Date: 20081106
Docket: IMM-2397-08
Citation: 2008 FC 1242
Toronto, Ontario, November 6,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JULIO ESCALONA PEREZ AND
DENIS ALEXANDRA PEREZ DE ESCALONA
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are husband and wife, citizens of Venezuela. They,
together with their children, entered Canada from Venezuela in 1990
without status and only made refugee claims in 2002. The claims on behalf of
two of their children were pursued and ultimately allowed. A third child was
removed from Canada back to Venezuela. The claims of the
Applicants, the two parents, have been pursued through various proceedings
including the one under review, without success. Under review is a decision of
an Officer of the Respondent dated April 15, 2008, wherein the Applicants’
request for permanent residence in Canada by way of exemption on
humanitarian and compassionate (H&C) grounds was not granted.
[2]
For
the reasons that follow, I find that the application is dismissed.
[3]
The
Applicants arrived in Canada together with their three children in 1990
without status and did not make a claim for refugee protection until 2002. That
claim was rejected by a decision of the Board dated June 9, 2004. Leave to apply
for judicial review was denied. A pre-removal risk assessment was conducted
and a decision unfavourable to the Applicants was given December 16, 2005.
Leave to apply for judicial review was granted but that application was
dismissed by this Court on November 15, 2006.
[4]
The
Applicants had submitted an application for exemption on humanitarian and
compassionate grounds in 2005. However, since that time they have retained new
counsel who submitted a new application for exemption on their behalf by letter
dated January 5, 2007. By the decision now under review, dated April 15, 2008,
that application was not granted and a date for removal was set. The
Applicants applied for a stay of that removal which application was granted by
an Order of this Court dated June 2, 2008.
[5]
The
Applicants lived in a mountainous region in Venezuela and allege
that they became suspicious that drug dealings involving police officers and
government officials were occurring near their home. One day in about 1988,
they allege that police came to their home, roughed them up and took them away at
which time they were interrogated for a number of days and arrested on charges
related to dealing in drugs. The Applicants retained a lawyer who applied to
the Court on their behalf within a few days. A judge dismissed the charges for
lack of evidence and the Applicants were released.
[6]
Shortly
thereafter, another warrant for the Applicants’ arrest was issued. The basis
for and nature of that warrant is not clear on the evidence. The Applicants
apparently moved around in Venezuela until they left to come
to Canada in 1990. They
allege that they secured passports with the assistance of a relative who was a
government official. The warrant has never been executed even though photos of
the Applicants apparently appeared in local newspapers heightening the risk of
apprehension.
[7]
Since
arriving in Canada, the
Applicants have become settled without any evidence of problems or incidents.
The male Applicant has a business; the female Applicant has a job. One of
their sons was removed to Venezuela. There is little
evidence as to what has happened to him there.
[8]
The
Officer assessed the Applicants’ humanitarian and compassionate application and
approved the application of their youngest son, Pradiumna. The other Applicants
(mother and father) application was not granted. Hence this review.
[9]
Applicants’
counsel at the hearing defined the issue as one being whether the decision of the
Officer was reasonable having regard to the evidence presented. The single
circumstance raised in argument by Applicants’ counsel was whether the Officer
gave due consideration to the evidence as to whether the Applicants, if
returned to Venezuela, would be arrested under the warrant and placed in
detention under horrible circumstances for a prolonged period of time until the
merits of the matter could be determined by a Venezuelan court.
[10]
The
Applicants do not contest that they would bi given access to counsel in Venezuela, and do not
contest that, once the matter reached trial, they would be afforded due
process. The argument raised by the Applicants is that the Officer did not
deal adequately with the Applicants’ assertion that, if they were returned to
Venezuela, they would be arrested and imprisoned in horrible circumstances
pending trial and that this would constitute proper grounds for exemption from
rendering requirements in applying for permanent residence in Canada on
humanitarian and compassionate grounds.
[11]
Since
the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190 consideration has been given to the standard upon which a
review of an Officer’s humanitarian and compassion decision is to be made. As
stated by Dawson J. in Zambrano v. Canada (MCI) 2008 FC 481 at
paragraphs 31 and 32, the standard is that of reasonableness:
31 The appropriate standard of review
for a humanitarian and compassionate decision as a whole has previously been
held to be reasonableness simpliciter. See: Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 57-62. In my view, given
the discretionary nature of a humanitarian and compassionate decision and its
factual intensity, the deferential standard of reasonableness continues to be
appropriate. See: Dunsmuir at
paragraphs 51 and 53.
32 As to what the two standards of
review require of a reviewing court, the correctness standard does not require
the Court to show deference to the decision-maker. Rather, the Court is to
undertake its own analysis and determine whether it agrees with the
determination made by the decision-maker. In the event that the Court
disagrees, it is to substitute its own view and provide the correct answer. See:
Dunsmuir at paragraph 50. Review on the
reasonableness standard requires the Court to inquire into the qualities that
make a decision reasonable, which include both the process and the outcome.
Reasonableness is concerned principally with the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within the range of acceptable
outcomes that are defensible in fact and in law. See: Dunsmuir
at paragraph 47.
[12]
The
Applicants do not contest that the decision making process was transparent and
intelligible. What is contested is whether the decision was justified on the
evidence. They argue that the decision falls outside the range of reasonable outcomes.
[13]
The
Applicants accept that they bear the evidentiary burden of persuasion such that
the Officer must be persuaded that, on the evidence presented, exemption on
humanitarian and compassionate grounds is warranted. It must also be borne in
mind that a decision made on humanitarian and compassionate grounds is an
exceptional measure and discretionary one (Legault v. Canada (MCI), 2002
FCA 125 at para.15).
[14]
The
Applicants argue that, in arriving at the decision at issue, the Officer
erroneously did not take into consideration determinations by the Refugee Board
as to whether the Applicants’ stay for two years in Venezuela could be
explained, as could the manner in which they obtained passports to exit the
country. Further the Applicants’ argue that the Officer failed to consider
expert evidence presented to the Refugee Board to the effect that the
Applicants would be arrested upon re-entry to Venezuela.
[15]
As
to the obtaining of passports, the Board in its Reasons dated June 9, 2004 said
at page 7:
16. On the issue of credibility,
I note that there were several areas of inconsistent testimony between the
written narrative of the principal claimant’s Personal Information Form (PIF),
the oral allegations, and the contents of some of the supporting documents.
These, and some areas of implausibility, were pointed out by the Hearings
Officer in his submissions.
17. In my opinion, acceptable
explanations were provided in most areas, such as with respect to the means and
methods used by the claimants in leaving Venezuela, including the acquisition
of Venezuelan passports. I have no evidence that would contradict the
claimants’ sworn testimony, and it is plausible that the claimants obtained
legal documents with the assistance of a passport officer, their family
member. It is also plausible that they were facilitated in leaving Venezuela, even when there existed a
warrant of arrest.
[16]
As
to whether the Applicants would be subject to arrest upon their return to Venezuela, Applicants’
counsel points to expert evidence given by a Venezuelan lawyer, Dr. Alvarez, as
quoted at page 12 of the Board’s Reasons:
This judicial pronouncement is
equivalent in practice to this aspect: The accused would be immediately placed
in jail (imprisoned) without right to bond, which translate into an infinite trial
without respect for guarantee of physical integrity…
[17]
It
is clear, however that the evidence of the Venezuelan lawyer was compromised in
several respects and, as to the issue as to whether the Applicants’ could
expect fair process or be subjected to cruel and unusual treatment or
punishment, the Board concluded that the legal system worked in Venezuela. The
issue was set out at page 14 of their Reasons:
The determinative issue is
whether the claimants can expect a fair process of prosecution for having
allegedly violated an ordinary law of general application in Venezuela, given
all of the evidence, or whether, as counsel argues, they have good grounds to
fear measures that would amount to persecution for a Convention reason.
Counsel has argued that, among other things, the claimants have committed a
political act by fleeing Venezuela. Counsel also argues that the principal claimant can be
subject to a lengthy incarceration before trial, and that that would amount to
cruel and unusual treatment or punishment.
[18]
Without
reciting all of the Reasons of the Board which reviewed the evidence including
that of Dr. Alvarez, which it determined was compromised, the Board concluded
at pages 16 and 17 of its Reasons:
In the area of testimony, I
note another significant discrepancy that is relevant. The principal claimant
states orally that on being released, he actually saw a copy of the warrant of
arrest. Yet, in his narrative, he states that it was his lawyer who learned
that a new arrest warrant had been issued. The lawyer also mentions that the
new warrant of arrest was issued, once the police had learned that the
principal claimant had been released from detention.
Whatever version is correct,
there is a strong indication that the legal system worked in Venezuela for these particular
claimants, and they enjoyed due process. The principal claimant and the
female adult claimant were released from custody by Order of the 5th Court, whether they were physically
in the court, or whether the process was handled by their lawyer in their
absence.
If the legal system in Venezuela had failed its claimants, as
is their argument, it would be logical to assume that they would not have been
released. Or, it is logical to assume that they would have been rearrested, if
at the time there was a valid outstanding warrant for arrest, without being
given time to plan their escape.
[19]
When
read as a whole, the Reasons of the Board were essentially directed, in respect
of the two year stay and obtaining of passports, to credibility and lack of
contradictory evidence. In respect of the Venezuelan lawyer, his evidence was
considered to be compromised and, on the whole, the Board concluded that the
Applicants would not be subject to arrest or unreasonable detention upon return
to Venezuela.
[20]
Turning
to the decision of the Officer who rejected the humanitarian and compassionate
application, the Officer’s reason state:
I note that there has been
little information regarding the type of warrant and the circumstances
surrounding the issuance of the second warrant, other than what was provided to
the RPD over 4 years ago. I note that the applicants were the subject of the
warrant at the time of their departure from the country and for two years prior
to leaving the country. During the two years in Venezuela, immediately prior to their
departure, they had another child, in October 1988. They left the country
using passports from authorities at the airport. I note that this was
accomplished while they were the subjects of a warrant for arrest on charges
that were only two years old. I note that they continue to be represented by
counsel in Venezuela who was able to secure their
release and who provided evidence for consideration in their affairs in Canada. It is reasonable that they would
be represented by legal counsel upon their return to Venezuela and that if they were
arrested at some point, they would have access to this counsel. The evidence
before me does not support that they would be denied due process.
[21]
Given
the state of the evidence before the Officer such a determination is not
unreasonable. While the Officer does not specifically refer to whether the
Applicants’ two year stay in Venezuela was clandestine or not,
there is little in the Record one way of the other on the point. The
Applicants bear the evidentiary burden. As to whether passports were obtained
through a compliant relative who was a government official is not specifically
mentioned, what is stated is that the authorities at the airport stamped those
passports.
[22]
The
Officer’s Reasons address the Applicants’ son who was removed from Canada to Venezuela and comment
that there is no evidence that the authorities were making inquiries of the son
as to the Applicants:
The applicant’s son has
returned to Venezuela. I note that evidence has
not been provided to indicate that he has been approached, questioned or
contacted by the police or government authorities in an attempt to obtain
information about the whereabouts of his parents. Evidence does not indicate that
corrupt members of the PTJ, or those involved in the false charges, or those
involved in the drug deal that was witnessed by the principal applicant have
approached or contacted or threatened their son, in an attempt to locate the
applicants.
[23]
Applicants’
counsel argues that a lack of evidence cannot be used against them. This is
not so. The Applicants bear the evidentiary burden. It is reasonable to
expect that, if the authorities were making enquiries of the son, it would have
somehow been put in evidence. It is not unreasonable for the Officer to make
these observations.
[24]
The
Officer concluded at the penultimate page of the Reasons:
In determining the application
I find that the applicants have not established that the hardships they would
face are disproportionate. I note that leaving Canada after having resided here for 18 years
will be difficult and upsetting. I note, however, that the applicants made a
choice to leave the country while there was an outstanding warrant for their
arrest. It has not been established with sufficient evidence that the charges
were fraudulent. Nor has it been established that the police reissued the
warrant in a persecutory manner. The applicants have not established that they
did not receive due process in their first dealing with the judicial system in
Venezuela, nor has it been established that the police were actively seeking
them throughout the two years that they remained in the country prior to their
departure or that they would target them upon their return. Evidence does not
support that the warrant is such that the government has been actively pursuing
the applicants through an application for extradition.
[25]
I
find that these conclusions are reasonable within the standards set by Dunsmuir
supra. There is no basis upon which to set the decision aside.
[26]
No
party asked for a question certified nor for costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The
application is dismissed;
2.
There
is no question for certification;
3.
There
is no Order as to costs.
“Roger T. Hughes”
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