Date: 20090220
Dockets: IMM-1711-08
IMM-1712-08
Citation: 2009 FC 180
Montréal, Quebec, February 20, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
SOTO DUARTE LUIS ROBERTO
GALLEGOS ORIZABA MARIA ELENA
SOTO GALLEGOS BRISEIDA
SOTO GALLEGOS ROBERTO
SOTO GALLEGOS BRENDA
SOTO GALLEGOS
CINDY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants are seeking judicial review of two decisions by a pre‑removal
risk assessment officer (PRRA officer) refusing their application for permanent
residence based on humanitarian and compassionate considerations (H&C
application) and also refusing their pre‑removal risk assessment
application (PRRA application) on the ground that they had failed to establish
the existence of a personalized risk if they returned to their country of
origin.
[2]
There
will be only one judgment on the two applications, which rely on the same
facts and were joined for hearing.
I. Facts
[3]
The
applicants, who were all born in the city of Toluca, are Mexican
citizens and members of one family. The father, Luis Roberto Soto Duarte,
is the principal applicant in these proceedings, which include his wife and
three of his four children now that one of his daughters, who came to Canada with the
family in March 2006, has since decided to return to Mexico with her
three young children.
[4]
The
applicant and his family, who were brought up as Catholics, were converted to
and decided to become members of the Evangelical Christian faith.
[5]
After
announcing their conversion to the rest of the family, the applicants were
mocked, insulted and isolated by relatives who closed their doors to them and
excluded them from family gatherings. After hearing of the applicants'
conversion, some neighbours followed suit and did the same.
[6]
According
to the applicants, they were segregated, their property was vandalized and they
were attacked, insulted and mocked from that time on, to the point where the
principal applicant even decided to change his place of residence and his place
of employment, which he was unfortunately unable to do because he could not
obtain good references due to his new religious beliefs.
[7]
The
applicant thought in vain of reporting the persecution he and his family were
experiencing to the police authorities. However, since the applicants could not
obtain the protection they sought from the Mexican authorities, they finally
decided in March 2006 to leave their country for Canada and claim
refugee protection here.
[8]
On
November 6, 2006, the Refugee Protection Division (RPD) rejected the
applicants' claim for refugee protection based on their conversion to
Evangelical Christianity. In its decision, the RPD found that the applicants'
narrative was contradicted by documentary evidence showing that their country
recognized freedom of religion and that they could count on the protection of
the Mexican state.
[9]
The
applicants were disappointed and brought an application seeking judicial review
of the RPD's decision, but the Court denied them leave to bring such
proceedings on March 16, 2007.
[10]
When
informed of their rights, the applicants made a PRRA application
(docket IMM‑1711‑08) and an H&C application
(docket IMM‑1712‑08) seeking an exemption from the obligation
to apply for permanent residence from outside Canada. Those
two applications, which the PRRA officer ultimately refused on
February 15, 2008, are the subject of these judicial review
proceedings.
II. Impugned
decisions
PRRA
decision
[11]
After
considering the entire file and the documentary evidence, the PRRA officer
refused the applicants' PRRA application (IMM‑1711‑08)
on the ground that it did not meet the requirements of sections 96 and 97
of the IRPA and that the applicants had not met their obligation of
establishing that there was a personalized risk for them if they returned to Mexico.
H&C
decision
[12]
After
considering the risks and the humanitarian and compassionate factors referred
to by the applicants, the PRRA officer concluded that they would not suffer unusual,
undeserved or disproportionate hardship if they had to apply for permanent
residence at a Canadian embassy outside Canada.
III. Standard
of review
[13]
Assessment
of the evidence, the risks and the hardship alleged is a question of fact
within the PRRA officer's jurisdiction (Dunsmuir v. New Brunswick,
2008 SCC 9). The PRRA officer's decisions must
therefore be shown deference, especially since the officer has some expertise
in matters like this one under her jurisdiction.
[14]
The assessment of a decision's "reasonableness" is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision‑making process. The Court must also ensure that the
decision falls within "a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, above, at paragraph 47).
IV. Issues
[15]
Did
the PRRA officer make an unreasonable error in refusing the PRRA and H&C
applications?
[16]
The
purposes of an H&C application and a PRRA application are different. An
H&C application seeks to determine whether there are humanitarian and
compassionate grounds for allowing an applicant to apply for permanent
residence without having to obtain a permanent resident visa outside Canada. On the
other hand, a PRRA application allows an applicant to present any new evidence
concerning the risks of returning to the country of origin that has arisen
between the time of the decision rejecting the claim for refugee protection and
the time of deportation from Canada. The two applications therefore have
completely different requirements.
Merits
of the PRRA decision
[17]
The
applicants allege that the PRRA officer erred in law because the reasons she
gave for her PRRA decision were not based on the evidence, constituted errors
of law and were therefore unreasonable.
[18]
However,
we note that the risks referred to by the applicants had already been assessed
and rejected by the RPD in deciding their claim for refugee protection and that
the PRRA officer was therefore entitled to reach the same conclusion as the RPD
about the problems the applicants allegedly experienced as a result of their
religious beliefs.
[19]
It
is well settled that the purpose of an assessment of the risks of returning is
not to give applicants a right to appeal the RPD's decision or to have the
evidence reassessed by the PRRA officer or by this Court. The RPD's findings of
fact therefore became res judicata once the Court dismissed the
applicants' leave application challenging the RPD's decision (Danyluk v.
Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, at
paragraph 24; Angle v. Canada (Minister of National Revenue -
M.N.R.), [1975] 2 S.C.R. 248, at page 254).
[20]
In
her reasons for decision, the officer explained that the applicants had
submitted three documents concerning incidents allegedly experienced by
Evangelical Christians in certain areas of Mexico. The
documents in question were blogs from an Internet site and were of uncertain
origin, and the PRRA officer chose for good reason not to attach too much
weight to them after finding that the source of information was unreliable.
[21]
The
officer continued her analysis of the applicants' submissions by considering
the objective evidence. In the end, she concluded that the evidence submitted
did not show any personal, objectively identifiable risk that existed in all
areas of Mexico. This
conclusion was not refuted by the evidence the applicants themselves chose to
submit.
[22]
The
burden was on the applicants to prove to this Court that the PRRA decision was
unreasonable. It was not enough for them to disagree with the PRRA officer's
analysis and her conclusion that they had not discharged their burden of
establishing that, if they returned to their country of origin, they would face
a personalized risk that justified granting the protection they were claiming.
[23]
A
PRRA application is an exceptional measure that should be allowed only where
there is new evidence that was not available at the time of the RPD's decision
and only if the new evidence shows a risk for the applicants if they
return to their country of origin.
[24]
Unfortunately
for the applicants, their vague allegations about the situation waiting for
them in Mexico did not
refer to any new, sufficiently reliable and objective fact that had arisen
since the RPD's decision and that could justify the PRRA officer sharing their
fear. In the circumstances, the Court has difficulty seeing how the PRRA
officer erred by denying them protection from a risk that she was not satisfied
existed.
[25]
The
Court's role here is not to substitute its opinion for that of the PRRA
officer, as the applicants are inviting it to do, but rather to ensure that the
PRRA refusal was justified and did not result from an unreasonable error.
[26]
After
analyzing everything, the Court must conclude that the PRRA decision falls
within a range of possible outcomes which are defensible in respect of the
facts and law;
it is therefore a reasonable decision that does not warrant this Court's
intervention.
Law
applicable to an H&C application
[27]
A
person who wishes to immigrate to Canada must generally apply for permanent
residence before entering Canada, and thus from outside Canada (Immigration
and Refugee Protection Act (IRPA), subsection 11(1)).
[28]
However,
the Minister may make an exception, since the Minister has the discretion to
facilitate a person's admission to Canada or exempt a person from any criterion
or obligation set out in the IRPA if the Minister is satisfied that this is
justified by humanitarian and compassionate (H&C) considerations
(subsection 25(1) of the IRPA; Serda v. Canada (Minister of
Citizenship and Immigration), 2006 FC 356, at paragraph 20).
Merits
of the H&C decision
[29]
It
was up to the applicants to prove that they would face unusual, undeserved or
disproportionate hardship if they applied for permanent residence from outside
the country (Mpula v. Canada (Minister of Citizenship and Immigration),
2007 FC 456, at paragraph 24; Legault v. Canada (Minister of
Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), at
paragraphs 23, 28).
[30]
The
applicants criticize the PRRA officer for making her H&C decision without
updating their file, even though they alone always had the burden of
establishing all the H&C factors in favour of their application (Baker v.
M.C.I., [1999] 2 S.C.R. 817; Legault, supra, at
page 369).
[31]
This
criticism does not hold up, since the PRRA officer was under no obligation to
request additional information. Contrary to what the applicants submit, their
burden never became that of the PRRA officer (Baker, supra, at
paragraphs 30 to 34; Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 158 (F.C.A.)).
[32]
In
view of the RPD's decision and the PRRA officer's decision on the situation in Mexico, as opposed
to the applicants' vague allegations on this question without any objective
evidence backing them up, the Court has difficulty understanding the criticism
of the H&C decision.
[33]
The
applicants have only themselves to blame for being unable to satisfy the PRRA
officer that they expected to face unusual, undeserved or disproportionate hardship
if they applied for permanent residence from outside the country. The Court
must show deference to the officer's H&C decision, especially since the
applicants have not satisfied the Court that the decision is unreasonable.
There is therefore no reason to intervene.
V. Conclusion
[34]
After
analyzing the evidence and the two impugned decisions, the Court finds no error
in the decisions and must conclude that the PRRA officer, who had some
expertise, could reasonably find that the PRRA application and the H&C
application should both be refused based on the evidence she had analyzed. The
two decisions to which these proceedings relate fall with a range of
possible, acceptable outcomes and are completely defensible in respect of the
facts and law; they are therefore reasonable and entitled to deference by this
Court.
[35]
The
two applications for judicial review will therefore be dismissed. Since no
serious question of general importance was proposed in either case, no question
will be certified.
JUDGMENT
FOR THESE
REASONS, THE COURT dismisses the applications for judicial review
in dockets IMM‑1711‑08 and IMM‑1712‑08 and does
not certify any question.
"Maurice
E. Lagacé"
Certified
true translation
Susan
Deichert,
Reviser
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