Date: 20070329
Docket: IMM-3429-06
Citation: 2007 FC 339
Toronto, Ontario, March 29,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
BLANCA LUZ GONZALEZ GONZALEZ
OLIVER RIVERA GONZALEZ
JUNIOR RIVERA GONZALEZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants comprise a mother and her two children, all citizens of Mexico, who claimed
refugee protection under the provisions of sections 26 and 27 (1) of the
Immigration and Refugee Protection Act S.C. 2001,
c.27 (IRPA). The Immigration and Refugee Board of Canada, Refugee
Protection Division by its decision dated May 25, 2006 determined that the
Applicants were not convention refugees and not persons in need of protection,
thereby rejecting the claims. The Applicants seek judicial review of that
decision.
[2]
For
the reasons that follow I find that the application is dismissed.
[3]
The
reasons of the Board are probing and sensitive to the case of the Applicants.
There is no doubt that the Board was sensitive to the fact that the Applicant
was a woman and was claiming that she suffered abuse at the hands of her former
partner in Mexico. In some respects the Board found the mother to be a credible
witness however, it did not find that her evidence as to the level of risk that
her former partner poses to be credible. The whole of those reasons need not be
repeated, however the findings at page 3 and conclusion at page 8 reflect the
overall determination by the Board:
Page 3:
I find that the evidence presented in
support of the principal claimant’s allegations does not establish a serious
possibility that she or her children would be subjected to any of the harms
listed in section 96 or 97.
In general, I found the claimant to be a
credible witness, particularly with respect to her evidence regarding the abuse
she suffered at the hands of her former partner and the efforts she made to
deal with her problems, which ultimately resulted in her leaving him in 1997.
However, I do not find portions of her
evidence regarding the level of risk this man poses to her and her children to
be credible.
Page 8:
Based on the totality of the claimants’
evidence, when viewed in light of the documentary evidence relating to child
custody, I find that the claimants have failed to establish a serious
possibility that they would be subjected to any of the harms identified in
sections 96 or 97(1). In arriving at this decision, I have considered the
psychologist’s report and the letter from Women’s Habitat and accept their
conclusions that the principal claimant was abused during her relationship with
her former partner and that she continues to suffer stress as a result of the
ongoing relationship she must maintain with him because of their children.
However, these reports do not alter my findings regarding the level of risk the
former partner posed to the claimants during the years that they were separated
or that he would present if they were to return to Mexico.
[4]
The
arguments raised by the Applicants’ counsel in this judicial review deal with
the evidentiary finding and conclusions of the Board. Those findings and
conclusions are entitled to great respect and should not be set aside unless
they are patently unreasonable (Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315 at para. 4 (F.C.A.)). I do not find a
basis for setting aside the decision of the Board in this respect.
[5]
Applicants’
counsel submitted that the Board had given inefficient consideration to the
Gender Guidelines, to the psychological evidence and to the best interests of
the children. A review of the reasons demonstrates that sufficient
consideration was given to all these matters. As Justice Russell said in Ortiz
v. Canada (Minister of
Citizenship and Immigration) 2006 F.C. 1365 at paragraph 44
disagreement with the Board is not a sufficient basis for this Court to
interfere with the decision.
[6]
The
Applicants raise a further issue under section 108(4) of IRPA which
states in effect, that even if the reasons for which a person has sought
refugee protection have ceased to exist, the claim should not be rejected if
the Applicants establishes that there are “compelling reasons” arising out of
previous persecution, torture, treatment as persecution whereby the Applicants
should not avail themselves of the protection of the country which they left.
The Applicants argue that the Board must consider the issue of “compelling
reasons” even if the Applicants themselves do not raise the issue.
[7]
Section
108(4) makes it clear that the onus is on the Applicants to establish that
there are “compelling reasons”. The jurisprudence such as Ortiz supra at
paragraphs 60 and 61 makes it clear that this provision is exceptional and applies
only in extraordinary cases. There is nothing in IRPA or the
jurisprudence that would indicate that the Board must raise the issue on its
own accord. There was no error in this case in the Board not raising the issue.
[8]
The
application will be dismissed. There is no question requiring certification. There
is no order as to costs.
JUDGMENT
For the Reasons given;
THIS COURT ADJUDGES that:
1.
The
application is dismissed;
2.
There
is no question for certification; and
3.
No
order as to costs.
“Roger
T. Hughes”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3429-06
STYLE OF CAUSE: BLANCA LUZ GONZALEZ GONZALEZ
OLIVER RIVERA GONZALEZ JUNIOR
RIVERA
GONZALEZ v. THE
MINISTER OF
CITIZENSHIP AND
IMMIGRATION
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: March
29, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES J.
DATED: March
29 2007
APPEARANCES:
|
DANIEL FINE
|
FOR THE APPLICANTS
|
|
GORDON LEE
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
DANIEL FINE
TORONTO, ON
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy Attorney
General of Canada
|
FOR THE RESPONDENT
|
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