Toronto, Ontario, March 29, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
BLANCA LUZ GONZALEZ GONZALEZ
OLIVER RIVERA GONZALEZ
JUNIOR RIVERA GONZALEZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants comprise a mother and her two children, all citizens of Mexico, who claimed refugee protection under the provisions of sections 26 and 27 (1) of the Immigration and Refugee Protection Act S.C. 2001, c.27 (IRPA). The Immigration and Refugee Board of Canada, Refugee Protection Division by its decision dated May 25, 2006 determined that the Applicants were not convention refugees and not persons in need of protection, thereby rejecting the claims. The Applicants seek judicial review of that decision.
[2] For the reasons that follow I find that the application is dismissed.
[3] The reasons of the Board are probing and sensitive to the case of the Applicants. There is no doubt that the Board was sensitive to the fact that the Applicant was a woman and was claiming that she suffered abuse at the hands of her former partner in Mexico. In some respects the Board found the mother to be a credible witness however, it did not find that her evidence as to the level of risk that her former partner poses to be credible. The whole of those reasons need not be repeated, however the findings at page 3 and conclusion at page 8 reflect the overall determination by the Board:
Page 3:
I find that the evidence presented in support of the principal claimant’s allegations does not establish a serious possibility that she or her children would be subjected to any of the harms listed in section 96 or 97.
In general, I found the claimant to be a credible witness, particularly with respect to her evidence regarding the abuse she suffered at the hands of her former partner and the efforts she made to deal with her problems, which ultimately resulted in her leaving him in 1997.
However, I do not find portions of her evidence regarding the level of risk this man poses to her and her children to be credible.
Page 8:
Based on the totality of the claimants’ evidence, when viewed in light of the documentary evidence relating to child custody, I find that the claimants have failed to establish a serious possibility that they would be subjected to any of the harms identified in sections 96 or 97(1). In arriving at this decision, I have considered the psychologist’s report and the letter from Women’s Habitat and accept their conclusions that the principal claimant was abused during her relationship with her former partner and that she continues to suffer stress as a result of the ongoing relationship she must maintain with him because of their children. However, these reports do not alter my findings regarding the level of risk the former partner posed to the claimants during the years that they were separated or that he would present if they were to return to Mexico.
[4] The arguments raised by the Applicants’ counsel in this judicial review deal with the evidentiary finding and conclusions of the Board. Those findings and conclusions are entitled to great respect and should not be set aside unless they are patently unreasonable (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 at para. 4 (F.C.A.)). I do not find a basis for setting aside the decision of the Board in this respect.
[5] Applicants’ counsel submitted that the Board had given inefficient consideration to the Gender Guidelines, to the psychological evidence and to the best interests of the children. A review of the reasons demonstrates that sufficient consideration was given to all these matters. As Justice Russell said in Ortiz v. Canada (Minister of Citizenship and Immigration) 2006 F.C. 1365 at paragraph 44 disagreement with the Board is not a sufficient basis for this Court to interfere with the decision.
[6] The Applicants raise a further issue under section 108(4) of IRPA which states in effect, that even if the reasons for which a person has sought refugee protection have ceased to exist, the claim should not be rejected if the Applicants establishes that there are “compelling reasons” arising out of previous persecution, torture, treatment as persecution whereby the Applicants should not avail themselves of the protection of the country which they left. The Applicants argue that the Board must consider the issue of “compelling reasons” even if the Applicants themselves do not raise the issue.
[7] Section 108(4) makes it clear that the onus is on the Applicants to establish that there are “compelling reasons”. The jurisprudence such as Ortiz supra at paragraphs 60 and 61 makes it clear that this provision is exceptional and applies only in extraordinary cases. There is nothing in IRPA or the jurisprudence that would indicate that the Board must raise the issue on its own accord. There was no error in this case in the Board not raising the issue.
[8] The application will be dismissed. There is no question requiring certification. There is no order as to costs.
JUDGMENT
For the Reasons given;
THIS COURT ADJUDGES that:
1. The application is dismissed;
2. There is no question for certification; and
3. No order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3429-06
STYLE OF CAUSE: BLANCA LUZ GONZALEZ GONZALEZ
OLIVER RIVERA GONZALEZ JUNIOR RIVERA
GONZALEZ v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 29, 2007
APPEARANCES:
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DANIEL FINE
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GORDON LEE |
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SOLICITORS OF RECORD:
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DANIEL FINE TORONTO, ON |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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