Date: 20110316
Docket: IMM-4228-10
Citation: 2011
FC 319
Toronto, Ontario, March 16, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
|
|
LORENZO SALVADOR CID GUERRA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND
ORDER
[1]
Lorenzo
Salvador Cid Guerra is a Mexican gangster. He was found to be inadmissible by
the Immigration Division of the Immigration and Refugee Board because he is a member
of a criminal organization as envisaged by section 37(1)(a) of the Immigration
and Refugee Protection Act (IRPA). An application for leave to have that
decision reviewed was dismissed by this Court. Although inadmissible, he is
still here. Should he be allowed to stay?
[2]
Parliament
(and I emphasize it was Parliament, not the Courts) has provided that persons
such as Mr. Cid Guerra are entitled to a Pre-Removal Risk Assessment (PRRA) in
accordance with sections 112 and following of IRPA. He will not be returned to Mexico if, on a balance of
probabilities, he would be subjected to a danger of torture, or to a risk to
his life or to a risk of cruel and unusual treatment or punishment. To put
matters in context, the Minister has not given an opinion under section 115(2)
of IRPA that the Applicant should not be allowed to remain in Canada on the basis of the nature or
severity of the acts he committed or because of danger to Canada’s security.
[3]
This is a
judicial review of the decision of the PRRA Officer who determined there were
no substantial grounds to support the proposition that Mr. Cid Guerra would
face torture and there were no reasonable grounds to believe he would face a
risk to life, or a risk of cruel and unusual treatment or punishment as contemplated
by section 97 of IRPA should he be returned to Mexico. I find the decision to
be well reasoned, logical, transparent, coherent and it easily stands up to the
reasonableness standard of review as set forth in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
[4]
Counsel
for Mr. Cid Guerra submitted the decision was unreasonable, and also
procedurally unfair (a point on which no deference is owed to the decision
maker) in the following respects:
a.
The PRRA
Officer did not identify the agents of persecution he feared;
b.
The PRRA
Officer applied the wrong legal test to section 97 of IRPA in determining that
he had no subjective fear. Subjective fear is not relevant on a section 97
analysis;
c.
The PRRA
Officer simply stated a series of facts followed by a conclusion, without any
analysis. More particularly the Officer simply cut and pasted from one report
and failed to refer to other country condition reports which led to a
completely different conclusion with respect to the availability of state
protection in Mexico; and
d.
The PRRA
Officer failed to grant an oral hearing notwithstanding that there were
credibility issues, and that the Applicant was found to be not credible.
[5]
While the
Officer did not specifically identify the Applicant’s risk in the lengthy notes
to file narrative, the Officer specifically stated in part III of the PRRA form
that “[t]he applicant fears the La Mana criminal organization in Mexico
(who are themselves associated with the Sinaloa Drug Cartel).” Having
specifically identified the risk, it was not necessary for the Officer to
repeat it in the assessment.
[6]
It is
correct to say that while subjective fear is an aspect of a refugee claim under
section 96 of IRPA, it is not part of a need of protection analysis under
section 97 (Shah v Canada (Minister of Citizenship and Immigration),
2003 FC 1121, 240 FTR 15; Li v Canada (Minister of Citizenship and
Immigration), 2003 FC 1514, [2004] 3 FCR 501, confirmed by the Federal
Court of Appeal at 2005 FCA 1, [2005] 3 FCR 239). However that statement is
more relevant to the Officer’s finding that time and time again Mr. Cid
Guerra voluntarily put himself in what he now says is harm’s way by going back
to La Mana. Even if this could be construed as an error, it is not
relevant as it was found that there was no objective basis for a fear of
persecution under section 97. As Mr. Justice Joyal pointed out in Miranda
v Canada (Minister of Employment and
Immigration)
(1993), 66 FTR 81, [1993] 2 CTC 126, artful pleaders can find any number of
errors when criticizing decisions of administrative tribunals.
[7]
I cannot
agree with the submission that the PRRA Officer simply stated the facts and the
conclusion, without any analysis. If that is what the Officer had done,
judicial review would be granted as it is a requirement of procedural fairness
that one understands the process by which an adjudicator reaches a conclusion (North
v West Region Child and Family Services Inc, 2007 FCA 96, 362 NR 83).
[8]
In this
case the Officer had a great deal of country conditions to consider and quoted
from the United States Department of State’s 2009 Country Reports on Human
Rights Practices which sets forth efforts in Mexico to deal with organized
crime. Based on that information the Officer concluded that the Applicant had
not rebutted the presumption of state protection in Mexico with clear and convincing evidence. In
submitting that the Officer should have referred to and preferred the United
Nations’ General Assembly Universal Periodic Review on Mexico of May 2009 and
Professor Judith Hellman’s report favourably referred to in Villicana v
Canada (Minister of Citizenship and Immigration), 2009 FC 1205, 86 Imm LR
(3d) 191, counsel is asking me to re-weigh evidence. The PRRA Officer’s
selection of the US DOS report was not a good news analysis.
[9]
Finally,
although refugee claimants are entitled to a hearing, there is no such
requirement in a PRRA. Section 167 of the Immigration and Refugee Protection
Regulations sets out prescribed factors which are whether there is evidence
raising a serious issue of the Applicant’s credibility, whether the evidence is
central to the decision and whether if accepted it would justify allowing the
application for protection.
[10]
The
Officer had the right to refuse a hearing. Credibility was not at issue. At the
crux of the determination that Mr. Cid Guerra was not at risk was his own
affidavit. If he was at risk at all it was while under the influence of La Mana
while a dock worker in Manzanillo. By his own admission he was far less at
risk when in Ensenada.
[11]
If he were
at risk, he has not provided sufficient evidence that the police would not
protect him. If they were approached they might well charge him with the crimes
he tells the Canadian authorities he has committed. That is his own doing.
[12]
Counsel for
the Minister moved to have Mr. Cid Guerra’s admissibility file before this
Court added to the record. I dismiss on the grounds of mootness.
ORDER
FOR REASONS GIVEN:
1.
The
judicial review is dismissed;
2.
There is
no serious question of general importance to certify.
“Sean Harrington”
Email this Content