Date: 20110617
Docket: IMM-7037-10
Citation: 2011 FC 716
Ottawa, Ontario, June 17, 2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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LUXZUMIKHANDTHTHAN KANDASAMY
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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 for judicial review of a negative decision dated November 22,
2010, of a Risk Assessment (RA) under section 115(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
For
the reasons that follow, the application shall be dismissed.
[3]
The
applicant is a Sri Lankan citizen who arrived in Canada from Mexico in April
2010 and made a refugee claim. He was found ineligible under 101(1)(d)
of IRPA to have his claim referred to the Immigration Refugee Board (IRB)
because he had already been accepted in Mexico as a
non-immigrant refugee, for a period of one year from March 10, 2010.
[4]
He
fears that if he is sent back to Mexico he will be persecuted
because he is a member of a visible minority group, and will be
victimized by various unnamed criminals or corrupt police officers.
[5]
In
his RA application, he mentioned that he has been robbed at
gunpoint while in Mexico. He stated that although there were police
nearby, he did not ask for help because he did not want to get caught in a
potential crossfire between the police and criminals.
[6]
The
Risk Assessment Officer (Officer) analyzed the country conditions in Mexico and came to
the conclusion that there was insufficient evidence that the applicant’s
profile would make him a particular target.
[7]
The
Court will intervene only if the decision does not fall within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at
para 47).
[8]
The
applicant states that illegal migrants in Mexico are targeted
by criminal gangs as well as the police and security forces. He submits that
although he has been offered protection by Mexico, he is viewed, for all
intents and purposes, as an illegal migrant because of his characteristics; dark
skin, no language skills in Spanish and no family ties in Mexico. As a
result, he is treated in the same way as an illegal migrant. Because of this,
he argues that the Officer has failed to recognize that the issue for
the applicant in Mexico is not who he is but simply who he is perceived
to be. He states that there is no distinction between regular and
irregular migrants in Mexico and alleges that this is well documented (Applicant’s
Record, pages 70 and 109).
[9]
The
applicant refers to Kovacs v Canada (Minister of
Citizenship and Immigration) 2010 FC 1003, at para 52, where the Court
found that a PRRA Officer erred in her assessment of the documentary evidence:
“[T]he subjective
character of fear of persecution requires an evaluation of the opinions and
feelings of the person concerned. It is also in the light of such opinions and
feelings that any actual or anticipated measures against him must necessarily
be viewed. Due to variations in the psychological make-up of individuals and
in the circumstances of each case, interpretations of what amounts to
persecution are bound to vary.”
[10]
The
respondent underscores that although the applicant has argued that small
fragments of the documentary evidence confirm that visible minorities are
subject to violence, there is no reviewable error made by the Officer in
its analysis (Gavoci v Canada (Minister of Citizenship and
Immigration), 2005 FC 207, Kaur v Canada (Minister of Citizenship and Immigration),
2010 FC 417).
[11]
There
is a presumption that the Officer considered all the documentary evidence
submitted by the parties.
[12]
The
Court finds that the Officer's conclusion that the applicant's situation is not
comparable to migrants as described in the evidence provided, is reasonable.
The basis of that finding is justified by the fact that the applicant has a
regular status in Mexico.
[13]
The
Officer analyzed, considered and commented documents on country conditions in Mexico and found
insufficient evidence to support the applicant's claim that he would be at risk
if returned. There is no reviewable error here.
[14]
The
decision taken as a whole meets the criteria mentioned in Dunsmuir at
para.47.
[15]
It
is not the role of this Court to re-weigh the facts already examined by a
decision-maker unless it is not supported by the evidence. The Court's
intervention is not warranted.
[16]
The
applicant proposes the following questions for certification:
i.
In
an application for protection pursuant to s. 115(1) of the Immigration and
Refugee Protection Act, where the applicant was offered protection in
another country, (other than Canada) is he afforded all of the same rights as
that of an applicant who seeks protection pursuant to sections 96 & 97 of
the Immigration and Refugee Protection Act?
i.
If
so, in an application for protection pursuant to s. 115(1) of the
Immigration and Refugee Protection Act, is there an obligation on the officer
conducting the risk assessment to assess all of the grounds for protection even
if those grounds are not raised by the applicant?
ii.
In
an application for protection pursuant to s. 115(1) of the Immigration and
Refugee Protection Act, is there a positive obligation on the Reviewing
Officer to have the requisite specialized knowledge and experience of country
conditions and for him to apply the law and established legal principles to the
facts of the case?
[17]
The
respondent opposes such questions. The Court agrees with the respondent that
the above-mentioned questions are not dispositive of the case at bar. Here,
the issue concerned the factual assessment determined by the Officer.
JUDGMENT
THIS COURT
ORDERS that:
1.
This
application for judicial review be dismissed.
2.
No
question is certified.
“Michel
Beaudry”
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