Date: 20090316
Docket: IMM-3127-08
Citation: 2009 FC 268
Ottawa, Ontario, March 16, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JOSE
ALBERTO RODRIGUEZ GALLEGOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of a Pre-Removal Risk Assessment (PRRA) officer (Officer), dated May
20, 2008 (Decision), that the Applicant would not be subject to risk if
returned to Mexico.
BACKGROUND
[2]
The
Applicant was born in Mexico on July 24, 1971 and is a gay man. He claims
to have been harassed and assaulted by his colleagues at his work places (Applebee’s
and Popeye’s Restaurants) in Tamaulipas, Mexico. He also
alleges that he was denied entry into a prestigious university in Tamaulipas
because of his sexual orientation.
[3]
The
Applicant claims that Mexico is a very homophobic country and
discrimination against gays is widely accepted. He also claims that the police
do not follow up or prosecute cases dealing with the discrimination of gay people.
[4]
The
Applicant left Mexico because he claims he could not develop a
healthy life as an openly gay man, nor find a place where he would not be
harassed or suffer discrimination.
[5]
He
arrived in Canada as a visitor on February 8, 2005 and made a refugee claim. A
hearing took place on May 31, 2006 and the Refugee Protection Division (RPD)
found that, although the harassment by the Applicant’s co-workers was plausible
and believable, the Applicant had not rebutted the presumption that state
protection was available to him in Mexico. The RPD thought that
the Applicant had made no effort to seek state protection in Mexico and that he
was not in a position to say whether or not state protection was available to
him. On July 4, 2006, the Applicant’s claim was denied and it was determined that
he was not a Convention refugee or a person in need of protection.
[6]
The
Applicant applied for judicial review of his refugee decision on July 6, 2006,
but his application was dismissed on October 10, 2006, as the Court did not
find any reviewable errors in the decision.
[7]
The
Applicant filed a PRRA application on August 2, 2007.
DECISION UNDER REVIEW
[8]
The
Officer rejected the Applicant’s PRRA application and found that he 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 his country of nationality
or habitual residence.
[9]
The
Officer relied upon section 113 of the Act which requires that only new
evidence can be raised once a refugee claim has been rejected. The Officer also
relied on subsection 161(2) of the Immigration and Refugee Protection
Regulations, SOR/2002-227
(Regulations) which provides that the person who makes written submissions must
identify the evidence that meets the requirements of paragraph 113(a) of the Act
and show how that evidence is relevant to them.
[10]
The
Officer noted that the documents submitted by the Applicant that post-dated the
RPD’s rejection did not pass the test for new evidence set out in section
113(a) of the Act simply because it post-dated the Decision. In cases where the
evidence pre-dates the hearing, an applicant must show how the evidence meets
the requirements of section 113(a), in that the evidence arose after the
rejection, was not reasonably available, or that the applicant could not
reasonably have been expected to have presented it at the time of the
rejection.
[11]
The
Officer noted that the Applicant did not explain how the documentary evidence
presented was not reasonably available or could not have reasonably been presented
to the RPD panel at the time of his RPD hearing. Therefore, the Officer did not
consider the Applicant’s documents that pre-dated the original RPD hearing date
of the Applicant. The remaining documentation was considered with the PRRA
application.
[12]
In
the Officer’s assessment of risk he noted that he could not re-visit or find
errors with the reasons and findings of the RPD: H.K. v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1612 and Kaybaki v. Canada (Solicitor
General of Canada) 2004 FC 32.
[13]
Counsel
for the Applicant requested that the Officer assess the Applicant under section
25 of the Act on the basis of humanitarian and compassionate considerations in
the event that he did not meet the assessment criteria. Counsel presented
evidence about how the Applicant had met his common-law partner in Canada and
how they lived their daily lives. The Officer felt that all of the evidence
about the Applicant’s common-law relationship that was presented would be
better suited for an application to remain in Canada based on humanitarian and
compassionate grounds than as documentation to support the Applicant’s
assertion that he would be at risk should he return to Mexico. The Officer
pointed out that a PRRA does not include an assessment of humanitarian and
compassionate factors. Consequently, the Officer did not consider such information
in his assessment.
[14]
The
Officer concluded that the Applicant had presented the same facts and risk
factors that had already been assessed by the RPD at his refugee hearing on May
31, 2006. The Officer reviewed the documentary evidence and concluded that the
Applicant had not provided sufficient documentary evidence or information to
persuade the Officer to reach a different conclusion from that of the RPD.
ISSUES
[15]
The
Applicant raises the following issues on this application:
1)
What
is the standard of review governing PRRA refusals?
2)
Was
the Officer’s finding in respect to the availability of state protection made
without regard to the evidence, unreasonable and rendered with unclear reasons?
STATUTORY PROVISIONS
[16]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
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.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed
by the regulations as being in need of protection is also a person in need of
protection.
Consideration of application
113. Consideration of an
application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been
rejected may present only new evidence that arose after the rejection or was
not reasonably available, or that the applicant could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection;
(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection
112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3),
consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on
grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the
application should be refused because of the nature and severity of acts committed
by the applicant or because of the danger that the applicant constitutes to
the security of Canada.
|
Définition de
« réfugié »
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.
Personne à protéger
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.
Personne à protéger
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
Examen de la demande
113. Il est disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des
éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable,
dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment
du rejet;
b) une audience peut être tenue si le ministre l’estime
requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3),
sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe 112(3), sur
la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire
pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait
que la demande devrait être rejetée en raison de la nature et de la gravité
de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
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[17]
The
following provision of the Regulations is applicable in this proceeding:
|
New evidence
161(2) A person who makes written submissions must identify the evidence
presented that meets the requirements of paragraph 113(a) of the Act
and indicate how that evidence relates to them.
|
Nouveaux éléments de
preuve
161(2) Il
désigne, dans ses observations écrites, les éléments de preuve qui satisfont
aux exigences prévues à l’alinéa 113a) de la Loi et indique dans
quelle mesure ils s’appliquent dans son cas.
|
STANDARD OF REVIEW
[18]
In Dunsmuir v.
New Brunswick, 2008 SCC 9
(Dunsmuir), the Supreme Court of Canada recognized that, although the
reasonableness simpliciter and patent unreasonableness standards are
theoretically different, “the analytical problems that arise in trying to apply
the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review”: Dunsmuir
at paragraph 44. Consequently, the Supreme Court of Canada held that the two
reasonableness standards should be collapsed into a single form of “reasonableness”
review.
[19]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[20]
Fi
v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1125 at paragraph 6 held that the
standard of review on a PRRA decision is reasonableness simpliciter.
However, particular findings of fact should not be disturbed unless made in a
perverse or capricious manner or without regards to the evidence before the
PRRA officer.
[21]
Elezi
v. Canada (Minister of Citizenship and Immigration) 2007 FC 240 held as
follows:
When
assessing the issue of new evidence under subsection 113(a), two separate
questions must be addressed. The first one is whether the officer erred in
interpreting the section itself. This is a question of law, which must be
reviewed against a standard of correctness. If he made no mistake interpreting
the provision, the Court must still determine whether he erred in his
application of the section to the particular facts of this case. This is a
question of mixed fact and law, to be reviewed on a standard of reasonableness.
[22]
The
Applicant submits that the adequacy of state protection raises questions of
“mixed fact and law” which are reviewed against a standard of reasonableness: Hinzman
v. Canada (Minister of
Citizenship and Immigration) 2007 FCA 171 (Hinzman). I agree with this
submission.
[23]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issues of the Officer’s application of section 113(a) and
state protection in this case is reasonableness. When reviewing a decision on
the standard of reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir at paragraph 47. Put another way,
the Court should only intervene if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ANALYSIS
[24]
The
Applicant says that if he were to go back to Mexico and live as an openly gay
man he would suffer persecution and section 97 risk against which the state of Mexico will not protect him.
[25]
The
Applicant has never tried to avail himself of state protection in Mexico. When he lived there,
he did not reveal his sexual orientation. Instead, he came to Canada and sought refugee
protection. The RPD rejected his refugee claim on the basis that he had not
shown that state protection was not available to him in Mexico.
[26]
For
purposes of his PRRA application, the Applicant had no new evidence of risk
based upon personal experience because he has been residing in Canada. But he
says that there was new documentary evidence before the PRRA Officer showing he
would face more than discrimination if returned to Mexico. He points to the
well-established principle from Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at
paragraph 48 that he should not have to put his life at risk just to
demonstrate that state protection is not available to him.
[27]
There
were no negative credibility issues in this case and the PRRA Officer did not
raise or consider an IFA.
[28]
The
Decision makes it clear that the PRRA Officer closely examined the new
documentation in question. He refers to each document and summarizes in the
Decision his conclusions on what is revealed.
[29]
After
going through each document in turn the Officer concludes as follows:
This
current information, along with the documentation provided by the applicant,
shows real evidence of legal and social change. Notwithstanding, the situation
in Mexico is not all favourable as there is evidence that discrimination based
on sexual orientation still persists in some regions of Mexico. However, I must
also consider all the evidence in light of the findings of the RPD that state
protection is available to the applicant and that the applicant had the onus to
demonstrate otherwise.
The
applicant’s evidence is that when he experienced discrimination at one place of
employment, he quit and sought employment elsewhere. He experienced the same
problems at his second place of employment. He also experienced discrimination
when applying for university entrance. His evidence is that he did not attempt
to make a report to the police or judicial authorities in Mexico. His resolution was to come to Canada.
After
reviewing all the information before me, I am persuaded today, as was the
Refugee Protection Division in August 2006 that adequate, though not
necessarily perfect, state protection is still available to the applicant
should he return home; and while my own research on current country conditions indicates
that the situation in Mexico is not all favourable, the applicant has not
provided sufficient documentary evidence or information to persuade me
otherwise.
[30]
The
Applicant’s general complaint is that, in going through the new evidence, the
Officer simply relied upon the mere legislative framework, on new legislation
that has not been fully implemented, and on indications that politicians are
now interested in attracting the gay community in Mexico as a voting block. In
other words, the Applicant says the Officer did not address the actual
situation in Mexico to examine whether
adequate and effective protection exists.
[31]
The
Applicant cites and relies upon my own decision in Sanchez v. Canada (Minister of
Citizenship and Immigration) 2008 FC 1336 at paragraphs 85 and 86:
85 All
in all, there was cogent evidence before the Board that the police in Mexico are
corrupt and have extensive involvement with kidnapping gangs, that human rights
commissions are ineffective, and that government initiatives to deal with the
problem have largely failed. All of this is highly relevant to the issue of why
the Principal Applicant did not go to the police.
86 In other words, it was
the usual "mixed bag," but in this case the evidence that refuted the
Board's conclusions on this point was so cogent and so important to the
Applicants' case, that the Board's failure to deal with it and to simply rely
upon the usual presumptions of state protection looks more like defending a
general position on Mexico than addressing the specifics of the evidence before
the Board in this case.
[32]
The
Applicant also relies, among other cases, upon the decision of Justice
Mactavish in Garcia v. Canada (Minister of Citizenship and Immigration)
2005 FC 807 at paragraphs 16 and 17:
16 The
evidence referred to by the Board does not squarely address the incidence of
violent crime directed at gays and lesbians in Mexico City because
of their sexual orientation. The central issue in this case is whether, given
the fact that he is an openly gay man, Mr. Garcia would be able to live safely
in Mexico City. As such, evidence relating to homophobic crimes directed
against gay men in that city should have been of critical concern to the Board.
17 While it might have
been open to the Board to choose not to ascribe much weight to the Report,
given that it was prepared six years before Mr. Garcia's refugee hearing, in
all of the circumstances, it was not open to the Board to simply ignore it.
[33]
In
my view, each of the cases relied upon by the Applicant turn on their particular
facts and on what the documentation before the IRD, or a PRRA officer, revealed
about the situation in Mexico.
[34]
The
Applicant says he is not asking the Court to re-weigh the evidence and that, if
the new documentation is examined, it will reveal an objective basis for his
fears that was not addressed by the Board with anything like an adequate
analysis.
[35]
I
have myself examined the documents in question against the points raised for
each document by the Applicant.
[36]
It
has to be remembered that in this case, the onus was on the Applicant to rebut
the presumption of state protection. State protection only needs to be
adequate. It also has to be remembered that the Applicant made no effort to
seek state protection, so he has no personal evidence to offer in this regard.
[37]
Generally
speaking, with most of the documents, I think that the Respondent is correct
that the Officer either shows he has considered the evidence thoroughly and has
taken into consideration the points raised by the Applicant, or relies upon
facts so similar that his general statements suffice to show that he knew the
evidence.
[38]
The
one document that concerns me is Response to Information Request (MEX101377.E)
from the Research Directorate Immigration and Refugee Board which the Officer
summarizes as follows:
This
information shows that a 2005 study found that 94.7 percent of homosexuals
interviewed suffered discrimination. It showed that 40 percent felt that they
had been treated unfairly at work and 72 percent believed it was more difficult
to find employment as a homosexual. Information from the Human Rights
Commission of the State of Jalisco (2006) shows that employers justify
discriminatory treatment at work.
[39]
As this
summary makes clear, this kind of discrimination is not evidence that Mexico would not protect the
Applicant against risk if he were to seek state protection. But the balance of
the document goes on to discuss the incidence of homophobic murders in Mexico and the fact that the
authorities “minimize the significance of sexual preference in hate crimes”:
An
official with the CEDHJ stated that, when a crime against a member of the
homosexual, transsexual or lesbian community is investigated, authorities tend
not to consider the fact that the crime has been motivated by “hate”. … As a
consequence of this attitude, the coordinator of a sexual rights group argued
that the effectiveness of investigating and preventing these types of crimes is
reduced.
[40]
This
document does not suggest that homosexual people are not protected. It suggests
that the authorities do not identify crimes in a way that would allow them to
be identified as hate crimes so that investigation and prevention could be made
more effective.
[41]
This
does not suggest to me that the state will not respond to homosexual fears but,
rather, that they could do a better job if they were more open about homophobic
motivation in crime.
[42]
All
in all then, I do not think that the points of concern in the documentation
raised by the Applicant are sufficient to show that the Officer failed to
consider relevant evidence or that the Officer did not give a reasonable
summary of what the documents, collectively, reveal. As always, of course,
different conclusions and a different emphasis may well have been justified, but
I can see nothing that, when read in its entirety, would take this Decision
outside the range of possible, acceptable outcomes which are defensible in
respect of the facts and the law.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
Application is dismissed.
2. There are no
questions for certification.
“James Russell”
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