Docket: IMM-1468-11
Citation: 2011 FC 1301
Toronto, Ontario, November 10,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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RICARDA ROSARIO HERNANDEZ
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Applicant
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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
Applicant is an adult female citizen of Mexico. She entered
Canada with her
daughter in 2007 and claimed refugee status. That claim was rejected. That
rejection was upheld on a judicial review (2009 FC 106). In November 2009, the
Applicant’s pre-removal risk assessment (PRRA) was determined unfavourably to
her. She sought an exemption under humanitarian and compassionate grounds (H
& C). In a written decision dated January 21, 2011, the Applicant was
informed that such an exemption would not be granted. This is a judicial review
of that H & C decision.
[2]
For
the reasons that follow, I find that the application is dismissed.
[3]
There
is no doubt that the Applicant’s life in Mexico has been
marked with hardship and abuse at the hands of her male partners. Her first
daughter, born in Mexico, died from apparent poisoning. She had a son,
born in Mexico, who had
apparently been harassed. The son and his family are now in Canada; however,
the record does not show what status, if any, they have in Canada. The third
child, fathered by a man named Garcia, is the daughter who accompanied the
Applicant to Canada. The record
is unclear as to this daughter’s whereabouts or status.
[4]
The
Applicant was subjected to a removal Order but failed to show up for her
pre-removal hearing. Nonetheless, she somehow obtained a work permit. She
worked in a convent doing household chores and subsequently worked in a daycare
centre. It is not clear from the record whether the Applicant is still working,
or if so, where.
[5]
The
Applicant alleges that she fears returning to Mexico for a variety of reasons,
including that Garcia would track her down and continue his violent ways with
her; and that a man identified only as “Victor”, who is alleged to have
attempted to extort money from her using threats of violence, would continue to
do so. At the hearing, Applicant’s Counsel abandoned the allegations respecting
“Victor”.
[6]
The
Officer determining the H & C application provided nine pages of detailed
reasons and concluded that the grounds put forward by the Applicant for an
exemption did not constitute unusual and undeserved, or disproportionate,
hardship; thus, the application was refused.
[7]
Applicant’s
Counsel raised three issues in seeking to set aside the Officer’s decision:
1.
Did
the Officer make unreasonable findings based on the evidence before her? In
this regard, three matters were raised:
§
Did
the Officer fail to appreciate the evidence as to how the Applicant could be
located in Mexico by those
wishing to harm her?
§
Did
the Officer fail to appreciate properly the psychological evidence respecting
the Applicant?
§
Did
the Officer fail to appreciate the evidence as to the level of violence in Mexico?
2.
Did
the Officer breach the duty of procedural fairness by providing inadequate
reasons for dismissing contradictory evidence on the record?
3.
Did
the Officer breach the duty of procedural fairness by relying on extrinsic evidence
without providing the Applicant with an opportunity to respond to this
evidence?
[8]
First,
I will consider the general nature of a review of an H & C decision. As
stated by the Supreme Court of Canada in Baker v Canada (MCI), [1999] 2
SCR 817 at para 51, the legislation respecting an H & C application signals
an intention to leave considerable choice to the Minister on the question of
whether to grant an H & C application. As Justice Russell of this Court
said in Hinzman v Canada (MCI), 2009 FC 415, at paragraph 39, the Court
should only intervene if the Decision was unreasonable in the sense that it
falls outside the range of possible, acceptable outcomes which are defensible
in respect of the facts and law.
[9]
Turning
to the first issue raised by the Applicant as to whether the Officer made
unreasonable findings on the evidence, Counsel made strong efforts to point out
how a person’s whereabouts could be obtained by bribing those who keep voter’s
records, apparently not an uncommon occurrence. While the Officer thought this
to be unlikely in the Applicant’s circumstances, which I find to be not an
unreasonable finding, the Officer went on to find that neither Garcia or
“Victor” would be notified of the Applicant’s return, nor that she would still
be a target for them. This finding was not unreasonable.
[10]
Next,
Applicant’s Counsel challenged the Officer’s findings as to psychological
assessments of the Applicant. The Officer did accept that the Applicant suffers
from effects of violence in her life. However, the Officer found that there was
assistance available to the Applicant in Mexico and that the
Applicant had provided insufficient evidence to show that she would not be able
to access such assistance. This finding was reasonable.
[11]
Then
Applicant’s Counsel agreed that the Officer failed to appreciate properly the
level of violence, particularly against women, in Mexico. That
evidence included a copy of an affidavit of Alicia Elena Pérez Duarte y Noroña
dated 10 March 2010, a copy of an affidavit of Jimena Avalos Capin dated 4 June
2010 and a copy of an affidavit of Francisco Roco-Martinez dated 7 June 2010.
It must be pointed out that these are copies of affidavits not prepared
particularly for this case, but apparently made for other proceedings. Hese
copies are apparently now generally available to the public. While the Officer
could receive these copies into evidence if they are considered credible or
trustworthy in the circumstances, these copies do not reach the status of
expert affidavits prepared especially for this case. They are, like newspaper
reports and country condition reports, pieces of evidence to be taken into
consideration and given appropriate weight in the circumstances.
[12]
The
Officer concluded that, while the actual situation in Mexico is not
ideal, the state is able to protect its citizens. This finding is not
unreasonable.
[13]
I
find that the Applicant is simply asking this Court to re-weigh the evidence
before the Officer. I find that, given the wide discretion afforded, the
findings of the Officer on the evidence are not unreasonable.
[14]
The
second main issue raised by Applicant’s Counsel is in respect of adequacy of
the reasons. In this regard, Counsel pointed to criteria as to adequacy set out
by the Federal Court of Appeal in Vancouver International Airport Authority
v Public Service Alliance of Canada, 2010 FCA 158, particularly at
paragraph 16. Reasons are to set out the bases for the decisions in an
understandable manner with some discernable rationality and logic; an observer
should be able to scrutinize and understand what was decided, and why.
[15]
Despite
Applicant’s Counsel’s efforts to point out possible gaps and lapses in the
Officer’s reasons, I find that the reasons are quite satisfactory and easily
meet the Vancouver
Airport
criteria.
[16]
The
third main issue raised by Applicant’s Counsel was the Officer’s reliance in
her reasons upon a US Department of State Mexico Country Report, and a Freedom
House Country Report - Mexico. Neither of these documents had been
submitted by the Applicant, nor was the Applicant’s attention specifically
drawn to these documents prior to receipt of the reasons. These reports,
however, are public reports easily obtained, and of the type frequently
referred to in proceedings of this kind. As stated by the Federal Court of
Appeal in Mancia v Canada (MCI), [1998], 3 FC 461, in answering a
certified question at the end of that decision, fairness does not require that
such documents be disclosed to the Applicant prior to determination of the
matter.
[17]
In
conclusion, therefore, the application is dismissed. Neither Counsel requested
a certified question.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is dismissed;
2.
No
question is certified; and
3.
No
Order as to costs.
“Roger
T. Hughes”
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