Date: 20110708
Docket: IMM-6174-10
Citation: 2011 FC 853
Ottawa, Ontario, July 8, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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JOSE ANTONIO GARCIA CRUZ
ILLIANA DE ITA MONJARAZ
IVAN GARCIA DE ITA
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants are a family from Puebla State, Mexico who seek judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”) of the decision made on September 10, 2010, wherein
their pre-removal risk assessment (“PRRA”) application was rejected.
BACKGROUND
[2]
The
applicants came to Canada as tourists in October 2008 and sought refugee
protection to remain here based on a fear of three judicial police officers in Puebla State. The
male applicant had allegedly been in a car accident with the three officers,
who then began to harass, assault and threaten him and his family, despite
multiple attempts at seeking state protection from local police. The family’s
refugee claim was rejected on October 29, 2009 and leave to seek judicial
review of that decision was denied in February 2010. The applicants filed their
PRRA application on June 11, 2010, alleging the same fear.
DECISION UNDER REVIEW
[3]
The
PRRA officer noted that the Refugee Protection Division dismissed the
applicants’ refugee claim because of a viable internal flight alternative
(“IFA”) in Guadalajara. The officer
then considered the evidence presented by the applicants, including: (i) the
2009 US Department of State report on Human Rights Practices; (ii) the Federal
Court decision in Barajas v. Canada (Minister of Citizenship and
Immigration), 2010 FC 21; (iii) reports from the Procuraduria General De
Justicia Del Estado De Puebla and Procuraduria General De Justicia Del Distrito
Federal; and (iv) letters from friends and family.
[4]
The
officer found that the 2009 US DOS report and the 2008 version before the RPD
were consistent regarding the conditions in Guadalajara, and did not
represent new risk developments. The officer also found that Barajas,
above, was not sufficiently similar to the present case to persuade her that
Guadalajara is not a reasonable IFA or that state protection would not be
reasonably available to the applicants. The officer held that the reports from
the Procuraduria Generals were not accompanied by a translation and, in any
event, they should be afforded little weight because the complainants were not
disinterested parties, the evidence did not reflect a continuum of documented
problems or harassment since the applicants left Mexico, the documenting of
problems coincided with the initiation of removal arrangements, the information
is vague, and the evidence did not address the issue of an IFA in Guadalajara.
[5]
Finally,
the officer held that the letters from friends and family should be given
little weight because they were not sworn statements, the applicants did not
seek this information in their attempts to secure protection from the
authorities, and the letters do not speak to the availability of state
protection in the IFA of Guadalajara. Thus, the officer concluded that there
was insufficient new evidence to displace the decision of the RPD.
ISSUES
[6]
This
application raises the following issues:
a. Did the officer
err by failing to assess the subjective component of the applicants’ claim
before considering the existence of an IFA?
b. Did the officer
err in assessing the documentary evidence, including letters from friends and
family and police reports?
c. Did the officer
err in distinguishing Barajas, above?
ANALYSIS
Standard of
Review
[7]
The
decision of a PRRA officer relating to the issue of an IFA involves the weight
assigned to evidence, the interpretation and assessment of that evidence, and
whether the officer had proper regard to all the evidence when rendering a
decision. It is well-established that such issues are reviewable on a standard
of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9 at
para. 53; Perea v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1173 at para. 23. As a result,
the reviewing court may not interfere unless the decision falls outside the
range of possible, acceptable outcomes defensible in respect of the facts and
law, or the decision is not properly justified, transparent or intelligible: Dunsmuir,
above at para. 47.
a. Did the officer
err by failing to assess the subjective component of the applicants’ claims
before considering the existence of an IFA?
[8]
The
applicants submitted that the officer erred by failing to first make a clear
determination on the subjective component of the claim before assessing the
existence of state protection and the availability of an IFA. The
applicants relied on Justice Mainville’s decision in Flores v. Canada (Minister
of Citizenship and Immigration), 2010 FC 503, where he stated at
para. 31 that “save in exceptional cases, the analysis of the availability of
state protection should not be carried out without first establishing the
existence of a subjective fear of persecution.”
[9]
However,
Justice Mainville’s statements were made in the context of a judicial review of
a decision of the Refugee Protection Division (“RPD”), not a PRRA officer. This
is an important distinction in light of the fact that a PRRA officer is limited
to analyzing new evidence under section 113(a) of the IRPA. Also, subsequent
references to Flores, above, indicate that the crux of Justice
Mainville’s decision was the total lack of analysis of the particular
circumstances of the applicant, which resulted in a state protection analysis
that was conducted in a “factual vacuum” (Cho v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1299 at para. 30; Pikulin v.
Canada (Minister of Citizenship and Immigration), 2010 FC 979 at para. 13; Jimenez
v. Canada (Minister of Citizenship and Immigration), 2010 FC 727 at para. 4).
[10]
This
is not the case here. The RPD found that the applicants’ refugee claim should
be rejected because the applicants had a viable IFA in Guadalajara. The scope
of the officer’s assessment was limited to a review of new evidence of risk that
may have affected the outcome of the decision of the RPD. As a result, the officer
was only required to consider any new evidence indicating that Guadalajara was not a
viable IFA. Thus, Justice Mainville’s statements in Flores, above, do
not demonstrate that the officer committed a reviewable error.
2)
Did the officer err in assessing the documentary evidence, including letters
from friends and family and police reports?
[11]
The
applicants asserted that the officer erred by dismissing the letters from the
applicants’ friends and family on the basis that the authors had an interest in
the outcome of the proceedings, and that the officer’s treatment of the police
reports suffered from the same errors. However, the officer provided a number
of reasons as to why the letters should be given little weight, including that
the letters: (i) were not sworn statements; (ii) were written to support the
applicants’ PRRA application and were not used to assist in securing protection
from the authorities; and (iii) do not speak to the availability of an IFA in
Guadalajara. The officer was entitled to give the information contained in the
letters little weight in these circumstances and the weight to be given to that
evidence is within the officer’s discretionary decision-making power. In such
circumstances, the Court should not intervene: Ray v. Canada (Minister of
Citizenship and Immigration), 2006 FC 731 at para. 38; Yazdi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 886 at para. 11.
[12]
Regarding
the police reports, the officer again provided a number of reasons as to why
they should not be accepted, only one of which was that the complainants were
not disinterested parties. The officer noted: (i) there were no official
translations of the documents provided; (ii) the evidence did not reflect a
continuum of documented problems or harassment; (iii) the documenting of
problems did not begin until the initiation of arrangements for the applicants’
removal from Canada; (iv) the information provided was vague; and (v) the
evidence did not address the availability of state protection in the identified
IFA. This last point is particularly relevant, as the fact that the applicants’
family was attacked in Puebla and the fact that the family suspected that they
had been located after they fled to Mexico City is not evidence that
could have affected the RPD’s conclusion that the applicants could seek state
protection in Guadalajara. In light of
these findings, it is clear that the officer’s decision falls within a range of
possible, acceptable outcomes.
[13]
The
applicants further submit that the officer’s dismissal of the letters amounted
to a disguised credibility finding, and as a result, the officer erred by
denying them an opportunity to respond to her concerns in an interview in
accordance with section 113(b) of IRPA and section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
[14]
Under section
113(a) of the IRPA, the officer is limited to considering new evidence that has
arisen since the decision of the RPD. In Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, the Court of Appeal stated
at para. 13:
As I read paragraph 113(a), it is based
on the premise that a negative refugee determination by the RPD must be
respected by the PRRA officer, unless there is new evidence of facts that
might have affected the outcome of the RPD hearing if the evidence had been
provided to the RPD.
[Emphasis added]
[15]
In
this case, the officer explicitly considered whether the evidence in the
letters could have affected the outcome of the RPD hearing, and found that
because they did not address the issue of whether the applicants had a viable
IFA in Guadalaraja, they should be afforded little weight on the PRRA
application. The same can be said of the police reports. I cannot conclude that
this was unreasonable, nor can I conclude that this finding is related to the
credibility of the documents themselves. As noted by the Court in Ferguson
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067 at para. 27:
Evidence tendered by a witness with a personal interest in the
matter may also be examined for its weight before considering its credibility
because typically this sort of evidence requires corroboration if it is to have
probative value. If there is no corroboration, then it may be unnecessary to
assess its credibility as its weight will not meet the legal burden of proving
the fact on the balance of probabilities. When the trier of fact assesses the
evidence in this manner he or she is not making a determination based on the
credibility of the person providing the evidence; rather, the trier of fact is
simply saying the evidence that has been tendered does not have sufficient
probative value, either on its own or coupled with the other tendered evidence,
to establish on the balance of probability, the fact for which it has been
tendered. That, in my view, is the assessment the officer made in this case.
[16]
The
same can be said in the present case. The officer found that the police reports
and the letters were from witnesses with a personal interest in the matter, and
thus the officer proceeded to examine the documents to determine their weight before
considering whether they were credible. The officer made a few other findings,
but most importantly, the officer found that it did not address the finding of
the RPD that the applicants had an IFA in Guadalajara. Since this
meant that the evidence would have insufficient probative value, the officer
was entitled to afford it little weight with holding a hearing. As a result, I
reject the applicants’ submissions that the findings of the officer were veiled
credibility findings and that the officer was obliged to hold a hearing as a
result.
3)
Did the officer err in distinguishing Barajas, above?
[17]
The
applicants asserted that the officer erred in distinguishing Barajas,
above, on three grounds. First, the officer found that the case was
distinguishable because in Barajas, the agents of persecution were in Guadalajara, whereas in
the present case, the applicants were in Puebla and the IFA was found to be in Guadalajara. The
applicants submitted that this analysis ignores the fact that the applicants
had provided letters indicating that their persecutors were able to reach
beyond the limits of Puebla state borders, and thus, the question was
whether, if Puebla-based officers located him in Guadalajara, the
officers there would be able to protect him. The applicants asserted that Barajas
suggests that such protection is not available.
[18]
I
do not agree. An analysis of state protection (and, by extension, an IFA) must
be fact-specific and take into consideration the personal circumstances of the
applicant. The fact that the police in Guadalajara could not protect Barajas
from persecutors in their own area does not necessarily mean that the Guadalajara authorities
could not protect the applicants if they were hunted down in Guadalajara. Also, even
if the officer accepted the letters submitted by the applicants, there is no
basis to conclude that the officer should rely on the decision in Barajas.
The letters only indicate that the applicants’ family had experienced
harassment because the applicants left, and that they moved in order to get
away from these officers, but they were located in Mexico City.
[19]
These
letters do not demonstrate that: (i) the officers would be able to find the
applicants in Guadalajara, rather than Mexico City; or (ii) the
applicants’ family sought state protection in Mexico City and were
denied such protection. Thus, the facts of Barajas are distinguishable,
as noted by the officer, and the evidence contained in the letters, even if
accepted, would not have affected the officer’s determination in this regard.
[20]
Second,
the applicants asserted that it was nonsensical for the officer to conclude
that Barajas was distinguishable because the officers in that case had
been involved in a drug-trafficking ring while the officers in this case acted
“for selfish reasons,” as there is nothing to indicate that the officers in Barajas
were acting for reasons other than selfish ones. The applicants also
maintain that there is no explanation as to how the motivation of the corrupt
officers relates to state protection.
[21]
I
agree that the officer has failed to elaborate on this point. However, even if this
particular finding of the officer is questionable or made in error, I believe
that it is not material and that the difference in the facts of the cases, as
noted above, is sufficient on its own to conclude that Barajas is of no
help to the applicants. And as a general principle, I do not think it is
appropriate to rely on the IFA findings in another case unless the facts of
that case are indistinguishable.
[22]
Finally,
the applicants submitted that the officer’s finding that the Court upheld the
IFA assessment of the RPD because leave to seek judicial review was denied is
unreasonable and incorrect in law. I agree. The Court of Appeal has clearly
stated that a decision to grant or deny leave cannot be said to be a decision
on the merits of any given issue: Krishnapillai v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 378 at para. 11.
[23]
However,
I do not find that this error is a sufficient basis upon which to grant the
application for judicial review. First, as I have previously indicated, the
difference in the facts in Barajas, above, as compared with the facts of
the present case, suggest that this decision does not aid the applicants in
overcoming the findings of the RPD. Second, in light of my conclusion regarding
the officer’s treatment of the documentary evidence, the decision in Barajas,
which was based on different facts, is not by itself evidence that may have
affected the outcome of the RPD’s decision.
CERTIFICATION
[24]
The
parties were given an opportunity to propose serious questions of general
importance for certification. The respondent proposed the following question:
Is a PRRA officer required to
assess an applicant’s subjective fear of persecution prior to making a finding
of internal flight alternative and/or state protection?
[25]
In
Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA
89; 318 N.R. 365 (Zazai), the threshold for certification was articulated as:
“is there a serious question of general importance which would be dispositive
of an appeal” (paragraph 11).
[26]
In
my view, for the reasons given above with respect to the applicability of
Justice Mainville’s analysis in Flores, and the subsequent decisions
interpreting that analysis, the proposed question would not be dispositive of
an appeal in this matter. This case turned on its own particular facts.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
questions are certified.
“Richard
G. Mosley”
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