Date: 20090729
Docket: IMM-494-09
Citation: 2009 FC 773
Ottawa, Ontario, July 29,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
WILMER
ARIAS VILLALOBO
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 January 27, 2009, concluding that the
applicant would not be at risk of persecution, torture, cruel and unusual
punishment, or death if returned to his country of nationality, Honduras.
FACTS
[2]
The
applicant arrived in Canada on May 22, 1997 and made a claim for
refugee protection which was denied by the Refugee Protection Division on August
21, 1998. He subsequently made two unsuccessful Post Determination Refugee
Claimant in Canada Class (PDRCC) applications.
[3]
The
applicant travelled to the United States on January 25, 1999. He
re-entered Canada and made a
second claim for refugee protection on May 8, 1999, which was refused on
October 8, 2003. The applicant did not seek judicial review of either of his
refugee claim determinations. He was deported to Honduras on June 7,
2007.
[4]
The
applicant returned to Canada in August 2008 without first obtaining an
“authority to return to Canada” as required by section 52(1) of the Immigration
and Refugee Protection Act. The applicant had been in Mexico and the United
States
illegally since December 2007. The applicant came to the respondent’s attention
when he was detained for failing to comply with a probation order.
[5]
While
the applicant was in Canada, he was convicted of the following
offences:
1.
August 6,
1999- Assault with a weapon, section 267(a) of the Criminal Code (CC);
2.
March 13,
2007 - Failure to comply with a recognizance, section 145(3) CC and mischief under
$5,000.00, section 430(4) CC;
3.
November 6,
2008 - Attempt to commit an offence, section 463(d) CC; Fail to appear, section
145(5) CC; fail to attend in Court, section 45(2)(a)CC
[6]
The
applicant was invited to submit a PRRA application and did so in November
2008. His application alleged risk of persecution on an entirely different
basis than was contained in his refugee claims. The applicant claimed that
after he was deported to Honduras, he was targeted for
extortion by two criminal gangs, was severely beaten and hospitalized as a
result, and had been refused assistance by the police.
[7]
The
applicant’s application was refused on January 27, 2009. The applicant’s motion
to stay the execution of his removal order was dismissed by Justice Barnes on
February 9, 2009. The applicant was removed from Canada on February
10, 2009.
Decision under review
[8]
The
applicant’s PRRA application was based on the following events which occurred
after he was first deported to Honduras in June 2007.
a.
The
applicant was approached by individuals from the MS-13 gang and told that he
would need to pay for protection. Thereafter, he was approached by several members
of the 18 Street Gang, who had seen him interacting with MS-13 gang members.
They asked him whether he was a member of MS-13. When he denied this, the 18
Street Gang members also demanded payment. The applicant went to the police
and was told to either pay the gangs or get a gun and shoot them when they came
after him. The police did not take a report.
b.
A week
later, the18 Street gang approached the applicant’s vegetable stand and
demanded more money. He gave them what he could and told him he would pay the
rest later. The next day the MS-13 gang demanded money. The applicant gave
them a small amount. He again went to the police and was told they could do
nothing and that many police officers had relatives who were gang members.
c.
The
applicant planned to move his vegetable stand, as the gangs continued to harass
him for money. He went to the police again but was told they could not help
him. He then moved 2-3 hours away and set up his vegetable stand. Near the
end of September 2007 one of the MS-13 gang members saw him. Later that day,
seven gang members approached the applicant, told him the gang was expecting
his payment, and that he should expect a visit the next day. The applicant
went to the police and was told that “everybody is in the same situation.” The
applicant’s brother gave him a gun which he pawned to get money to make the
payment.
d.
In
December, MS-13 gang members once again asked the applicant for money. On
December 13, 2007, the applicant was beaten, shot under his right knee, and
stabbed in the stomach. The applicant was hospitalized for two weeks following
this attack. The applicant then fled Honduras
and arrived in Canada via Guatemala, Mexico and the United States.
[9]
The
Officer noted that the applicant relied on his affidavit and had no
corroborative evidence (Application Record, p. 10):
The applicant states that he asked his
brother to get police reports for him. The police apparently wanted to know
why the applicant did not come for them himself. They advised the brother to
stay away and mind his own business. The applicant states that he called a
lawyer friend of his asking her to get the hospital records for him. She was
told at the hospital that they should have the records but they did not know
how long it would take to retrieve them. They can easily retrieve the files of
their regular patients. Apparently it is not so for singular instances.
[10]
The
Immigration Officer found that the objective evidence was that law enforcement
authorities in Honduras were taking steps to deal with gang violence
and that there was no objective evidence that the police were unwilling to investigate
gang-related crime. The Officer noted that in fact, the anti-gang laws had
been criticized for their severity by human-rights activists (p. 12):
It is clear from the research that Honduras faces many challenges with
respect to gangs. I note that the government has undertaken measures to deal
with this, most notably in the law on illicit associations…It is this law which
is used to deal with the gang problem and has come under fire from the NGO
community as being to heavy-handed and violating human rights. The research
does not indicate that the police are unwilling to involve themselves in gang
issues.
[11]
The
Officer also found that there were avenues of redress available to the
applicant if the police refused to assist him, and that the applicant had not
availed himself of these protections (p. 13):
I also note that the research indicates
that the applicant has recourse through the Office of Internal Affairs which
investigates allegations of illegal activities within the police force as well
as the Preventative Police and the DGIC which each have an office of
professional responsibility that conduct internal reviews of police misconduct.
[12]
The
Officer concluded that the applicant had not rebutted the presumption of state
protection.
ISSUES
[13]
As
a preliminary issue, the respondent brought a motion for an order that this
judicial review application of a PRRA decision is moot because the applicant
has already been deported, and that the application be dismissed on this basis.
ANALYSIS
Issue No. 1: Mootness
[14]
The
respondent submits that the applicant’s removal from Canada on February
10, 2009 renders this judicial review application moot. The respondent submits
that the PRRA process was implemented to allow individuals to apply for an
assessment of risk prior to their removal in order to comply with Canada’s domestic
and international obligations to not remove protected persons to any country
where they would be a risk of persecution. Once an applicant is removed, this
intended objective can no longer be met.
[15]
The
respondent further submits that if the PRRA decision were set aside upon
review, the respondent would have no obligation to allow the applicant to
return to Canada in order to
benefit from the redetermination of his application. Therefore, the judicial
review application would have no practical effect.
[16]
The
issue of whether applications for judicial review of a PRRA decision are moot
where an applicant has already been deported was recently addressed by the
Federal Court of Appeal. In Solis Perez v. Canada (MCI), 2009 FCA 171, the
Federal Court of Appeal considered the following questions certified by Justice
Martineau:
i) Is an application for
judicial review of a PRRA moot where the individual who is the subject of the
decision has been removed from or has left Canada after an
application for stay of removal has been rejected?
ii) What factors or criteria, if
different or additional to those elucidated in Borowski should the Court
consider in the exercise of its discretion to hear an application for judicial
review that is moot?
iii) If a judicial review of a PRRA is successful
after the applicant has been removed from or has left Canada, does the Court
have the authority to order the Minister to return the applicant to Canada
pending re‑determination and, as the case may be, at the cost of the
government?
[17]
Mr.
Justice Marc Noël of the
Federal Court of Appeal held, at para. 5:
5 We agree that the application for judicial review is moot,
and in particular with the statement made by Martineau J. at page 25 of
his reasons where he says:
[…]
Parliament intended that the PRRA should be determined before the PRRA
applicant is removed from Canada, to avoid putting her or him at risk in her or
his country of origin. To this extent, if a PRRA applicant is removed from Canada before a
determination is made on the risks to which that person would be subject to in
her or his country of origin, the intended objective of the PRRA system can no
longer be met. Indeed, this explains why section 112 of the Act specifies that
a person applying for protection is a “person in Canada”.
By the same logic, a review of a negative
decision of a PRRA officer after the subject person has been removed from Canada, is
without object.
[18]
This
decision was rendered on May 26, 2009, after leave was granted. The parties
both referred to this question as being “currently before the Federal Court of
Appeal.” This decision is directly on point in this case and definitively
settles the question of whether this application is moot, and whether the Court
should exercise its discretion to hear the application in any event. This Court
is bound by the decision of the Federal Court of Appeal.
[19]
Accordingly,
there is no reason to review this application on the merits, and the
application is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed for mootness.
“Michael A. Kelen”
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