Date: 20100707
Unrevised certified
translation Docket:
IMM-6235-09
Citation: 2010 FC 732
Montréal,
Quebec, July 7, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
GUILLERMO
ANTONIO PEREZ GRANADOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the panel),
dated November 16, 2009, which found that the applicant is neither a Convention
refugee nor a person in need of protection within the meaning of sections 96
and 97 of the Act, thereby rejecting his claim for refugee protection.
Factual background
[2]
The
applicant is a 48-year-old citizen of El Salvador who fears that he will be
persecuted and subjected to a risk to his life by reason of his political
opinion because he had been an active member of the Movimiento Estudiantiles
Revolucionario Salvadoreno (MERS), a group which denounced oppression by
the right-wing government that was in power at the time as well as the paramilitary
groups associated with that government, when he was studying architecture at
the National University of El Salvador in Santa Lucia in 1981.
[3]
The
applicant attended meetings, distributed pamphlets and raised public awareness
about the government’s abuses. He alleges that one of his friends was murdered
by the paramilitaries and that he himself was targeted by them.
[4]
As a
consequence, the applicant left his country in March 1984 and made his way to Mexico. He remained in Mexico until April 1985 before
making his way to the United States, where he remained until December 1986,
after which he arrived in Canada on December 19, 1986, and
claimed refugee protection. In accordance with the rules that were in effect at
that time, he applied for permanent residence on October 29, 1990. On June 20,
2001, the exemption on humanitarian and compassionate grounds component was
approved. However, because of the criminal offences for which the applicant was
convicted in 1990, 1992 and 1996, and because of his failure to obtain a pardon
from the National Parole Board, his application for permanent residence was
denied. On December 14, 2006, the applicant was declared inadmissible on
grounds of criminality. On February 7, 2007, the applicant was contacted in
order to reactivate the examination of his claim for refugee protection.
[5]
The
applicant alleges that, even now, he still fears his country’s military and
paramilitaries, as well as people of his generation who, at the time, held
political views that were diametrically opposed to his own, because if he were
to return to his country they might recognize him and seek revenge.
[6]
The
applicant acknowledges that, over the course of the past 23 years he has spent
in Canada, the situation in his country
has changed; nonetheless, he still fears that he may be persecuted, given that
the same people he fears (the military and paramilitaries) are still there
today.
Impugned decision
[7]
The panel
acknowledged that the applicant’s refugee claim was indeed related to one of
the Convention grounds, as enumerated in section 96 of the Act. However, the
panel emphasized that it was of the view that if the applicant were to return
to his country of origin, there was little chance he would be persecuted
because circumstances had since changed.
[8]
The panel
determined that the conditions that the applicant once feared no longer exist
today, thus eliminating any serious possibility that he would be persecuted if
he were to return to El
Salvador.
[9]
The panel
did sympathize with the applicant’s situation, noting that he had been unable
to obtain permanent resident status in Canada in spite of the fact that he has lived
here for 23 years, but stated that, unfortunately, it had no jurisdiction with
regard to humanitarian and compassionate grounds.
Relevant statutory provisions
[10]
The following provisions of the Act are relevant in this case:
|
Convention
refugee
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,
(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
(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.
|
Définition
de « réfugié »
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) 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) 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
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
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
|
Personne
à protéger
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) 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) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(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) 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 elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
Issue
[11]
In this
application for judicial review, the only issue is whether that panel’s
decision that the applicant is neither a Convention refugee nor a person in
need of protection within the meaning of sections 96 and 97 of the Act because
of the real and durable change of circumstances in El Salvador since 1984 is
reasonable or not.
Standard of review
[12]
According
to the Supreme Court of Canada, at paragraph 53 of Dunsmuir
v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, when a
tribunal is reviewing legal and factual issues that cannot be readily separated,
the reviewing court will show deference to the tribunal. The applicable
standard of review in this case is reasonableness. At paragraph 47, the Supreme
Court of Canada stated the following:
[47] [R]easonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[13]
Moreover, this Court recognized
that as a specialized administrative tribunal, the
panel has expertise in matters within its jurisdiction. Courts must accord
deference to the decisions of these tribunals when they are based on the application
of sections 96 and 97 of the Act, since it is a question of mixed fact and law
which is to be reviewed on the standard of reasonableness (Acosta v. Canada (Minister
of Citizenship and Immigration), 2009 FC 213 [2009] F.C.J. No. 270 (QL)).
[14]
As for the
changes in circumstances, this Court has already held that changes in circumstances
were a question of fact and should therefore be accorded deference (see Sahiti
v. Canada (Minister of Citizenship and Immigration), 2005 FC 364, [2005] F.C.J. No. 450).
Analysis
[15]
The
question raised by a claim for refugee protection is not whether the claimant
had reason to fear persecution in the past, but rather whether he now, at the
time his claim is being decided, has substantial grounds to fear persecution in
the future.
[16]
In this regard,
the applicant alleges that he would face the same problems today as he did when
he left in 1984. The respondent, for his part, submits that the panel was
correct in noting that several significant changes had occurred since then,
because the evidence indicates that the signing of peace accords in February
1992 put an end to the civil war that had been going on since 1981.
[17]
The
applicant argues that the panel should have further pursued its analysis. The
Court disagrees. In its decision, the panel assessed the documentary evidence –
including The Europa World Year Book 2009; 2009; ‘‘El Salvador’’, and
United States Department of State, February 25, 2009, ‘‘El Salvador,’’ Country Reports on Human
Rights Practices for 2009 – and concluded that ‘‘[t]he documentation as a
whole does not state that the people involved in the militant left movement of
the eighties, including the claimant’s group, the MERS, would face a risk today
because of their political opinion’’ (panel’s decision, at para. 9). The panel
further noted that there had been significant and durable changes considering
that there has not been any further conflict between the guerrilla forces and
the government since 1992 and that the party that has been in power since 2009,
the Frente Farabundo Marti para la Liberacion Nacional (FMLN), is now a
legitimate political party whose members have integrated into civil society.
[18]
Given that
the panel specifically examined El Salvador’s
political evolution in its analysis, the Court finds it difficult to see how
the panel committed any error in its assessment of the documentary evidence. The
panel not only determined that there had been a change, it also noted that this
change, based on the documentary evidence in the record, meant that people who
had been associated with the militant left in the eighties were no longer at
risk today.
[19]
As this
Court has noted many times, it is up to the claimant to demonstrate a
well-founded fear of persecution (Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 689, [1993] S.C.J.
No. 74, at
para. 47).
[20]
In the
case at bar, the documentary evidence confirms that significant and durable
changes have occurred in El
Salvador and
that the applicant’s fear is no longer founded. Moreover, at the hearing before
the panel, counsel for the applicant confirmed that the perceived threat to the
applicant [translation] ‘‘[n]o longer exists today’’ (Tribunal
Record, p. 102).
[21]
For all
these reasons, this Court finds that the panel committed no error that would
justify the intervention of this Court. The parties did not propose a question
of general importance and the matter does not contain any.
JUDGMENT
THE COURT ORDERS AND ADJUDGES AS FOLLOWS:
1. The
application for judicial review is dismissed.
2. No question
of general importance is certified.
‘‘Richard
Boivin’’
Certified
true translation
Sebastian
Desbarats, Translator
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