Date: 20110204
Docket: IMM-2981-10
Citation: 2011 FC 128
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, February 4, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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FERNANDO
ALBERTO HERNANDEZ MALVAEZ
ALEJANDRA BERENICE FLORES SANCHEZ
MARIA CONCEPTION MALVAEZ
OLIVARES
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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]
This
is an application for judicial review in accordance with subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c. 27 (Act), of a
decision dated March 29, 2010, by the pre-removal risk assessment
officer (PRRA officer) of Citizenship and Immigration Canada. The PRRA officer
found that the applicants would not be subjected to a danger of torture or
persecution were they to be removed to Mexico.
Factual background
[2]
The
principal applicant, Fernando Alberto Hernandez Malvaez, his spouse, Alejandra
Berenice Flores Sanchez, and his mother, Maria Concepcion Malvaez Olivares, are
all Mexican nationals.
[3]
Before
the Immigration and Refugee Board, Refugee Protection Division (RPD),
Mr. Malvaez alleged that in January 2006, the director of the collections
division for the Mexican Social Insurance Institute, where he worked, had approached
him and asked him to collect 500,000 pesos and secretly give this amount to
the director.
[4]
Mr.
Malvaez stated that he had resigned from his position in February 2006 and he had
purportedly tried twice to file a complaint. In March 2006, he was
allegedly hired by the company from which he collected the 500,000 pesos. He
then learned that his boss had recommended him for the purpose of trafficking premiums.
Mr. Malvaez therefore apparently quit his job under the threat that he
would regret having refused to make money and that death would ensue.
[5]
In
May 2006, Mr. Malvaez purportedly received several threats. The
company in question purportedly belonged to Senator Medina Placencia and there
was apparently an agreement between the Senator and employees of the Institute
to misappropriate funds paid to the Institute. On July 20, 2006,
Mr. Malvaez allegedly tried to file a complaint against the company, but
was told by the Leon office of the Public Prosecutor that no one
could file a complaint against a senator and he could be killed as a rebel.
[6]
Mr.
Malvaez purportedly insisted and was told to come back the next day to retrieve
his complaint. That same evening, he apparently received death threats on his
cellular phone.
[7]
Upon
their arrival in Canada on July 24, 2006, Mr. Malvaez and his
spouse immediately claimed refugee protection. As for the principal applicant’s
mother, she came to join her son in Canada on
September 22, 2007. She also claimed refugee protection upon her
arrival in Canada, alleging
that she had also received threats and had been physically assaulted by
individuals looking for her son.
[8]
Further
to a hearing before the Immigration and Refugee Board on
February 7, 2008, and May 26, 2008, the applicants
received, on May 28, 2008, a negative decision by the RPD to the effect that
they were not Convention refugees or persons in need of protection.
[9]
On
May 1, 2009, the applicants filed an application for permanent
residence based on humanitarian and compassionate considerations (Docket
IMM-3050-10).
[10]
On
July 29, 2009, the applicants submitted a PRRA application.
Impugned decision
[11]
The
officer noted that, in the PRRA application, Mr. Malvaez reiterated the same
allegations that were submitted to the RPD during his refugee claim hearing.
However, he added that one of his work colleagues had been the victim of a car
accident resulting from threats she allegedly also received from the company’s
corrupt bosses.
[12]
The
officer noted that there was therefore new evidence in the file. However, she
found that the documents submitted in support thereof (P2 to P12) would not
meet the requirements of paragraph 113(a) of the Act because they
preceded the rejection of the application by the RPD on May 28, 2008.
The officer also stated that these documents were available when the applicants
were seen and heard by the RPD.
[13]
The
officer noted that document P6 was irrelevant as it contained a photo of the
Senator of Guanajuato and that documents P8 to P13 were in Spanish and
submitted without a French or English translation. The officer therefore
rejected the admission of these documents. However, the officer considered as
new evidence documents P1, a letter by Mr. Malvaez’s work colleague dated
July 9, 2009, and P5, this colleague’s appearance before the Leon office of
the Public Prosecutor on May 26, 2008.
[14]
Mr.
Malvaez’s work colleague, Laura Estrada Chavez, was Mr. Malvaez’s immediate
superior. In March 2007, she was the victim of a car accident and thus obtained
a disability pension.
[15]
In
the statement she produced for Mr. Malvaez, she stated that she had often been subject
to threats from her superiors and that her car accident was the direct result
of their threats put into action.
[16]
The
officer found that Ms. Estrada Chavez’s statement did not demonstrate that her
accident was the direct result of the threats she was subjected to. The officer
noted that Ms. Estrada Chavez had never submitted or even mentioned submitting
any complaints or taken any legal action following this accident.
[17]
However,
the officer stated that, further to threatening phone calls, Ms. Estrada Chavez
had complained to the Leon office of the Public Prosecutor on
May 26, 2008, the day of the applicants’ hearing with the IRB. The Leon office of the
Public Prosecutor refused to open an investigation on the grounds that the
facts set out by Ms. Estrada Chavez lacked substance.
[18]
The
officer noted that Ms. Estrada Chavez had carefully filed a complaint for
telephone threats, but not for the accident she said was criminal and that she
was the victim of. The officer found that Ms. Estrada Chavez’s behaviour
was not the behaviour expected of a person who was allegedly a victim of a
reprehensible criminal act by the authorities.
[19]
The
officer thus found that Ms. Estrada Chavez’s testimony had little probative
value in establishing the personalized risk put forward by Mr. Malvaez.
Relevant provisions
[20]
Sections
96, 97 and 113 of the Immigration and Refugee Protection Act apply to this
application:
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Convention refugee
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.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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Définition de « réfugié »
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.
Personne à protéger
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.
Personne à
protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie de
personnes auxquelles est reconnu par règlement le besoin de protection.
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Consideration of application
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;
(c) in
the case of an applicant not described in subsection 112(3), consideration
shall be on the basis of sections 96 to 98;
(d) in
the case of an applicant described in subsection 112(3), consideration shall
be on the basis of the factors set out in section 97 and
(i)
in the
case of an applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii)
in the
case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
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Examen de la demande
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;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part :
(i)
soit du
fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii)
soit, dans
le cas de tout autre demandeur, du fait que la demande devrait être rejetée
en raison de la nature et de la gravité de ses actes passés ou du danger
qu’il constitue pour la sécurité du Canada.
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Issue
[21]
The
only issue in this application for judicial review is the following: Did the
PRRA officer err in applying paragraph 113(a) of the Act to exclude the
new evidence submitted in support of the PRRA application?
Standard of review
[22]
The standard of review that applies to a PRRA officer’s
findings of fact and to questions of mixed fact and law is that of
reasonableness because the PRRA officer’s determination of pre‑removal
risk is an appreciation of the facts to which this Court must show great
deference (see Martinez v Canada (Minister of Citizenship and Immigration),
2010 FC 31,
[2010] FCJ No 41;
Erdogu v Canada (Minister of Citizenship and Immigration), 2008 FC 407, [2008] FCJ No 546; and Elezi v Canada
(Minister of Citizenship and Immigration), 2007 FC 240, [2007] FCJ No
357).
[23]
In Ramanathan v Canada (Minister of Citizenship and Immigration),
2008 FC 843, [2008] FCJ No 1064, at para 18, it was decided that when an
applicant raises doubts as to whether a PRRA officer had proper regard to all
of the evidence when rendering a decision, the standard of review that applies
is that of reasonableness.
[24]
Consequently, the Court will review the PRRA officer’s
findings having regard to “ . . . the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No
9, at para 47).
Analysis
[25]
The
Minister points out that a simple reading of the decision’s reasons shows that
the officer carefully reviewed all of the evidence before her, and clearly gave
the reasons for which certain documents could not be considered.
[26]
According
to the principal applicant, the officer rejected documents P2 to P12 on the
grounds that they contained a date preceding that of the rejection of the
refugee claim and that there was no assessment on whether it was reasonable to expect
the applicants to present this evidence at the hearing. The principal applicant
alleges that it was impossible for him to obtain the documents that the officer
refused to admit because he was not informed of Ms. Estrada Chavez’s situation
before his RPD hearing.
[27]
In
fact, the officer refused to admit the evidence confirming Ms. Estrada Chavez’s
employment, her medical records and the pension documents for her disability
because they were available before the RPD decision. That being said, the
Court is of the opinion that even if the officer had admitted these documents,
they would not have had evidentiary weight given all of the facts and evidence
admitted.
[28]
Under
these circumstances, the officer admitted Ms. Estrada Chavez’s statement and
determined that there was no connection between her accident and the
allegations of threats that she purportedly received further to the corruption
of her bosses. The Court is of the opinion that the officer’s analysis of the
facts with respect to Ms. Estrada Chavez’s situation is reasonable. To
establish the relevance of the exhibits submitted by the principal applicant in
connection to Ms. Estrada
Chavez’s situation, the officer had to analyze the context surrounding Ms. Estrada Chavez’s
situation, including her behaviour.
[29]
After
assessing the evidence in the record, the Court is of the opinion that it was
not unreasonable for the officer to find that the documents submitted and
considered by the officer do not demonstrate a connection to the applicants’
situation and their alleged personalized risk. It was also not unreasonable to
find that these documents do not establish the alleged risks and are not in any
way personal to the applicants.
[30]
In
this case, it was up to the applicants to demonstrate that they would be
subjected to a danger of torture or persecution, or to a risk of cruel or
unusual treatment, or to a risk to their lives. This was not done as the documents
submitted to the officer had no connection to the applicants and did not
demonstrate any risk for them.
[31]
In light of the foregoing, the officer’s decision was not
unreasonable (Dunsmuir). Consequently, the application for
judicial review will be dismissed.
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