Date: 20091118
Docket: IMM-1414-09
Citation: 2009 FC 1173
Ottawa, Ontario, November 18,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
PATRICIA
GONZALEZ PEREA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a Pre-Removal Risk Assessment (PRRA) Officer, dated February 26, 2009, denying the
applicant’s application for protection.
[2]
The
decision under review is a re-determination of the applicant’s first PRRA,
dated July 19, 2008, pursuant to the Order of Mr. Justice Campbell dated April
3, 2008 (Perea v. Canada (MCI), 2008 FC 432).
FACTS
Background
[3]
The
forty (40) year old applicant is a citizen of Mexico. She arrived
in Canada on June 2,
2001 from Mexico and claimed
refugee status on November 15, 2001. Her refugee claim was
rejected by the Refugee Protection Division (RPD) of the
Immigration and Refugee Board on August 5, 2004. An application for leave
to apply for judicial review was denied. An application to the RPD to re-open
her refugee claim was also denied.
[4]
On
February 24, 2006 the applicant initiated her first PRRA application which was
denied on July 19, 2007. On judicial review, Justice Campbell sets out the evidentiary
basis of the applicant’s first PRRA at paras. 2-3 of his Order dated April 3,
2008 quashing the PRRA:
¶2 The Applicant’s new evidence claim is as follows:
She is someone who is
targeted by her boyfriend for deserting him, she is a long term victim of
spousal abuse of a severe and life threatening nature. Her boyfriend has also
targeted her because she has seen evidence that he is a “madrina” who kidnaps,
tortures and does various acts of violence for the Mexican governmental system
or the judicial police. She tried to denounce him with the office of the
Attorney-General which has made her return to her country impossible because of
the threat to her life.
…
¶3 The Applicant’s new evidence is that, in April
2005, her uncle in Mexico was murdered. The Applicant’s argument to the PRRA Officer
was that the murder was directly connected to her prospective fear of risk, and
in making this argument she relied on the evidence of her uncle’s partner, Mr.
Morales. Mr. Morales had offered evidence to the RPD, but again offered new
evidence before the PRRA Officer that some 10 days before the uncle’s murder he
was attacked and threatened by who he considered to be judicial or ministerial
police in an effort to have him reveal the whereabouts of the Applicant. Mr.
Morales reported this incident to the Attorney General of Justice in Mexico by a letter dated
April 8, 2005. In addition, in support of the Applicant’s application for
protection on the new evidence, Mr. Flores, a member of a political party who
helped her escaped from Mexico, wrote a letter to confirm that the Applicant’s
uncle was shot by the judicial police for not revealing the Applicant’s
whereabouts, and he predicts that the Applicant will face the same fate as her
uncle if she returns to Mexico.
[5]
Justice
Campbell held that the PRRA officer failed to make an independent evaluation of
Mr. Morales’ evidence, instead choosing to rely on opinions expressed by the
RPD. The Court further held that it was a reviewable error to impugn Mr.
Flores’ evidence on the basis he was not a disinterested party without giving
it due consideration (Perea, supra, at paragraph 7).
[6]
In
July 2008 the applicant was informed that she could file a second PRRA and
invited to make submissions and file new evidence.
The decision under
review
[7]
On
February 26, 2009 the PRRA officer denied the applicant’s second PRRA.
[8]
At
page 4 of the PRRA decision the officer stated that the RPD found that the
risks presented by the claimant from her ex-common-law partner were not
credible due to the inconsistencies and discrepancies in the evidence, and the
behaviour of the applicant was inconsistent with her risk allegations.
[9]
The
PRRA submissions included documents which described the problems faced by the
applicant’s uncle and his same-sex partner in April 2005 from the applicant
from the applicant’s ex-common law partner who was looking for the applicant.
The applicant provided a sworn affidavit dated November 15, 2005 by Mr.
Fransisco Rico-Martinez of FCJ Refugee Centre in Toronto who undertook a fact
finding mission to Mexico to learn about domestic violence against women
and the danger to women who attempt to flee their abusive partners such as the
applicant.
[10]
The
PRRA officer identified several concerns with respect to the evidence. First, a
newspaper article describing an assault upon the applicant’s uncle curiously
did not mention the uncle’s death, even though the article post-dated the
incident. Second, Mr. Flores, the author whose letter is submitted, had no
first hand knowledge of the uncle’s alleged murder. Third, there is little to
tie circumstances of the uncle’s death to the applicant’s stated risk. Fourth,
it was implausible that the applicant’s uncle and his partner continued to live
in Acapulco throughout
the threats to their safety and the uncle’s murder if the applicant’s ex-common
law partner was indeed as dangerous as he is said to be. Fifth, the uncle’s
murder could just as likely been committed by disguised criminals, a practice
not unusual in Mexico. Sixth, the officer was not able to discern the
full contents of the doctor’s original letter because there was no translation
attached.
[11]
The
fact the applicant was able to leave on her own with her own passport,
communicate with Mr. Morales and her uncle over the years, and avoid detection
by her ex-common law partner, was implausible in the officer’s opinion.
[12]
The
officer held that in any event the determinative issue at the RPD was Internal
Flight Alternative (IFA). The applicants were therefore required to also address
this issue at the PRRA stage.
[13]
The
applicants did not address the issue of IFA in their PRRA submissions. The
officer compared the evidence and held that the recent country condition
documentation should be preferred to the affidavit of Mr. Rico-Martinez who undertook
a fact finding mission to Mexico and determined that no IFA exists for
formerly abused women. The objective country condition documentation did not
address the issue of traceability of abused women by their abusers.
[14]
The
officer held that insufficient evidence was provided to rebut the viability and
reasonableness of the IFAs identified by the RPD.
[15]
The
PRRA officer concluded that since an IFA exists, the applicant does not meet
the requirements for protection under ss. 96 and 97 of IRPA.
LEGISLATION
[16]
Section
96 of the IRPA confers protection upon person who are Convention refugees:
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette
crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa
résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
[17]
Section
97 of IRPA for confers protection on persons who may be at a risk to their life
or to a risk of cruel and unusual punishment which is personalized, or at risk
torture:
|
97. (1) A
person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not
have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning
of Article 1 of the
Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that
country,
(ii) the risk would
be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk is
not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted
international standards, and
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
|
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au
sens de l’article
premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le
risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux
ou de santé adéquats.
|
[18]
Section
113(a) of IRPA allows a PRRA applicant to present only evidence that arose
after the rejection of the refugee claim. Section 113(b) allows the Minister to
hold a hearing:
|
113. Consideration of an application for protection
shall be as follows:
(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;
…
(b) a hearing may be held if the Minister, on the
basis of prescribed factors, is of the opinion that a hearing is required;
|
113. Il est
disposé de la demande comme il
suit :
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;
…
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
|
[19]
Subsection
161(2) of the IRPR requires the applicant to identify new evidence:
|
…
(2) A person who makes written submissions must identify
the evidence presented
that meets the requirements of paragraph 113(a) of
the Act and indicate how that evidence relates to them.
|
…
(2) Il désigne, dans
ses observations écrites, les éléments de preuve qui satisfont aux exigences prévues
à l’alinéa 113a) de la Loi et indique dans quelle mesure ils s’appliquent
dans son cas.
|
ISSUES
[20]
The
applicant raises the following issue:
1.
The PRRA
officer misapplied the applicant’s particular facts and circumstances within
her second PRRA to s. 113(a) of the IRPA and an assessment of “state
protection”.
[21]
The
Court finds that the determinative issue in this case is:
Did PRRA officer
err in finding that a reasonably viable IFA existed?
STANDARD OF REVIEW
[22]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain 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 (see also Khosa v. Canada (MCI),
2009 SCC 12, per Justice Binnie at paragraph 53).”
[23]
This
IFA issue concerns the relative weight assigned to evidence, the interpretation
and assessment of such evidence, and whether the officer had
proper regard to all of the evidence when reaching a decision. It is clear
that as a result of Dunsmuir and Khosa that such questions are to
be reviewed on a standard of reasonableness [see my decisions in Christopher
v. Canada (MCI), 2008 FC 964 Ramanathan v. Canada (MCI), 2008 FC 843
and Erdogu v. Canada (MCI), 2008 FC 407, [2008] F.C.J. No. 546 (QL)].
Recent case law has reaffirmed that the standard of review for questions of
state protection or internal flight alternative is reasonableness (Okpiaifo
v. Canada (MCI), 2009 FC 906, per Deputy Justice Tennenbaum, at paragraph
9).
[24]
In reviewing the officer’s
decision using a standard of reasonableness, the Court will consider "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 at paragraph 47; Khosa, supra,
at para. 59).
ANALYSIS
Issue: Did
PRRA officer err in finding that a reasonably viable IFA existed?
[25]
The
applicant submits that the PRRA officer erred in finding that the applicant has
a viable IFA in Mazatalan, Guadalajara, or Monterrey.
[26]
The
applicant in this case neglected to make any submissions on the issue of an IFA
even though she had notice by the RPD that the issue of an IFA is alive. The
applicant chose to address the RPDs determinations of risk, and to rely on the
purported profile of her ex-common law partner as a state agent to assert that
no IFA would be viable. The PRRA officer decided that if her ex-common-law
partner, as a state agent, could trace the applicant anywhere in Mexico, he
would have known that she left Mexico 8 years ago, using her own passport, and
would not be bothering the applicant’s now dead uncle, or the uncle’s same-sex
partner. This finding was reasonably open to the PRRA officer. Moreover, the
applicant has not met her onus of proving that she is still being sought 8
years after leaving, or that her ex-common-law partner could find her at one of
the 3 IFAs.
Mr. Justice Campbell’s
Order
[27]
The Reasons for Order and Order of Justice
Campbell dated April 3, 2008 set aside the applicant’s first PRRA decision
because: (1) the first PRRA officer found Mr. Morales’ evidence not credible
because the RDP found that he was not a “disinterested party” to the
applicant’s claim. Justice Campbell held that the PRRA officer did not make an
independent evaluation of Mr. Morales’ new evidence, but simply relied upon the
opinion expressed by the RPD; and (2) the PRRA officer did not accept Mr.
Flores’ evidence because he was considered not to be a “disinterested party” to
the applicant’s claim. Justice Campbell held that it was unfair to disregard
this evidence because he is “disinterested”. This evidence concerned risk to
the applicant in her home state, not with respect to the IFAs identified by the
Board.
[28]
Justice Campbell’s overall conclusion was that
the first PRRA officer approached the applicant’s evidence with a “degree of
suspicion” and “relied upon a criterion (disinterested witness) that is almost
impossible for any applicant to meet”. Justice Campbell held at paragraph 7:
It is my
opinion, that to glibly say that because they are not persons disinterested in
the Applicant’s claim their evidence should be given no value, is a remarkably
unfair approach to take.
[29]
For these reasons, Justice Campbell set aside
the first PRRA decision and remitted it to another PRRA officer for
redetermination. That second PRRA officer’s decision is now before the Court on
judicial review but on an issue unrelated to the evidence upon which Justice
Campbell decided.
The second PRRA decision
[30]
The second PRRA decision is 14 pages long. It is
comprehensive. The second PRRA decision reviewed the Refugee Board’s three page
credibility analysis which found the applicant not credible for detailed
reasons. The PRRA officer can only consider new evidence which arose after the
Refugee Board’s decision.
[31]
The important and determinative part of the PRRA
officer’s second decision is at page 7 of the decision:
… What is not
clear is why, almost 8 years later, her ex-common-law partner would have an
interest in tracking her down or harming her either.
Then the PRRA
officer states even accepting that the ex-common-law partner is still
interested in her and continues to threaten those close to her, the
determinative finding of the Board was that the applicant had an IFA available
to her in Mexico. The PRRA
decision stated at page 8:
It is this
finding that needs to be addressed by the applicant and her counsel with
evidence of new developments to the applicant’s personal circumstances or in
the country conditions, such that the IFA is no longer available to her.
[32]
The
PRRA officer found with respect to the IFA issue that:
1.
There
was no evidence of new risk developments with respect to the Refugee Board’s
finding that the applicant had an IFA;
2.
The
affidavit of Francisco Rico-Martinez, who conducted a one week fact-finding
mission in Mexico, was not given any weight because the deponent has no
expertise, no knowledge of conditions in Mexico outside of his week-long visit,
and his affidavit did not contain information pertaining to new developments in
Mexico with respect to the IFAs;
3.
The
PRRA officer weighed this affidavit, but did not give it more weight than
recent country condition reports which do not disclose any changes in country
conditions with respect to an IFA for the applicant;
4.
The
PRRA officer rejected statements in the affidavit about the “traceability of
women victims of abuse” because they are not corroborated in other country
reports. The PRRA officer found that if Mexican authorities, including the
police were assisting abusers locate their victims in other parts of Mexico, it is
reasonable to assume that these incidents would be noted in the country reports
with respect to domestic abuse;
5.
Without
needing to decide whether the applicant’s alleged abuser was a “state agent”
and well-connected, if the abuser was a state agent with good connections, he
would have realized that the applicant left Mexico 8 years ago using her own
passport, and has been communicating with her relatives since she has been out
of the country; and
6.
The
PRRA officer concluded at page 10 of the decision:
I find it reasonable, as did the Board,
that the applicant would be able to go to an area where she is not known, and
relocate without her ex-common-law partner finding her. Should the applicant
return to the country, it would be reasonable to assume that her ex-common-law
partner would not even be aware that she has returned to the country, let alone
what city she has returned to. Especially given that over more than 7 years he
appears to remain unaware that the applicant is in Canada.
[33]
On
a reasonableness standard of review, I am of the view that this finding with
respect to the IFA was reasonably open to the PRRA officer, and for this reason
this application for judicial review must be dismissed.
CERTIFIED QUESTION
[34]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
Email this Content