Docket:
IMM-7145-11
Citation:
2012 FC 401
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 10, 2012
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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WALTER ERNESTO
GUZMAN
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision of a
Pre-Removal Risk Assessment (PRRA) officer in which he determined that the
applicant would not be subject to a risk to his life, a risk of cruel or
unusual treatment or punishment, or a risk of torture if he were to return to
El Salvador.
FACTS
[2]
The
applicant, a citizen of El Salvador, arrived in Canada on April 7, 1988. He
obtained permanent residence in March 1992 through the special “Backlog
Clearance Program”.
[3]
In
1995 he was convicted of robbery and assault. Two years later, in 1997, he was
convicted of breaking and entering and conspiracy. In 2005, he was convicted of
assault and uttering threats; and three years after that, he was convicted on
two counts of conspiracy and possession for the purpose of trafficking crack,
cocaine and methamphetamines. He was subsequently sentenced to serve a term of
two years’ imprisonment and two years’ probation concurrently.
[4]
On
June 19, 2009, the applicant was ordered deported for serious criminality. On
April 7, 2011, the Immigration Appeal Division dismissed his appeal
against the deportation order.
[5]
On
June 7, 2011, the applicant failed to appear for a meeting with the Canada
Border Services Agency (CBSA) and a warrant for his arrest was issued. On
August 18, 2011, he saw a wanted notice identifying him as one of the CBSA’s
most wanted criminals. The next day he turned himself in to the police and was
placed in custody by the CBSA.
[6]
On
September 16, 2011, he filed a PRRA application, but this was dismissed on October 4, 2011.
His removal to El Salvador was scheduled for October 20, 2011.
[7]
On
October 14, 2011, the applicant filed the present application for judicial
review of the PRRA officer’s decision. The day before his removal, this Court
granted him a stay of the removal order pending the outcome of his application
for judicial review.
THE PRRA
OFFICER’S DECISION
[8]
The
officer noted that the applicant submitted a PRRA application on the ground
that he would face a risk of arrest, arbitrary imprisonment and torture by
reason of his criminal history and his tattoo similar to that of the Maras, a criminal organization in El Salvador.
[9]
He
emphasized that refugee protection can only be granted under subsection 97(1)
of the IRPA, as is set out at subsection 112(3) of this Act. The officer then
examined whether there were serious grounds to believe that the applicant would
be subjected to torture or if, on the preponderance of the evidence, he would
face a risk to his life or a risk of cruel and unusual treatment or punishment.
[10]
Although
the officer acknowledged the arbitrary arrests and acts of torture that have
been committed by the police authorities under the “Super Mano Dura” policy
targeting the Maras, as indicated in the documentary evidence, and the fact
that such problems continue to exist in El Salvador, he maintained that the
situation had changed since this new law came into effect. Now, the authorities
focus their efforts on conducting thorough investigations rather than
proceeding with [translation]
“massive gang sweeps”. As for the U.S. Court of Appeal’s decision submitted by
the applicant, the officer stated that he was not bound by U. S. court decisions and that he preferred to rely on more recent, objective documents to grasp the
current state of affairs in El Salvador. In light of these changes, the officer
was of the view that it was not more likely than not that the applicant would be
placed in detention, where most acts of torture occur.
[11]
With
respect to the applicant’s tattoos, the officer agreed that these might draw
the attention of the authorities due to the fact that such tattoos have
historically been linked to the Maras. However, he believed that the tattoos,
in and of themselves, were not sufficient to establish, on the preponderance of
the evidence, that the applicant would be arrested and detained on suspicion of
being a member of the Maras. Moreover, the officer noted that the average age
of members of the Maras is 20, whereas the applicant is nearly 34 years old.
[12]
Lastly,
the officer noted that, unlike the U.S. authorities, the documentation does not
show that Canadian authorities disclose the criminal histories of individuals
they remove to El Salvador. He therefore could not conclude, on the
preponderance of the evidence, that the applicant would be identified as having
a criminal history upon his arrival in El Salvador. However, the officer did
acknowledge that there was a possibility that the applicant, who has been away
from El Salvador since he was a child and has visible tattoos, might encounter
some reintegration problems upon his return.
1. Did the PRRA
officer err in law by applying the wrong test under section 97 of the IRPA?
[13]
On
one hand, the applicant claims that the officer applied the wrong standard of
proof in his assessment of risk under section 97 of the IRPA. In particular,
the use of the words [translation] “not
more likely than not” means that the officer thought that there was a 50
percent risk that he would be arrested and subjected to acts of torture. Given
that the risk was assessed at 50 percent, the officer should therefore have
concluded that the applicant had discharged his burden of proof, since the
balance of probabilities standard of proof had been met.
[14]
On
the other hand, the respondent submits that the applicable standard of proof
under section 97 of the IRPA is that of the balance of probabilities: Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1, 329 NR 346. When he
employed the expression used in the case law, namely, “more likely than not”, the
officer was not stating that the applicant had established his level of risk at
50 percent. He was merely stating that the applicant had not discharged his
burden. I am of this view for the following reasons.
[15]
In
Li, above, the Court of Appeal clearly established that the standard of
proof for the purposes of section 97 is proof on a balance of probabilities.
The wording used by the officer at certain points in his decision should
perhaps have been clearer and less ambiguous. But various excerpts from the
officer’s reasons show that he was aware of the applicable standard of proof
under 97 of the IRPA, and that he applied that standard in this case. For example,
at page 7 of his reasons, the officer writes: [translation]
“I am of the opinion that the applicant’s tattoos are not sufficient , in and
of themselves, to establish, on the preponderance of evidence, that he would be
arrested and detained for being a member of an illegal group”. Then, at page 8
of his reasons, the officer concludes [translation]
“that it is unlikely that the applicant would be arrested and detained for
being a member of an illegal group”. Later, at the same page, the officer
opines [translation] “that it is
unlikely that he would be treated or stigmatized in the same way as the gang
members deported from the United States and described in the report”.
[16]
The
argument is unfounded.
2. Was the PRRA
officer’s decision reasonable in light of the evidence?
[17]
The
applicant’s main argument is that the officer failed to examine all of the
evidence adduced, and disregarded a number of pieces of evidence that
contradicted his finding with respect to the application of the new law and the
scope of the changes brought about by this law.
[18]
I
share this view, for the following reasons.
[19]
It
is well established in the case law that when a decision maker is silent on
evidence in the record, and that this evidence contradicts his or her finding,
it may be easier to infer that the decision maker overlooked the contradictory
evidence: Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
157 FTR 35, [1998] FCJ No 1425 (QL).
[20]
To
begin with, the applicant had told the officer that the CBSA had posted his
photo [translation] “on its site
and all over the Canadian media”, as a most wanted criminal. This information
in itself refutes the officer’s finding that Canadain authorities do not
disclose the criminal histories of individuals they remove to El Salvador, and that the applicant’s criminal history would not subject him to any particular risk
in El Salvador. It may well be the case that Canadian authorities do not share
the reason for the removal with foreign authorities, but circumstances in this
case certainly increase the likelihood that the Salvadoran government would be
aware of the applicant’s criminal past, especially given the fact that his face
was posted all over the Internet and in newspapers across Canada. At any rate,
the officer did not address this issue in his analysis.
[21]
Furthermore,
the officer stated that there was nothing in the documentary evidence adduced
by the applicant which showed that the Salvadoran authorities were returning to
their old practices from the “Super Mano Dura” era. In particular, he writes:
[translation]
Despite the concerns expressed about the
implementation of this new antigang law, the documentation I consulted, which
is objective and accessible to the public, and the documentation provided by
the applicant do not contradict the fact that arrests and detentions of mararos
are now conducted after investigations and surveillance of suspects… In the
absence of evidence showing otherwise, I find that the Salvadoran authorities now
favour investigation and surveillance of suspects…
However, the document “Freedom in
the World 2011 – El Salvador”, from June 17, 2011, expresses doubts as to the state
of affairs in El Salvador since the new antigang law came into force. One
of the relevant passages reveals that:
The previous ARENA governments, like others in Central America, used mano dura (firm hand) tactics to combat gang violence,
including house-to-house sweeps by police and military. However, judges often
refused to approve warrants for such wide searches. Unofficial death squads and
vigilantes, allegedly linked to the police and army, have also emerged to
combat gangs with extrajudicial killings. In November 2009, Funes authorized a
six-month deployment of troops to high-crime communities to address public
security issues. In May 2010, Funes extended the program – which granted the
military greater power to conduct patrols and searches among civilians – for an
additional year, signaling a return to ARENA-style mano dura practices.
In an attempt to halt the development of organized crime in the penitentiary
system, the military was also granted permission to patrol inside the country’s
prisons.
[22]
According
to the document “2010 Human Rights Report: El Salvador”, published by the U.S.
State Departement:
The PNC is responsible for maintaining public
security and the Ministry of Defense for maintaining national security.
President Funes authorized the military to provide temporary support of
indefinite duration for PNC patrols in rural and urban areas and gave support
to law enforcement agencies for specific activities, including antinarcotics
and antigang efforts. The Ministry of Public Security headed the antigang task
force. In 2009 military personnel were deployed to join the police on patrols
and antigang and other task forces, and in May military personnel were assigned
to assist in guarding the prison system. As of December 3,676 military personnel
were assigned to assist the PNC, 1,553 to the Prison Authority, and 694 to the
border patrol. Military personnel do not have arrest authority. The government
has not indicated a concluding date for the temporary assignment of the
military to police duties.
[23]
In
Anand v Canada (Minister of Citizenship and Immigration), 2007 FC 234,
[2007] FCJ No 298 (QL), Justice de Montigny explained that unless clear
evidence is provided to the contrary, an administrative decision-maker is
deemed to have considered all of the evidence in a file. Decision-makers have
no obligation to refer to every piece of evidence they take into account before
making their decision, nor do they have to distinguish the evidence on which
they rely from the other evidence in the record.
[24]
In
this case, the excerpts cited above clearly constitute evidence that contradicts
the officer’s finding and he had an obligation to discuss that evidence in his
decision. It is worth reproducing the Court’s words in Cepeda-Gutierrez,
above:
17 However, the more important the evidence that
is not mentioned specifically and analyzed in the agency’s reasons, the more
willing a court may be to infer from the silence that the agency made an erroneous
finding of fact "without regard for the evidence": Bains v. Canada
(Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.).
In other words, the agency’s burden of explanation increases with the relevance
of the evidence in question to the disputed facts. Thus, a blanket statement
that the agency has considered all the evidence will not suffice when the
evidence omitted from any discussion in the reasons appears squarely to
contradict the agency’s finding. Moreover, when the agency refers in some
detail to evidence supporting its finding, but is silent on evidence pointing
to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[25]
Lastly,
I also note the response to requests for information SLV101080.F, dated April 7, 2006,
according to which members of the Maras are in fact between 11 and 40 years
old. This document, which the officer overlooked, contradicts his finding that
the applicant, who is 33 years old, would be too old for the typical
demographic of the Maras. Although youths are specifically targeted for
recruitment by the Maras, there is nothing in the document that would exclude
the applicant’s age group.
[26]
For
these reasons, the application for judicial review is allowed and the matter is
referred back to another decision-maker for redetermination.
JUDGMENT
THE
COURT ORDERS THAT:
1.
The
application for judicial review is allowed. The matter is referred back to
another decision-maker for redetermination.
2.
No
question is certified.
“Danièle
Tremblay-Lamer”
Certified
true translation
Sebastian
Desbarats, Translator
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