Docket: IMM-18-11
Citation: 2011 FC 1017
Ottawa, Ontario, August 23,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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MARIBEL NUNEZ RODRIGUEZ
JULIO CESAR MENDEZ-NUNEZ
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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]
The
applicants seek judicial review of a negative Pre-Removal Risk Assessment
(PRRA) decision, dated December 13, 2010.
[2]
The
principal applicant, Maribel Nunez Rodriguez, is a citizen of Mexico. Her claim
for protection is based on abuse by her former husband. The male applicant is
her 20 year old son. The Refugee Protection Division (RPD) found that Ms.
Rodriguez was in fact abused, but that state protection was available. The RPD
found that the principal applicant made only one attempt to seek police
protection and rejected her explanations for failing to make serious effort to
obtain police protection. The RPD also found that the applicants had a viable
internal flight alternative (IFA) in the Federal District. I will not
further recount the facts which underline the RPD’s decision as they are not
germane to the reasons why this application is granted.
[3]
The
PRRA officer’s decision should be set aside on the grounds that the officer
erred in finding that the expert opinions put before him did not constitute new
evidence. The opinions, when viewed through the proper legal framework, constitute
new evidence and should have been considered by the officer.
The PRRA Submissions
[4]
The
principal applicant’s PRRA submissions included two expert affidavits providing
opinions about the availability of state protection for women experiencing
domestic violence in Mexico. The first was from Dr. Alicia Elena
Perez Duarte y Norona, a law professor at the National Autonomous University of
Mexico and former Special Prosecutor for Crimes Related to Acts of Violence
Against Women in Mexico City from 2006-2007. She is a recognized expert on
family law and human rights having served as a Magistrate for the Superior
Court of Justice in the Federal District, Director of the Office of Family and
Civil Matters in the Attorney General’s Office and Legal Advisor to the
Permanent Mission of Mexico in Geneva, Switzerland. The second affidavit is
from Jimena Avalos Capin, a policy researcher and an attorney with eight years
of constitutional and administrative law litigation experience and an expert in
access to information and privacy in Mexico.
The Decision Under Review
[5]
The
PRRA officer found that expert reports were not new evidence. Even though the reports
post-date the RPD’s rejection of the claim, the PRRA officer found that the
information contained in the reports was not significantly different than that
which was before the RPD. The PRRA officer also found that the information
provided by Dr. Norona could reasonably have been presented at the RPD hearing.
[6]
The
PRRA officer relied on Raza v Canada (MCI),
2006 FC 1385, wherein Justice Mosley found that the PRRA officer’s role was to
consider the present situation and determine whether there was anything of
substance that was new since the RPD decision. The PRRA officer also referred
to Escalona Perez v Canada (MCI), 2006 FC 1379,
where this Court held that the RPD decision was final and the new evidence on
the PRRA was to determine whether applicants were subject to a new, different
or additional risk that could not have been contemplated at the time of the RPD
decision. Raza of course, was sustained on appeal, but for somewhat expanded
reasons, which as will be seen, the officer did not apply.
[7]
As
noted, the Raza test, as expressed by the Federal Court of Appeal, includes
criteria in addition to those described by Justice Mosley. The full test is as
follows:
1. Credibility: Is the evidence
credible, considering its source and the circumstances in which it came into
existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving or
disproving a fact that is relevant to the claim for protection? If not, the
evidence need not be considered.
3. Newness: Is the evidence new in
the sense that it is capable of:
(a) proving the current state of
affairs in the country of removal or an event that occurred or a circumstance
that arose after the hearing in the RPD, or
(b) proving a fact that was unknown
to the refugee claimant at the time of the RPD hearing, or (c) contradicting a
finding of fact by the RPD (including a credibility finding)?
If not, the evidence need not be
considered.
4. Materiality: Is the evidence
material, in the sense that the refugee claim probably would have succeeded if
the evidence had been made available to the RPD? If not, the evidence need not
be considered.
5. Express statutory conditions:
(a) If the evidence is capable of
proving only an event that occurred or circumstances that arose prior to the
RPD hearing, then has the applicant established either that the evidence was
not reasonably available to him or her for presentation at the RPD hearing, or
that he or she could not reasonably have been expected in the circumstances to
have presented the evidence at the RPD hearing? If not, the evidence need not
be considered.
(b) If the evidence is capable of proving
an event that occurred or circumstances that arose after the RPD hearing, then
the evidence must be considered (unless it is rejected because it is not
credible, not relevant, not new or not material).
[8]
The
expert opinions contained in reports submitted to the PRRA officer constitute
new evidence according to the Raza test. Both experts were, prima
facie, well-qualified to speak to state protection issues in Mexico and no issue was taken
with their credentials. The evidence which their reports address is relevant,
as it pertains directly to adequacy of state protection institutions in Mexico. The evidence is also
material in that it directly contradicts the RPD’s findings on facts which were
integral to its decision on both state protection and on IFAs. It is also new,
both substantively and chronologically.
[9]
The
RPD rejected the principal applicant’s contention that her former husband would
be able to locate her in the Federal District as “unreliable and unsupported”, noting that
there was no evidence that individuals could access federal databases to track
people down. The affidavit of Ms. Capin directly contradicts this finding. She
states that it is possible to buy such information on the internet for as
little as $40.00 and that it is also possible to obtain personal data from
government databases due to rule of law problems, upon which she expands. In
the report, cases are described where protected data was obtained by men who
declared they were the husband of the woman concerned. The report advises of
cases where personal data has been given out by mid and low-level government
officials in exchange for bribes or gifts, a practice which Ms. Capin describes
as “very common”. Similarly, Dr. Norona confirms a practice of individuals
obtaining protected information through bribery and states that when she was a
government official she was offered money to provide access to confidential
information.
[10]
Ms.
Capin’s opinion contains information that is both new and substantively
different than what was before the RPD and which calls into question the RPD’s
conclusion that there was no evidence that women could be tracked by obtaining
personal information from government officials. The evidence contradicts the
PRRA officer’s conclusion that the information was not significantly different,
and leads to the conclusion that the PRRA officer unreasonably discounted this
evidence. Finally, the evidence is new, in that it addresses the current
availability of protection in Mexico, and the effectiveness of the very institutions the RPD relied
on in support of its conclusion that state protection was available.
[11]
I
note that the PRRA officer did not reject the expert opinions solely on the
grounds that the evidence was not new. The PRRA officer also found that the
information provided by Dr. Norona was reasonably available for presentation at
the RPD hearing. I do not find this conclusion to be reasonable. While it may
be true that Dr. Norona may have been available to provide an expert opinion
for the RPD hearing her opinion, however, post-dates the RPD decision and was
submitted to provide details of the current country conditions. The PRRA
officer’s approach, if accepted, would mean that PRRA applicants could never
submit an expert opinion on the current country conditions from an expert who
could have given an opinion at the RPD hearing, even to speak to a change in
country conditions. This cannot be what Parliament intended to have been the
effect of the pre-removal risk assessment provision.
[12]
The
RPD based its finding on the adequacy of state protection, in part, on the
existence of the Office of Special Prosecutor of Crime Related to Acts of
Violence Against Women. Dr. Noroma was the Special Prosecutor appointed to
this position but resigned from the post by reason of what she considered to be
the systemic failure of Mexican authorities to address gender violence. Thus,
the very person in charge of ensuring that women were afforded state protection
asserted, in uncontradicted evidence, that Mexico could not
provide protection. As well, the RPD looked to the existence of protection
orders as evidence of adequate state protection. The new evidence tendered in
the form of Dr. Noroma’s report directly questions the probity of relying on
the existence of these orders, where she notes that “while the 2007 law
provided for protection orders, the Mexican law enforcement authorities are not
equipped to respond quickly or efficiently to enforce them.”
[13]
In
sum, this evidence fully meets the criteria set forth by the Federal Court of
Appeal in Raza v Canada (MCI) 2007 FCA 385. The evidence is new in that
it addresses facts unknown to the claimant at the time of the initial PRRA
decision; it is material in that it addresses questions of fact that were
integral to the decision in question; and, it directly contradicts certain
findings of fact on which the determinations of state protection and IFAs were
predicated. For
these reasons, the PRRA officer was required to consider the new evidence
submitted by the applicants and to assess the risk of removal in light of it. It
was a reviewable error for the PRRA officer not to do so.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The application
for judicial review is granted. The matter is remitted to a different officer
for re-consideration in accordance with these reasons.
2. There
is no question for certification.
"Donald
J. Rennie"
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