2012 FC, 2012 FC 1294

Date: 20121105 Dockets: IMM-3153-11 IMM-3154-11 Citation: 2012 FC 1294 Winnipeg , Manitoba , November 5, 2012 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: SYLVIA BARRIOS SILVA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT INTRODUCTION [ 1 ] Ms. Sylvia Barrios Silva (the “Applicant”) seeks judicial review of the decisions made by an officer (“Officer”), refusing her applications for pre-removal risk assessment (“PRRA”) pursuant to

section 112 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “Act”) and for permanent residence in Canada on humanitarian and compassionate grounds (“H&C”) pursuant to subsection 25(1) of the Act. BACKGROUND [ 2 ] The Applicant is a citizen of Mexico. She sought protection in Canada as a Convention refugee, pursuant to

section 96 of the Act , in September 2003. Her claim was based upon her fear of her former lover, a commander in the Office of the Attorney General in Mexico. She claimed that he was implicated in her being kidnapped in September 2001.

Her claim for Convention refugee status was dismissed by the Immigration and Refugee Board, Refugee Protection Division (the “RPD”) in a decision made on May 5, 2005, on the grounds that she had a viable internal flight alternative (“IFA”) in Veracruz or Querétaro, Mexico. [ 3 ] In her PRRA application, submitted on November 29, 2010, the Applicant alleged that the situation in Mexico had deteriorated to the extent that an IFA was no longer available to her.

Kidnappings were common; she alleged that she fit the profile of a person who could be targeted for kidnapping and extortion, since she is a middle class mother of a young child. She claimed that if returned to Mexico she will be exposed to the same people who forced her to leave in the first place.

[4] The Applicant grounds her H&C application upon the degree of her establishment in Canada, including the fact that she hasbeen financially self-sufficient since January 2005. She claims that she could face discrimination in finding work in Mexico on thegrounds of her age, gender and status as the mother of a young child.

She filed an affidavit stating that she has no continuing relationshipwith the father of her child, and that the father has no status in Canada and no contact with their daughter. [5] In deciding the PRRA application, the Officer found that, although violence in Mexico is a serious problem, state protectionwas available to the Applicant.

The Officer also found that the Applicant had not submitted any new evidence to rebut the RPD’s findingas to the availability of an IFA. [6] In rejecting the H&C application, the Officer acknowledged that the Applicant had shown a degree of establishment inCanada but also observed that she had extensive family in Mexico, that she had always worked in Mexico and would be able to find workthere if returned.

Further, the Officer noted that being the mother of a Canadian-born child did not entitle the Applicant to a positiveH&C decision just because better opportunities were provided for children in this country than in Mexico. Finally, the Officer concludedthat the Applicant had not shown that she was at a greater personalized risk in Mexico than many other people in that country. ISSUES [7] Five issues are raised in these applications for judicial review. First, what is the standard of review?

Second, did the Officererr in making the PRRA decision on the basis of credibility findings, without giving the Applicant an interview? Third, did the Officererr in assessing the evidence submitted on the PRRA application? Fourth, did the Officer err in assessing the evidence submitted on theH&C application?

Finally, did the Officer breach procedural fairness by conducting independent research without notice to theApplicant, thereby committing a reviewable error? [8] For judicial review of decisions made upon PRRA applications, the applicable standard of review is reasonableness sincesuch decisions involve questions of mixed fact and law and the weighing of evidence; see the decision in Raza v. Canada (Minister ofCitizenship and Immigration) (2006), 2006 FC 1385 , 58 Admin.

L.R. (4th) 283 at para. 12, aff’d (2007) 2007 FCA 385, 370 N.R. 344 (F.C.A.) at para. 3. [9] The standard of reasonableness also applies to the question of whether the Officer should have convoked an interview toassess the Applicant’s credibility. In this regard, I refer to the decision in Mosavat v. Canada (Minister of Citizenship and Immigration),2011 FC 647 at para. 9 where Justice Snider said the following: In my view, the applicable standard of review is reasonableness.

The Officer’s task is to analyze the appropriateness of holding a hearingin light of the particular context of a file and to apply the facts at issue to the factors set out in s.167 of the Regulations. [10] Since it involves assessment of a question of mixed fact and law, the H&C decision is reviewable upon the standard ofreasonableness; see Dunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 51. [11] The Applicant also raises an issue of procedural fairness with respect to the Officer’s reliance on extrinsic evidence, that is,evidence relating to the status of the Applicant’s former boyfriend in Mexico. Questions of procedural fairness are reviewable on thestandard of correctness; see Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339 atpara. 43. THE PRRA DECISION [12] The Applicant advances several arguments in challenging the PRRA decision.

First, she says that the Officer improperlyrelied on her own internet research relating to the status of her former lover in Mexico and obtained extrinsic evidence that was neverdisclosed to her. She submits that the Officer erred in not giving her the opportunity to respond to that information. She also argues thatthe Officer erred in searching terms that were incorrect; the former lover was a comandant not a “procureur / procurador / procurat”, theterms used by the Officer in her search.

[13] The Applicant argues that the negative PRRA decision was based upon a negative assessment of her credibility and that theOfficer erred by failing to conduct an interview, that is, to give the Applicant an opportunity to satisfy any credibility concerns.

Shesubmits that since there was no interview, the Officer had a responsibility to clearly distinguish between sufficiency of evidence and thecredibility of evidence, and that she failed to do so. [14] The Minister of Citizenship and Immigration (the “Respondent”) takes the position that the Officer reasonably assessed theevidence submitted and that the decision meets the applicable standard of review. [15] I agree that the Officer breached procedural fairness by relying on extrinsic evidence, that is, the Google searches, that werenever disclosed to the Applicant.

I also agree with the Applicant’s submissions that the Officer erred by relying on extrinsic evidencethat was based upon incorrect search terms. [16] However, as noted by the Supreme Court of Canada in the decision Mobil Oil Canada Ltd. v. Canada-Newfoundland OffshorePetroleum Board, (SCC), [1994] 1 S.C.R. 202 at page 228, not every breach of procedural fairness gives rise to judicialintervention.

The extrinsic evidence obtained by the Officer was not determinative in the ultimate disposition of the PRRA applicationand the error does not affect the determinative finding of the Officer that an IFA is available to the Applicant in Mexico. [17] I am not persuaded that the Applicant has shown that an interview was required in this case. She has not shown that theOfficer relied on credibility findings, rather than sufficiency of evidence, in making the negative PRRA decision. No officer is requiredto conduct an interview for the purposes of a PRRA application unless the factors identified in

section 167 of the Immigration andRefugee Protection Regulations, S.O.R./2002-227 (the “Regulations”), are present.

Section 167 provides as follows: 167. For the purpose ofdetermining whether a hearing isrequired under paragraph 113(b)of the Act, the factors are thefollowing: (

a) whether there is evidence thatraises a serious issue of theapplicant’s credibility and isrelated to the factors set out insections 96 and 97 of the Act; (

b) whether the evidence iscentral to the decision withrespect to the application forprotection; and (

c) whether the evidence, ifaccepted, would justify allowingthe application for protection. 167. Pour l’application de l’alinéa113b) de la Loi, les facteurs ci-après servent à décider si la tenued’une audience est requise :

a) l’existence d’éléments depreuve relatifs aux élémentsmentionnés aux articles 96 et 97de la Loi qui soulèvent unequestion importante en ce quiconcerne la crédibilité dudemandeur;

b) l’importance de ces élémentsde preuve pour la prise de ladécision relative à la demande deprotection;

c) la question de savoir si ceséléments de preuve, à supposerqu’ils soient admis, justifieraientque soit accordée la protection. [18] In the decision, the Officer noted that the Applicant failed to submit sufficient information to show that she had a personalizedrisk and was unable to avail herself of state protection. The Officer assigned little weight to letters from the Applicant’s parents and theidentity of her persecutor. However, the Applicant has not shown that these findings were central to the ultimate decision or that theywould justify allowing the application if accepted, a factor identified in subsection 167(

c) of the Regulations. [19] The Applicant argues that the Officer’s IFA finding is flawed because in making that finding, the Officer ignored newevidence, that is, the fact that the Applicant now has a young child. In my opinion, this submission is unsound.

[ 20 ] According to the decision of the Federal Court of Appeal in Raza , supra , a finding by the RPD that a claimant has an IFA or can access state protection or is not credible would preclude a positive finding in a PRRA unless the claimant shows, with new evidence, that a material change in circumstances has occurred since the prior determination by the RPD. [ 21 ] In this case, the RPD had found a valid IFA. The Officer found that the Applicant had not rebutted this finding with new evidence.

The fact that the Applicant has a young child is not “evidence” that could show that the RPD’s finding of an IFA is no longer valid. [ 22 ] The Applicant has not shown, with probative evidence, that the existence of her child would or could affect the IFA determination made by the Officer. A valid IFA can be determinative; see the decision in Ponce v. Canada (Minister of Public Safety and Emergency Preparedness) , 2006 FC 431 .

The question is whether the Officer’s IFA finding is reasonable. [ 23 ] On the basis of the evidence submitted, I am satisfied that the Officer’s IFA finding was reasonable and the application for judicial review, with respect to that decision, is dismissed. THE H&C DECISION [ 24 ] As noted above, the H&C decision is reviewable on the standard of reasonableness.

The Applicant has advanced several arguments in her challenge to the H&C decision. [ 25 ] She alleges that the Officer applied the wrong test for an H&C application by stating, in her decision, that the Applicant “has not proved to my satisfaction that it is impossible for her to apply for permanent residence from outside Canada, as required by the IRPA [the Act ]”. She alleges the Officer erred by finding that she could return to Canada as a self-employed worker and as such, be issued an immigration visa.

Further, she submits that the Officer failed to consider the best interests of the child first, and failed to consider that the child would lose the benefits of her Canadian citizenship, if the Applicant is returned to Mexico. [ 26 ] The Applicant also argues that this Court should follow the decision of the United Kingdom Supreme Court in ZH (Tanzania) v. Secretary of State for the Home Department , [2011] UKSC 4 , 2 A.C. 166 , in assessing the best interests of a Canadian-born child.

In ZH , supra , the United Kingdom Supreme Court considered the impact of the removal of a non-citizen parent in assessing the best interests of a citizen child. Finally, she submits that the Officer exceeded her jurisdiction by re-litigating the RPD claim and considering the Applicant’s delay in claiming refugee protection as a negative factor. [ 27 ] For his part, the Respondent submits that the Officer committed no reviewable error in refusing the H&C application.

He argues that the Officer applied the correct test, that is, whether the Applicant would suffer undue and undeserved or disproportionate hardship by having to apply for permanent residence from outside Canada. [ 28 ] Otherwise, the Respondent submits that the Officer properly assessed the best interests of the Applicant’s child, observing that the mere fact that a child is born in Canada to a parent without status is not a basis, per se , for granting an H&C application.

The Respondent further argues that the United Kingdom Supreme Court decision relied upon by the Applicant has no relevance or application to Canadian law. [ 29 ] In my opinion, in spite of the many arguments advanced by the Applicant, she has not shown that the Officer committed any errors in her disposition of the H&C application. [ 30 ] Although the Officer used the word “impossible” in referring to the test for disposing of an H&C application, this does not mean that she misapplied the test.

The first mention of that word is on page 4 of the decision, paragraph 2, and the second is on page 5, 5th full paragraph. [ 31 ] The reference on page 4 is clearly an error but it is not apparent that the Officer applied a standard of impossibility since she also stated the test of “unusual and undeserved or disproportionate hardship” several times throughout the decision.

[32] The second use of the word “impossible” is on page 5 of the decision. The second reference relates to the expectation that theApplicant could adapt to another region of Mexico. In my opinion, the Applicant is taking this word out of its context and her argumentin this regard cannot succeed. [33] The Officer did not find that the Applicant could re-enter Canada as a temporary worker. Rather, the Officer made thefollowing comment: The applicant has experience as a self-employed worker in Canada which she will be able to turn to her advantage.

It is up to her owndiscretion to apply for permanent residence if she wants a future for herself and her daughter in Canada (page 4 of the decision). [34] There is nothing unreasonable about this statement and the Officer did not find that the Applicant would be granted a self-employed worker visa. [35] As well, the Applicant has not shown any errors by the Officer in her assessment of the best interests of the Applicant’sCanadian-born child.

The Applicant proposes that Canadian law should follow the United Kingdom decision in ZH, supra, para. 33,which held that the “best interests of the child must be a primary consideration” when weighing various factors. [36] However, that decision is not relevant to the

interpretation of Canadian immigration law because it relied upon the UnitedKingdom’s national implementation of Article (3)1 of the United Nations Convention on the Rights of the Child, 20 November 1989,Can. T.S. 1992 No. 3. In particular,

section 55 of the United Kingdom’s Borders, Citizenship and Immigration Act 2009 (U.K.), 2009, c.11, has no equivalent in the Act. The relevant jurisprudence provides that the best interests of the child, even a Canadian-born child, arenot determinative of an H&C application. In this regard, I refer to the decisions in Hawthorne v. Canada (Minister of Citizenship andImmigration) (2002), 2002 FCA 475 , 297 N.R. 187 (F.C.A.), Legault v. Canada (Minister of Citizenship and Immigration)(2002), 2002 FCA 125 , 288 N.R. 174 (F.C.A.) and Langner v.

Ministre de l’Emploi et de l’Immigration et al. (1995), 97 F.T.R.118 (F.C.A.). [37] The Officer’s risk analysis in the H&C application is the same one conducted for the PRRA application. The IFA findingmade by the RPD remains uncontradicted; the Applicant did not submit new evidence upon her H&C application that would overcomethe RPD’s finding of a viable IFA.

Again, this finding is determinative in concluding that the Officer’s decision upon the H&Capplication was reasonable. [38] In the result, the application for judicial review relative to the H&C decision is dismissed. [39] In respect of the H&C application the Applicant submitted the following question for certification: Whether the best interests of a child must be a primary consideration when assessing an applicant under s. 25 of the Act and theRegulations? [40] The Respondent, having had the opportunity to make submissions on the proposed question for certification, argues that thequestion should not be certified because it does not meet the criteria for certification, that is, a serious question of general importance thatwould be dispositive of an appeal; see Zazai v.

Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 89 , 318N.R. 365 (F.C.A.) at para 11. [41] I agree with the Respondent’s arguments in this regard. No question will be certified in respect of the H&C decision. [42] These Reasons will be filed in cause number IMM-3153-11 and placed on the file in cause number IMM-3154-11. “E. Heneghan”

Judge FEDERAL COURT SOLICITORS OF RECORD DOCKETS: IMM-3153-11 IMM-3154-11 STYLE OF CAUSE: SYLVIA BARRIOS SILVA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 7, 2012 REASONS FOR JUDGMENT AND JUDGMENT: HENEGHAN J. DATED: November 5, 2012 APPEARANCES : Micheal Crane FOR THE APPLICANT Leanne Briscoe FOR THE RESPONDENT SOLICITORS OF RECORD : Micheal Crane Barrister and Solicitor Toronto , Ontario FOR THE APPLICANT

Myles J. Kirvan Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT