Docket:
IMM-10846-12
Citation: 2013 FC 1008
Ottawa, Ontario, October
2, 2013
PRESENT: The Honourable Mr. Justice Phelan
|
BETWEEN:
|
|
BRAULIA GUADALUPE RANGEL GOMEZ
|
|
OMAR ROBERTO QUEVEDO CRUZ
|
|
LORENA GEORGETTE CARDENAS RANGEL
|
|
KARLA YORDANA CARDENAS RANGEL
|
|
Applicants
|
|
and
|
|
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This judicial review concerns a decision by an
Inland Enforcement Officer [Officer] to refuse to defer execution of a removal
order.
II. BACKGROUND
[2]
The Applicants are all citizens of Mexico. They are relatives of Brenda Quevedo Cruz, another Mexican citizen who is awaiting
trial in Mexico for the kidnapping and murder of Hugo de Wallace. Omar Quevedo
Cruz, the male Applicant, is the younger brother of Brenda Quevedo Cruz. The
female adult Applicant, Braulia Guadalupe Rangel Gomez, is Brenda’s maternal
aunt while Lorena Rangel and Karla Rangel are Braulia’s daughters and Omar’s
cousins.
[3]
In 2008, Omar, Braulia and her two daughters
fled to Canada claiming fear of persecution from Hugo de Wallace’s mother.
Brenda is fighting the kidnapping and murder charges in relation to Hugo de
Wallace. All of Brenda’s co-accused have confessed to the charges. She claimed
that she and others supporting her have been threatened and harassed.
[4]
This Court denied judicial review of the PRRA
decision which underlies the removal order (Gomez v Canada (Minister of Citizenship and Immigration), 2013 FC 786).
[5]
This is the second attempt by the Respondent to
remove these Applicants. The Applicants sought a stay from Justice Boivin which
was dismissed on October 9, 2012. Removal was scheduled for October 10, 2012,
at which time the Applicants sought a deferral based on a letter from the
Inter-American Commission on Human Rights [IACHR] dated September 24, 2012 [the
first letter]. A copy of that letter was sent in with the deferral request on
October 10.
[6]
The first letter was addressed to members of the
Cruz family and asks for further information in respect of their request for
precautionary measures for Omar Cruz in Mexico. The letter filed with the
Officer is clearly an informal (and not particularly good) translation.
[7]
The Officer dealt with the deferral request
immediately on October 10. About the same time as the negative decision [Deferral
Decision] was being communicated to the Applicants, their counsel sent further
submissions to the Officer in support of the deferral request. The further submissions
consisted of a second letter from the IACHR dated October 10, 2010 [the second
letter].
[8]
The second letter was also addressed to the Cruz
family and refers to the fact that the IACHR had sent a communication to the
Government of Canada on this same day requesting information on the reasons for
deportation and on the issue of risk of torture and threats to life if returned
to Mexico as well as copies of the decisions in regard to those matters.
[9]
In the Deferral Decision, the Officer noted that
the deferral request with the first letter was manifestly untimely. The Officer
made four points in respect to the first letter:
•
the letter did not contain any information about
the “anticipated violation of human rights” of Omar;
•
the letter was in response to third party
testimony from a relative who had an interest in the outcome;
•
there is insufficient evidence that the IACHR
will direct Canada not to deport Omar; and
•
even if one accepted that the IACHR would make
that request, there is insufficient evidence that the request would operate as a
stay under Canadian immigration law (s 50 Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]).
[10]
The Officer dealt with the best interests of the
children but concluded that there was no risk not already dealt with. The
Officer noted a Toronto Star article which repeated the risks already noted by
the Refugee Protection Division [RPD] and in the PRRA. The Officer did write “I
note the Toronto Star article mentions Karla and Lorena (although not
specifically by name)”.
[11]
In the Deferral Decision there are several
references to the limits on the Officer’s discretion to defer, the exercise by
the Applicants of all their avenues of relief, and the best interests of the
children.
III. ANALYSIS
[12]
The standard of review of a deferral decision is
reasonableness (Baron v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron]). However, the
Applicants have also argued that the Officer failed to apply or properly
interpret paragraph 3(3)(c) of IRPA – an important issue of law for
which the standard of review must be correctness.
|
3. (3) This Act is to be construed and
applied in a manner that
…
(c)
facilitates cooperation between the Government of Canada, provincial
governments, foreign states, international organizations and
non-governmental organizations;
|
3. (3) L’interprétation et la mise en
oeuvre de la présente loi doivent avoir pour effet :
…
c) de
faciliter la coopération entre le gouvernement fédéral, les gouvernements
provinciaux, les États étrangers, les organisations internationales et les
organismes non gouvernementaux;
|
[13]
There remains a live issue concerning removal
and deferral of removal. The Court was advised that one Applicant remains in
custody for failure to appear for removal while the others had “gone to
ground”. Efforts at removal are likely to re-occur. Therefore, in accordance with
the Baron decision, deferral of removal is not moot despite the passage
of the removal date.
[14]
The Applicants say that the Officer failed to
consider the second letter because it is not mentioned in the Deferral Decision.
A review of the time stamp on the faxes being exchanged that day show the
sending of that IAHRC letter to be within approximately 15 minutes of the
sending of the Deferral Decision. The Applicants have not shown that the
Officer had the IAHRC letter before his decision was made. Given that it was a
two-page decision, it is likely that it was created and en route by the time that
IAHRC letter was received.
[15]
No reason has been advanced, other than lack of
timely receipt, for the failure to mention the second letter in the Deferral
Decision. Given the fact that the letter adds nothing to the process and merely
repeats the type of information requested in the first letter, there is no
basis to suggest that the second letter was deliberately ignored. There is no
basis for a claim that the Officer failed to consider relevant facts.
[16]
Moreover, the second letter is not particularly
relevant nor should it form a basis for deferral. The said letter is a request
for information on what, in Canada, would be considered the RPD decision and
the PRRA decision. It does not indicate that the IAHRC was about to ask Canada to defer removal. A year later the Applicants have filed no evidence that any such
request is contemplated even today.
[17]
On the legal question of paragraph 3(3)(c),
the Officer did consider the need to promote cooperation between Canada and the IAHRC without reference to the particular subsection. The Officer considered
what the impact of the first letter was in Canada and even the possibility of
relief upon the Applicants’ return to Mexico. The Officer went so far as to
consider what would be the impact of a request by the IAHRC to Canada not to deport the Applicants.
It
is not accurate to say that the Officer ignored the role paragraph 3(3)(c)
played in this process or in any way fettered his discretion. Therefore, there
was no legal error in regard to paragraph 3(3)(c).
[18]
The Applicants complain that the Officer erred
in his description of the Toronto Star article. While the body of the article
does not mention the names Karla and Lorena, there was a picture associated
with the article which clearly names and identifies them. In that regard, the
Officer’s comments were erroneous.
[19]
The important part of the Officer’s
consideration of the newspaper article is that it did not raise new issues or
provide new information – all of the risks alleged were addressed in the RPD
claim and the PRRA application and those details are in court and other public
records.
[20]
Therefore, the error was insignificant and the
article did not form a basis for a sur place claim as it added nothing
new to the facts in issue.
[21]
Lastly, the Officer considered the best
interests of the children within the context of the limited discretion
available to him.
IV. CONCLUSION
[22]
Therefore, there is no basis for disturbing the
Officer’s conclusions. The judicial review will be dismissed.
[23]
Having reviewed the Applicants’ proposed
questions for certification, there is no factual basis to ground the questions.
I conclude that there are no questions for certification.
Email this Content