Date: 20081222
Docket: IMM-2333-08
Citation: 2008 FC 1407
BETWEEN:
JUAN CARLOS VELAZQUEZ ORTEGA
NORMA ANGELICA PECH BARRERA
JOSE CARLOS VELAZQUEZ PECH
JUAN ANGEL VELAZQUEZ PECH
AXEL
ALEJANDRO VELAZQUEZ PECH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR
JUDGMENT
PHELAN J.
I. INTRODUCTION
[1]
These
are the reasons for my Order given orally on December 15, 2008, in which I
granted this judicial review of a negative Pre-Removal Risk Assessment (PRRA).
[2]
The
issue in this matter is the failure of the PRRA Officer to consider evidence
filed by the Applicants. A stay of removal had been granted by Justice Hansen.
II. BACKGROUND
[3]
The
principal Applicant is a male citizen of Mexico. The
co-Applicants are Mr. Velazquez’s wife and three minor children, all of whom
are also citizens of Mexico.
[4]
Mr.
Velazquez claimed that he had been employed as an organizer for the Partido
de la Revolucion Democratica (PRD) and had been involved in demonstrations
in his home city of Cancun. He also claimed that he had been photographed
in newspaper articles reporting on recent demonstrations; however, he had been
wearing a mask of former President Fox.
[5]
Mr.
Velazquez based his refugee claim on his fear for his life in Mexico. He alleged
that he had been kidnapped, detained, threatened and forced to falsely confess
to being a drug addict.
[6]
In
Mr. Velazquez’s refugee hearing, he alleged that some members of his political
party wanted to get rid of him and therefore colluded with police to have him
arrested and threatened. He also relied on letters of good character written by
other party members.
[7]
The
Immigration and Refugee Board (IRB) member, in deciding against Mr. Velazquez,
put little weight on newspaper articles about the demonstrations because they
did not mention him by name or show his face.
[8]
Subsequent
to the IRB decision, Mr. Velazquez learned that there were other newspaper
articles which named him and corroborated his drugs story.
[9]
In
filing his PRRA application, the Applicant, acting on his own, listed the
various newspaper articles upon which he was relying. The application was sent
to the Respondent’s office via UPS courier.
[10]
In
advance of the filing date for submission of documentary evidence, the
Applicant sent via UPS the listed newspaper articles but did not, this time,
keep a copy of the evidence.
[11]
The
PRRA application was denied. There was no mention in the decision of the
articles. Further, upon examination of the file at the PRRA office, there were
no articles or reference to them.
[12]
The
Applicant has subsequently obtained what appear to be copies of the articles
and the translations thereof.
III. ANALYSIS
[13]
The
issue is whether the Applicants were denied natural justice or fairness under
these circumstances. The standard of review on this type of issue has been held
consistently to be correctness (Dunsmuir v. New Brunswick, 2008 SCC 9).
[14]
The
preponderance of evidence is that the Applicants intended to rely on these
articles, that the PRRA Officer had notice of such reliance in the application
form, that the articles were sent by a method which had been proven reliable,
and that the articles were never put in the appropriate file nor considered by
the PRRA Officer.
[15]
In
the absence of any evidence to the contrary, it appears that the original articles
were lost through no fault of the Applicant.
[16]
The
articles are evidence that directly address a key finding by the IRB. It is not
for the Court to assess the veracity or weight of this evidence. The Court need
only concern itself with determining whether such missing evidence is
potentially relevant to the ultimate decision. The Court must ensure that there
is nothing frivolous or insignificant about the missing evidence.
[17]
Having
considered that the evidence is potentially relevant, it is simple to conclude
that this evidence is properly receivable by the PRRA Officer even though it
pre-dates the IRB decision.
[18]
As
held in Raza v. Canada (Minister of Citizenship and Immigration), 2007
FCA 385, evidence may be considered “new” for purposes of a PRRA where it is
evidence that can contradict a finding of fact by the Refugee Protection
Division. The missing evidence has that quality to it.
[19]
The
Applicants’ right to have their case decided on the evidence was undermined
through no fault of their own. The very purpose of a PRRA – to ensure that
persons are not sent back to countries where they may be subject to real risk
to life and safety – is undermined when a decision is made on an incomplete
record on material matters.
[20]
This
is not a case where the Court would or could conclude that the Applicants’ case
is so hopeless or the result so inevitably against them that there is no point
in a re-determination (see Mobil Oil Canada Ltd. v. Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202).
IV. CONCLUSION
[21]
Therefore,
the judicial review will be granted, the PRRA decision quashed and the matter
remitted back to be heard by a different officer and on an updated record.
There is no question for certification.
“Michael
L. Phelan”
Ottawa,
Ontario
December
22, 2008
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2333-08
STYLE OF CAUSE: JUAN
CARLOS VELAZQUEZ ORTEGA
NORMA ANGELICA PECH BARRERA
JOSE
CARLOS VELAZQUEZ PECH
JUAN
ANGEL VELAZQUEZ PECH
AXEL
ALEJANDRO VELAZQUEZ PECH
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: December
15, 2008
REASONS FOR JUDGMENT: Phelan, J.
DATED: December
22, 2008
APPEARANCES:
|
Ms. Alyssa
Manning
|
FOR THE APPLICANTS
|
|
Mr. David
Knapp
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
VANDERVENNEN
LEHRER
Barristers
& Solicitors
Toronto, Ontario
|
FOR THE APPLICANTS
|
|
MR. JOHN H.
SIMS, Q.C.
Deputy
Attorney General of Canada
Toronto,
Ontario
|
FOR THE RESPONDENT
|
s
Email this Content