Federal Court Decisions

Date: 20050901

Docket: IMM-6375-04

Citation: 2005 FC 1198

BETWEEN:

ANGELICA REYES MARTINEZ

STEPHANIE HUERTA REYES

YOSELIN REYES MARTINEZ

Applicants

and

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER

SIMPSON J.

[1]    This application is for judicial review of a decision of a Pre-Removal Risk Assessment Officer (the "Officer") dated June 8, 2004 which concluded that the adult applicant (the Applicant") and her two minor daughters are not at risk if removed to Mexico (the "Decision").

THE FACTS

[2]    The Applicant made a refugee claim on the basis of her fear of her father who is a Commander in the Judicial Police. The claim was rejected by the Immigration and Refugee Board ("IRB") on April 14, 2003 and the subsequent application for leave to apply for judicial review was dismissed.

[3]    The Applicant's sister made a successful refugee claim in August of 2003. However, there was no evidence before the Officer about the circumstances of her claim.

[4]    The Pre-Removal Risk Assessment application was based on the following grounds:

(i)                   The Applicant fears her father who resides in Mexico. In the past, he sexually, physically and mentally abused her. He has told her he will find her wherever she goes in Mexico. She believes him because of his influential position. The Applicant also fears that her daughters will fall victim to her father. These matters were before the Refugee Board.

(ii)                 The Applicant also raised a new matter. She fears returning to Mexico because one of her brothers was threatened and attacked by Mexican police in December of 2003. It is alleged that the police threatened to kill that brother as well as the rest of the family if he and his mother did not stop investigating the April 2002 death of her older brother, Juan (the "Threats").

THE DECISION

[5]    On the points of relevance to the submissions made in this application, the Officer reached the following conclusions:

(a)                 The Officer found that it is less likely than not that the applicants would be at risk because of the Threats. He described the risk as "less than likely".

(b)                With regard to the death of Juan and the Threats, the Officer noted that the Applicant's brother and mother did not approach the father for help. He concluded that this was unreasonable since there was no evidence that they had any problems with the father.

(c)                 The Officer also noted that the Threats were made in December 2003 and that there was no evidence that the brother and mother were continuing their investigation of Juan's death. They both have remained in Mexico without incident since that time.

(d)                Lastly, the Officer addressed the Applicant's sister's (the "Sister") successful refugee claim in August of 2003. The Officer found that, since the Applicant did not provide the RPD's written reasons regarding the Sister's claim, it was not relevant to the risk assessment.

THE ISSUES

[6]    The issues concern:

_     the standard of proof;

_     the conclusion that there was no evidence of an ongoing investigation of Juan's death;

_     the decision in the Sister's refugee case;

_     the conclusion that the father could reasonably have been expected to be asked to help with the investigation of Juan's death.

DISCUSSION AND CONCLUSIONS

The Standard of Proof

[7]    While the standard of proof applied by the Officer is expressed in the negative i.e. "less likely than not", it is clear from the comment that it is "less than likely" that the applicants would be at risk, that the standard applied is not more onerous than the standard of "more likely than not" recently approved in Li v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1. Accordingly, the Applicant has not succeeded on this issue.

THE ONGOING INVESTIGATION

[8]    The Applicant says that it is patently unreasonable for the Officer to have concluded that the PRRA application included no evidence about whether the mother and brother had decided to continue the investigation which prompted the Threats. He says that, since the PRRA application was made only three months after the Threats, the Officer should have assumed that the investigation continued unless the contrary was stated.

[9]    There is, in my view, no necessary inference to be drawn in the absence of evidence on this issue. The Threats might have been ignored and the investigation continued or they might have terrified the applicant's mother and brother into inaction. The onus was on the Applicant to provide the Officer with evidence about the impact of the Threats on the investigation.

THE SISTER'S CLAIM

[10]                        It is also my view that, if the Applicant's had wanted to rely on the Sister's successful refugee claim, the RPD's Decision should have been included in her submission for a Pre-Removal Risk Assessment.

THE FATHER'S POTENTIAL INVOLVEMENT

[11]                        The Applicant said that, because the Applicant alleged abuse at her father's hands, it was patently unreasonable for the Officer to suggest that her mother and brother could enlist his help in their investigation of Juan's death. In my view, on the unusual facts of this case including the fact that the father is a commander of the Judicial Police and that the brother and mother do not have problems with him, the Officer's suggestion was not unreasonable.

[12]                        CONCLUSION

[13]                        For all these reasons, the application will be dismissed.

"Sandra J. Simpson"