Date: 20120524
Docket: IMM-8451-11
Citation: 2012 FC 639
Ottawa, Ontario, May 24,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LUIS ALCIDES RAMON ALCARAZ
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Applicant
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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
applicant seeks judicial review of a decision of Senior Immigration Officer L.
Zucarelli (Officer), dated October 15, 2011, refusing the applicant’s
Pre-Removal Risk Assessment (PRRA) application pursuant to section 112 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that
follow the application is granted.
Facts
[2]
The
applicant is a citizen of Mexico. He and his partner at the time, Eric Castillo Ramirez,
fled Mexico in 2008 because they
feared persecution based on sexual orientation and based on the applicant’s relationship
to his father. Before the Refugee Protection Division (RPD) the applicant
testified that his father was the head of a drug cartel in Juarez and has been in prison
since June 2001. In 2005, the applicant was pressured to assist the drug
cartel in its activities by communicating with his father in prison and he was
threatened if he did not comply. He fled Mexico City to Villa Hermosa as a result, where he met
Eric in May 2006.
[3]
The
applicant also testified that he and Eric were attacked by four armed men in
April 2008 and again ordered to assist in communicating with the applicant’s
father. The applicant tried to report this incident to the Attorney General’s
office and to the General Secretary of Public Security, but neither office
would assist him. The applicant was approached again in July 2008 and was told
that the only way to be safe was to cooperate, that there were orders to
execute Eric to force the applicant to comply. The applicant and Eric also
both lost their jobs at a bank because of their connection to the applicant’s
father. They fled to Canada in October 2008 and
made claims for refugee protection on April 3, 2009.
[4]
The RPD
refused the applicant’s and Eric’s refugee claims on February 4, 2011, on
grounds of credibility and state protection. The RPD found that the applicant
had not presented credible evidence that he was the son of a drug cartel
leader, nor that he and Eric faced persecution in Mexico on the basis of their
sexual orientation.
[5]
The
applicant submitted his PRRA application, separately from Eric, since they were
no longer in a relationship. In his application he indicated that he was now
married to Philip Dale Anthony, a Canadian citizen. The applicant was not
assisted by counsel in preparing and submitting his PRRA application and there
is a dispute between the parties regarding the documents that were submitted as
part of the application.
[6]
By
letter dated October 15, 2011, the Officer refused the applicant’s PRRA
application, along with Eric’s PRRA application. The Officer refers to the
applicant and Eric as common-law spouses in the Notes to File and the decision.
[7]
The Officer
noted that only new evidence arising after the RPD’s decision could be
considered. The Officer stated that the applicant and Eric provided several
news articles and a magazine in Spanish, but had not provided translations into
English or French and therefore they were not considered.
[8]
After
reviewing the background facts and the RPD decision the Officer found that the
risks identified in the application were essentially the same as those found
not to be credible by the RPD. The Officer noted that reiteration of a risk
scenario found not credible, “unaccompanied by objective corroborative
evidence, neither overcomes the credibility concerns of the RPD nor provides
sufficient evidence of a forward-looking risk to the applicants.”
[9]
The Officer
noted that the applicant and Eric provided country reports and articles but did
not link this general documentary evidence to their personal circumstances. The
Officer then reviewed general documentary evidence on state protection in Mexico, concluding that state
protection is adequate. The application was therefore refused.
Standard of Review and Issue
[10]
The
issue whether the Officer’s decision is unreasonable because it was made
without regard to relevant evidence is to be assessed against a standard of
reasonableness. It may be, however, that whereas in this case, the Officer did
not consider pertinent evidence at all, the decision is to be reviewed on the
basis of correctness. This question need not be determined for the purposes of
this application as the decision in question cannot be sustained even when
assessed on the basis of the lower standard of reasonableness.
Analysis
[11]
The
applicant’s core submission relates to the alleged failure of the Officer to
consider evidence submitted as part of the PRRA application. These include the
applicant’s birth certificate and his parents’ marriage certificate, as well as
photographs, all of which prove that he was in fact the son of a drug cartel
leader. The applicant also argues that the Officer erroneously stated that none
of the submitted articles were translated, as translations were provided. The
respondent counters these arguments with reference to affidavits from the officer
and from Canada Border Services Agency (CBSA) Removals Officer, I. Pachynskyy,
as well as the Certified Tribunal Record, to demonstrate that most of the
documents alleged to have not been considered were not actually before the Officer
in her decision.
[12]
However,
the application should be granted on the basis that the Officer made her
decision without reviewing the record before her and without regard to the
evidence that was in the record. The applicant and Eric had separated by the
time they submitted their PRRA applications. Their applications were submitted
separately and each application included statements that they were no longer
common-law spouses. The applicant’s application clearly identified Philip Dale
Anthony as the applicant’s spouse in several places.
[13]
While
the applicant’s marital status was not pertinent to the PRRA determination this
error provides context to the central allegation that the Officer did not, and
could not have, reviewed the application in its entirety before rendering her
decision.
[14]
The
applicant submitted translations of his birth certificate and his parents’ marriage
certificate with his PRRA application. These documents were relevant as they
responded directly and in a material way to the RPD’s finding that the
applicant had not established his relationship to Alcides Roman Magana, the
drug cartel leader.
[15]
While
the translated version of the marriage and birth certificates appear in the
record, the applicant (likely inadvertently) failed to submit copies of the
original documents with the translations which would have meant these documents
could not be given any probative value. However, the Officer makes no mention
of the translations, even to explain why they could not be considered. In
addition, the Officer made no reference in her decision to the written
narratives of the applicant or Eric, instead relies entirely on the RPD
decision for her summary of the facts. I note as well that the affidavit
evidence as to what was before the PRRA Officer at the time of the decision
changed and was at variance with the content of the certified tribunal record.
[16]
These
omissions, coupled with the Officer’s erroneous statement that the applicant
and Eric were still spouses, creates a strong impression that the Officer
failed to review the application in its entirety and that relevant evidence in
the file was not considered.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted. The matter is referred back to Citizenship and
Immigration Canada for reconsideration before a different Pre-Removal Risk
Assessment officer. There is no question for certification.
"Donald
J. Rennie"
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