Date: 20110413
Docket: IMM-3774-10
Citation:
2011 FC 458
Ottawa, Ontario, April 13,
2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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FAVIO CRUZ UGALDE
ALEJANDRA GUTIERREZ BARBA
ALEXA BERENICE CRUZ GUTIERREZ
FAVIO CRUZ GUTIERREZ
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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Docket: IMM-3775-10
AND BETWEEN:
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FAVIO CRUZ UGALDE
ALEJANDRA GUTIERREZ BARBA
ALEXA BERENICE CRUZ
GUTIERREZ
FAVIO CRUZ GUTIERREZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
These
are two different applications for judicial review made by the same Applicants
with regard to two decisions made by Officer S. Bisaillon, both dated May 6,
2010. In the first decision, the Officer rejected the Applicants’ application
for Pre-Removal Risk Assessment (“PRRA”). In the second decision, the Officer
denied the Applicants’ request to have their application for permanent
residence processed from within Canada on humanitarian and
compassionate grounds (“H&C”).
[2]
These
two applications for judicial review raise the same facts, and the assessment
of the risk that the Applicants would experience if returned to Mexico is shared by
the two decisions. While these applications were not consolidated under Rule
105 of the Federal Courts Rules, SOR/98-106, they were scheduled for
hearing on the same day and were argued together. Accordingly, these reasons
will address both applications and shall be placed in each of the files.
I. Facts
[3]
The
Applicants are citizens of Mexico. They are a family unit composed of a
husband, wife and two minor children. Mr. Favio Cruz Ugalde, the husband,
father, and the principal applicant, is a jeweller. The facts as alleged in his
application for refugee protection are as follows.
[4]
In
Mexico, Mr. Cruz Ugalde
and his employer completed a special order for custom-made jewels for the wife
and the mother of the Governor of Guanajuato state; Mr. Juan Manuel Oliva
Ramirez paid for the jewels with counterfeit money. Mr. Cruz Ugalde’s employer
decided to go to the media with this story. As a result, the employer was
threatened and then disappeared.
[5]
Consequently,
certain events occurred that frightened Mr. Cruz Ugalde. Some armed men came to
the store when he was there alone, though he managed to escape through a secret
door. A journalist informed Mr. Cruz Ugalde that his employer had been
“neutralized”, that state security agents were looking for him, and that the
store had been broken into and robbed of its contents. The journalist also told
him that the mother of the Governor had become ill and had died as a result of
the stress of the potential media exposure of her family’s corrupt acts. The
journalist explained that since Mr. Cruz Ugalde worked very closely with his
employer, the Governor’s agents were under the impression that he was also
behind the plan to speak to the media. Subsequently, this journalist also
disappeared.
[6]
Understanding
these happenings to present a serious risk, the Applicants went into hiding
until they left Mexico for Canada. Since arriving here,
their relatives in Mexico have been questioned and threatened by individuals
looking for the principal Applicant.
[7]
The
Applicants’ hearing before the Refugee Protection Division (RPD) concluded in a
finding of a lack of credibility. Their application for judicial review of this
decision was denied. The evidence on the record confirmed that the persecuting
agent is a state governor, accused of committing abuses, who is considering
running for president.
[8]
After
their negative RPD decision, the Applicants filed an H&C application and a
PRRA. In the context of these applications, the Applicants filed some new
evidence of the risk that they face in Mexico in an
attempt to refute the RPD’s negative credibility finding. In particular, the
new evidence included the following:
1.
Letters
from the Applicants’ family members in Mexico, alleging that their homes had
been broken into and their property destroyed, that they had received threats
from people looking for the principal Applicant, and that the police had been
unhelpful when approached;
2.
Letters
from a judge and lawyers in Mexico stating that the people seeking
the Applicants are dangerous and powerful and declaring that the Applicants
could not be protected throughout the country;
3.
Affidavit
evidence from the principal Applicant, alleging the following:
a)
that the
story related in the PIF is accurate;
b)
that he
has spoken with a lawyer in Mexico and had been told that there
was nothing that could be done to protect him;
c)
that he
has been unable to find any information regarding the whereabouts of either his
former employer or the journalist with whom he had spoken;
d)
that he
was accustomed to the daily general dangers that he faced in Mexico, but that
these more extraordinary recent events forced him to leave the country;
e)
that he
would have furthered more evidence in support of his claim but that many
individuals are unwilling to provide him with evidence for fear of the powerful
Mr. Oliva Ramirez;
f)
that
family members are still receiving threatening phone calls from people looking
for him.
[9]
Both
the PRRA and the H&C were refused, leading to the present case.
[10]
The
Applicants filed a stay of removal pending the outcome of this judicial review,
which was granted by Justice Shore on July 22, 2010 in Ugalde v Canada (Minister
of Public Safety and Emergency Preparedness), 2010 FC 775.
[11]
To
accompany this stay order, Justice Shore issued strongly-worded
reasons concluding that the Officer had erred in the risk analysis contained in
the PRRA decision. Although I recognize that the standard applicable for a stay
application and the standard to be met in the present application for judicial
review are different, Justice Shore’s remarks are nevertheless relevant to the issues raised by the
present application, and I agree with many of his findings.
II. The impugned
decisions
- The PRRA
decision
[12]
The Officer begins by stating the facts and setting out the PRRA test. She
then acknowledges the new evidence submitted by the Applicants and proceeds to
evaluate it in order to determine whether it shows that the risk faced by the
Applicants is personalized or generalized.
[13]
With regards to the letters
written by the Applicants' friends and acquaintances confirming that they have
been threatened by the aggressors, the Officer states that the letters are of
low probative value because they are written by family members and therefore
not "disinterested". She notes also that the authors of these letters
have failed to inform the authorities about the threats that they have
received.
[14]
The Officer also awards a low
probative value to the letters from the judge and lawyers, on the grounds that
these letters are also not sufficiently neutral evidence as they were written
at the request of the Applicants. These letters, which report that the
Applicants fled the country out of concern for their safety, are described as
vague by the Officer, who notes that they do not name the aggressor or specify
the actions taken by the Applicants to ensure their safety.
[15]
Furthermore, the Officer notes
that the letters raise evidence that contradicts the PIF and RPD narrative with
regards to previous aggressions (in 2001) and whether the Applicants moved to
avoid their persecutor in 2007.
[16]
Concerning a letter confirming that the Applicants had installed an alarm
system and installed bars on their windows, the Officer did not find this fact
to be compelling proof that they feared for their lives, since many people in
various countries take such measures as a general security precaution without
such a fear.
[17]
As for the photos submitted
showing evidence of a break-in to the homes of the Applicants’ family members,
the Officer found these unconvincing, noting that they are accompanied by
little explanation and could have been taking anywhere.
[18]
With respect to the documentary
evidence of corruption, violence, murders, and attacks in Mexico, the Officer
noted that these problems are indeed present in Mexico but that
the Applicants had failed to explain how these conditions relate to their own
story. Therefore, she awarded this evidence a low probative value in terms of
proof that their risk was personal and not generalized. Regardless of the
country condition evidence, the Officer found that the Applicants had failed to
discharge their burden of proving that they faced a personalized risk upon
return to Mexico, and the PRRA was thus refused.
- The H&C
decision
[19]
The Officer sets out various factors and examines them, concluding
that the H&C must be refused:
Level of establishment in Canada: The officer notes that various friends and acquaintances have
written letters of support attesting to the positive role the family plays in
their community. The officer acknowledges that the father has taken a jewelry
course and has been working in Canada, while the mother is studying French. She recognizes that these
are positive factors in her evaluation, but notes that this establishment is
recent (the Applicants have only been in Canada for 2.5 years) and not beyond the ordinary. She concludes that
these factors are insufficient to form the basis of a positive H&C
determination.
Best interests of the children: The officer acknowledges that the children
appear to be well-integrated in Canada, and that moving back to Mexico will be a challenge for them. However, she estimates that they
will be capable of making the adjustment, and that the parents’ decision to
move from Mexico to Canada probably posed a bigger challenge to the children than will a
return to their home country. She notes that their success in Canada, where they arrived
relatively recently, suggests that they are adaptable enough to return to Mexico.
Fear of returning home: Here, the officer summarizes his own PRRA decision, which concluded
that the evidence does not show that they would be at a personalized risk upon
returning to Mexico.
Mexico: The officer remarks that Mexico is a republic with a democratically-elected government, which is
taking measures to address the problems caused by drug traffickers and to
address the country’s security and human rights issues. She was not satisfied
that the Applicants’ general arguments about the risks they would face upon
return to Mexico is a sufficient basis for
granting that H&C.
III. Issues
[20]
The
PRRA decision gives rise to the following issue:
a.
Was
the Officer’s assessment of the evidence unreasonable?
[21]
The
H&C decision gives rise to two issues:
a. Was the Officer’s
assessment of the evidence unreasonable?
b. Did the Officer err by failing to conduct a reasonable analysis of the best interests of
the children?
IV.
Analysis
-
The PRRA decision
[22]
It
is settled law that PRRA decisions involve mixed questions of fact and law and,
as such, are reviewable under the reasonableness standard. Reasonableness
requires consideration of the presence of justification, transparency, and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within a range of acceptable outcomes, which are
defensible in respect of the facts and law: see Dunsmuir v New Brunswick,
2008 SCC 9, at para 47; Sounitsky v Canada (Minister of Citizenship and Immigration),
2008 FC 345, at paras 15-19.
A. Was the Officer’s
assessment of the evidence unreasonable?
[23]
In
my view, the Officer’s treatment of the new evidence submitted for the PRRA was
unreasonable for several reasons.
[24]
First,
as argued by counsel for the Applicants, the Officer’s decision to assign
little probative value to the letters from the Applicants’ family members was
not reasonable. These letters confirmed that the persecutors were searching for
the Applicants and that the family members had experienced threats and
break-ins by those in search of the Applicants. The Officer awarded these
letters very low probative value because she deemed them “not disinterested”,
coming as they did from family members.
[25]
It
is true that giving
evidence little weight due to its “self-serving” nature is an option open to
the decision-maker (Sokhi v Canada (Minister of Citizenship
and Immigration), 2009 FC 140, at para
44; Hamid v Canada (Minister of Citizenship and Immigration), 2007 FC 220, at para
13; Kahiga v Canada (Minister of Citizenship and Immigration), 2005 FC 1240, at para
12).
[26]
However,
jurisprudence
has established that, depending on the circumstances, evidence should not be
disregarded simply because it emanates from individuals connected to the
persons concerned: R v Laboucan, 2010 SCC 12, at para 11. As counsel for
the Respondent rightly notes, Laboucan concerned a criminal matter;
however, immigration jurisprudence from this Court has established the same
principle. Indeed, several immigration cases hold that giving evidence little
weight because it comes from a friend or relative is an error.
[27]
For
example, in Kaburia
v Canada (Minister of
Citizenship and Immigration), 2002 FCT 516, Justice Dawson held at paragraph
25 that, “solicitation
does not per se invalidate the contents of the letter, nor does the fact that
the letter was written by a relative.” Likewise, Justice Phelan noted the following in Shafi
v Canada (Minister of
Citizenship and Immigration), 2005 FC 714, at para 27:
The
Officer gives little weight to other witnesses' affidavit evidence because it
comes from a close family friend and a cousin. The Officer fails to explain
from whom such evidence should come other than friends and family.
Similarly, Justice
Mactavish stated the following in Ahmed v Canada (Minister of Citizenship
and Immigration), 2004 FC 226, at para
31:
With respect to [sic]
letter from the President of the organization, I do
not understand the Board's criticism of the letter as being
"self-serving", as it is likely that any evidence submitted by an
applicant will be beneficial to his or her case, and could thus be
characterized as 'self-serving'.
[28]
In
light of this jurisprudence, and under the circumstances, I do not believe it
was reasonable for the Officer to award this evidence low probative value
simply because it came from the Applicants’ family members. Presumably, the Officer
would have preferred letters written by individuals who had no ties to the
Applicants and who were not invested in the Applicants’ well-being. However, it
is not reasonable to expect that anyone unconnected to the Applicants would
have been able to furnish this kind of evidence regarding what had happened to
the Applicants in Mexico. The Applicants’ family members were the
individuals who observed their alleged persecution, so these family members are
the people best-positioned to give evidence relating to those events. In
addition, since the family members were themselves targeted after the
Applicants’ departure, it is appropriate that they offer first-hand descriptions
of the events that they experienced. Therefore, it was unreasonable of the Officer
to distrust this evidence simply because it came from individuals connected to
the Applicants.
[29]
Regarding
counsel for the Respondent’s argument that the Laboucan rule does not
apply because, unlike in Laboucan, the letters here do not address an
issue central to the case at hand, I must respectfully disagree. Even if the
letters do not address the particular contradictions noted by the RPD, they do
confirm the Applicants’ allegations; as such, they do serve to buttress their
story and therefore counter the RPD’s negative credibility findings. As such,
the letters constitute relevant new evidence for the purposes of the PRRA.
[30]
The
Officer’s treatment of these letters was also flawed in that it included at
least one important factual error: The Officer stated that the family members
in Mexico had not approached the police, whereas the letters stated that they
had indeed tried to do so to no avail or else were afraid to do so (depending
on the family member).
[31]
Overall,
the Officer’s treatment of the evidence from the Applicants’ family members was
not reasonable. In this respect, I am in agreement with Justice Shore, who
questioned the reasonability of the Officer’s findings with respect to this
evidence in the reasons accompanying his stay order: Ugalde, above,
at paras 37-47.
[32]
Second,
the Officer’s assessment of the letters emanating from the judge and lawyers
was also unreasonable, as was argued by the Applicants’ counsel. The Officer
also awarded these letters a low probative value on the grounds that they too were not sufficiently neutral
evidence, since they were written at the request of the Applicants. These
letters, which report that the Applicants fled the country out of concern for
their safety because they were being persecuted by a dangerous and powerful
man, are described as vague by the Officer, who notes that the letters do not
name the aggressor or specify the actions taken by the Applicants to ensure
their safety.
[33]
As
discussed by Justice Shore in the
reasons accompanying his stay order, the Officer’s decision to award these
letters low probative value was unreasonable in that it failed to consider the
context of the letters. In Ugalde, above, Justice Shore wrote the following
remarks:
[48] In regard to the letters submitted by
the lawyers and the Mexican judge, the officer found that they are vague and do
not explain what measures were taken to protect the Applicants. The
entire letter from a Mexican judge who puts his life at risk must be read
carefully and in a country condition context to understand its importance (MR
at p. 80).
[49] The
officer’s decision is unreasonable as the officer did not consider the
context of who the perpetrator is, and the fear that witnesses have in naming
him. Both factors are clearly alluded to by the authors of the letters. It is
also clear that this evidence buttresses the credibility of the Applicants’
fear of a return, due to a lack of state protection and internal flight
alternative (as is specifically pointed out in the objective country condition
evidence).
[50] The credibility of the authors cannot be so easily dismissed by
the officer. It is clear from their position in society and by who the
perpetrator is, that they are speaking with circumspect discretion but at the
same time with purpose, recognizing the context and country in question (the country
condition evidence with which the officer agrees, specifies as much).
Justice Shore’s comments
reflect my own impression of the Officer’s treatment of these letters. I agree
that the Officer’s findings in this regard were unreasonable to the extent that
the intervention of this Court is justified.
[34]
Furthermore, although counsel for the Respondent attempts to
bolster the Officer’s findings in paragraphs 33-34 (by pointing out the
letters’ similarities to one another and the fact that one of them is very
brief), the task of this Court is to evaluate the reasonability of the Officer’s
decision; it cannot be swayed by additional comments by the Respondent’s
counsel at this point regarding the worthiness of the letters themselves.
[35]
I therefore conclude that the PRRA decision is unreasonable. As
such, the judicial review of the PRRA should be granted.
- The H&C
decision
[36]
The
applicable standard of review with respect to decisions made on H&C applications,
when considered in their entirety, is reasonableness, since these decisions
essentially raise questions of fact or mixed questions of fact and law. As
already mentioned, reasonableness requires consideration of the existence of
justification, transparency and intelligibility in the decision-making process.
It is also concerned with whether the decision falls within a range of
acceptable outcomes, which are defensible in respect of the facts and law: Dunsmuir,
above, at para 47.
A. Was the Officer’s
assessment of the evidence unreasonable?
[37]
The
Officer relies in part on the PRRA in making her H&C decision: “L’évaluation
ERAR conclu [sic] à un risque négatif car le demandeur principal n’a pas
démontré par une preuve probante que son risque était personnel.” As such, the risk
analysis from the PRRA forms a central element of the H&C decision.
Therefore, if there are any material errors in the PRRA, the H&C decision
will also become invalid. Given that the PRRA risk analysis is unreasonable for
the reasons I have set out above, the H&C decision is therefore also
unreasonable and the decision should be set back to be re-determined by another
Officer.
B. Did the Officer err by failing to conduct a reasonable analysis of the best interests of the
children?
[38]
Counsel
for the Applicants also
argue that the Officer failed to conduct a proper analysis of the best
interests of the children directly affected by the decision, whereas she has a
duty to conduct such an analysis: Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817; Hawthorne v Canada (Minister of Citizenship
and Immigration), 2002 FCA 475. Counsel for the Applicants argues that she
did not sufficiently consider the evidence submitted about the children’s
integration into the Canadian community and that she did not properly weigh all
of the factors affecting the children’s best interests.
[39]
With respect, I
cannot agree with this argument. I find the Officer’s analysis of the best
interests of the children to be reasonable.
[40]
The Officer did
indeed explore the children’s level of establishment in Canada. For example, she noted the following:
[41]
Counsel
for the Applicants also criticizes the Officer for failing to “determine where
the best interests of the children lie (e.g. here in Canada, where they
want to remain)”. However, the FCA has stated the following in Hawthorne, above, at
para 5:
The
officer does not assess the best interests of the child in a vacuum. The
officer may be presumed to know that living in Canada can offer a child many
opportunities and that, as a general rule, a child living in Canada with her
parent is better off than a child living in Canada without her parent.
[42]
The
Officer is not required to explicitly state that the children will be better
off in Canada with their
parents, but is presumed to take this fact into account. If the Officer is
presumed to know that living in Canada can offer a child many
opportunities, it is unfair to argue that she failed to consider whether it
would be beneficial for them to remain here. The Officer’s analysis considers
the effect that a return to Mexico would have on the children, and concludes
that the hardship involved would not be too great. Overall, I find the Officer’s
analysis regarding the best interests of the children to be intelligible and
within the range of acceptable outcomes.
[43]
Nevertheless,
the other errors that I have identified above justify the intervention of the Court
in both the PRRA and the H&C decisions.
V. Conclusion
[44]
For
all of the foregoing reasons, I find that both applications for judicial review
ought to be granted. No question has been proposed for certification and none
is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
these applications for judicial review are granted.
No question of general importance is certified. A copy of these reasons shall
be place in both files IMM-3774-10 and IMM-3775-10.
“Yves de Montigny”
_____________________________
Judge
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