Date:
20120824
Docket: IMM-8539-11
IMM-8541-11
Citation:
2012 FC 1009
Ottawa, Ontario,
August 24, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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IMM-8539-11
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IGNACIO VELAZQUEZ
SANCHEZ,
MARIA GUADALUPE MENDOZA
SUAREZ, ARIANA VELAZQUEZ MENDOZA,
IRIS ANEL VELAZQUEZ
MENDOZA and LLUVIA VANESSA VELAZQUEZ MENDOZA
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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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AND BETWEEN:
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IMM-8541-11
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IGNACIO VELAZQUEZ
SANCHEZ,
MARIA GUADALUPE
MENDOZA SUAREZ, ARIANA VELAZQUEZ MENDOZA,
IRIS ANEL VELAZQUEZ
MENDOZA and LLUVIA VANESSA VELAZQUEZ MENDOZA
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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
[1]
The
applicants seek judicial review of a decision of Senior Immigration Officer J.
Belyea (Officer), dated October 3, 2011, refusing the applicants’ application
for permanent residence on humanitarian and compassionate (H&C) grounds
pursuant to section 25 of the Immigration and Refugee Protection Act, SC
2001,
c 27
(IRPA),
and a decision of the same Officer, dated September 30, 2011, refusing the
applicants’ Pre-Removal Risk Assessment (PRRA) application. For the reasons
that follow the application in respect of the H&C decision (IMM-8539-11) is
granted and is dismissed in respect of the PRRA decision (IMM-8541-11).
Facts
[2]
The
applicants are a family from Mexico: Ignacio Velasquez Sanchez (applicant); his
wife Maria Guadalupe Mendoza Suarez (female applicant); and their three
daughters, Ariana Velasquez Mendoza, Iris Anel Velasquez Mendoza, and Lluvia
Vanessa Velasquez Mendoza. The applicants also have a Canadian born son,
Victor Steven Velasquez Mendoza.
[3]
The
applicant has been coming to Canada to work as a seasonal farm labourer since
1991. In 2005, Iris entered a local beauty pageant and was drugged and
sexually assaulted by one of the judges. She and her mother went to the police
but they did nothing. The assailant approached Iris a couple weeks later, threatening
her and her family. The family began to receive anonymous phone calls claiming
to have a videotape of Iris naked. Money was demanded. Multiple attempts at
obtaining police protection were similarly unsuccessful.
[4]
The
female applicant and her daughters came to Canada on July 12, 2005. The
applicant returned to Mexico in November 2005 and checked on the status of the
investigation by the police. He became angry at the police inaction and
accused them of corruption, and as a result was beaten by police officers. The
applicant returned to Canada on February 4, 2006 and the applicants made their
refugee claims in May 2006.
[5]
The
Refugee Protection Division (RPD) initially rejected the applicants’ claims in
2007 on the basis of state protection; however, that decision was quashed on
judicial review and a new hearing was held. In 2010 the applicants’ claims
were again rejected, this time based on the availability of an internal flight
alternative (IFA) in the Federal District. The RPD found that neither the
judge nor the local police in the applicants’ hometown would pursue the
applicants in the Federal District. The RPD further found that it was
reasonable to expect the applicants to relocate there.
[6]
The
applicants submitted a PRRA application in July 2010 which was refused in
October 2010. The applicants also submitted an H&C application which was
refused in September 2010. The applicants applied for leave and judicial
review of both these decisions. The respondent consented to refer both matters
back for re-determination since the deciding officer erroneously relied on the
quashed 2007 RPD decision. The applicants’ PRRA and H&C applications were
decided by a new officer, and again were both refused.
PRRA Decision
[7]
The
Officer found that some evidence submitted predated the applicants’ RPD hearing
dates and therefore could not be considered. The Officer reviewed the findings
of the RPD in its 2010 decision and noted that the risks alleged were those
already assessed by the RPD. The Officer also noted that many of the
submissions by the applicants related to H&C factors rather than risk,
which are outside of the mandate of the Officer in a PRRA application.
[8]
The
Officer rejected some of the documentary evidence submitted because it was
undated or it was unclear who translated it from Spanish to English. The Officer
reviewed some of the statements in the 2010 US DOS report on Mexico.
[9]
The
Officer stated that he had reviewed all the evidence and found insufficient
objective new evidence that the beauty pageant judge or any other individuals
would be interested in pursuing the applicants if they returned to Mexico. The Officer also found insufficient evidence that there has been a significant
change in country conditions or the applicants’ personal circumstances since
the RPD hearing. The application was therefore refused.
H&C Decision
[10]
The
Officer first considered the applicants’ allegations of hardship based on risk.
The Officer recounted the incidents involving the beauty pageant and the police,
noting that it had been six years since the applicants fled Mexico, and found that there was insufficient evidence that any individuals were still
interested in pursuing the applicants. The Officer also found that the
applicants provided no details of attempts to seek state protection and had not
proven that such protection was unavailable. The Officer found insufficient
evidence that the daughters would face social stigma or ridicule due to others
knowing about Iris’ sexual assault. The Officer concluded that he was not
satisfied that there was a risk upon returning to Mexico that amounted to
unusual and undeserved or disproportionate hardship.
[11]
Regarding
the best interests of the children, the Officer noted there were two children
to be considered: the youngest applicant, Lluvia, and the Canadian born son,
Victor Steven. The Officer referred to the letters of support and other
evidence indicating that Lluvia has adapted to life in Canada and is doing well in school and making friends. The Officer found that the mere fact that
the children may enjoy better opportunities in Canada did not mean that H&C
discretion should be exercised in this case.
[12]
The
Officer reiterated the finding that there was insufficient evidence of any risk
of violence upon returning to Mexico. The Officer acknowledged the
difficulties the children would face adjusting to life in Mexico, including separation from their friends and adapting to a new education system. However,
the Officer found that the children would likely continue to enjoy the love and
support of their family, who would assist them in adapting. Thus, the Officer
concluded that it would not be contrary to the best interests of the children
to return them to Mexico.
[13]
Finally,
regarding establishment, the Officer reviewed the applicants’ employment
histories and noted their involvement in their church and their community. The
Officer found that they had exemplary civil records but this was expected of
all residents in Canada. The Officer found that the evidence submitted did not
demonstrate a significant level of establishment such that removal to Mexico would cause unusual and undeserved or disproportionate hardship. The Officer found
that the applicants may initially experience some difficulty re-establishing themselves
but that an H&C exemption was not warranted. The application was therefore
refused.
Standard of Review and Issue
[14]
These
applications raise the following issues:
a. Was
the Officer’s PRRA decision reasonable?
b. Was
the Officer’s H&C decision reasonable?
[15]
Both
decisions are to be reviewed on a standard of reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
PRRA Decision
[16]
The
applicants’ only submission in respect of the PRRA decision is that the Officer
failed to properly analyze whether state protection was available to the
applicants. They argue that the Officer relied on the state’s good intentions
only, rather than assessing whether they had translated into effective
protection in practice.
[17]
The
problem with the applicants’ argument is that the Officer found insufficient
evidence that the applicants were at risk of persecution if returned to Mexico. The Officer found that there was no evidence that the beauty pageant judge or
anyone else was interested in pursuing them, particularly since several years
have passed since the sexual assault of one of the daughters. Since the Officer
did not accept that the applicants faced any risk upon return there was no need
to engage in a state protection analysis. The applicants have not presented
any argument for why the Officer’s finding on risk was unreasonable and
therefore the decision must be upheld.
H&C Decision
[18]
I
agree with the applicants that the Officer’s reasoning in rejecting the
submission that Iris and her sisters would face social stigma due to her sexual
assault is insufficient. The Officer acknowledged this submission but found
insufficient evidence to substantiate it. That was the extent of the analysis.
I agree with the applicants that this is a mere statement of a conclusion and
does not meet the requirements of justification, transparency and
intelligibility. The evidence under consideration was not identified let alone
the deficiency which purportedly permits the conclusion.
[19]
It
has become commonplace to read H&C and PRRA decisions in which the reasons
offered are confined to the following formula: “The applicants allege X;
however, I find insufficient objective evidence to establish X.” This
boilerplate approach is contrary to the purpose of providing reasons as it
obscures, rather than reveals, the rationale for the officer’s decision. Reasons
should be drafted to permit an applicant to understand why a decision was made
and not to insulate that decision from judicial scrutiny: Lorne Sossin, “From
Neutrality to Compassion: The Place of Civil Service Values and Legal Norms in
the Exercise of Administrative Discretion” (2005), 55 UTLJ 427.
[20]
The
Officer resorted to the boilerplate approach in respect of the submission
regarding social stigma which continued throughout the balance of the analysis.
[21]
The
application for judicial review is granted in respect of the H&C decision
and dismissed in respect of the PRRA decision. There is no question for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review in respect of the H&C decision
(IMM-8539-11) is granted. The matter is referred back for re-determination
before a different officer at Citizenship and Immigration Canada.
2.
The
application for judicial review in respect of the PRRA decision (IMM-8541-11)
is dismissed.
3.
There
is no question for certification.
"Donald J.
Rennie"
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