Date: 20082212
Docket: IMM-1786-08
Citation: 2008 FC 1386
Ottawa, Ontario, December 22, 2008
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
NELLIE LUGO ADUNA
ASHLEY ANDRADE LUGO
ANGEL RODRIGO ANDRADE LUGO
ALEJJANDRO ANDRADE LUGO
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review under subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, of
a decision dated February 27, 2008, by the pre‑removal risk assessment
officer (the PRRA officer).
[2]
Nellie Lugo Aduna (the principal applicant) and her three
children—Ashley,
Alejandro and Angel Rodrigo Andrade Lugo—are Mexican citizens.
[3]
In
a letter dated February 27, 2008, the PRRA officer stated that the
pre-removal risk assessment application was rejected on the following ground:
[translation]
It has been established that you would
not be subject to a risk of torture or persecution or face cruel or unusual treatment
or punishment or a risk to your life should you return to your native country
or habitual place of residence.
[4]
In
her analysis of the risks alleged by the principal applicant, the PRRA officer
observed that the principal applicant reiterated substantially the same
allegations that she had made to the Refugee Protection Division (RPD). The
officer also considered the new evidence that was presented to her, i.e., the
arrest of the principal applicant’s father and his death in prison. She
concluded as follows:
[translation]
Despite the sympathy that I feel for the
applicant because of her father’s violent death, the new evidence does not establish
a link between this tragedy and the applicant’s allegations.
[5]
Specifically,
the officer found that
-
there
was no indication that the principal applicant’s father had requested asylum in
Canada;
-
the
information submitted by the principal applicant showed that her mother and
father are separated; one lives in Telamac and the other in Mexico City, F.D.;
-
there
is no probative evidence that her father was arrested arbitrarily. On the
contrary, the newspaper article filed in evidence states that he was imprisoned
following his arrest for extortion; and
-
the
same newspaper article reported that her father was strangled by another
inmate.
[6]
The
officer added: [translation]
“There was no indication that this man [the alleged murderer] was acting under
Senator Anaya’s orders. Also, these facts occurred in the State of Mexico, whereas
Senator Anaya’s seat is in Tlaxcala state.”
[7]
On
the issue of state protection, the officer indicated that the RPD noted that the
principal applicant had never filed a complaint with the Mexican authorities.
Furthermore, the RPD determined that the Mexican state was capable of
protecting the principal applicant and her children. Noting that the situation
in Mexico had not changed significantly since the date of the RPD decision, the
PRRA officer determined: [translation]
“Although state protection in Mexico is not perfect, I am nonetheless satisfied
from the documentary evidence that it exists and is available to the principal
applicant and her family.”
[8]
The
appropriate standard of review of a PRRA officer’s decision is reasonableness (see,
inter alia, Demirovic v. Minister of
Citizenship and Immigration, 2005 FC 1284, at paragraph 23, and Kandiah
v. Solicitor General, 2005 FC 1057, at paragraph 6).
[9]
According
to the principal applicant, the PRRA officer did not pay enough attention to
the newspaper article reporting her father’s death or to the letter from her
Mexican lawyer, which makes the connection between her father’s imprisonment
and his death, on the one hand, and the principal applicant’s persecution, on
the other hand. In fact, the PRRA officer read the letter but found as follows:
[translation]
Again, there is no evidence that the
applicant’s father was arrested unlawfully. It is reasonable to think that if
that were the case, the applicant’s lawyer would have started legal proceedings
to expose this. I also note that the lawyer did not mention the name or names
of the alleged agents of persecution, particularly, Senator Ayala [sic].
For all these reasons I am not assigning any weight to this letter from an
interested party.
[10] It therefore
appears that the applicant simply disagrees with the weight the officer gave to
various parts of the evidence. Administrative tribunals are granted broad
discretion on questions of fact (see Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, at paragraph 51 and Aguebor v. Minister of Employment and Immigration
(1993), 160 N.R. 315). It is not the Court’s role to substitute its reasoning
for the officer’s. In Augusto
v. Solicitor General,
2005 FC 673, Madam Justice Layden-Stevenson wrote:
[9] . . . In the absence of having
failed to consider relevant factors or having relied upon irrelevant ones, the
weighing of the evidence lies within the purview of the officer conducting the
assessment and does not normally give rise to judicial review. Here, the
reasons reveal that the PRRA officer did consider the evidence tendered by Ms.
Augusto, but gave it little weight. There was nothing unreasonable about the
officer having done so.
[11] Furthermore,
subsection 10.4 of the Citizenship and Immigration Canada manual regarding
evidence to be considered on a pre-removal risk assessment, points out that
Having obtained
information on the facts of the case, the PRRA officer has to weigh any
conflicting evidence. The decision-maker has to determine which facts have been
established on
a balance
of probabilities and which statements are supported by the evidence. It is not
a simple task to decide which fact or collection of facts is more reasonable or
more likely, given the
circumstances of the
case.
[12] Here, it is
clear that the PRRA officer properly considered the relevant written evidence.
The Court must defer to her decision, especially on the issue of weighing the
evidence. In my view, her findings constitute an “acceptable and rational
solution”, as set out in Dunsmuir, above, at paragraph 47. The intervention
of this Court is therefore not warranted.
[13] For all these
reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision dated February 27, 2008, by the
pre‑removal risk assessment officer is dismissed.
“Yvon
Pinard”
Certified
true translation
Mary
Jo Egan, LLB
Email this Content