Date: 20071029
Docket: IMM-3943-07
Citation:
2007 FC 1116
Ottawa, Ontario, October 29, 2007
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
RICARDO MORALES ALBA
MARICRUZ ORALES BARRADAS
XIOMARA YEDID MORALES MORALES
LEILANI DESIRE MORALES MORALES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The
absence of evidence as to the existence of irreparable harm is sufficient in
and of itself to dismiss the stay application.
[2]
The
applicants have adduced no evidence of personal risk should they return to
Mexico.
[3]
It
is not sufficient for claimants to provide documentary evidence about
problematic situations in their country in order to be recognized as
"Convention refugees" or "persons in need of protection". The
claimants must also demonstrate a connection between that evidence and their personal
situation, which they failed to do (Rahaman v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 89, [2002] F.C.J. No. 302 (F.C.A.)
(QL)).
[4]
Documentary
evidence about the current general situation in a refugee claimant's country
cannot by itself establish that the refugee claim is well-founded (Alexibich
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 53, [2002]
F.C.J. No. 57 (QL); Ithibu v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 288, [2001] F.C.J. No. 499 (QL)).
[5]
With
respect to the assessment of the evidence, it is up to the panel, and not the
applicants, to weigh the evidence before it and to make the appropriate
findings. In so doing, the panel may choose from among the evidence as it sees
fit, and this choice is an integral part of its role and expertise (Mahendran
v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 549
(QL), (1991) 134 N.R. 316 (F.C.A.), at page 319, paragraph 8 in fine and
9; Application for leave to appeal to the Supreme Court of Canada denied on
February 20, 1992: [1992] 138 N.R. 404 (No. 22661); Hassan v. Canada
(Minister of Employment and Immigration), [1992] F.C.J. No. 946 (QL),
(1992) 147 N.R. 317 (F.C.A.); Akinlolu v. Canada (Minister of Citizenship
and Immigration), [1997] F.C.J. No. 296 (QL)).
JUDICIAL PROCEDURE
[6]
This is an
application to stay a removal order issued against the applicants, and the said
application is joined to an application for leave and judicial review (ALJR) challenging
the decision of the pre‑removal risk assessment
officer (PRRA officer), N. Gagné, dated July 20, 2007, denying the PRRA
application.
FACTS
[7]
The
applicants, a married couple and their two children, are Mexican citizens.
[8]
On
February 23, 2006, the applicants arrived in Canada.
[9]
On March
10, 2006, the applicants claimed refugee protection.
[10]
On October
24, 2006, the Immigration and Refugee Board (IRB) denied the applicants’ claim,
finding that they were not credible and that they should have been able to
avail themselves of Mexican state protection.
[11]
On March
20, 2007, the Federal Court dismissed the application for judicial review
of the IRB decision dated October 24, 2006.
[12]
On June 5,
2007, the applicants submitted a PRRA application, which was subsequently
denied.
[13]
On
September 24, 2007, the applicants filed an ALJR of the negative PRRA decision.
ANALYSIS
[14]
In order
to evaluate the merits of the stay application, the Court must determine
whether the applicants met the tests laid down by the Federal Court of Appeal
in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R.
302 (F.C.A.), [1988] F.C.J. No. 587 (QL).
[15]
In this
proceeding, the Federal Court of Appeal adopted three tests that it imported
from the case law on injunctions, specifically from the Supreme Court of Canada
decision in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.,
[1987] 1 S.C.R. 110. These three tests are
·
the existence
of a serious issue;
·
the
existence of irreparable harm;
·
and the
weighing of the balance of convenience.
[16]
The
applicants failed to demonstrate that there was a serious issue to be tried in
their application for leave respecting the PRRA officer’s decision, that
irreparable harm would result from their removal to Mexico or that their
inconvenience would be greater than that caused to the public interest in
ensuring that the immigration process provided for in the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, follows its course.
SERIOUS ISSUE
i) The applicants
should have been able to avail themselves of Mexican state protection
[17]
The determination
of risk is essentially a question of fact and, for this reason, great deference
must be accorded thereto.
[18]
In support
of their PRRA application, the applicants reiterated the same facts and fears
as those previously examined by the Refugee Protection Division (RPD) and found
to be not credible.
[19]
On the one
hand, the PRRA officer noted that the RPD’s reasons indicate that the RPD found
the applicants’ account lacked credibility because of contradictions and
omissions in their account.
[20]
Furthermore,
the RPD found that the applicants, who had never complained to the
authorities in their country, were not successful in demonstrating that
state protection was not available in Mexico.
[21]
It was up
to the applicants to advance clear and convincing evidence of Mexico’s
inability to protect its nationals (Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689).
[22]
The
applicants also had to prove that they had exhausted all of the avenues
available in their country before being able to claim protection elsewhere,
which they did not successfully do in this case (Kadenko v. Canada
(Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.)).
[23]
On the
other hand, the officer noted that the documentary evidence analyzed by the RPD
in 2006 is essentially the same as it is today.
[24]
With
respect to the documentary evidence, the PRRA officer found that the objective
documentary evidence regarding the situation in Mexico did not support the
applicants’ submissions on the inability of the Mexican state to provide them
with adequate protection.
[25]
In this
regard, in Espinosa v. Canada (Minister of Citizenship and Immigration),
2005 FC 1393, [2005] F.C.J. No. 1737 (QL), Justice Yves de Montigny indicated
that the presumption of state protection cannot be easily rebutted:
[7]
. . . To rebut this presumption, it would not be sufficient to allege that the
police are corrupt or that a police officer did not follow up on a complaint. From
this point of view, I, like many of my colleagues, am willing to admit that
Mexico is able to protect its citizens even though this protection is far from
perfect. . . . (Emphasis added.)
[26]
Furthermore,
the protection provided by the state does not have to be perfect, but simply
adequate, as the state is not able to protect all of its citizens at all times
(Canada (Minister of Employment and Immigration) v. Villafranca (1993)
18 Imm. L.R. (2d) 130, [1992] F.C.J. No. 1189 (QL)).
[27]
In this
regard, this Court’s recent case law is that state protection is available in Mexico
and that the state is making efforts to address problems linked to corruption
and crime (Burgos v. Canada (Minister of Citizenship and Immigration),
2006 FC 1537, [2006] F.C.J. No. 1924 (QL); Lopez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 198, [2007] F.C.J. No. 278 (QL)).
[28]
Thus, the
PRRA officer considered the serious efforts of the Mexican authorities to address,
among other things, the phenomenon of corruption within the state and police
forces.
[29]
Given the
foregoing, it was certainly not unreasonable for the PRRA officer to find that
the applicants could have availed themselves of state protection.
[30]
In their
memorandum, the applicants referred to various excerpts from the objective
documentary evidence in order to highlight the situation of violence in Mexico.
[31]
It is not
sufficient for claimants to provide documentary evidence about problematic
situations in their country in order to be recognized as “Convention refugees”
or “persons in need of protection”. The claimants must also demonstrate a
connection between that evidence and their personal situation, which
they failed to do (Rahaman, above).
[32]
Documentary
evidence about the current general situation in a refugee claimant’s country
cannot by itself establish that the refugee claim is well-founded (Alexibich,
above; Ithibu, above).
[33]
The
applicants claim that the PRRA officer allegedly carried out an incomplete analysis
of the evidence presented in support of their record and that he is supposed to
have disregarded certain evidence they produced in support of their claim.
[34]
On the one
hand, at page 3 of his decision, the officer specifically mentions all
of the documents submitted by the applicants in support of their claim.
[35]
On the
other hand, there is no evidence in the record demonstrating that these
documents were indeed submitted to the PRRA officer. In particular, the applicants’
written submissions for their PRRA application do not contain any list of
documents filed. This argument should therefore not be accepted by the Court.
[36]
With
respect to the assessment of the evidence, it is up to the panel, and not the
applicants, to weigh the evidence before it and to make the appropriate
findings. In so doing, the panel may choose from among the evidence as it sees
fit, and this choice is an integral part of its role and expertise (Mahendran,
above; Application for leave to appeal to the Supreme Court of Canada denied on
February 20, 1992, above; Hassan, above; Akinlolu, above).
IRREPARABLE HARM
[37]
It is
important to note that the Court defined irreparable harm in Kerrutt v.
Canada (Minister of Employment and Immigration), (1992) 53 F.T.R. 93,
[1992] F.C.J. No. 237 (QL), as the return of a person to a country where his or
her safety or life is in jeopardy.
[38]
The
applicants have adduced no evidence of personal risk should they return to
Mexico.
[39]
The
absence of evidence as to the existence of irreparable harm is sufficient in
and of itself to dismiss the stay application.
BALANCE OF CONVENIENCE
[40]
Justice
Barbara Reed, in Membreno-Garcia v. Canada (Minister of Employment and
Immigration), [1992] 3 F.C. 306, [1992] F.C.J. No. 535 (QL), discussed the
issue of balance of convenience in regard to a stay application and the public
interest that must be considered:
[18] What is
in issue, however, when considering balance of convenience, is the extent to which
the granting of stays might become a practice which thwarts the efficient
operation of the immigration legislation. It is well known that the present
procedures were put in place because a practice had grown up in which many
cases, totally devoid of merit, were initiated in the court, indeed were
clogging the court, for the sole purpose of buying the appellants further time
in Canada. There is a public interest in having a system which operates in an
efficient, expeditious and fair manner and which, to the greatest extent
possible, does not lend itself to abusive practices. This is the public
interest which in my view must be weighed against the potential harm to the
applicant if a stay is not granted. (Emphasis added.)
CONCLUSION
[41]
The
applicants benefited from all of the legal avenues available to them. The
respondent’s interest in enforcing the removal order promptly takes precedence
over the hardship that the applicants may suffer.
JUDGMENT
THE COURT ORDERS that the
applicants’ stay application be dismissed.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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