Date:
20130528
Docket:
IMM-2760-12
Citation:
2013 FC 558
Ottawa, Ontario,
May 28, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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URIEL JASSO SALINAS
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by the pre-removal risk assessment (PRRA) officer (the officer) dated
February 10, 2012, wherein the applicant’s PRRA application was refused. The
officer’s decision was based on the finding that the applicant would not be
subject to risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment or punishment if returned to Mexico.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred for redetermination by a
different officer.
Background
[3]
The
applicant is a citizen of Mexico. He was targeted due to a feud between his own
family and the Cepeda family. In January 2007, he was abducted and suffered a
number of beatings, sexual assaults and a mock execution, which caused him
permanent physical injury and severe mental and emotional problems. His brother
fled Mexico for the United States. He asked the police for assistance but they
appeared to be allied with the Cepeda family. The applicant and his wife fled
to Ario de Rosales, but were found by the Cepeda family. They then fled to Tijuana, where they were attacked by gangsters. They then fled in turn to Mexico City for
five days before leaving the country.
[4]
The
applicant came to Canada on May 6, 2007. He claimed refugee protection on May
14, 2007, but his claim was ultimately abandoned because he did not attend
hearings due to a major depressive paranoid episode requiring hospitalization.
He fears returning to Mexico due to violence at the hands of the Cepeda family,
a threat compounded by his physical and mental health problems and the
resulting inability to access social services.
[5]
He
made a PRRA application on May 17, 2011.
Officer’s PRRA Decision
[6]
In
a letter dated February 10, 2012, the officer informed the applicant his
application had been rejected.
[7]
The
reasons began by summarizing the risks identified by the applicant and his
immigration status history. The officer noted the documentary evidence
submitted by the applicant, including medical records and the applicant’s
Personal Information Form (PIF) narrative from his refugee claim.
[8]
The
officer then turned to the evaluation of the risks alleged by the applicant.
The officer described how the applicant feared retribution by the Cepeda family
due to failing to pay protection money. The officer concluded the applicant had
not demonstrated that this feud was ongoing or that his alleged persecution had
a nexus to the Convention grounds under section 96 of the Act, as victims of
crime are not a particular social group.
[9]
The
officer therefore considered the applicant’s claim under section 97 of the Act,
noting that risks caused by the inability of Mexico to provide the applicant
with adequate health or medical care were excluded from consideration under
subparagraph 97(1)(b)(iv). The officer described how the applicant feared being
beaten, raped and killed by the Cepeda family and his claim that he had no
internal flight alternative (IFA) in Mexico due to his persecutors being able
to find him anywhere in the country. The officer concluded that the applicant’s
problems were local in nature and he had not demonstrated that his persecutors
would still be interested in him as the crimes in question had been committed
in January 2007.
[10]
The
officer then considered the applicant’s flight to Ario de Rosales. The applicant
did not explain why he chose to flee to an area where he knew the Cepeda family
lived or why the encounter with the Cepedas was a result of the family pursuing
him instead of a random encounter. The applicant did not provide detailed
information regarding the confrontation, including whether complaints where
made to the police.
[11]
The
officer considered the applicant’s further flight to Tijuana. The officer noted
the applicant did not allege the attack by gangsters in that city was linked to
the other attacks by the Cepedas and reported no other problems while living in
Tijuana. The applicant had not explained why this criminal act resulted in the
decision to flee to Mexico City.
[12]
The
officer described the applicant’s evidence with regard to his wife, who
originally came with him to Canada but had since returned to Mexico. The applicant alleged that upon return to Mexico, his wife was threatened by someone who asked
about the applicant’s whereabouts. The officer concluded the details about this
event, such as the date, location and identity of the attacker were lacking.
The officer also concluded the applicant’s evidence of members of his family
being victims of crime were the result of general criminality and not linked to
the Cepeda family. The applicant had not provided evidence of his brother’s
status in the United States or whether he had claimed refugee protection. The
officer concluded on a balance of probabilities that the reasons for the
applicant’s past mistreatment no longer existed. The officer also concluded
there was insufficient evidence to conclude that there were police officers
among the applicant’s attackers during the 2007 attack.
[13]
The
officer acknowledged the medical problems that the applicant suffered from but
concluded that this would not affect the applicant’s ability to access social
services in Mexico. The officer noted the applicant had previously received
medical treatment in Mexico after the 2007 attack and had relatives in the
country to support him. Therefore, the officer rejected the applicant’s
argument that IFA was not available.
[14]
Finally,
the officer noted the country conditions documents pertaining to criminality
and corruption in Mexico, but concluded that they did not provide any evidence
of the applicant’s personal situation or the risks that he would face upon
return.
Issues
[15]
The
applicant submits the following point at issue:
1. Is the decision
reasonable?
[16]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in denying the application?
Applicant’s Written Submissions
[17]
The
applicant submits the appropriate standard of review is reasonableness.
[18]
The
first error alleged by the applicant is that the officer mischaracterizes the
relevance of the applicant’s health problems. The applicant had argued that his
physical and mental health problems contributed to his inability to access
whatever state protection may be available. The officer analyzed the health
problems as a source of risk upon return to Mexico, instead of a fact that
adversely affected his ability to avoid that risk by state protection or IFA.
[19]
The
second error is the officer’s misreading of the evidence relating to the Cepeda
family’s interest in the applicant. The officer focused on the 2007 incident
and ignored the applicant’s evidence relating to the more significant family
feud, including the murder of his uncle for refusing to sell prescription drugs
to the Cepedas. The officer’s conclusion the Cepeda family no longer threatened
the applicant was based on a selective view of the evidence.
[20]
Third,
the officer should have considered whether there were compelling reasons
arising out of the applicant’s previous persecution for him not to return to Mexico. This inquiry applies to a claim under sections 96 or 97 and is not dependant upon
nexus. The officer has a duty to consider the compelling reasons exception even
if it was not raised by a claimant. The applicant’s mental health issues should
have been considered as compelling reasons.
[21]
Fourth,
the officer was wrong to conclude the applicant faced a generalized risk, given
the evidence he had been personally and repeatedly targeted. The fact that a
risk arises from criminal activity does not in itself foreclose the possibility
of protection under section 97.
[22]
Fifth,
the officer was wrong to conclude an IFA was available to the applicant because
the extensive health care evidence filed shows that his mental state would have
prevented him from having an IFA in Mexico or accessing the necessary support.
The officer also ignored the applicant’s submission that social and medical
services in Mexico would only be available if the applicant were employed,
which would not be possible given his medical and mental state. The officer
does not identify an IFA locale or the state protection mechanisms available in
such an IFA.
[23]
Sixth,
the applicant has not claimed protection because he would not get the
appropriate health care in Mexico. The applicant never stated that the risk was
caused by the lack of health care. Rather, his condition renders him unable to
access the care he needs and he is unable to access state protection.
[24]
Finally,
the officer failed to address state protection and made no finding on the
matter.
Respondent’s Written Submissions
[25]
The
respondent argues that the applicant has no nexus to the Convention grounds as
a victim of crime. The applicant’s alleged problem with his persecutors only
began after he refused to pay protection money. The application record does not
disclose any corroborating evidence of the applicant’s allegations of a
long-running family feud.
[26]
The
respondent argues that past persecution is a relevant factor, but not
determinative of a future-looking fear. The applicant did not submit adequate
evidence to demonstrate he would still be at risk if he returned to Mexico. The officer found that the events were local in nature and that the extortion
incidents indicative of a generalized risk of criminality.
[27]
The
officer found that the applicant failed to satisfactorily explain why he chose
to flee to an area where he knew the Cepeda family lived and had not
established that the incident in Ario de Rosales was not the result of a random
encounter. There was no indication the police were contacted. The officer found
the criminal attack in Tijuana to be unrelated to the Cepeda family. The
applicant submitted no objective evidence showing his family members had been
targeted by the Cepeda family, so it was reasonable to conclude they were
victims of a generalized risk.
[28]
The
respondent points out the applicant failed to rebut the presumption of state
protection. The applicant had a higher burden given Mexico’s status as a
democratic society. In this case, the one time that the applicant claims to
have sought police help, the police were not able to conduct a full
investigation because the applicant could only identify one of his assailants.
The applicant stated a forensic doctor examined him and took notes, but
provided no forensic or police report. The officer found the applicant did not
establish police were involved in the 2007 attack. There was no indication the
applicant took any further steps to seek state protection, including in Ario de
Rosales, Tijuana or Mexico City. A failure to pursue state protection in a
democracy like Mexico will usually be fatal to a refugee claim. A number of
recent Mexican state protection cases have held that it is insufficient for an
applicant to solely rely on documentary evidence if he has failed to avail
himself of state protection.
[29]
The
officer plainly realized that the applicant’s medical condition was a secondary
factor and not part of the risk being alleged. The officer reasonably concluded
that the applicant was able to access medical and social services in Mexico. The officer properly excluded consideration of medical care as required by section
97.
Applicant’s Reply Submissions
[30]
The
applicant argues the respondent attempts to defend the officer’s decision based
on a basis other than the decision actually rendered. The respondent argues
that the record does not disclose objective evidence of the family feud, but
the officer did not find that this history was untrue and did not require such
evidence. Sworn testimony is to be believed unless there is good reason not to.
[31]
The
applicant argues the respondent’s memorandum contains many other arguments made
by the respondent based on the record that did not appear in the officer’s
decision. The officer undertook no state protection analysis.
[32]
The
applicant argues the central finding of the officer was that the mistreatment
of the applicant was a one-time event which contributed to the finding of
generalized risk. While an inter-family blood feud may not give rise to nexus,
it was certainly not an isolated occurrence.
Analysis and Decision
[33]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[34]
It
is trite law that the standard of review of PRRA decisions is reasonableness
(see Wang v Canada (Minister of Citizenship and Immigration), 2010 FC
799, [2010] FCJ No 980 at paragraph 11; and Aleziri v Canada (Minister of Citizenship and Immigration), 2009 FC 38, [2009] FCJ No 52 at
paragraph 11). Similarly, issues of state protection and of the weighing,
interpretation and assessment of evidence are reviewable on a reasonableness
standard (see Ipina v Canada (Minister of Citizenship and Immigration),
2011 FC 733, [2011] FCJ No 924 at paragraph 5; and Oluwafemi v Canada
(Minister of Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286
at paragraph 38).
[35]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the
Supreme Court held in Khosa above, it is not up to a reviewing court to
substitute its own view of a preferable outcome, nor is it the function of the
reviewing court to reweigh the evidence (at paragraph 59).
[36]
Issue 2
Did the
officer err in denying the application?
The officer is
presumed to have considered all of the evidence before him (see Oprysk v Canada (Minister of Citizenship and Immigration), 2008 FC 326 at paragraph 33, [2008]
FCJ No 411). However, the more important the evidence that is not mentioned,
the more willing a court may be to infer from silence that the officer made a
finding of fact without regard to the evidence (see Pinto Ponce v Canada
(Minister of Citizenship and Immigration), 2012 FC 181 at paragraph 35,
[2012] FCJ No 189).
[37]
In
this case, the central risk alleged by the applicant was a long running family
feud. The officer makes no finding that the feud did not exist or that the
applicant’s evidence lacked credibility. Instead, the officer notes the
applicant had not demonstrated the feud was ongoing or that he had been
victimized prior to the incident precipitating his flight from Mexico.
[38]
Despite
implicitly accepting the existence of the feud, at least in the past, the
officer’s risk analysis is only concerned with the individual incident relating
to the applicant’s failure to provide protection money. The officer notes “[the
applicant’s] problems in Mexico were local in nature … [t]he crimes committed
in January 2007 are over now” and expresses skepticism that the criminals who
kidnapped him would still be interested in him on the basis of failing to pay
protection money. The officer’s analysis of whether the applicant’s persecutors
would follow him elsewhere in Mexico also makes no mention of the family feud,
so is presumably based only on the protection money incident.
[39]
In
considering the applicant’s evidence relating to his family members, the
officer concluded that they were general victims of crime in Mexico, as the applicant had not provided details such as whether the perpetrators were members of
the Cepeda family. This ignores the applicant’s PIF narrative which clearly
states that the murder of his father and beating of his brother were
perpetrated by that family.
[40]
It
is not this Court’s role to reweigh evidence. It is the officer’s role,
however, to properly consider the evidence submitted by the applicant. Here,
the applicant’s evidence that the risk he faced was rooted in a violent family
feud. The officer did not consider that evidence when evaluating the likelihood
that the applicant would face risks upon returning to Mexico.
[41]
This
brings the officer’s decision into conflict with the Dunsmuir above, values
of transparency and justification. For that reason, I would grant the
application and remit the matter to a different officer for redetermination.
[42]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is referred to a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or punishment
if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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