Date: 20080429
Docket: IMM-4176-07
Citation: 2008 FC 556
Toronto, Ontario, April 29, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ROCIO VILLAGRANA CAMPOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER FOR PUBLIC SAFETY AND
EMERGENCY PREPARDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult female citizen of Mexico. She
entered Canada first on
December 18, 2004 but was refused admission and sent back to Mexico on December
19, 2004. She entered Canada again on January 13, 2005 and claimed Refugee
protection on the basis of apprehended harm from her common-law spouse (Luis
Duarte) in Mexico. That claim
was rejected by the Immigration and Refugee Protection Board on August 18,
2005. An application for leave for judicial review of that decision was
dismissed on February 16, 2006.
[2]
The
Applicant applied for a Pre-Removal Risk Assessment (PRRA), filed evidence in
addition to that before the Board on the Refugee hearing and made written submissions.
By that time, the Applicant had given birth in Canada to a child
(Ashley) who was not fathered by her former common-law spouse. The father of
the child had abandoned the Applicant and was no longer keeping company with
her.
[3]
In
her affidavit filed in support of the PRRA, the Applicant said, among other
things:
10.
Luis
(Duarte) is an alcoholic and a drug
addict. He is very violent man. He threatened many times that if I went to
the police about him, he would kill me. I am extremely afraid of him. I am
certain that if Ashley and I returned to Mexico, he would track us down and either kills
both of us or do us serious harm. I do not believe that the authorities in Mexico would be capable or even
willing to protect us.
[4]
In
written submissions filed by Counsel for the Applicant with the PRRA Officer
the following submissions were made, among others:
Second, a major new
development is the fact that the applicant has a 5-month old daughter (Ashley),
fathered by another man, not Mr. Duarte. In these PRRA submissions this fact
is not presented as a humanitarian factor, but as a factor which goes to the
risk that the applicant faces upon return to Mexico. The fact that the applicant had a
child with another man, not Mr. Duarte, will, by anyone’s reasoning, enrage Mr.
Duarte, who, as has been credibly demonstrated, considers the applicant his
possession, his woman, and who has vowed that if the applicant cannot be his,
the applicant will not be any man’s.
[5]
Counsel
for the parties agree that the PRRA hearing should not be a re-hearing of a
failed refugee claim. They also agree that PRRA Officer need not take into
consideration the best interests of a child who is not the subject of the
hearing. Neither point is the point made here.
[6]
The
point made here is that the Applicant, who is the subject of the hearing, would
be exposed to greater risk from her former common-law spouse should she return
to Mexico having given birth to a child of which the former spouse is not the
father. This point was clearly raised in evidence and in argument before the
PRRA officer yet the reasons for the decision delivered by the PRRA officer do
not anywhere indicate that this argument was appreciated or that consideration
was given to the argument.
[7]
This
argument raises a valid point. The Federal Court of Appeal in Varga v.
Canada (MCI) [2007] 4 FCR 3, 2006 FCA 394 expressly dealt with such an
argument and said that it is within the PRRA officer’s jurisdiction to consider
it at paragraph 17:
[17]
In oral argument, counsel for the respondents
argued that the PRRA officer failed to consider the possibility that, if their
two Canadian-born children went to Hungary, the respondents would
themselves be exposed to a greater risk of persecution. I agree that this is a
matter within the PRRA officer’s jurisdiction. However, since counsel did not
make this submission to the officer, he cannot complain that the officer was at
fault in not considering it.
[8]
In
the present case, the matter was clearly raised before the PRRA Officer yet not
considered. The Officer’s decision must be set aside and the matter returned
for re-determination by a different Officer on that basis alone.
[9]
The Applicant’s counsel raised a number of other
objections to the Officer’s reasoning which need not be addressed here. The
different Officer should not be constrained by the findings of the previous
Officer on any issue and must approach all matters anew.
[10]
There is no question for certification and no
special reason to order costs.
JUDGMENT
FOR THE
REASONS GIVEN:
THIS COURT ADJUDGES
that:
1. The application is allowed;
2. The
matter is returned for re-determination by a different Pre-Removal Risk
Assessment Officer; who shall approach all matters anew
3. There is no question for certification;
4. No Order as to costs.
“Roger
T. Hughes”
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