I.P.P. v. Canada (Citizenship and Immigration)

I.P.P. v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2018-04-03
Neutral citation
2018 FC 123
File numbers
IMM-5135-15
Decision Content
Date: 20180403
Docket: IMM-5135-15
Citation: 2018 FC 123
Ottawa, Ontario, April 3, 2018
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
I.P.P. AND OTHERS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons issued February 5, 2018)
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act or IRPA], for judicial review of the decision of the Refugee Protection Division [RPD or Board] of the Immigration and Refugee Board of Canada [IRB], dated October 14, 2015 [Decision], which refused the Applicants’ applications to be deemed Convention refugees or persons in need of protection under ss 96 and 97 of the Act. In addition to ordinary administrative law remedies, the Applicants also request extraordinary remedies under s 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], for alleged violations of their Charter rights.
II. BACKGROUND
[2] The Applicants are an extended family of twenty-four Mexican citizens. Over the course of 2007 and 2008, they arrived in Canada in separate groups and made claims for Convention refugee status.
[3] The Applicants’ claims were all connected to an incident in 1992 when the principal Applicant, I.P.P., witnessed the murder of a neighbour and assisted police by identifying one of the murderers. I.P.P. later discovered that a particular gang [Gang] was responsible for the murder. After the Gang’s leader was jailed for the crime, the Gang engaged in a fifteen-year vendetta against I.P.P. and his family. The Applicants allege that the Gang are “madrinas” for the Mexican judicial police. They say that madrinas are criminal gangs who serve as clandestine wings of police forces in Mexico.
[4] The first group of Applicants arrived in Toronto on April 17, 2007 and a Port of Entry [POE] interview was conducted by Canadian immigration officials. The original group retained counsel and submitted their original Personal Information Forms [PIF] on May 11, 2007. The first group became dissatisfied with their original counsel and retained new counsel in March of 2008. Over the course of 2008 and 2009, I.P.P., his mother, L.M.P.A., and his cousin, C.A.A.P., swore several new affidavits with their new counsel to amend the PIFs submitted by their first counsel.
[5] Due to delays caused by the need to amend the Applicants’ PIFs, adjournments requested by the Applicants’ counsel, and the need to join different groups of claims, the Applicants’ first pre-hearing conference at the RPD did not begin until July 8, 2009. Five pre-hearings were required before the Applicants began giving oral testimony on February 8, 2011. After four oral hearings in February, the RPD could not schedule another hearing until October of 2011. Seven more hearings of oral testimony concluded with the Applicants’ final hearing on December 6, 2011.
[6] During the 2011 intermission in hearings, the Applicants became aware of the RPD Member’s reported “zero percent acceptance rate” in refugee claims. Consequently, when hearings resumed on October 13, 2011, the Applicants made submissions to the Member requesting that he recuse himself on the basis of a reasonable apprehension of bias, delay, and because of the adverse impact that reports of his zero acceptance rate were having on the Applicants. After taking the matter under reserve, the Member declined the Applicants’ request and refused to recuse himself at the next hearing on October 18, 2011.
[7] The Applicants allege that, after the Member’s refusal to recuse himself, their stress levels resulting from the claim process dramatically increased. They say this stress manifested itself in several physical incidents during hearings in the fall of 2011. Consequently, the Applicants made a renewed request for the Member to recuse himself at the October 27, 2011 hearing.
[8] As part of their post-hearing submissions in January of 2012, the Applicants again requested that the Member recuse himself. As part of this request, they submitted a report prepared by Professor Sean Rehaag which described concerns with the Member’s methodology. Attached to the affidavit containing Professor Rehaag’s report were copies of every refugee decision rendered by the Member between 2008 and 2010. This amounted to over six hundred pages of exhibits. The Applicants went on to make three more requests for the Member to recuse himself before the Decision was rendered on October 14, 2015.
[9] In November 2014, nearly three years after the conclusion of oral testimony, with the Decision still not rendered, the Applicants launched an Access to Information/Privacy [ATIP] request for all RPD documents related to the file.
[10] The Applicants received notification of the Decision on October 27, 2015. The Member’s reasons, included with the notification, are dated October 14, 2015, which was the final day of the Member’s term of appointment with the RPD.
III. DECISION UNDER REVIEW
[11] The Decision begins by acknowledging that the Applicants’ claim is for refugee protection under ss 96 and 97(1) of the Act. Ultimately, the Member concludes that the Applicants are not Convention refugees or persons in need of protection because he does not find their story credible.
A. Allegations
[12] The first section of the Decision summarizes the basis of the Applicants’ claim “as per the Original Personal Information Form” and provides a brief procedural history of the claim’s progress. It recounts the Applicants’ allegation that their persecution all stems from I.P.P.’s having witnessed a murder committed by persons he later learned were members of the Gang, and his involvement in identifying the killer. Persistent attacks that the Applicants attribute to the Gang led to the Applicants seeking refugee protection in Canada beginning in 2007.
[13] The Decision notes that the first group of Applicants to arrive in Canada submitted a joint narrative under the supervision of a lawyer. The Applicants eventually changed counsel and complained that the original narrative was an inaccurate reflection of their story. The Member notes that “[v]arious ‘affidavits’ were filed to add extensive information to the narrative and change some of the things mentioned.” The Member takes issue with the format of these amendments to the Applicants’ PIF narrative but acknowledges that these problems were rectified. The Member concludes this section by stating that, over the course of 2007 and 2008, the total number of Applicants grew to twenty-six, but that three claimants later withdrew their claims.
B. Recusal
[14] The next section of the Decision addresses the Applicants’ requests for the Member’s recusal, which are characterized as being made at “various times” on “various bases.” The Member states that all requests were overruled. With regard to complaints about his demeanour, the Member is confident “that with two counsels and [a Refugee Protection Officer (RPO)] constantly in the hearing room with me, none of them ever witnessed, in their opinion, any instances of inappropriate demeanour.”
[15] The Member proceeds to state his reasons for overruling the Applicants’ objection that a document he relied on was solicitor-client privileged and for overruling objections based on delay in the proceedings. The document in question was introduced by the Applicants to establish that their original counsel had failed to include all the details of their story in their initial PIF. The Member points out that, like the PIF, the document lacks details, and determines that the Applicants waived solicitor-client privilege by proffering the document to the RPD. The Member concludes that delays in the proceeding were a function of the large number of Applicants. This made it difficult to schedule hearings in the only Toronto hearing room large enough to accommodate the whole group. The Member discounts any evidentiary problems arising from the delay, since RPD proceedings are digitally recorded and can be consulted “if memory and written notes are not clear.”
[16] The Member returns to the question of recusal with the statement that “[s]tatistics were also noted.” He acknowledges media reports of his “zero percent acceptance rate” but explains that, when one considers the countries of origin involved in the decisions, his average acceptance rate did not place him on the list of RPD members who were highly off the average. The Member points out that he is bound by the RPD Code of Conduct to decide cases on the facts and law before him and that “each case turns on its own merits.” He points out that statistics alone cannot determine whether a positive or negative result was warranted. Evidently the Applicants made other objections, but the Member says he “will not repeat them.”
[17] The Member then offers a lengthy rebuttal of Professor Rehaag’s report. He discounts the report’s value because Professor Rehaag’s language “appears to be advocating for a certain viewpoint, rather than being dispassionate.” Specific criticisms of the report include:
Lack of mathematical explanation for how Professor Rehaag arrived at his statistical conclusions, including what variables were controlled for;
Failure to analyze the decisions of other RPD members;
Disagreement with characterising the Member’s credibility findings as being based on differences between oral testimony, the PIF, Port of Entry [POE] notes, and other documentary evidence, rather than a claimant’s explanation for those differences;
Mischaracterization of the Member’s approach to psychological evidence;
Ignoring the reasonable explanation for boilerplate passages and reasoning templates in the Member’s decisions; and
Pointing out that mentioning the RPD Gender Guidelines in decisions is not a requirement, that it is more important that the Gender Guidelines be followed, and asserting that the Member’s questioning of L.M.P.A. did conform to the Gender Guidelines.
[18] The Member proceeds to defend the record of his decisions in applications for judicial review in this Court. He points out that only a small portion of his decisions have been granted leave, and that it is therefore incorrect to assume that those decisions are a representative sample. While some claimants may have lacked the resources to proceed with an application for leave, the Member is confident that Legal Aid Ontario can assist with cases that appear to be well founded. In addition, the Member points out that a small number of overturned decisions does not give rise to a reasonable apprehension of bias, particularly after Turoczi v Canada (Citizenship and Immigration), 2012 FC 1423 at para 18 [Turoczi], where Justice Zinn accepted that the Member’s “findings were straightforward applications of binding legal authorities and the relevant burden of proof…. [And that] there was very little likelihood that any member would have decided the claim differently.”
[19] The Member returns to the issue of delay to note that, in addition to the scale of the proceedings mentioned earlier, the time taken to reach a decision was impeded by the Applicants’ ATIP request. The Member accepts that such a request was completely proper, but states that “the file was returned from [the] ATIP with nothing in order.” The Member also reiterates the availability of a digital recording of the proceedings, “so if there is something in doubt, the recording can be examined.”
[20] The Member also addresses the Applicants’ request for his recusal based on adverse psychological impact during the hearings. He explains that he gives little weight to the evidence of the Applicants’ family therapist, [omitted], because she is not licenced to diagnose psychological conditions. The Member points out that “every precaution” was taken to accommodate the Applicants, including frequent breaks, reverse questioning, support persons being allowed to be seated next to the Applicants, not questioning over specific details of L.M.P.A.’s sexual assault, and offering to use closed circuit television to monitor the proceedings. The Member acknowledges that I.P.P. became sick during the proceedings, but states that this was while his counsel was asking him questions. Therefore, the Member fails to see what could have been done differently.
[21] The section of the Decision dealing with recusal concludes by quoting the test for reasonable apprehension of bias espoused by Justice de Grandpré in Committee for Justice and Liberty v National Energy Board (1976), [1978] 1 SCR 369 at 394 [Committee for Justice]. The Member “cannot see how this test has been satisfied.”
C. Determination
[22] The Member states that the Applicants have failed to satisfy the burden of establishing a serious possibility of persecution or the probability that they would be subjected to a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment if they were returned to Mexico. He mentions that all of the evidence was considered in the context of the Gender Guidelines and he accepts that “the circumstances which give rise to women’s fear of persecution are often unique to women.”
D. Credibility
[23] The Member accepts the Applicants’ identities as citizens of Mexico.
[24] The Member’s credibility analysis starts by reiterating that he cannot find the Applicants credible. Of particular concern to the Member are discrepancies between the Applicants’ oral testimony, their PIFs, and other documentary evidence. The Member notes that amendments to the PIFs state that the Gang is a madrina affiliated with a Mexican police force. The Member accepts that confusion over the particular level of police to which the Gang is connected is understandable, but highlights that I.P.P.’s initial statement to immigration officials made no mention of the Gang’s connection to any police force. I.P.P.’s explanation that he had not known what to say, that the immigration officers had been rude, and that he only recalled this after therapy are rejected by the Member. The Member states that he understands that a claimant can be tired from travelling, and that perfect recollection is unlikely in a spontaneous interview, but emphasizes I.P.P.’s initial statement’s length. In these circumstances, the Member finds that the Gang’s connection to the police “would have come to mind,” and declines to accept I.P.P.’s explanation for the omission.
[25] Mention of the Gang being madrinas for a police force was also absent from the Applicants’ original PIF narrative. The Member finds I.P.P.’s explanation that it was their original counsel who omitted these details to be unsatisfactory because counsel was a licenced lawyer. The Member notes that, when faced with the Applicants’ complaint alleging improper service, their first lawyer disputed the allegations and asserted that he prepared the PIF properly. The Member finds it telling that the Applicants “did not push the matter further.” Since several of the claimants relied on I.P.P.’s narrative, the Member “cannot see how all would not remember this fairly basic fact” during its preparation, and finds that “these omissions” undermine the credibility of the Applicants.
[26] The Member then deals with a “subplot… not mentioned in the original narrative” that was added in later PIF amendments. The incident in question involved a revenge murder of a member of the Gang, committed by the family of the person whose murder I.P.P. had witnessed. The Member rejects I.P.P.’s explanation that this was not clear to him at the time the original narrative was submitted. The Member reasons that the twenty-eight day deadline for submission of the PIF and narrative “is almost the entire time allowed for certain current refugee claims from start to finish.” Considering the narrative’s length, and its inclusion of “minute details… and other mundane things,” the Member holds that “[i]t makes no sense that the original PIF narrative does not mention the second murder.” I.P.P.’s own testimony was that he did not testify against the Gang leader. The Member therefore concludes that “[the Gang leader] was jailed by other means and it seem[s] strange that [the Gang] would spend all of these years seeking revenge against [I.P.P.].” Thus, the Member found that it was more likely that the story of the second murder was “concocted” and its omission from the original PIF further undermined the Applicants’ credibility.
[27] Other omissions from the original PIF that the Member finds undermine the Applicants’ credibility include:
I.P.P. being drugged, abducted, beaten, and told at gunpoint that the Gang leader was still deciding what to do with him in 2000;
An incident where someone with a gun chased I.P.P. after he stopped for gas;
I.P.P.’s son’s face being smashed into the windshield of a car during a 2003 incident involving a vehicle; and
The Gang leader’s call to I.P.P.’s father after the family’s vehicle was stolen in 2007 – the incident which ostensibly prompted their flight to Canada.
[28] The Member considers I.P.P.’s explanations for the omission of each of these incidents from the original PIF narrative in turn. I.P.P.’s explanations centre on further attacks being recalled during therapy, I.P.P. assuming that the incidents were described in his mother’s subsequent narrative, and his original lawyer’s omission of details from the first PIF narrative. In each case, the Member “do[es] not find these explanations satisfactory.”
[29] The Member also comments on “discrepancies” between I.P.P’s testimony and the amended PIF that undermine the Applicants’ credibility. Again, in each case, the Member considers I.P.P.’s explanation for these discrepancies, but “do[es] not find these explanations satisfactory.” The discrepancies include:
Precise details of the killers’ movements during the murder I.P.P. witnessed in 1992;
Whether assailants hit I.P.P. while attacking him in 1999, or if he was merely slashed;
The number of assailants who attacked I.P.P. after his marriage, whether a gun was used, and whether I.P.P. lost consciousness; and
The scope of the 2006 attack and whether it was followed by police misconduct when I.P.P. attempted to report the crime.
[30] The Member then proceeds to evaluate the testimony of I.P.P.’s family members. In each case, the Member finds discrepancies and omissions that “further undermine the [Applicants’] credibility.” Again, none of the explanations the Applicants offer are found to be satisfactory. The Member’s specific concerns include:
A.A.P. not describing two 2002 attacks on him in either the handwritten statement he gave to immigration officials as part of his claim or in the original PIF;
A.A.P’s failure to give the Gang leader’s name to an immigration official at the time he made his claim;
L.M.P.A.’s failure in an interview with an immigration official to describe threats made against the family after 1992;
The precise nature of alleged police involvement in L.M.P.A.’s rape;
F.P.R.’s answer to an immigration official that there was no reason why he could not return to Mexico and his failure to disclose incidents that occurred after 1992;
F.P.R.’s failure to mention being attacked on the highway in his handwritten statement to immigration officials;
D.P.P.’s claim that she did not know about L.M.P.A.’s rape until after her arrival in Canada;
R.P.P.’s not mentioning the kidnapping of her cousin in her original narrative filed in 2010;
C.A.A.P.’s proffering a police report about his kidnapping that was dated 2006, rather than 2008, and admitting that in his first interview with an immigration officer he told the officer that he had only been kidnapped for one day because he did not want to contradict the report, even though it was incorrect;
A.D.P.A.’s statement to immigration officials, both orally and in a handwritten note, that C.A.A.P. had been kidnapped and released on the same day, rather than after three days, and her admission that she also did not want to contradict the police report; and
Why J.E.T.P. stated in his PIF that he feared the judicial police rather than the Gang.
[31] The Member also makes specific credibility findings in relation to C.A.A.P.’s testimony about his fear of persecution based on sexual orientation. The viability of La Zona Rosa, a gay district in Mexico City, is addressed. The Member takes issue with C.A.A.P.’s assertion that “there are daily dead bodies and wounded people in La Zona Rosa.” While accepting that “there may be isolated incidents of gay bashing in Mexico,” the Member finds it implausible that the carnage described by C.A.A.P. could go unreported. Therefore, “it was obvious [C.A.A.P.] was lying and to a somewhat fantastic degree.” C.A.A.P.’s testimony that his uncle was gay, had died of AIDS, and had been attacked on account of his sexuality is also noted as being absent from his PIF. The Member reasons that if C.A.A.P. fears persecution on account of his sexual orientation, then the possibility that C.A.A.P.’s uncle faced attacks is something he would have expected to be mentioned in C.A.A.P.’s amended PIF.
[32] While considering the Applicants’ testimony, the Member specifically finds that the behaviour of D.P.P.’s husband exhibited a lack of subjective fear that undermined the Applicants’ credibility. D.P.P.’s husband arrived in Canada with her, but returned to Mexico and later travelled to the United States. Considering that D.P.P.’s husband was allegedly aware that the Gang was hunting the family, the Member cannot accept that D.P.P.’s husband would return to Mexico or not “simply cross a bridge from Buffalo” to join his family’s refugee claim.
[33] The Member also considers documents the Applicants submitted, but in each case either questions the documents’ veracity or concludes that the documents reinforce the Member’s negative credibility finding. A handwritten note the Applicants gave to their original counsel is noted to be similar to the PIF the lawyer produced. Both omit connecting the Gang to the police. Since the Applicants’ argument was that their original PIF was deficient because the lawyer had ignored the document, the Member finds that this “actually reinforces the negative credibility findings made with respect to the original PIF.” A news report mentioning the Gang is criticized for the timing of its admission and for the detail that the Gang was using the Applicants’ abandoned house, an assertion the Applicants had never previously made. The Member notes that a police report about an alleged highway attack on F.P.R. incorrectly refers to him as a journalist, states that he lives in the wrong city, and fails to mention the Gang. And a “denunciation about recent events in Mexico” bears an official stamp on one otherwise blank page and lacks a file number. The Member concludes that the denunciation’s discrepancies call into question the authenticity of all documents submitted by the Applicants.
[34] The Member summarizes his credibility conclusions as follows:
[47] Given the serious discrepancies, omissions and outright lies with respect to major issues, I find that the claimants were generally lacking in credibility. I simply do not believe, on a balance of probabilities, that any of the significant events that the claimants alleged happened to them actually happened. Given this finding and the irregularities with respect to several documents, I find on a balance of probabilities, that the documents presented by the claimants are forgeries.
E. Internal Flight Alternative
[35] The Member then determines that C.A.A.P., who also raised sexual orientation as a separate ground, has a viable Internal Flight Alternative [IFA] in the Federal District of Mexico City. The Member cites the test for finding a viable IFA set out in Rasaratnam v Canada (Minister of Employment & Immigration) (1991), [1992] 1 FCR 706 (CA) [Rasaratnam]. Under the first prong of the test, the Member reasons that, since he does “not believe any of the [Applicants’] evidence, to find in [C.A.A.P.’s] favour, [he] would have to find that all gay men in the Federal District face persecution.” While acknowledging that isolated violence is possible, the Member is satisfied that the existence of a gay district in the Federal District, openly gay bars, and openly gay politicians precludes a serious possibility that C.A.A.P. will be persecuted there. The second prong analysis relies on Canada (Minister of Citizenship and Immigration) v Ranganathan (2000), [2001] 2 FCR 164 (CA), to establish that the threshold for showing that relocation to the proposed IFA is unreasonable is high. The Member finds that as C.A.A.P. would “essentially be moving closer to the centre of a city he already lived in,” it is not unreasonable to expect him to avail himself of the IFA.
F. Conclusion
[36] The Decision concludes by stating the Member’s determination that the Applicants’ claims under s 96 of the Act fail because the Member does not believe them and finds that there is an IFA available for C.A.A.P. The Member holds that the Applicants are not persons in need of protection because there is “no other evidence that they would be subject to the harms delineated in section 97 of the [Act].”
IV. ISSUES
[37] The Applicants submit that the following are at issue in this application:
Did delay or a reasonable apprehension of bias in the RPD proceedings violate the Applicants’ s 7 Charter rights?
Did delay or a reasonable apprehension of bias in the RPD proceedings violate administrative law principles of natural justice?
Is the RPD’s credibility assessment unreasonable?
Is the RPD’s determination that a viable IFA exists for C.A.A.P. unreasonable?
What is the appropriate remedy?
V. STANDARD OF REVIEW
[38] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[39] The issues the Applicants raise with respect to delay and reasonable apprehension of bias are questions of procedural fairness. Questions of procedural fairness are reviewed under the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].
[40] The RPD’s credibility findings are findings of fact reviewable on a reasonableness standard: Fatih v Canada (Citizenship and Immigration), 2012 FC 857 at para 62 [Fatih].
[41] The RPD’s application of the IFA test and finding that a viable IFA exists for C.A.A.P. is reviewable on a reasonableness standard: Ahmed v Canada (Citizenship and Immigration), 2016 FC 828 at para 8; Estrada Lugo v Canada (Citizenship and Immigration), 2010 FC 170 at paras 30-31.
[42] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[43] The following Charter provisions are relevant in this proceeding:
Rights and freedoms in Canada
Droits et libertés au Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.
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Life, liberty and security of person
Vie, liberté et sécurité
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
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Equality before and under law and equal protection and benefit of law
Égalité devant la loi, égalité de bénéfice et protection égale de la loi
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (1) La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques.
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Enforcement of guaranteed rights and freedoms
Recours en cas d’atteinte aux droits et libertés
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
[44] The following provisions from the Act are relevant in this proceeding:
Convention refugee
Définition de réfugié
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97 (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Abandonment of proceeding
Désistement
168 (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
168 (1) Chacune des sections peut prononcer le désistement dans l’affaire dont elle est saisie si elle estime que l’intéressé omet de poursuivre l’affaire, notamment par défaut de comparution, de fournir les renseignements qu’elle peut requérir ou de donner suite à ses demandes de communication.
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Proceedings
Fonctionnement
170 The Refugee Protection Division, in any proceeding before it,
170 Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés :
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(b) must hold a hearing;
b) dispose de celle-ci par la tenue d’une audience;
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(f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;
f) peut accueillir la demande d’asile sans qu’une audience soit tenue si le ministre ne lui a pas, dans le délai prévu par les règles, donné avis de son intention d’intervenir;
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(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.
i) peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
[45] The following provisions of the Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], are relevant in this application:
Specialized Knowledge
Connaissances spécialisées
Notice to parties
Avis aux parties
22 Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person and, if the Minister is present at the hearing, the Minister, and give them an opportunity to
22 Avant d’utiliser des renseignements ou des opinions qui sont du ressort de sa spécialisation, la Section en avise le demandeur d’asile ou la personne protégée et le ministre — si celui-ci est présent à l’audience — et leur donne la possibilité de faire ce qui suit :
(a) make representations on the reliability and use of the information or opinion; and
a) présenter des observations sur la fiabilité et l’utilisation du renseignement ou de l’opinion;
(b) provide evidence in support of their representations.
b) transmettre des éléments de preuve à l’appui de leurs observations.
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Opportunity to explain
Possibilité de s’expliquer
65 (1) In determining whether a claim has been abandoned under subsection 168(1) of the Act, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned,
65 (1) Lorsqu’elle détermine si elle prononce ou non le désistement d’une demande d’asile aux termes du paragraphe 168(1) de la Loi, la Section donne au demandeur d’asile la possibilité d’expliquer pourquoi le désistement ne devrait pas être prononcé :
(a) immediately, if the claimant is present at the proceeding and the Division considers that it is fair to do so; or
a) sur-le-champ, dans le cas où le demandeur d’asile est présent à la procédure et où la Section juge qu’il est équitable de le faire;
(b) in any other case, by way of a special hearing.
b) au cours d’une audience spéciale, dans tout autre cas.
[46] The following provisions of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act], are relevant in this application:
Powers of Federal Court
Pouvoirs de la Cour fédérale
18.1 (3) On an application for judicial review, the Federal Court may
18.1 (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
VII. ARGUMENT
A. Applicants
(1) Section 7 Charter Arguments
[47] The Applicants submit that their s 7 Charter rights are engaged by the Decision in two ways.
[48] First, because the Decision’s denial of refugee protection imposes on them a risk of persecution, a risk to their lives, and a risk of cruel and unusual treatment or torture if returned to Mexico. See Singh v Minister of Employment and Immigration, [1985] 1 SCR 177 at 207 and 210 [Singh]. As legacy claimants whose claims were referred to the Immigration and Refugee Board before December 15, 2012, the Applicants do not enjoy a right of appeal to the Refugee Appeal Division [RAD]: Balanced Refugee Reform Act, SC 2010, c 8, s 36(1), as amended by the Protecting Canada’s Immigration System Act, SC 2012, c 17, s 68; Order Fixing August 15, 2012 as the Day on which Certain Sections of the Act Come into Force, SI/2012-65, (2012) C Gaz II, 1917; Economic Action Plan 2013 Act, No. 1, SC 2013, c 33, s 167. As Mexico is a designated country of origin under s 109.1 of the Act, the Applicants are not entitled to a pre-removal risk assessment until three years after the Decision: Act, s 112(2)(c). The RPD’s Decision, therefore, determines whether the Ap