Docket:
IMM-8631-12
Citation: 2013 FC 786
Ottawa, Ontario, July 12,
2013
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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BRAULIA GUADALUPE RANGEL GOMEZ
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OMAR ROBERTO QUEVEDO CRUZ
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LORENA GEORGETTE CARDENAS RANGEL
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KARLA YORDANA CARDENAS RANGEL
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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
I. INTRODUCTION
[1]
This judicial review concerns the negative PRRA
decision by the PRRA Officer [Officer] regarding the Applicants. The judicial
review of the adverse deferral of removal decision (IMM‑10846-12) has
been adjourned pending the results of this judicial review.
II. BACKGROUND
[2]
The Applicants are citizens of Mexico. Omar Quevedo Cruz is the younger brother of Brenda Quevedo Cruz (who is not an
Applicant). Brenda is awaiting trial in Mexico for the kidnapping and murder of
Hugo de Wallace.
[3]
Braulia Guadalupe Rangel Gomez is Brenda’s
maternal aunt. Lorena Rangel and Karla Rangel are Braulia’s daughters and
Omar’s cousins.
[4]
In 2008 Omar, his aunt and her two daughters
fled to Canada fearing persecution from Isabel de Wallace, the mother of the
murdered Hugo de Wallace (Isabel is sometimes referred to as Isabella or
Isabelle as well as Isabel). Isabel de Wallace is alleged to be a person of
influence in the higher echelons of Mexico society.
[5]
Brenda and others have been accused of the
kidnapping and murder of Hugo de Wallace. Brenda had to be extradited from the United States to Mexico. All of the accused have, it is alleged, been tortured to extract confessions;
all except Brenda have confessed to the kidnapping and murder. Brenda’s lawyer
is said to have been harassed, imprisoned on bogus charges for 50 days and
removed herself from Brenda’s case upon release due to continued threats.
[6]
The Applicants’ claim is a multi-layered,
confusing narrative, the central thesis of which is that Isabel de Wallace is
“pulling” the Mexican authorities’ and courts’ “strings” to frighten the
accused and their families with the intent of extracting confessions for the
murder of her son.
[7]
The Applicants are failed refugee claimants. One
of the findings of the Refugee Protection Division [RPD] was that state
protection was available to them. The Officer found that there were no new or
forward-looking personalized risks that were not previously considered by the
RPD.
This
state protection finding was not challenged in this judicial review until after
the Respondent made their submissions – an issue to be addressed later.
[8]
In assessing the Applicants’ risk, the Officer
noted that the RPD had refused the claim in part because of a lack of clear and
convincing evidence. The risks asserted in the PRRA were based on the same
assertions as were before the RPD.
[9]
The Officer found that none of the Applicants
are wanted in Mexico for their suspected involvement in the murder of Isabel de
Wallace’s son. The Officer examined the issue of “similarly situated” persons and
the evidence that the Applicants were threatened through letters – a low
probative value was placed on these vague threats.
[10]
The Officer concluded, with respect to events
related to Brenda’s Mexican lawyer, that there is no objective documentary
evidence corroborating this story and moreover, as a criminal lawyer, she is
not similarly situated to the Applicants.
[11]
As to several other allegations, the Officer
found that the absence of objective documentary evidence undermined these
allegations.
[12]
The Officer was not persuaded, because of an
absence of sufficient documentary evidence, that Isabel de Wallace enjoys the
impunity she is alleged to have nor is there sufficient support for the
implications of a connection between her and the alleged torture of the
imprisoned suspects.
[13]
The most telling conclusion is that in respect
of similarly situated persons. The Applicants alleged that the families of
suspects have been threatened. However, the Officer notes that the Applicants’
family members who remain in Mexico, including four of Braulia’s sisters and
Omar’s parents and grandparents, have not been threatened. The Officer observes
that it would be reasonable to assume, if these risks were credible, that in
the four years the Applicants were in Canada, these family members would have
been similarly threatened. They were not.
III. ANALYSIS
A. Standard
of Review
[14]
The standard of review of a PRRA officer’s
decision is reasonableness as held in Da Moto v Canada, 2008 FC 386 at
paras 13, 15, 166 ACWS (3d) 552.
B. New
Issues
[15]
As to the issue of state protection, the
Applicants filed a Further Memorandum of Argument in which they raise the new
issue – the reasonableness of the Officer’s state protection finding.
[16]
The Respondent objects to the raising of this
new issue after submissions were closed and claims prejudice in having to deal
with a subject matter not previously raised.
[17]
Whether to allow a new issue to be raised is a
matter of the exercise of the Court’s discretion (Al Mansuri v Canada (Minister of Public Safety and Emergency Preparedness) 2007 FC 22, 60 Admin LR
(4th) 228). This is not a circumstance where the Court should exercise its
discretion in favour of the Applicants.
[18]
All the facts and matters relevant to the state
protection analysis were known to the Applicants. In fact, the issue of state
protection and the essential facts raised in the PRRA had already been alive to
and dealt with in the RPD determination. The Applicants’ submissions smack of
an attempt to re-open state protection back to the RPD decision – an improper
effort to bootstrap this case.
[19]
The Applicants’ excuse for trying to raise state
protection at this later date is that the Respondent referred to “country
condition” in their Written Submissions. Having considered those submissions,
they did not open up the state protection issue. Even if they had, the proper
procedure was to deal with the matter in Reply. The Applicants did not do so
but proceeded to file their Reply and then to file a Further Memorandum of
Argument.
[20]
The Further Memorandum is struck and the issue
of state protection is not part of this judicial review.
C. Reasonableness
of Decision
[21]
I find no merit in the argument that the Officer
ignored evidence. The Officer considered the issue of similarly situated
persons, including the criminal lawyer, but found the circumstances of the lawyer
to be different from that of the Applicants (and their family). This was a
matter which was open to the Officer.
[22]
The Officer’s concerns for uncorroborated
evidence were reasonable in those circumstances. The narrative is complex and
confusing with allegations flung hither and thither. What the Officer sought
was objective evidence from reliable sources – a reasonable requirement. In the
weighing of evidence, the Officer can reasonably favour certain evidence, as
was done.
[23]
The Officer did not disregard evidence and
allegations of other persons being threatened, and of accused being tortured.
However, the Officer preferred the established fact that, in the face of this
alleged risk to various families’ members, the Applicants’ family has been left
essentially untouched for four years.
[24]
Considering the decision as a whole, I can find
nothing unreasonable in the Officer’s assessment of evidence or in the
conclusions reached, individually or cumulatively.
IV. CONCLUSION
[25]
This judicial review will be dismissed. There is
no question for certification.
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