Docket: IMM-1099-13
Citation:
2014 FC 649
Ottawa, Ontario, July 3, 2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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MARTHA LUCIA MELGOZA AND
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MARICELA VAZQUEZ SANTA CRUZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA], of a decision of immigration Officer Susan
Neufeld [the Officer], dated January 10, 2013, refusing the applications of the
applicants, Martha Lucia Melgoza [Melgoza] and Maricela Vazquez Santa Cruz
[Vazquez], for permanent residence based on humanitarian and compassionate
(H&C) considerations.
II.
Facts
[2]
The applicants are a same-sex couple from Mexico who have been in a common-law relationship since 2002.
[3]
Ms. Melgoza alleges that she married her
ex-husband, Mr. Jose, in 1989, and they had two children. Mr. Jose subsequently
became abusive, physically pushing and hitting Ms. Melgoza, which led to the
couple’s eventual separation. They started living apart in 1995. Seven years
later, in 2002, Ms. Melgoza began a relationship with Ms. Vazquez.
[4]
The applicants allege that when Mr. Jose learned
that his ex-wife was in a relationship with a woman he became angry, and began
calling and verbally abusing both Ms. Melgoza and Ms. Vazquez, whose phone
number he had managed to obtain. At one point he told Ms. Vazquez as she was
going to work that if the relationship did not end he would harm her and Ms.
Melgoza.
[5]
It is alleged that eventually Mr. Jose managed
to contact Ms. Vazquez’s supervisor at her place of employment, Aztra Zeneca
Laboratories, in an attempt to have her fired. When this didn’t work, Mr. Jose
subsequently contacted the company’s head office and accused Ms. Vazquez of
having an affair with his wife and breaking up their marriage, despite the fact
that his marriage to Ms. Melgoza had ended well before she met Ms. Vazquez. As
a result, Ms. Vazquez was approached by her employer and asked to leave her
job. Ms. Vazquez did not attempt to go to the police because she did not
believe that she would receive protection.
[6]
The applicants allege that after this incident,
they decided to go to Canada, and arrived in January 2006 on visitor visas
which expired after six months. They remained in Canada and each applicant
started her own cleaning business.
[7]
The applicants returned to Mexico in January 2007, allegedly because Ms. Melgoza missed her children and she and Ms.
Vazquez both had open return airline tickets that were expiring, so they wished
to use the tickets before they expired. Upon their return to Mexico, the applicants allege that Mr. Jose resumed his campaign of harassment against
them. Because of this and the better economic conditions, they returned to Canada in February 2007, six weeks after arriving in Mexico. They have remained illegally in Canada ever since.
[8]
They allege that Mr. Jose has continued his
harassment of them since they have been in Canada via Facebook.
[9]
In January 2012 the applicants filed their
H&C application, which was refused by the Officer on January 10, 2013.
III.
Contested decision
[10]
In her decision, the Officer indicated that
H&C applications are assessed on the basis of unusual and undeserved, or
disproportionate hardship, noting that foreign nationals who allege risk
related to factors falling under sections 96 and 97 of the IRPA can only
have such claims assessed in a refugee claim by the Immigration and Refugee
Board of Canada [the IRB] or in the form of a Pre-Removal Risk Application, and
not through an H&C application.
[11]
The Officer reviewed the evidence provided in
support of hardship due to discrimination in the affidavit of Ms. Melgoza. The
Officer noted that Ms. Vazquez did not provide an affidavit. She concluded that
no specific details or documentary support was provided of any discrimination
that the applicants had personally experienced as a lesbian couple living in Mexico City, or any recourse taken in reporting or combating discrimination. The Officer
listed various factors in support of this conclusion, including:
- the couple’s
co-habitation in Mexico City as a lesbian couple since 2002;
- the fact that
they were not named in any of the articles or country documentation;
- the lack of
objective supporting evidence establishing personal discrimination or
victimization of incidents of crime or violence;
- the absence of
documentation corroborating past or continuing harassment by Ms. Melgoza’s
ex-husband, including copies of the threats made on Facebook while living
in Canada; and
- the absence of
documentation related to Ms. Vazquez’s resignation from her employment in Mexico.
[12]
With respect to the general country conditions,
the Officer noted that in addition to having read and considered the materials
filed by the applicants, she had also reviewed the IRB’s Research Directorate
documentation, including the following relevant evidence:
1) The existence of laws to prevent and
eliminate discrimination in the Federal District including dissemination based
on sexual orientation or preference, but without information on the effectiveness
of this legislation.
2) Same-sex marriages were legalized in Mexico City in December 2009 (these laws came into effect in March 2010).
3) The Federal District Human Rights Commission
(CDHDF) carries out investigations and provides non-binding recommendations and
conciliatory proposals to the appropriate public authorities and parties.
4) Despite progressive legislation and other
measures, discriminatory conduct and violence against sexual minorities still
exists, including a “culture of homophobia within the Federal District
government apparatus”, which indicates that sexual minorities still face
prejudice and social stigma.
5) Between January 2011 and July 2012, the CDHDF
received 57 complaints of human rights violations from sexual minorities, which
contain references to 101 human rights violations.
6) Avenues of redress and recourse, including
support services, exist in Mexico to assist sexual minorities, but outside of Mexico City only three or four organizations across Mexico offer support services.
7) An organization entitled Agenda LGBT aims to
achieve equality in human rights through activities such as: self-esteem
workshops, sensitization workshops for the public, campaigns against
homophobia, participation forms to promote human rights, and the provision of
legal assistance in case of discrimination or human rights violations.
8) In 2009 a Federal District Human Rights
Program was created, composed of representatives from public institutions,
civil society organizations, international organizations, academic
institutions, diplomatic missions, and other interested parties with the
mandate of planning and coordinating the addition of a human rights perspective
in public institutions in the Federal district.
[13]
The Officer analyzed the applicants’ evidence
regarding establishment in Canada. She discussed the applicants’ businesses,
their Business Administration degrees, the letters of support from their
customers and friends and their record of volunteerism in the local community.
However, the Officer also noted that the applicants had remained in Canada without authorization for approximately 5 years before submitting an application for
permanent residence on H&C grounds and they did not submit a refugee claim
or apply for an extension to their initial status. She concluded that it could
not be argued that the resulting hardship was not anticipated by IRPA,
or that it was beyond the applicants’ control. She also pointed out that
subsection 25(1) of IRPA is an exceptional measure and not simply an
alternate means of applying for permanent resident status in Canada. The Officer concluded that the evidence before her did not support a conclusion that the applicants
had become established in Canada to the extent that severing their ties would
amount to unusual and undeserved or disproportionate hardship.
IV.
Issues
[14]
The applicants submit that the issues are the
following:
A. Did the Officer err in assessing the hardship
the applicants had faced as lesbians and a same-sex couple in Mexico?
B. Did the Officer selectively omit important
documentation pertaining to country conditions?
C. Did the Officer base her decision on the
failure of the applicants to assert that they had been threatened with physical
harm?
D. Did the Officer err in assessing the hardship
the applicants would face from drug-related violence and crime in Mexico?
V.
Standard of review
[15]
The standard of review applicable to a decision
on an H&C application is one of reasonableness (see, for example, Lara
Martinez v Canada (Citizenship and Immigration), 2012 FC 1295 at para 19; Frank
v Canada (Citizenship and Immigration), 2010 FC 270 at para 15).
VI.
Analysis
A.
Was there Evidence that the Applicants Faced
Discrimination or Failed to Take any Recourse in Combating Discrimination?
[16]
The applicants challenge the Officer’s finding
that there was insufficient evidence demonstrating that they were victims of
discrimination. The Officer outlined the numerous factors for her conclusion,
pointing out the absence of corroborating or objective supporting evidence
where it would be anticipated.
[17]
In addition to the factors raised above, I agree
that the failure of Ms. Vazquez to file an affidavit is significant, since she
was the person directly threatened by Mr. Jose and forced to resign due to his
alleged conduct vis-à-vis her employer. The introduction of an affidavit is
normally the choice of counsel, who is not required to produce evidence that
does not support his clients’ case so long as no fraud on the decision-maker is
committed. Where an adjudicative Officer would normally anticipate evidence
from the applicant alleged to be the victim of harassment that forms the
substantial basis for the claim, its absence cannot be overlooked. As a result,
the hearsay evidence of Ms. Melgoza regarding Ms. Vazquez’s victimization by
her husband suffers a substantial reduction in weight, due to the lack of
corroborative evidence.
[18]
Moreover, aside from any issue of the weight
given to the events surrounding Ms. Vazquez’s resignation, the Officer was
justified in considering these incidents as pertaining to a vindictive family
law dispute involving Mr. Jose and Ms. Melgoza, as opposed to evidence of
discrimination against Ms. Melgoza and Ms. Vazquez. This is a reasonable
characterization, given that there is no other reliable evidence demonstrating
that the applicants personally suffered discrimination in Mexico City.
[19]
It is also noted that Mr. Jose has since
remarried. Given the applicants’ long absence from Mexico City since February
2007, it is inexplicable why highly probative objective evidence in the form of
copies of the continuing harassing emails and threats alleged to have been made
on Facebook were not included in the applicants’ materials. If such material
existed, their experienced counsel would be expected to make every effort to
obtain copies and introduce them as highly corroborative evidence supporting
claims of harassment, which is the gravamen of the applicants’ claim.
[20]
An Officer may ascribe little probative value or
weight to evidence submitted because of its vagueness, such as where there is a
lack of detail, sources are unidentified, statements are unsworn, or obvious
corroborative evidence is omitted to confirm significant allegations. Deference
is owed to Officers in their assessment of the probative value of the evidence
before them. So long as their assessments fall within the range of
reasonableness, no reviewable error arises; see Ferguson v Canada (MCI), 2008 FC 1067 at paragraph 33.
B.
Did the Officer Selectively Omit Important
Documentation Pertaining to Country Conditions?
[21]
The applicants contend that absent a
“boilerplate statement” that the Officer had read their documentation, she
failed to specifically identify, reference or otherwise even mention any of the
documentary evidence that was submitted. Instead she based her conclusion on a
documentary source the Officer proffered herself, the IRB’s Response to
Information Request (RIR) entitled Situation of sexual minorities in Mexico
City, Guadalajara (Jalisco) and Puerto Vallarta (Jalisco); whether there are
support or advocacy groups acting on their behalf (2009 – August 2012).
[22]
The RIR provides a balanced summary of country
conditions, including extensive references to the prejudice and social stigma
faced by sexual minorities. The major conclusions from the report were
referenced by the Officer in her decision. The applicants did not refer the
Court to any evidence from other sources that was not to the same effect as that
found in the RIR and described by the Officer in her decision.
[23]
The primary focus of the applicants’ argument
was that the Officer selectively omitted contradictory passages from the RIR.
In particular, they referred the Court to the absence of any reference to
section 1.3 of the report entitled Societal Attitudes towards Sexual
Minorities in Mexico City, which I cite below:
1.3 Societal Attitudes towards Sexual
Minorities in Mexico City
According to a March 2012 CDHDF report, sexual
minorities still face prejudice and social stigma which result in exclusion and
discrimination (ibid., 13). A study conducted in 2010 by the National Council
for the Prevention of Discrimination (Consejo Nacional para Prevenir la
Discriminacion, CONAPRED), which surveyed 52,095 people across Mexico (Mexico
2011a, 15), indicates that in Mexico City, 43.3 percent of people surveyed
state that they would not allow a homosexual to live in their homes, while 38.8
percent indicated that they would not allow a lesbian to live in their homes
(Mexico 2011b, 109, 110).
Sources report on the death of two individuals
in Mexico City that were part of the LGB T community (US 24 May 2012, 30; Pink
News 3 July 2012). On 30 June 2012, a member of the National Lesbian and Gay
Journalists Association (AP 3 July 2012; Pink News 3 July 2012), who was
reportedly “openly gay” (ibid.), was found dead in the elevator of his
apartment building in Mexico City’s Condesa neighbourhood, and the police are
investigating his death (ibid.; AP 3 July 2012). On 23 July 2011, a member of
the Revolutionary Democratic Party’s Coordinating Group for Sexual Diversity
was stabbed to death in his Mexico City home (5 Aug. 2011; US 24 May 2012, 20).
The US Department of State’s Country Reports on Human Rights Practices
for 2011 adds that he was also an organizer of Mexico City’s annual LGBT pride
parade (ibid.).
[24]
I do not find that these two paragraphs can be
described as examples of selective omissions of highly relevant evidence by the
Officer. A study surveying attitudes of persons not wanting a lesbian to live
in their homes is not an appropriate indication of attitudes. Moreover, no
meaningful conclusion can be drawn from a statistic of 38.8 percent of persons
not wanting to live with a lesbian without a benchmark of comparable attitudes
of Canadians or Americans. Besides, there is no legal requirement of shared
residency of persons. Frankly, who one lives with is a very personal choice
depending upon different circumstances which may reflect a number of factors.
The issue is one of tolerance in normal day-to-day relationships at work and in
the community.
[25]
With respect to the second paragraph, the deaths
of the organizers of Mexico City’s annual pride parade have little relevance to
the applicants’ situation as there is no indication that they participated in
these events. In any case, this sort of evidence speaks more to the issue of
risk rather than hardship.
[26]
Moreover, this paragraph was a source of
discussion during oral hearing in regards to the source materials in the Certified
Tribunal Record. There was a marked distinction between the 2010 and 2011 US
Country Reports under the same heading. The 2011 Report omitted many positive
objective facts noted in the 2010 Report. For example, it noted that “activists had organized gay pride marches in cities across the
country. The largest, in which 400,000 persons participated, was held in June
in Mexico City.” An event of this size would suggest a degree of
acceptance of homosexual relationships which has accompanied the important
legislative and institutional progress of acceptance of gays and lesbians in Mexico City since 2007.
[27]
It is to be recalled that the Supreme Court in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
[2011] 3 S.C.R. 708, 2011 SCC 62 emphasized that the principles outlined in Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] provide
significant scope for specialized decision-makers to decide cases within a
range of reasonable outcomes. If the reasons allow the reviewing court to
understand why it made its decision and permits it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
[28]
I am satisfied that the Officer grappled with
the substantive live issue of the allegations of harassment and the conclusions
to be drawn from the documentary evidence on discrimination in Mexico City,
which are appropriately reflected in her reasons, and sufficiently demonstrate
why her conclusions fall within the range of acceptable outcomes.
C.
Did the Officer Base her Decision on the Failure
of the Applicants to Assert that they had been Threatened with Physical Harm?
[29]
The applicants submit that the Officer made a
reviewable error in the test applied by requiring the demonstration of physical
harm as a factor in an H&C application. To this end they cite the following
paragraph in support of their contention:
It is noted that the applicants do not assert
that they have been threatened with physical harm by Ms. Melgoza’s husband, or
that he has made threats against them of causing physical harm.
[30]
On the basis of the foregoing statement, the
applicants submit that the Officer implied that physical harm was necessary as
part of the test for an H&C application. They argue that the amendment to IRPA
adding section 25(1.3) was in order to eliminate any overlap between a claim
for refugee protection and an H&C application. Precisely because Mr. Jose
did not physically harm the applicants, “[a]ny greater
degree of harm would render this harassment to be personalized risk and, thus,
[be] barred from consideration by section 25(1.3).” While this
submission was modified somewhat in light of the recent Federal Court of Appeal
decisions in Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA
113 [Kanthasamy] and Lemus v Canada (Citizenship and Immigration),
2014 FCA 114 [Lemus], the substance remains the same: that the
referenced statement has no place in an H&C analysis.
[31]
I do not characterize the Officer’s statement as
a requirement that physical harm be an element of an H&C
application. I find the comment as merely indicating that physical harm was not
a factor in this case. She was careful in her introductory statement to
point out that claims of risk related to factors under sections 96 and 97 could
only be addressed through the IRB or a PRRA application and not through an
H&C application. That observation by the Officer is inconsistent with the
applicants’ characterization of her impugned comment.
[32]
In addition, I understand that threats of or
evidence of physical harm may be alleged in an H&C application. In the
decision of Baron v Canada (Minister of Public Safety and Emergency
Preparedness), [2010] 2 FCR 311, 2009 FCA 81, the Federal Court of Appeal
endorsed Justice Pelletier’s comment in Wang v Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, 2001 FCT 148, [2001] 3 FC 682,
204 FTR 5, 13 Imm. LR (3d) 289, that: “With respect to
H&C applications, absent special considerations, such applications will not
justify deferral unless based upon a threat to personal safety.”
[Emphasis added] I would understand this comment to mean that issues of
personal harm could be considered under an H&C application.
[33]
In Kanthasamy the Federal Court of Appeal
interpreted the amendment to the IRPA intended by subsection 25(1.3) as
limiting reference to factors under sections 96 and 97. Nonetheless, the
evidence adduced in previous proceedings is admissible in H&C proceedings;
however, it must be assessed through the “lens” of subsection 25(1). The question
to be asked is whether that evidence can be considered to personally and
directly cause the applicant to suffer unusual and undeserved, or
disproportionate hardship.
[34]
Similarly, in Lemus, which was rendered
contemporaneously with Kanthasamy, the Court of Appeal referred the
matter back to the Officer because she was not cognizant of the facts relevant
to the matters raised in the unsuccessful application for refugee protection
that might have also been relevant to the consequences of requiring the Lemus
family to return to El Salvador. The Court indicated at paragraph 26 that the
Officer “failed in the remainder of the reasons to
assess, through the lens of hardship, the risk that the child would be targeted
by the Mara Salvatruchia.” [Emphasis added].
[35]
While in this matter there was no previous
unsuccessful RPD decision by which the Officer could be satisfied that the
evidence put forward did not relate to a risk sufficient to meet the
requirements of sections 96 and 97, this appears to be an irrelevant
consideration. As I interpret Kanthasamy, the H&C Officer must
consider the evidence regardless of whether it also relates to a risk of
personal harm, so long as it is viewed through “the lens of hardship”.
Accordingly, the Officer cannot be criticized for the observation that the
evidence of hardship did not include any risk to the personal safety of the
applicants.
[36]
Insofar as the applicants allege that Mr. Jose
conducted a campaign of harassment relevant to an H&C application, the
Officer concluded that information was not provided by them to support the
assertion that they would be unable to seek recourse from the police or
judiciary to contend with this complaint. In any event, the applicants’ failure
to seek recourse from the police or other authorities for the alleged
harassment and threats remains a significant fact undermining their
allegations.
[37]
It is also to be noted that the Officer rejected
the applicants’ establishment claim. I agree that by remaining in Canada without authorization for approximately 5 years before submitting their application
it could not be argued that the resulting hardship was not anticipated or that
it was beyond the applicants’ control. The integrity of the IRPA in
maintaining control over admission to permanent residency status is seriously
undermined if applications are founded upon persons remaining illegally in the
country and then coming forward with establishment arguments created by their
own illegality. The Officer was correct in discounting the establishment evidence
on this basis, while noting that an H&C application is an exceptional
measure and not simply an alternate means of applying for permanent resident
status in Canada.
[38]
Finally, the recent amendments to the IRPA
contained at subsection 25(1.21) point to a conclusion that hardship caused by
discrimination is not a stand-alone factor in the context of an H&C
application, unlike factors such as the best interests of the child, or risk to
life caused by inadequate medical facilities in the returning country. Those
factors, which are singled out in subsection 25(1.21) as exceptions permitting
an applicant to file an H&C application within one year of an unsuccessful
RPD application, appear to be sufficient to found a successful application on
their own.
[39]
Discrimination, on the other hand, is normally
insufficient as a stand-alone factor for a successful H&C application. This
is demonstrated by Citizenship and Immigration Canada’s IP 5 Manual on
Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds,
which states at section 5.17, "Assessment of discrimination":
Nevertheless, discrimination alone would not
necessarily be sufficient to warrant a positive H&C decision, in the
absence of other positive considerations in the applicant’s favour.
D.
Did the Officer Err in assessing the hardship
the applicants would face from drug-related violence and crime in Mexico?
[40]
The applicant Ms. Melgoza made a passing
reference at paragraph 22 of her affidavit of September 29, 2011, to concerns
about returning to Mexico because of the increasing levels of violence. Despite
the apparent insignificance of this issue to the applicants, they criticize the
Officer for limiting her comments to the fact that they were not personally
victims of crime or violence in Mexico. I find that the Officer’s conclusion
that there was a functioning judiciary and police protection to which the
applicants could turn in cases of harassment from Mr. Jose implies that similar
protections were available as regards any complaints of threats of physical
harm. There is no reviewable error arising from the Officer’s conclusion that
general threats from increasing levels of violence in Mexico were not a significant factor in the H&C application.
[41]
For all the above reasons I find that the
Officer’s decision falls within a range of reasonable acceptable outcomes and
is sufficiently articulated by its reasons. There is no question of general
importance requiring certification.
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