Date: 20080220
Docket: IMM-1887-07
Citation: 2008 FC 232
Toronto, Ontario, February 20,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
LUIS GUILLERMO MANRIQUE
FERNANDEZ
ALEXANDRA NOEMI RAMOS BAUSERO
MELANIE CAMILA MANRIQUE RAMOS
GUILLERMO FEDERICO MANRIQUE RAMOS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are a family, the Principal Applicant, Fernandez, his common-law
wife Bausero and two minor children Melanie and Guillermo. They are all
citizens of Uruguay. They
sought and were denied refugee protection. They filed an application for a
pre-removal risk assessment (PRRA) on the basis that the common-law wife was
sexually assaulted by neighbourhood criminals in Uruguay and that they fear a
recurrence should she return and that state protection would be inadequate.
That application resulted in a negative finding set out in a decision of the
PRRA officer dated April 13, 2007. It is that decision that is under review.
[2]
For
the reasons that follow, I find that the application is dismissed.
ISSUES
[3]
The
Applicants have raised the following issues in their Memorandum:
1. Did
the PRRA officer err in assessing and applying the psychological evidence and
determining the psychological risk of return including, inter alia,
failing to consider the IRB Gender Guidelines for Women Refugee Claimants?
2. Did
the PRRA officer err in assessing and applying the evidence and law with
respect to state protection and applying the evidence to the law?
3. Did
the PRRA officer err in his treatment of an Internal Flight Alternative?
4. Did
the PRRA officer err in law and failing to assess and protect the best
interests of the minor applicants?
STANDARD OF REVIEW
[4]
The
standard or review to be applied to a decision of a PRRA officer in a matter of
this kind is dependent on the nature of the decision. Where the decision is
one of law the standard is correctness. Where the decision is one of fact, the
standard is patent unreasonableness. Where the decision involves mixed fact
and law, not readily separable, the standard is reasonableness. This was
summarized by Layden-Stevenson J. in Nejad v. Canada (MCI), 2006 FC 1444
at para. 14:
14 In Nadarajah
v. Canada (Solicitor General) (2005), 48 Imm. L.R. (3d)
43, I adopted Mr. Justice Mosley's pragmatic and functional
analysis in Kim v. Canada (Minister of Citizenship and
Immigration) (2005), 272 F.T.R. 62
regarding the standard of review applicable to PRRA decisions. The standard
of review for questions of fact is patent unreasonableness, for questions of
mixed law and fact, reasonableness, and for questions of law, correctness. When
the decision is considered "globally and as a whole", as noted by Mr.
Justice Martineau in Figurado v. Canada (Solicitor General), [2005] 4 F.C.R. 387
(F.C.), the standard of review is reasonableness.
ISSUE #1 PSYCHOLOGICAL
EVIDENCE, RISK, GENDER GUIDELINES
[5]
The
Applicants submitted a psychological report of the adult female applicant by a
psychologist, Dr. Day, after the hearing before the Refugee Protection Branch.
This report was accepted and reviewed by the PRRA officer as new evidence.
That review was careful and compassionate. I find no error in that
assessment. This is a matter of factual determination and deference must be
given to the PRRA officer in the making of such determination.
[6]
While
the officer did not specifically mention the Gender Guidelines in the PRRA
report it is clear that the officer was alert to and aware of the adult female
applicant’s circumstances and treated them with understanding and sensitivity.
It is not necessary that the officer make specific reference to the Guidelines in
the report (Quintanar v. Canada (MCI), 2004 FC 677 at paras. 15-16).
ISSUE #2 – STATE
PROTECTION
[7]
There
is a presumption that the state can afford protection to its citizens (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 726). The
Applicants bear the burden of demonstrating that such protection would not be
reasonably available.
[8]
As
stated in Syed v. Canada (MCI), (2000), 195 F.T.R. 39 at paragraph 18
and Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 at
paragraph 11, one must accept that state protection may be sometimes
ineffective or unresponsive, it does not have to be perfect.
[9]
The
Applicants offered as “new” evidence to the PRRA officer updated general
country conditions in Uruguay and a report of a
telephone conversation between the principal male applicant and his sister in Uruguay in which the
sister spoke of threatened harm by an unidentified individual. The Federal
Court of Appeal has recently held that a PRRA officer need not consider newly
offered evidence that is not credible or relevant (Raza v. Canada (MCI),
2007 FCA 385 at para. 17). The “new” evidence offered in the present case is
vague and speculative and does not provide any further relevant evidence. I
find no reviewable error by the PRRA officer in this regard.
ISSUE #3 – INTERNAL
FLIGHT ALTERNATIVE
[10]
The
PRRA officer found that the Montevideo area where the
Applicants had lived was provided with adequate state protection. The Officer
also noted that throughout Montevideo and the country
generally that state protection was available. I find no reviewable error in
that regard.
ISSUE #4 – BEST
INTERESTS OF THE CHILDREN
[11]
The
record shows that the Applicants led no independent evidence as to the children
and that the children based their case on that of the adult applicants. In any
event, as stated by Dawson J. in Ammar v. Canada (MCI), 2006 FC 1041 at
paragraph 16, the best interests of the children are not to be assessed within
a PRRA application.
CONCLUSION
[12]
I
find that the PRRA officer made no reviewable error. There is no question for
certification.
JUDGMENT
For the Reasons given:
1. The
application is dismissed;
2. There is no question
for certification;
3. No Order as to
costs.
"Roger
T. Hughes"
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