Ottawa, Ontario, the 9th day of March 2006
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
ROBERT SALGADO-ARIAS and
RODOLFO VALDES-ARIAS
(ALIAS RODOLFO ARIAS-GARCIA)
Applicants
and
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicants are challenging the negative decision on their pre-removal risk assessment application (PRRA) by the PRRA officer dated May 26, 2005.
[2] In July 1999, in Mexico, the female applicant and her husband, Mr. Valdes, separated and initiated legal proceedings for the custody of their child Rodolfo.
[3] On December 6, 2001, a Mexican court awarded provisional custody of Rodolfo to the female applicant and access rights to Mr. Valdes.
[4] The female applicant had a birth certificate issued for Rodolfo in a name that was not his. A Mexican passport was issued for Rodolfo in this false name.
[5] On June 24, 2002, the applicants arrived in Quebec on a visitor's visa.
[6] In February 2003, they returned to Mexico for interviews with the Quebec authorities about Quebec selection certificates.
[7] On April 28, 2003, Quebec selection certificates were issued in the names of the applicants, including a selection certificate for Rodolfo issued in his false name.
[8] On the same day, a Mexican court reversed the judgment of December 6, 2001, and awarded custody of Rodolfo to Mr. Valdes.
[9] On May 28, 2003, following a stay of over two months in Mexico, the applicants returned to Quebec.
[10] On October 22, 2003, custody of Rodolfo was again awarded to the female applicant pursuant to another Mexican judgment.
[11] As their visitor's visa was about to expire, the female applicant and her two children went to the U.S. on November 9, 2003. They were stopped at the Lacolle border crossing on the ground of abduction contrary to a custody order and pursuant to two arrest warrants issued by Mexico on June 25 and September 25, 2002.
[12] A 44(1) report was issued against the applicants and their case referred to the Immigration Division (ID) of the Immigration and Refugee Board (IRB).
[13] The female applicant then applied for refugee status for herself and her children.
[14] On November 17, 2003, the female applicant filed a motion to obtain custody of Rodolfo in the Quebec Superior Court. On the same day Mr. Valdes filed a motion in the same court requiring that Rodolfo be immediately returned to Mexico pursuant to the Act Respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q., c. A-23.01 (the ACAIICA).
[15] On January 7, 2004, the Quebec Superior Court allowed Mr. Valdes' motion and ordered that Rodolfo be returned to Mexico immediately.
[16] On June 8, 2004, the Quebec Court of Appeal allowed the appeal by the female applicant from the Superior Court judgment, set aside that judgment and dismissed Mr. Valdes' motion.
[17] On October 6, 2004, a Mexican judgment granting the divorce between the parties awarded custody of Rodolfo to the female applicant and gave both parents parental authority.
[18] On January 19, 2005, the ID issued a deportation order against the applicants.
[19] On May 26, 2005, the PRRA officer rendered a negative decision on the PRRA application made by the female applicant, on the grounds that there was no personal risk to herself and her children in Mexico and that government protection was available to them.
ANALYSIS
[20] The standard of review that applies to a PRRA officer's decision depends on the nature of the question. The standard of review for a question of fact is patent unreasonableness, for a mixed question of law and fact is reasonableness simpliciter and for a question of law is correctness.
[21] In the case at bar, the issues are the following:
- Did the PRRA officer err in not really taking the threats and the interests of the child Rodolfo into account?
- Did the PRRA officer rely on IRB research reports the content of which was never disclosed to the applicants?
- Did the PRRA officer err in not explaining how the government could protect Rodolfo from a third abduction?
[22] On the first question, since the Court has to decide a question of fact it should not substitute its own conclusion for that of the PRRA officer unless it is shown that this conclusion was arrived at in a perverse or capricious manner or without regard for the material before it, which refers to the standard of patent unreasonableness: Liang v. Canada (Minister of Citizenship and Immigration), 2003 FC 1501, [2003] F.C.J. No. 1904 (F.C.) (QL). A patently unreasonable decision requires that the party show that none of the reasons put forward in support of the decision could reasonably lead the Court to render the decision made (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247).
[23] The second question is one of procedural fairness and so the standard of review does not apply: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at paragraphs 100-103.
[24] On the third question, in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (F.C.)(QL), following a pragmatic and functional analysis I concluded that the standard of review for questions of government protection is that of reasonableness simpliciter. An unreasonable decision is not supported by any reasons that can stand up to a somewhat probing examination: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748, at paragraph 56.
[25] In the case at bar, the PRRA officer clearly indicated that her purpose was to analyse the risks the applicants took in returning to Mexico. She concluded that although the female applicant's ex-husband was trying to get custody of his son Rodolfo, the evidence did not show that he had committed or might commit any acts corresponding to sections 96 and 97 of the IRPA. Further, the documentary evidence confirmed that despite the fact that domestic violence is a widespread problem in Mexico, a woman who was the victim of family violence could seek help from the authorities. The PRRA officer found that the evidence in the record did not support a conclusion that in returning to Mexico the female applicant and her two children would face persecution, torture, threats to their life or cruel or unusual treatment or punishment.
[26] The applicants further argued that the PRRA officer erred by not really taking into account the threats and the interests of the child Rodolfo. In general, domestic violence and abduction of a child twice, not counting threats to abduct the child thereafter, are certainly acts that fall under the category of treatment covered by sections 96 and 97 of the IRPA.
[27] The PRRA officer took the following facts into account in concluding that there was no personal risk in the event of return.
· although it is known that Mr. Valdes was seeking custody of the child Rodolfo, it was not shown that he committed or might commit actions corresponding to sections 96 and 97 of the IRPA;
· although the applicant alleged there had been an incident of domestic violence, which would explain why she left the family residence with her children, she did not indicate that she filed a complaint of domestic violence against Mr. Valdes.
[28] In view of these circumstances, I am satisfied that she considered the relevant facts and that her conclusion was not patently unreasonable.
[29] On the documentary evidence, the applicants argued that the PRRA officer relied on the IRB research reports and they were never informed of the content of those documents.
[30] In Mancia v. Canada (Minister of Employment and Immigration), [1998] 3 F.C. 461 (C.A.), the issue was whether an immigration officer violates the rules of natural justice when he fails to disclose in advance of determining the matter documents relied upon from public sources in relation to general country conditions.
[31] The Federal Court of Appeal held that procedural fairness does not require that documents from public sources in relation to general country conditions be disclosed before arriving at a decision, if they were accessible and if it was possible to consult them at the time the applicant made his submissions. I note that the PRRA officer relied on documentary evidence from well-known sources: the U.S. State Department, Amnesty International, the IRB and the Encarta Encyclopedia. In view of the decision in Mancia, supra, the evidence did not disclose that these documentary sources were not available to the applicants. Consequently, procedural fairness does not require that these documents be disclosed before arriving at a decision.
[32] Finally, the applicants argued that the PRRA officer erred since she did not explain how the government could protect Rodolfo from a third abduction.
[33] First, we should note the high test required by the courts for establishing that a government is unable to protect its citizens. The parties must show by clear and persuasive evidence that the state is so disorganized and chaotic that it is not capable of protecting its citizens (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Kadenko v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376 (C.A.) (QL)).
[34] The PRRA officer referred to the following facts to support her conclusion that the Mexican government had made efforts to protect the applicants in the past:
[TRANSLATION]
The Mexican courts took up the female applicant's cause, awarded her provisional custody of Rodolfo several times and even awarded her final custody in the decree absolute of divorce of October 2004. In the incident in which Mr. Valdes did not return the child after exercising his visiting rights, police returned the child to the mother. The female applicant herself testified in the Quebec Superior Court that she had had the protection of the courts and the Mexican police.
[35] Further, the PRRA officer took into account the objective evidence on Mexico dealing with legal guarantees for women regarding the custody of their children and the existing machinery when a woman is the victim of domestic violence. In my opinion, in these circumstances it was not unreasonable for the PRRA officer to conclude that the protection offered by the Government of Mexico was adequate.
[36] It is impossible for me to find that such a conclusion "is so flawed that no amount of curial deference can justify letting it stand": Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paragraphs 9-12.
[37] Finally, the applicants argued that during the same period the respondent made a different analysis and came to the opposite result in a similar case, namely Herma.
[38] I agree with my brother Gibson J. that the fact that another immigration officer arrived at a contrary conclusion in a similar case is not persuasive. Reasons explaining the different result, though desirable, would not be of any value if the officer simply considered that the other officer's decision was wrong or if the facts were not exactly the same: Addullahi v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 150 (F.C.T.D.). In the case at bar, although I admit there are similarities, there are also important differences in the two cases. What we are dealing with is essentially findings of fact, not findings of law. The PRRA officer did not have to take findings of fact made in other cases into account. She was not bound by the decision in Herma. Each case stands on its own facts and must be assessed on its own merits.
[39] For these reasons, the application for judicial review of the PRRA officer's decision is dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial review of the PRRA officer's decision be dismissed.
Certified true translation
Monica F. Chamberlain
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3836-05
STYLE OF CAUSE: MARIA BONNIE ARIAS GARCIA, ROBERTO SALGADO-ARIAS, RODOLFO VALDES-ARIAS (ALIAS RODOLFO ARIAS-GARCIA) v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 1, 2006
REASONS FOR ORDER BY: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
APPEARANCES:
| Jean El Masri
|
FOR THE APPLICANTS |
| Ian Demers
|
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
| EL MASRI, DUGAL Montréal, Quebec
|
FOR THE APPLICANTS |
| John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Montréal, Quebec
|
FOR THE RESPONDENTS |