Date:
20060214
Docket:
IMM-491-06
Citation:
2006 FC 201
Vancouver, British Columbia, Tuesday,
the 14th day of February, 2006
Present: THE
HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
MILTON
IVAN PROVEDOR MENDOZA
Applicant
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
[1]
Milton Ivan Provedor Mendoza (the “Applicant”) seeks a stay of his
removal to Nicaragua, the country of his citizenship, pending the determination
of his application for leave and judicial review from the December 19, 2005
decision of Pre-Removal Risk Assessment Officer Hidalgo’s (the “PRRA Officer”)
determination the Applicant would not face persecution and that there were not
substantial grounds to indicate he is more likely than not to be at risk of
torture, risk to life, or risk of cruel and unusual punishment if returned
there.
[2]
The Applicant arrived in Canada from Nicaragua in December 2001; two
weeks later he claimed refugee status which was denied on March 3, 2003.
[3]
Prior to March 3, 2003, he met in July 2002 Lisa Snyder, a Canadian
citizen. They were married on June 22, 2003. Their daughter was born on
September 24, 2004. Lisa is now pregnant a second time.
[4]
Although the couple recently made a spousal H&C application,
humanitarian and compassionate considerations are not before me in this stay
application. The H&C application will continue to be processed regardless
whether Mr. Provedor Mendoza is removed or not.
[5]
In submissions to the PRRA Officer, the Applicant expressed two fears if
returned:
1) He
fears he is at risk because of his family’s former links to the Somoza side of
Sandinista revolution in 1979. The applicant states the Sandinista elements in
the Government are continuing to target people who might be regarded as having
been earlier connected with the Somoza regime.
2) He
fears his cousin’s former husband, whom he believes is now in charge of the
Special Forces in Managua, will harm him. The applicant explains because he
left Nicaragua in 2001 and because his cousin came in 2002 he fears the
cousin’s former husband blames him for his cousin and the children leaving
Nicaragua.
[6]
The PRRA Officer dismissed the first fear expressed by the Applicant
after examining recent country reports (US DOS 2004) on Nicaragua. She was of
the view the Applicant had failed to establish the general country conditions
in that country personally related to him. She said that “country documents
continue not to indicate former non-political ties or supporters to the former
President Somoza are at risk from Sandinista elements within the security
forces or within the Government in general.” The PRRA Officer determined the
Applicant had failed to provide persuasive new evidence for her to arrive at a
different conclusion than the Refugee Board had reached.
[7]
Concerning his new fear, the PRRA Officer wrote:
With respect to his new allegation of
risk relating to the former husband of his cousin, Mr Membreno Morales, the
applicant provides submissions which accompanied his cousin’s PRRA application.
The applicant’s cousin and her children were found to be in need of protection
from her former husband on the basis that she was beaten and sexually abused.
The applicant states that he fears Mr Membreno Morales blames him for his
cousin and children leaving Nicaragua. The applicant states that he fears Mr
Membreno Morales continues to work in the military and is now in charge of
Special Forces in the city of Managua. Within his cousin’s submissions, there
were documents evidencing Mr Membreno Morales held a position in the military,
but there was no specific mention of his current position in the military
within the objective evidence.
In review of the evidence provided, I
find it is speculation on the applicant’s part that his cousin’s former husband
blames him for his family leaving Nicaragua. I note there was no mention of any
risk allegation regarding Mr Membreno Morales at the time of his refugee
hearing. I note his cousin was in Canada for almost 1 year at the time of his
refugee hearing. She served as a witness at his hearing and made no mention
that she was aware that the applicant had been personally threatened from Mr
Membreno Morales. From the evidence before me, I find there is no corroborative
evidence demonstrating the applicant was and is currently being pursued or
personally threatened by either Mr Membreno Morales or from any of his
associates in Nicaragua.
[8]
In any event, she went on to find the Applicant would benefit from
adequate state protection in Nicaragua.
[9]
In my view, this stay application must be dismissed for the reason that
the Applicant has not met any part of the tri-partite test necessary to obtain
a stay.
[10]
On serious issue, counsel for the Applicant argued the PRRA Officer
erred, in a patently unreasonable manner, in her assessment of the new evidence
concerning Lt. Colonel Morales. She stressed that as part of the submissions
before her, the PRRA Officer had the materials related to the PRRA application
of the Applicant’s cousin, Nora Urroz, whose ex-husband was Lt. Colonel
Morales. Based on those submissions, Nora Urroz was granted protection under
section 97 of the Immigration and Refugee Protection Act (the “Act”).
[11]
Counsel for the Applicant also stressed that the evidence before the
PRRA Officer showed Lt. Colonel Morales was an officer in the military (which
the PRRA Officer acknowledged) and that this was sufficient to ground the
applicant’s need for protection.
[12]
She also argued the PRRA Officer failed to appreciate that Lt. Colonel
Morales’ anger against the Applicant for having helped his cousin and her
children to come to Canada greatly increased after she was granted protection.
[13]
Finally, she argued the PRRA Officer did not properly evaluate the
country reports pointing to passages which showed the security forces had
committed human rights abuses; corruption was rampant and the Sandinistas were
still active.
[14]
In my view, counsel for the Applicant’s arguments do not raise a serious
issue for several reasons. First, these arguments do not address the heart of
the PRRA Officer’s finding, namely the lack of objective evidence on the part
of the Applicant evidencing he was and is currently being pursued or personally
threatened by Mr. Morales or his associates.
[15]
It is important to note the PRRA Officer did not find Lt. Colonel
Morales was not a member of the Nicaraguan military. She found he was. What the
PRRA Officer found was a lack of objective evidence that the Applicant was at
risk from his cousin’s ex-husband.
[16]
Second, the Applicant’s criticism of the US DOS report is misplaced. I
find no fault in the PRRA Officer’s assessment of it nor her evaluation in the
circumstances of state protection. There was no objective or sufficient
evidence before the PRRA Officer that Mr. Morales was threatening the Applicant
nor was he a state agent of persecution.
[17]
The Applicant added two letters purporting to corroborate the
Applicant’s fears. These letters were not before the PRRA Officer and were
essentially hearsay. They have no weight.
[18]
The Applicant has not satisfied me of irreparable harm. The assessment
of the Applicant’s fear of return to Nicaragua on the evidence before the PRRA
Officer was insufficient to demonstrate, on a balance of probabilities, that
the Applicant was at risk.
[19]
In terms of irreparable harm to the family unit, I agree with counsel
for the Minister that the Applicant’s removal will cause hardship, but that
hardship does not amount to irreparable harm (see Selliah v. Canada
(Minister of Citizenship and Immigration, 2004 FCA 1200).
[20]
Finally, the balance of convenience favours the Minister in the
execution of the removal order as stated in section 48 of the Act.
ORDER
THIS COURT
ORDERS that, for these reasons, this stay application is dismissed.
(Sgd.) “F. Lemieux”
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-491-06
STYLE OF CAUSE: MILTON IVAN PROVEDOR MENDOZA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver,
BC
DATE OF HEARING: February
13, 2006
REASONS
FOR ORDER AND ORDER: LEMIEUX J.
DATED: February
14, 2006
APPEARANCES:
Malini Dyonisius FOR
APPLICANT
Jonathan
Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Dyonisius & Company FOR
APPLICANT
Vancouver, BC
Mr. John H.
Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, BC
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