Date:
20110920
Docket: IMM-881-11
Citation: 2011 FC 1082
Calgary, Alberta, September 20, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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ALONSO ELENES GAONA
SUSANA GASTELUM OCHOA AND
ALONSO ELENES GASTELUM
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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
[1]
This
is an application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 of a decision to deny the
applicants’ Pre-Removal Risk Assessment (PRRA application). The officer
determined that if Mr. Gaona and the members of his family were removed to
Mexico they would not be personally subjected to a danger, “believed on
substantial grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture” or “to a risk to their lives or to a risk of cruel
and unusual treatment or punishment.”
[2]
This
family came to Canada in 2005 and filed an application for refugee
protection. Their claim was rejected on April 28, 2006 and their application
for leave to judicially review that decision was denied by this Court on August
14, 2006.
[3]
In
their PRRA application, the applicants submitted the same risk allegations that had previously been
rejected by the Refugee Protection Division of the Immigration and Refugee
Board. The RPD rejected their claim because it did not believe the
applicants. It stated that “the panel is of the opinion that there was no credible
or trustworthy evidence adduced at the hearing on the basis of which it could
have granted refugee protection.”
[4]
A
PRRA application cannot be allowed to become a second hearing on a claim for
protection: Kaybaki v Canada (Solicitor General of Canada), 2004 FC 32.
[5]
In
my view, the officer did not err by relying on the RPD’s findings in the
absence of new evidence to establish risk: Cupid v Canada (Minister of Citizenship and
Immigration), 2007 FC
176.
[6]
The
applicants did not submit any new evidence to the officer that would have
warranted a different conclusion. The alleged new evidence was found to be
vague and of little persuasive value. Having reviewed that evidence in light
of the RPD decision, I agree with that characterization. It was reasonable for
the officer to determine that the applicants did not demonstrate a risk to
their lives should they return to Mexico.
[7]
Two
addition grounds of review were set out in the written memorandum but were not
pursued at the hearing. Both are without merit. There was no abuse of process
nor was the officer acting contrary to the principles of procedural fairness in
providing them with the PRRA decision some four months after it had been
rendered. Further, the failure
to provide the applicants with an opportunity to address a legal authority
relied upon by the officer does not constitute a breach of procedural fairness;
it is not extrinsic evidence and, in any event, the applicants and their
counsel are presumed to know the law.
[8]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed and no question is certified.
"Russel W. Zinn"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-881-11
STYLE OF CAUSE: ALONSO
ELENES GAONA et al. v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 19, 2011
REASONS FOR JUDGMENT
AND JUDGMENT: ZINN,
J.
DATED: September 20, 2011
APPEARANCES:
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Mr. Birjinder Mangat
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FOR THE APPLICANT
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Ms. Camille Audain
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Mangat Law Office
Calgary, Alberta
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FOR THE APPLICANT
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Myles J. Kirvan
Deputy Attorney General of Canada
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FOR THE RESPONDENT
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