mr. Corona’s complaint as
evidence in the record. However, it was reasonably open to the PRRA officer to
find that it was a [translation] “photocopy
of a Spanish document. The document is not accompanied by a French or English
translation . . . the document is of poor quality and the original document was
not filed in the record” (see the PRRA officer’s decision at page 9 of the Applicant’s
Record).
[27]
Even
though the applicants contend that it [translation]
“[is] arbitrary to state that ‘the applicant did not begin the steps required
by his Consulate to obtain a copy of the complaint’” (see paragraph 38 of the
Applicants’ Memorandum of facts and law attached to the Applicants’ Record), it
is reasonable to think that Mr. Corona could have obtained a copy of his
complaint from his employer. Mr. Corona took steps with the Consulate of Mexico
in Montréal to obtain a copy of his complaint. However, he fails to explain why
he was unable to obtain a copy from his employer. The Court must reiterate that
“the onus is on [the] Applicant[s] to prove [their] case” (see Ally v Canada
(Minister of Citizenship and Immigration), 2008 FC 445, [2008] FCJ No 526 at
paragraph 23). If the applicants fail to prove their case, the PRRA officer is
entitled to decide to [translation]
“assign little probative value to that document to support the applicant’s
allegations” (see the PRRA officer’s decision at page 9 of the Applicants’
Record); the Court should not intervene on this issue because this finding is neither
unreasonable in this case nor determinative with respect to the issue of the
sufficiency of state protection in Mexico and, what is more, the document in
question is inadmissible under paragraph 113(a) of the IRPA.
3. Did
the PRRA officer err by failing to analyze state protection in Mexico?
[28]
The
PRRA officer wrote the following regarding state protection:
[translation]
“The applicant has a duty to seek State protection
before soliciting international protection. When the State in question is a democratic
State, the applicant must do more than simply show that he or she went to see
some members of the police force and that his or her efforts were unsuccessful.
The level of difficulty the applicant will face in making out his or her case is
directly proportional to the level of democracy in the State in question . . . .
No government can guarantee the protection of all of
its citizens at all times. It is not enough for the applicant to show that the
state has not always been effective in protecting similarly-situated persons.
Where a state has effective control of its territory, has military, police and
civil authority in place and makes serious efforts to protect its citizens, the
mere fact that it is not always successful will not be enough to establish that
the state is unable to protect.
There is a presumption that the State is able to provide
protection; therefore, there must be clear and convincing proof of the State’s
inability or unwillingness to provide protection.” The applicant did not do this.
The evidence entered in the record does not mention
new facts that allegedly occurred after the rejection of the refugee claim on
March 8, 2010. Furthermore, the applicant did not submit evidence to rebut
the findings by the [IRB], who made a finding of state protection. (see the
PRRA officer’s decision at page 11 of the Applicants’ Record).
[29]
The
applicants filed three letters in support of their PRRA application (see the
letters by Abundia Jiménez Lechuga, Sara Márquez Guzmán and Rafael Rodrigues
Moreno at pages 94 to 101 of the Applicants’ Record). However, like the PRRA
officer noted in her decision, those letters do not establish new facts making
it possible to allow the PRRA application.
[30]
Furthermore,
as mentioned above, the exclusion of a document from the National Documentation
Package is not determinative in itself because the IRB found that the
applicants did not exhaust their internal remedies in Mexico before filing
their refugee protection claim in Canada. Justice Pinard also ruled on the
reasonableness of this finding.
[31]
As
a result, the Court must give deference to the PRRA officer’s decision, which,
in this case, falls within the possible outcomes on the sufficiency of state
protection in Mexico.
VII. Conclusion
[32]
The
Court dismisses the applicants’ application for judicial review and finds that
the PRRA officer’s decision falls within a range of “possible, acceptable
outcomes which are defensible in respect of the facts and law” (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47).
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that
1.
This
application for judicial review is dismissed; and
2.
There
is no question of general importance for certification.
“André
F.J. Scott”
Certified
true translation
Janine
Anderson, Translator
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