Date: 20080923
Docket: IMM-3643-08
Citation: 2008 FC 1068
Ottawa, Ontario,
September 23, 2008
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
IRIS
LILIANA DOMENZAIN MALAGON
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
Court has often held that allegations of risk which have been determined to be
unfounded by the Board and the pre-removal risk assessment officer (PRRA), cannot
be used to establish irreparable harm for the purposes of an application to
stay (Singh v. Canada
(Minister of Citizenship and Immigration), 2005 FC 145, 137 A.C.W.S. (3d) 156). This
principle in regard to credibility is adaptable in the context of the failure
to reverse the presumption of state protection.
[2]
In
regard to upsetting the family and the separation that must be endured by
Ms. Malagon’s spouse, this is not irreparable harm, but rather a phenomena
inherent to removal (Malyy v. Canada (Minister of
Public Safety and Emergency Preparedness),
2007 FC 388, 156 A.C.W.S. (3d) 1150 at paragraphs 17-18; Sofela
v. Canada (Minister of Citizenship and Immigration), 2006 FC 245, 146 A.C.W.S. (3d) 306 at
paragraphs 4 and 5; Radji v. Canada (Minister
of Citizenship and Immigration), 2007
FC 100, 308 F.T.R. 175 at paragraph 39). To find otherwise would
render impracticable the removal of individuals who do not have the right to
reside in Canada. Further, as
pointed out in Golubyev v. Canada
(Minister of Citizenship and Immigration), 2007 FC 394, 156 A.C.W.S. (3d) 1147 at
paragraph 12: irreparable harm is a strict test in
which serious likelihood of jeopardy to the applicant’s life or safety
must be demonstrated.
[3]
For
these reasons, Ms. Malagon has not established irreparable harm. This
ground alone justifies the dismissal of the application.
II. Judicial proceeding
[4]
The
applicant filed an application to stay her removal to Mexico, scheduled
for September 25, 2008, at 6:00 a.m.
[5]
The
underlying proceeding is an application for leave and for judicial review (ALJR)
challenging the PRRA dated June 5, 2008.
III. Facts
[6]
The
applicant, Iris Liliana Domenzain Malagon, 33 years old, is a citizen of Mexico.
[7]
On
October 8, 2005, Ms. Malagon arrived in Canada and applied
for refugee protection on February 24, 2006.
[8]
On
May 14, 2007, the Immigration and Refugee Board (Board) dismissed her
refugee claim on the ground that she had not reversed the presumption of state
protection and that she had not established the absence of an internal flight
alternative.
[9]
On
August 20, 2007, this Court dismissed the application for leave and for
judicial review of this decision.
[10]
Around
October 10, 2007, the Canada Border Services Agency (Agency) sent Ms. Malagon
a summons in view of her possible removal. The letter also informed her of her
possible right to a PRRA application. Ms. Malagon reported to the Agency March
6, 2008, the delay presumably due to change of address.
[11]
On
March 15, 2008, Ms. Malagon married a Canadian citizen. On March 20, 2008, she
filed a PRRA application. On April 3, 2008, she filed a permanent
residence application in the Spouse or Common-law Partner in Canada class.
[12]
On
June 5, 2008, the PRRA application was dismissed. An ALJR of this decision
was filed on August 15, 2008.
[13]
On
August 5, 2008, Ms. Malagon filed an application for an
administrative stay, dismissed on August 6, 2008. On August 20
2008, Ms. Malagon filed an ALJR against this dismissal, without perfecting
her application.
IV. Issues
[14]
(1)
Is the applicant’s application to stay founded in regard to the requirements
confirmed by the Federal Court of Appeal in Toth v. Canada (Minister of
Employment and Immigration), [1988] F.C.J. No. 587 (QL), 86 N.R.
302 (F.C.A.) ?
(2) Is the
finding sought by the applicant valid?
V. Analysis
A. The Toth test
[15]
The
Court must determine whether the applicant satisfies the three requirements
confirmed in Toth, supra:
(i)
There
is a serious issue to be tried in regard to the underlying issue;
(ii)
There
will be irreparable harm is the stay is not granted; and
(iii)
The
balance of convenience is in her favour.
[16]
As
the Toth test is conjunctive, the applicant’s failure to establish just
one of the above-mentioned three requirements must result in the dismissal of her
application to stay (Jaziri v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1086,
[2007] F.C.J. No. 1417 (QL) at paragraph 3; Cruz v. Canada
(Minister of Citizenship and Immigration), 2006 FC 166,
146 A.C.W.S. (3d) 128 at paragraph 3).
(i) Serious
issue
[17]
Ms.
Malagon had to establish the existence of a serious issue in regard to the
underlying procedure, i.e. the PRRA. A review of this decision and Ms. Malagon’s
arguments does not establish the existence of any serious issue.
The officer should have arranged an interview
[18]
At
paragraphs 3 to 7 of her Memorandum, Ms. Malagon argues that the
officer should have granted her an interview in order to fairly settle the
credibility issue.
[19]
This
argument is unfounded, since the officer did not make any credibility finding.
[20]
Some
of the officer’s findings relate to a lack of evidence and the weight of the
evidence submitted, which is clearly different than credibility issues (Abdellah v. Canada
(Minister of Citizenship and Immigration), 2007 FC 786, [2007] F.C.J. No. 1037(QL) at
paragraphs 26, 27, 29, 31 and 32).
[21]
Further,
the central and decisive element was Ms. Malagon’s failure to seek
protection from her State and her failure to reverse the presumption of state
protection.
[22]
Under
section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations), a hearing need only be held where there is evidence raising a
serious issue of the applicant’s credibility. This is but one of the three
conjunctive requirements of this provision.
[23]
As
stated by this Court, a hearing in the context of a PRRA is exceptional (Bhallu v. Canada
(Solicitor General), 2004 FC 1324,
134 A.C.W.S. (3d) 471). A hearing is required only in the case where
credibility is at the heart of the decision and where it would have a
determinative effect on the decision (Abdellah, supra at
paragraphs 29 and 30).
[24]
Therefore, even if the officer had
peripherally referred to credibility, which is not the case here, she still
would not have had the obligation to summon Ms. Malagon to a meeting in
person (Kaba
v. Canada (Minister
of Citizenship and Immigration), 2006
FC 1113, [2006] F.C.J. No. 1420 (QL) at paragraphs 29 and 30.)
[25]
At
paragraphs 10 to 15 of her affidavit, Ms. Malagon claims that the officer
had to grant her an interview in order to debate the evidence before making her
determinations.
[26]
This
allegation is also unfounded, for the additional reasons that follow.
[27]
The
assessment of a PRRA application does not involve an exchange of points of view
between the applicant and the officer (Aoutlev v. Canada
(Minister of Citizenship and Immigration), 2007 FC 111, [2007] F.C.J. No. 183 (QL) at
paragraph 39).
[28]
The
burden of establishing that a removal risk rests on the applicant at the time
the application is filed:
[22] . . . In
the case before me the onus was on the applicants to make their case and adduce
the necessary evidence to meet this onus. The evidence adduced was ambiguous
and in some instances contradictory. There is no evidence to suggest that the
Officer was wilfully blind in the circumstances and I find that she was acting
in good faith. There was no obligation on the Officer to gather or seek
additional evidence or make further inquiries. The Officer was required to
consider and decide on the evidence adduced before her. In my view, there was
no duty to further clarify the evidence . . .
(Selliah v. Canada (Minister of Citizenship and
Immigration), 2004 FC 872, 256 F.T.R. 53.)
[29]
The
applicant had the burden to file appropriate evidence:
[13] The PRRA officer
does not play a role in the submission of evidence. If the evidence is
insufficient, the applicant must bear the consequences, and the officer has no
obligation to inform the applicant of this . . .
[14] It is not incumbent on
the PRRA officer to alert the applicant to insufficiencies in the
evidence . . .
[30]
Ms.
Malagon did not submit exhibits supporting her allegations to the effect that
her mother was the victim of threats in November 2007 and of a car theft in
December 2007 (application record at pages 19A, 19B; read jointly
with page 9 at paragraphs 6, 9 and 13). The officer was entitled not
to be satisfied with mere allegations amounting to hearsay, since she had to
determine the removal risks under section 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), on a balance of probabilities (Jaouadi v. Canada
(Minister of Public Safety and Emergency Preparedness), 2006 FC 1549, 305 F.T.R. 122 at paragraph 32).
[31]
This
debate does not change anything about the central finding of the PRRA officer
to the effect that the presumption of state protection had not been reversed.
The officer had to make her own determinations
[32]
At
paragraph 9 of her memorandum, Ms. Malagon alleges that the officer had
to make her own determinations on state protection and not simply refer to the
Board’s previous findings on this point.
[33]
This
argument is incorrect for two reasons.
[34]
First,
the officer carried out her own analysis regarding the issue of state
protection, as it appears in her reasons (application record at page 70 at
paragraphs 5 to 8.)
[35]
Second,
the role of the PRRA officer is to assess an applicant’s removal risks which
could not be assessed by the panel, either because these risks did not exist at
the time of the decision or because the applicant could not reasonably file the
evidence of these risks at the time of that decision (paragraph 113(a)
of the IRPA; Aslani v. Canada
(Minister of Citizenship and Immigration), 2008 FC 324, [2008] F.C.J. No. 390 (QL) at
paragraph 14).
[36]
Undated
evidence cannot be used to satisfy this requirement.
[37]
Even
if the officer was not bound by the Board, she could take into account its
reasons (Aslani, supra; also Rai v. Canada
(Minister of Citizenship and Immigration), 2007 FC 12, at paragraphs 36 and 37.)
[38]
On
this point, the Board’s decision is very instructive in regard to Ms. Malagon’s
failure to reverse the presumption of state protection and the unreasonableness
of her refusal to call on her state before seeking protection at the
international level:
. . . According to her
testimony during the hearing, [the applicant] never filed a complaint before
any institution or authority.
When she was asked why
she did not seek protection from the authorities in her country, the
claimant answered that she had no evidence and that, in any event, the police
would not do anything, and that she was scared.
The panel then asked the
claimant how she could know that the police would not help her when she did not
try to use what the authorities in her country could have made available to her
to help her.
She then stated that,
ten or so years ago, she had been the victim of domestic violence and that she
had approached the police. They initially referred her to some aid agencies for
female victims of violence and, according to her own testimony, told her that
she could contact them at any time, if that did not work out.
She then stated that she
was not satisfied with the services offered by those agencies, but that she did
not contact the police, because she decided to go back to her spouse.
The claimant’s answers
do not explain why she did not contact the police, and furthermore, the example
chosen demonstrates that the police did not refuse to intervene.
[Emphasis added.]
(Panel’s reasons, pages 1 and 2.)
[39]
The
international protection regime is a last resort option: substitute protection,
as the Supreme Court of Canada confirmed (Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689 at paragraph 18.)
[40]
In
this case, there was a complete failure to seek national protection. Further, Ms. Malagon
reticently and unconfidently explained her failure. Subjective reticence cannot
excuse applicants for failing to first avail themselves of national protection
(Sanchez v. Canada (Minister of Citizenship and Immigration), 2008 FC 134, 165 A.C.W.S.
(3d) 336 at paragraph 9; Kim v.
Canada (Minister of
Citizenship and Immigration), 2005 FC 1126, 141 A.C.W.S. (3d) 822 at paragraph 10).
The officer improperly
assessed the evidence
[41]
At
paragraphs 10 to 13 of her memorandum, Ms. Malagon argues that
the officer improperly assessed the evidence. Ms. Malagon’s argument is
difficult to grasp. In any event, her allegations are inconsistent with reality.
[42]
The
officer’s analysis is nuanced. She describes the shortcomings of the system in Mexico, while
finding that protection exists there. She points out that Mexico is a
democracy and that the State is structured there. Further, she sets out the
recourse that is available to victims who are not satisfied with the assistance
they receive and states that there is protection against corrupt officers.
[43]
As
confirmed in the case law, state protection need not be perfect. Where the
state has control of its territory and where it is making serious efforts to
protect its citizens, the fact that there are weakness in that protection is
not sufficient to refute the presumption of state protection (Canada (Minister
of Employment and Immigration) v. Villafranca, 150 N.R. 232, 37 A.C.W.S. (3d) 1259; Burgos v. Canada (Minister
of Citizenship and Immigration), 2006 FC 1537,
160 A.C.W.S. (3d) 696 at paragraph 36).
[44]
Ms. Malagon
in this case is proposing a reassessment of the evidence. As the Court recently
pointed out in Singh v. Canada
(Minister of Citizenship and Immigration), 2008 FC 408, [2008] F.C.J. No. 547 (QL):
[17] When the applicant
argues that the panel’s decision passed over evidence which he considered
important or that the decision looked only at part of the evidence rather than
some other part which he considered more important, he is quite simply asking
this Court to reassess the evidence submitted in support of the refugee status
claim and substitute its opinion for that of the panel. Such an approach is
prohibited in a judicial review proceeding . . .
(Also paragraphs 18 and 19 in Singh,
supra.)
[45]
In
her memorandum, Ms. Malagon confirms the officer’s analysis, setting out
documentary evidence which testifies to the efforts and successes of the
Mexican authorities in the battle against corrupt agents (application record, at
pages 105 and 137: reference to “Mexico’s Corruption Crackdown”).
[46]
The
case law confirms that PRRA officers have specific powers in assessing the
evidence before them (Kaur v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1612, 264 F.T.R. 282 at paragraph 25).
The
weight to assign to the evidence depends exclusively on the officer’s
assessment (Tuhin v. Canada
(Minister of Citizenship and Immigration), 2006 FC 22, 167 A.C.W.S. (3d) 574 at
paragraph 4).
[47]
Finally,
several recent judgments confirm that the officer’s analysis is not
unreasonable in a Mexican context.
[48]
In
Navarro v. Canada
(Minister of Citizenship and Immigration), 2008 FC 358, [2008] F.C.J. No. 463 (QL), a
case where the persecuting agent was a corrupt police officer and his associates, this
Court determined:
[17] The Board was correct in finding these explanations insufficient to
rebut the presumption of state protection. The documentary evidence shows that
Mexican authorities are making serious efforts to protect victims that find
themselves in situations such as that of the applicants. Even though the
situation is still far from being perfect, we are not dealing here with a
situation where the state apparatus is no longer carrying out its
responsibilities. In these circumstances, the state must at least be offered a
real opportunity to intervene before one can conclude that it is unable to
provide the protection required by one of its citizens . . .
[49]
In
Sanchez, supra, a case where the persecuting officer was a
federal officer (Sanchez, supra at paragraph 2), this Court
wrote:
[12] Whatever deficiencies may exist within the Mexican criminal justice system,
the country is a functioning democracy with an official apparatus sufficient to
provide a measure of protection to its citizens. According to Hinzman,
above, the burden of attempting to show that one should not be required to exhaust
all avenues of available domestic recourse is a heavy one and, on the facts as
found here by the Board, it was obviously not met.
[50]
In
de la Rosa v. Canada
(Minister of Citizenship and Immigration), 2008 FC 83,
164 A.C.W.S. (3d) 497, this Court determined:
[11] On the finding of state
protection, it was open to the Board to conclude that the Applicant had
provided insufficient evidence to rebut the presumption of state protection. Mexico was found to be a
democratic state with a functioning government. On a general level, there was
nothing to suggest that Mexico could not provide protection.
[12] On a personal level, it
was open to the Board to conclude that the Applicant had not sufficiently
attempted to engage state protection to be able to sustain the argument that it
was not available to him personally.
[51]
Finally,
Ms. Malagon’s contestation in regard to the handling of general articles filed
before the officer (application record at page 9, at paragraphs 13 to
17), cannot help her case since, inter alia, she refused all available
endeavours to claim the assistance available.
[52]
Considering
the foregoing, it was not unreasonable for the officer to determine that Ms. Malagon
had failed to fulfill her burden in regard to the issue of state protection.
[53]
Ms.
Malagon did not establish a serious issue and this is sufficient to dismiss the
application to stay.
(ii) Irreparable
harm
[54]
In
this case, as irreparable harm, Ms. Malagon alleged the risks connected
with her return as well as the separation that her spouse would have to endure
(application record at page 10 at paragraph 25).
[55]
The
risks of return were already assessed in two administrative proceedings, by the
panel and by the officer, and both made the same findings. Further, this Court
confirmed the reasonableness of the Board’s decision refusing the ALJR against
the Board’s decision. Since the order of this Court, the situation has not changed,
as the PRRA confirmed.
[56]
This
Court has often held that allegations of risk determined to be unfounded by
both the Board and the PRRA cannot serve as a basis for establishing irreparable
harm in the context of an application to stay (Singh
v. Canada (Minister
of Citizenship and Immigration), 2005
FC 145, 137 A.C.W.S. (3d) 156). This principle
relative to credibility is adaptable in the context of the failure to reverse
the presumption of state protection.
[57]
In
regard to the family upsets and the separation that Ms. Malagon’s spouse
will have to endure, this is not irreparable harm, but rather a phenomenon
inherent to removal (Malyy, supra; Sofela, supra; Radji,
supra). To find otherwise would render impracticable the removal of
individual who do not have the right to reside in Canada. Further, as
pointed out in Golubyev v. Canada
(Minister of Citizenship and Immigration), 2007 FC 394, 156 A.C.W.S. (3d) 1147 at
paragraph 12: irreparable harm is a strict test in
which serious likelihood or jeopardy to the applicant’s life or safety
must be demonstrated.
[58]
For
these reasons, Ms. Malagon has not established irreparable harm. This
ground alone justifies the dismissal of the application.
(ii) Balance
of convenience
[59]
Subsection 48(2)
of the IRPA provides that a removal order enforced as soon as is
reasonably practicable. This is the prevailing situation in this case.
[60]
Ms. Malagon’s
removal is not simply a question of administrative
convenience, but implicates the integrity and fairness of, and public
confidence in, Canada’s system of immigration control (Selliah v. Canada (Minister
of Citizenship and Immigration), 2004 FCA 261, 132
A.C.W.S. (3d) 547 at paragraph 22.)
[61]
For
these reasons, the balance of convenience favours the public interest in
ensuring that the immigration process provided by the Act follows its course.
B. Invalidity
of the finding sought
[62]
Ms.
Malagon is asking this Court to stay her removal until the ALJR has been
decided or until there has been a final decision on her permanent residence
application.
[63]
This
finding is invalid because it requires that the Court exceed its jurisdiction.
[64]
The
case law confirms that granting a stay while awaiting an event that is not an underlying
procedure of the stay amounts to an excess of jurisdiction, in breach of
section 18.2 of the Federal Courts Act, R.S. 1985, c. F-7
(D’Souza v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 1304, [2007] F.C.J. No. 1702
(QL) at paragraphs 36 to 41; Razzaq v. Canada (Minister of
Citizenship and Immigration), 2006 FC 442, 290
F.T.R. 79 at paragraph 9; Muhammad v. Canada (Minister of
Citizenship and Immigration), 2006 FC 156, 146
A.C.W.S. (3d) 127 at paragraph 13).
VI. Conclusion
[65]
Considering
all of the preceding, Ms. Malagon does not meet the requirements
established by the case law for obtaining a judicial stay.
JUDGMENT
THE COURT ORDERS that the
application to stay filed by the applicant be dismissed.
“Michel M.J. Shore”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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