Docket: IMM-7049-11
Citation: 2012 FC 830
Ottawa, Ontario,
June 29, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
JOSE
FRANCISCO SALDANA FAJARDO
IVAN FRANCISCO
SALDANA MARTINEZ
|
|
|
|
Applicants
|
|
and
|
|
|
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGEMENT AND JUDGMENT
[1]
Jose Saldana Fajardo (Jose) and his fourteen-year-old
son, Ivan Saldana Martinez, challenge the negative decision on their
Pre-Removal Risk Assessment (PRRA). For the reasons that follow, their application
is dismissed.
Background
[2]
Jose and his late brother Moises were involved
in a retail shoe business. They competed against Tomas Zavala who is allegedly
rich and powerful.
[3]
In July 2004, Mr. Zavala and several men
kidnapped Moises and four employees. They were robbed of all their belongings
and made them sign papers giving up ownership of their vehicles. Although the
police were involved and Mr. Zavala was interviewed, no charges were laid
against him. The applicants allege that this was because of his strong
political ties.
[4]
Moises found his stolen truck and demanded it be
returned. Mr. Zavala called the police and Moises was charged with theft and imprisoned
for approximately one year. He was later found not guilty.
[5]
On March 16, 2006, Mr. Zavala and another man
assaulted Jose and pointed a gun to his head when he was walking his son to
school. Jose was told not to interfere in the dispute between Mr. Zavala and Moises
if he wanted to stay alive.
[6]
Fearing for his safety, on March 16, 2006, Jose
left his son with his uncle and fled to Canada. He claimed refugee status and later made arrangements to have his
son join him. He arrived in September 2006.
[7]
Moises, accompanied by his wife and child, also
came to Canada and claimed
refugee protection. On January 26, 2007 the applicants’ refugee claims,
collectively with those of Moises and his family, were refused due to
significant credibility concerns. Leave was granted and on January 29, 2008,
the application was allowed.
[8]
On April 19, 2009, the matter was again
dismissed by the Refugee Protection Division. The applicants sought leave to judicially
review that decision but it was denied on April 30, 2009.
Moises and his
family returned to Mexico. On
November 4, 2010, a couple of weeks after his arrival, Moises was killed. Jose
alleges that a note was left at the crime scene indicating that he was next.
[9]
On November 26, 2009, Jose failed to appear for
his scheduled pre-removal interview and an arrest warrant was issued. Jose
remained underground in Canada
until November 8, 2010 when he was arrested for his previous failure to appear
for removal. He was subsequently released and on November 22, 2010, he filed the
PRRA application which was later refused.
[10]
The PRRA officer noted that the new evidence
assessed according to section 113(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 related to the death of Moises.
Although Jose indicated in the materials filed that a death certificate was
included in the application, the PRRA officer said that no copy was found in
record. Even if a copy had been adduced, the PRRA officer stated that it would
not have been sufficient to establish a risk to Jose. The PRRA officer wrote:
Even if the
principal applicant had adduced a copy of the certificate to establish his
brother’s death, confirmation of his brother’s death would not in itself be
sufficient to establish that the applicants have a well-founded fear based on
one of the Convention grounds, or that the applicants would, more likely than
not, be subjected personally to a risk to their life or a risk of cruel and
unusual treatment or punishment if they were to return to Mexico. I note that
the principal applicant’s statements concerning the allegations are unsworn, he
has failed to provide any corroborative evidence that he has been in contact
with police in Mexico regarding his brother’s death, he has failed to provide
any corroborative evidence that police believe that the agents of persecution identified
in the applicants’ refugee claims and PRRA applications are the men responsible
for the applicant’s brothers death, or that the applicant’s brother’s death is
in any way related to the principal applicant. Moreover, the applicant has
failed to provide any corroborative evidence that his sister-in-law and her
children are in hiding due to his brother’s death.
[11]
Because there was no objective evidence to
corroborate the applicants’ new risk allegations, Jose’s statements were given
little weight. In the end, the PRRA officer mentioned the RPD’s finding of
available state protection and found that there was insufficient evidence to
establish a forward looking risk. As a result, the application was dismissed.
Issues
[12]
The applicants raise two issues: Did the
PRRA officer err by questioning the credibility of Jose regarding the death of
his brother because he failed to provide corroborating evidence, and did the
PRRA officer err by not providing an oral hearing.
Analysis
[13]
In my view, the passage from the decision,
quoted above at paragraph 12 is sufficient to dispose of the first issue. Even
if the PRRA officer erred as alleged, it was not determinative of the decision
reached because the officer continued to analyze the application as if
corroboration had been filed.
[14]
The applicants submit that the PRRA officer expressed credibility
concerns by pointing to the lack of corroboration concerning the death of
Jose’s brother in Mexico, allegedly at the hand of Mr. Zavala. Accordingly,
they submit that an oral hearing was required.
[15]
The respondent submits that the PRRA officer may
weigh the evidence and make a finding regarding its probative value and
sufficiency without being required to hold an oral hearing and that this Court
should not reweigh the evidence. The burden was on the applicants and they
failed to meet it. The respondent notes that the only evidence before the PRRA
officer was Jose’s unsworn statement that his brother had been killed in Mexico and that he was next. The
respondent submits that where a fact asserted is critical to the PRRA
application, it is open to the officer to require more evidence to satisfy the
applicant’s legal burden: Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067 at para 32.
[16]
I agree with the respondent. It is perfectly
permissible for a PRRA officer to weigh the sufficiency of the evidence without
resorting to an oral hearing. Reading the decision as a whole, and the
following paragraph in particular, it is clear that the PRRA officer did just
that:
In the absence
of any objective corroborative evidence to establish the applicant’s
allegations of new risk developments I have given the principal applicant’s
statements low weight in this assessment and find they are not sufficient
to establish a forward facing risk upon return to Mexico nor do I find they are
sufficient to address the Board’s finding of state protection. I have
read and considered current [publicly] available documentary evidence on
country conditions as they relate to the applicant and do not find that I have sufficient
objective evidence before me that conditions have changed significantly in Mexico since the Board’s decision, nor do I
have sufficient objective evidence before me to allow me to arrive at a
difference conclusion from that of the Board [emphasis added and footnotes
omitted].
[17]
It is without doubt that the issue was
sufficiency of evidence and not credibility. The onus of providing sufficient
evidence rested on the applicants. Even though their statements were believed,
they were not enough to persuade the PRRA officer.
[18]
Although this Court might have weighed the
evidence differently, deference is owed to decision-makers who make decisions within
their area of expertise.
[19]
Accordingly, this application is dismissed.
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application for judicial review is dismissed, and
no question is certified.
"Russel W. Zinn"
Email this Content