Date: 20081202
Docket: IMM-1752-08
Citation: 2008 FC 1333
Toronto, Ontario, December 2, 2008
PRESENT: The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
ARIEL
ARENAS PAREJA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicant is seeking under subsection 72(1)
of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), the judicial review of a decision of a pre-removal risk assessment officer (PRRA officer), dated
January 25, 2008, refusing his pre-removal risk assessment
application.
II. The
facts
[2]
The
applicant, a Mexican citizen, married and the father of two children, first
arrived in Canada on
June 11, 1990, entering with visitor’s status valid for a period of one
month, which he did not seek to extend.
[3]
On
September 12, 1990, he applied for refugee protection based on a fear of persecution
related to his activities as an investigator of Mexican drug trafficking. The Immigration and Refugee Board (IRB) dismissed his
decision based on his lack of credibility. The applicant left Canada on
August 28, 1991, en route to Mexico.
[4]
The
applicant returned on May 17, 2007, and was authorized to stay in Canada until
June 20, 2007, as a temporary resident.
[5]
On
July 16, 2007, he filed a refugee claim then deemed ineligible under
paragraph 101(1)(b) of the Act, given the IRB’s previous refusal of
his refugee claim.
[6]
The
removal order in effect, the applicant was summoned on July 23, 2007,
by the Canada Border Services Agency to make arrangements for his departure. On
that occasion, he was informed of the option of filing a PRRA application, which
he did.
[7]
On
January 25, 2008, the PRRA officer determined that the applicant would not be
at risk if he were to return to Mexico and accordingly refused
his PRRA application.
[8]
His
removal from Canada was
scheduled for May 30, 2008. However, on May 27, 2008, this
Court stayed the removal order so that the applicant would be able to challenge
the merits of the allegations made in refusing the PRRA in this proceeding.
III. Reasons of the decision
[9]
The
PRRA officer determined in her decision that the applicant had not satisfied
his burden to establish the merits of his allegations, and specifically had not
established that he was personally targeted by drug traffickers or by corrupt
police officers.
[10]
The
PRRA officer also determined that even if it were admitted that the applicant’s
fear was founded, the applicant had failed to establish that the Mexican
authorities were unable or unwilling to protect him.
IV. Issue
[11]
Did
the PRRA officer make an unreasonable error in determining that [translation] “the applicant did not establish that there was
any more than a mere possibility that he would be persecuted in Mexico or that there
are substantial grounds to believe the applicant would be personally subjected
to a danger of torture or to risk of cruel and
unusual punishment in his country”?
V. Analysis
Standard
of review
[12]
The
pre-removal risk assessment of the PRRA officer rests essentially on an
assessment of the facts to which this Court must afford great deference. Accordingly,
the standard of “unreasonableness” applies to the PRRA officer’s findings of
fact, and indeed the applicant does not dispute the appropriate standard (Dunsmuir
v. New
Brunswick,
2008 SCC 9).
[13]
This
Court will therefore not intervene on questions of fact unless the PRRA officer’s
determination is unreasonable; but, for the reasons that follow, this is not
the case here.
Merits of the
impugned decision
(i) Did the PRRA officer consider the
prevailing situation in Mexico in regard to state
protection?
[14]
The
applicant alleges that the PRRA officer disregarded the dangerous situation
prevailing for him in Mexico.
[15]
A
review of the record and the reasons of the decision establishes that the PRRA
officer carried out a complete and detailed analysis of the applicant’s
evidence as well as recent documentary evidence on the current situation in
determining that the application should be dismissed. We need not necessarily
disregard this analysis and find it unreasonable because the applicant does not
agree with the result and would have preferred a different result or another
finding. To the contrary, as a decision-maker, the PRRA officer — not the applicant
or this Court — must determine what weight to assign to the documentary
evidence filed in support of the PRRA application (Bashir v. Canada (Minister
of Citizenship and Immigration), 2006 FC 783, paragraph 35; Singh v.
Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1329
(T.D.) (QL), paragraph 3).
[16]
After
this exercise, the PRRA officer determined that [translation] “the Mexican government is active against
drug trafficking and corruption connected to organized crime. The reference
documents identify an existing scheme for intervention and protection,
accessible to the applicant. Further, government agencies can support individuals
and guide them through their endeavours.”
[17]
Therefore,
after a complete and detailed analysis of the evidence submitted by the applicant,
as well as the recent documentary evidence on the currently prevailing
situation in Mexico, the PRRA officer was satisfied that not only did
protection exist but that it was also available to the applicant.
[18]
While
the applicant appears to want to put the general protection offered by the state
of Mexico on trial, bear in mind that state protection need not be perfect; it
is sufficient for it to be adequate and we cannot require that a state protect
its citizens all the time (Canada (Minister of Employment and Immigration) v.
Villafranca (1993), 18 Imm. L.R. (2d) 130 (F.C.A.)).
[19]
The
analysis of risk and state protection is essentially a question of fact within
the jurisdiction and expertise of the PRRA officer and not of this Court or the
arguments of the applicant. The PRRA officer’s findings are apparently not what
the applicant was seeking; but they are justified in regard to the facts and
the law. In short, they are reasonable findings which do not justify the
intervention of this Court.
(ii) The PRRA
officer did not have to hold a hearing
[20]
The
applicant alleges that the PRRA officer should have held a hearing. He points
out that since his refugee claim in July 2007 was deemed ineligible by the IRB,
he never had the opportunity to be heard on the risks raised and accordingly the
PRRA officer should have given him a hearing.
[21]
This
argument is not entirely accurate since the applicant was heard by the IRB on
his refugee claim in 1990 at which time he alleged similar risks for claiming
refugee status, in fact dismissed based on a lack of credibility.
[22]
But
in this case, the applicant admits it, the PRRA officer never put his
credibility at issue. The officer simply analyzed the written submissions of
the applicant and his counsel as well as the various pieces of documentary
evidence received. The PRRA officer also considered in her decision that [translation] “the new evidence rule
does not apply in this case, since the applicant was not heard before the IRB
after the new law came into force on June 28, 2002.” This statement indicates
that the PRRA officer did not limit her analysis to the new evidence from after
the first IRB decision, and that the applicant was therefore not limited in the
documentary evidence that he could submit in support of his submissions.
[23]
The
PRRA officer, for her part, analyzed and weighed all of the documentary
evidence that the applicant deemed useful to submit to her in support of his
submissions. If the PRRA officer did not consider the documentary evidence filed
only in Spanish this was because, as the officer stated in her decision, even though
the applicant had more than ample time, he chose to disregard her request to
provide her with the translation of this evidence in one of the two Canadian
official languages. The applicant has the burden of proof in a PRRA application.
He must therefore place before the PRRA officer all of the evidence supporting
his arguments and necessary to a decision. If as in this case the evidence is
insufficient, the applicant must bear the consequences and the PRRA officer has
no obligation to advise him of this (Lupsa v. Canada (Minister of
Citizenship and Immigration), 2007 FC 311), although in this case
he had been advised of this shortcoming in his evidence.
[24]
The
applicant is not entitled to an oral hearing before the PRRA officer simply
because his second refugee claim had not been heard by the IRB, since his
credibility was not at issue before the PRRA officer. Far from alleging that
the applicant was not credible, the PRRA officer determined applicant had
not satisfied his burden of proof in regard to establishing a personalized
risk. The PRRA officer did not have the obligation to hold an interview in the
matter under review.
[25]
The
right to a hearing before the PRRA officer may exist when credibility is a key
factor in the officer’s decision. This is not the case here and indeed the applicant
admits it. The process provided in the Act and the Regulations provides that
the PRRA application must be determined on the basis of the documentary
evidence and written submissions, a process recognized as being consistent with
the fundamental principles of justice (Sylla v. Canada (Minister of
Citizenship and Immigration), 2004 FC 475 at paragraph 4, 135 A.C.W.S.
(3d) 472).
[26]
The
applicant would have not gained anything from a hearing since he had ample
opportunity to make his arguments and to submit all of the documentary evidence
and written submissions deemed necessary to support his claims. The PRRA
officer did not determine in her decision that the applicant lacked
credibility, but rather that he had not satisfied his burden of proof
establishing a personalized risk. This finding is perfectly justified and
possible in terms of the evidence offered in this matter and the law. In short,
it is once again a reasonable finding that does not justify the intervention of
this Court.
[27]
The
PRRA officer went further in his analysis by appreciating the documentary
evidence relevant to the applicant’s allegations and the availability of state
protection. The determinations made by the PRRA officer on this point are
determinative and sufficient for the refusal of the applicant’s PRRA
application.
(iii)“serious issue to be tried” test
[28]
The
applicant argues that the fact that a judge of this Court stayed the removal
order amounts to an acknowledgement at the very least of the seriousness of the
applicant’s submissions, if not their merits.
[29]
This
argument does not hold water because when the application to stay was made the
state of the record differed from the record that has developed since that
time, such that the judge who stayed the removal could not have had the same
vision and comprehension as the judge sitting on review to whom a more complete
picture was presented.
[30]
The
applicant’s burden before a judge on a stay application bears on determining
whether the three-prong test is met, not on conclusively determining whether
the decision-maker, in this case the PRRA officer, made an unreasonable error, but
rather on observing whether an error could have been made that could justify an
intervention. In other words, at this stage it is a matter of carrying out a
preliminary and interim assessment of the merits of the application for
judicial review based on an incomplete record; this, in an urgent context where
the applicant’s prima facie right, the notion of irreparable prejudice
and balance of convenience come into play, and where neither of the parties has
the time to effectively prepare to present the judge on the application to stay
with anything more than a sketch of the dispute between them.
[31]
The
stay does not add value to the merits of an applicant’s arguments and does not
discharge the applicant from convincing the Court today how and why the PRRA
decision is unreasonable. Asking the Court to substitute its opinion to that of
the decision-maker on the PRRA as the applicant is suggesting would amount to requesting
it to interfere with the jurisdiction of the person to whom the Act confers the
responsibility for assessing, weighing and deciding. That is not the role of
the Court.
(iv)
Canadian Charter of Rights and Freedoms (Charter) and international law
[32]
It
is not enough for the applicant to raise the Charter and Canada’s
international obligations to contest the PRRA decision and oppose his removal. He
must also establish how the PRRA decision breaches the Charter and Canada’s obligations.
[33]
In
this matter, the PRRA officer determined that the applicant [translation] “did not establish that
there was any more than a mere possibility that he would be persecuted in
Mexico or that there are substantial grounds to believe the applicant would be
personally subjected to a danger of torture or to
risk of cruel and unusual punishment in his country.” To determine as
such, the PRRA officer carried out a complete and detailed analysis of the
evidence submitted by the applicant, as well as the recent documentary evidence
on the currently prevailing situation in Mexico. The
applicant did not establish any error in this determination by the PRRA
officer. It therefore follows that the respondent’s argument to the effect that
the decision under review breaches sections 7 and 12 of the Charter
is not serious and is not worthy of consideration.
VI. Conclusion
[34]
For
all of these reasons, the Court determines that the PRRA decision contemplated
by this proceeding is fully justified in regard to the facts and the law. Accordingly,
it is a reasonable decision which does not justify the intervention of this
Court, resulting in the dismissal of the application.
[35]
As
the parties did not properly propose any question for certification, no
question will be certified.
JUDGMENT
FOR THES REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice
E. Lagacé”
Certified true
translation
Kelley Harvey, BA, BCL,
LLB
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