Date: 20090129
Docket: IMM-245-09
Citation: 2009 FC 101
Ottawa, Ontario, January 29,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BALMORE
ALEXANDER RAMOS SANCHEZ
Applicants
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
-and-
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The Courtroom is not a
forum for theory. This, especially, when the fragility of the human condition
is at stake on the one hand and the integrity of the government immigration
apparatus (to safeguard the society as a whole) hangs in balance on the other.
[2]
For
that matter, in any decision (between a private party and a public entity or
between private parties themselves) whether of an interim or permanent nature,
a Court must acknowledge practical realities.
[3]
Practical
realities oblige a Court to give weight to the merits of each party’s
application; therefore, the Supreme Court of Canada has acknowledged two
potential exceptions to American Cyanamid (American Cyanamid Co. v.
Ethicon Ltd., [1975] A.C. 396, wherein the Court of Appeal of England and Wales,
(“English C.A.”), applied the traditional prima facie case test and
dismissed the interlocutory injunction ordered by the motions judge). The
first, when a case revolves on a “simple question of law”. The second, when the
primary facts are self-evident.
[4]
The suggestion has
been made in the private law context that a third exception to the American
Cyanamid “serious question to be tried” standard should be recognized in
cases where the factual record is largely settled prior to the application
being made. Thus in Dialadex Communications Inc. v. Crammond (1987), 34 D.L.R.
(4th) 392 (Ont. H.C.), at p. 396, it was held that:
Where the facts are not
substantially in dispute, the plaintiffs must be able to establish a strong prima
facie case and must show that they will suffer irreparable harm if the
injunction is not granted. If there are facts in dispute, a lesser standard
must be met. In that case, the plaintiffs must show that their case is not a
frivolous one and there is a substantial question to be tried, and that, on the
balance of convenience, an injunction should be granted.
(RJR-MacDonald Inc. v. Canada (Attorney
General), [1994]
1 S.C.R 311).
II. Introduction
[5]
Mr.
Balmore Alexander Ramos Sanchez is a 20 year old young man from El Salvador. He fled his country at
the age of 16 due to fear of the Mara Salvatrucha (MS-13) and Mara 18 gangs who
had tried to recruit him, harassed and assaulted him, and threatened him with
death. He claimed refugee protection in Canada, but the Refugee Protection Division (RPD) denied
his claim. He applied for a Pre-Removal Risk Assessment (PRRA), but the PRRA
Officer denied his application. He is under an effective deportation order and
faces removal to El
Salvador,
on January 30, 2009, unless this motion for a stay is granted.
[6]
On
January 20, 2009 Mr. Ramos Sanchez filed an application for leave and for judicial
review of the PRRA Officer’s decision.
[7]
There
are serious issues to be examined in the judicial review application.
[8]
Mr.
Ramos Sanchez will suffer irreparable harm if returned to El Salvador prior to a decision in
the judicial review herein, in that he faces a risk to his life or to his
physical security in that country. In light of the risk, the balance of
convenience favours a stay.
III. Background
[9]
Mr. Ramos
Sanchez is a 20 year old young man from the neighbourhood San Jose Puerto de
Golpe, in the city of Cojutepeque, El Salvador. His father owns properties, and the
family cultivates coffee and fruit, and raises cattle and chickens. Mr. Ramos
Sanchez is the second son of his parents, and has 7 full siblings. His five
sisters and youngest brother are still living in his hometown with their
parents.
[10]
Mr.
Ramos Sanchez’s father has four children from a previous marriage. One of them,
Cesar, joined the Mara Salvatrucha (MS-13) after it started up in Cojutepeque
in 1998. Cesar resents that his father left his mother and created a new family;
therefore he and his fellow gang members expect Mr. Ramos Sanchez’s family
members to support them and join them, otherwise they seek revenge.
[11]
Mr.
Ramos Sanchez was only 10 years old in 1998, when the MS started pressuring him
to join. From that year on, he was harassed and mistreated, and his family was
robbed and coerced into providing MS with products from their farm. The details
are set out in the narrative of events he provided to the Immigration and Refugee
Board (Board). Highlights include:
- 1998: Mr. Ramos Sanchez and his brother
Tomas were beaten by MS who stole a truck full of eggs and fruit. The incident
was reported to the police;
- 1999: Mr. Ramos Sanchez was physically
forced to take MS gangsters to his grandmother’s house to find his uncle,
a national policeman. The gangsters shot a worker who they mistook for his
uncle;
- 2000: Cesar and other MS members stole food
that Mr. Ramos Sanchez’s family was providing to help earthquake victims.
They forcibly took Mr. Ramos Sanchez to his home where they stole
everything they found, tied him to a post, blindfolded him and spray
painted him. His father called the police, and when the gang found out
they came to the house and shot two of the family’s dogs and two geese out
of revenge;
- 2001: MS gangsters intercepted Mr. Ramos
Sanchez on his way to Church where he was to serve as an alter boy. They
took his gown, spray painted it and tore it up. They made him put on a
shirt with “MS Cojutepeque” written front and back. They hit him with a
knife and forced him to go into the Church wearing their shirt,
threatening to stab him. MS threats continued at school, church, home and
on the streets;
- 2002: Mr. Ramos Sanchez and his cousin
were attacked by MS gangsters who wanted to know where his older siblings
were. When the boys did not respond and ran away, MS shot at them, and a
bullet hit his cousin in the leg;
- 2004: In September, the MS gangster “El Toro” shot a bullet
that went through the roof of the family’s home, then he and other
gangsters who had surrounded the house held the family at gunpoint while
they looked for money. During the incident, one gangster secretly ordered Mr.
Ramos Sanchez to leave rice and corn for them at a particular spot before
midnight, otherwise they would come after the family again. He ordered Mr.
Ramos Sanchez at gunpoint not to tell anyone about this.
[12]
It
was in November 2004 that his situation worsened. The following incidents
precipitated his flight from his country:
- On November 2, five gangsters from Mara 18
(the rival of MS) arrived at the church where Mr. Ramos Sanchez and other
members of his youth group were gathered. Someone had told them that MS 13
gathered there. They shot bullets towards the church, and blocked the
doors. They wanted to know who Cesar Ramos’ brother was because they had a
score to settle. Mr. Ramos Sanchez was saved when the group coordinator
told them Cesar’s brother had not come that day. They forced the youths to
remove their shirts to check for MS tattoos, tied everyone up, took out
there guns and threatened to kill them. The youths escaped when police
cars arrived and a gunfight between Mara 18 and the police ensued;
- On November 15, the MS gangster El Cobra
came to Mr. Ramos Sanchez’s house, firing shots in the air. He was looking
for Mr. Ramos Sanchez because someone told him that Mr Ramos Sanchez
had joined the Mara 18. Mr. Ramos Sanchez’s sister yelled out that Mr. Ramos
Sanchez was at school, and the gangster left;
- Mr. Ramos Sanchez feared for his life and
didn’t know what to do. Mara 18 assumes he belongs to MS like his half
brother Cesar, and MS believes he has joined Mara 18. He feared both gangs
wanted to kill him. He left home and went to the capital, San Salvador where he sought
refuge with a cousin. In San Salvador, he met a man who said he could help him
leave the country. The man was leaving on December 1st;
- On November 28, Mr. Ramos Sanchez went back
to Cojutepque to say farewell to his family. When he got off the bus near
his sister’s school, he realized that a group of MS gangsters were
following him. He ran and hid in the school. They started shooting at him,
and shot another man who looked similar.
[13]
Mr.
Ramos Sanchez went back to San Salvador, and left the country on December 1, 2004. He
went to the United States of America (USA), where he stayed for almost two
years.
[14]
In
December 2006, Mr. Ramos Sanchez came to Canada, where he has uncles and cousins, and made a
refugee claim. The claim was heard by the RPD, on September 17, 2007, and
rejected by decision dated, October 10, 2007. The RPD found his evidence of
past harm not credible, putting significant weight on his failure to provide
any documentary corroboration to independently support what he had asserted.
The RPD rejected his explanations for lack of corroboration, and drew an
adverse inference. The RPD also found that he had failed to supply clear and
convincing confirmation of the state’s inability to protect him. (Reasons of
RPD, Motion Record (MR) at pp. 235, 238-241).
[15]
Mr.
Ramos Sanchez applied for a PRRA. In support of his application, he provided
new evidence, as follows:
- Evidence to refute the RPD finding on
credibility; that is, statements of witnesses to the incidents of November
2, 2004 and November 28, 2004. He also provided a letter from the police,
a letter from his father and an affidavit from his uncle documenting why
further evidence was not available;
- Evidence about new threats and attacks on
his family by members of the MS-13 and the inadequacy of the police
response to their request for protection. This included evidence that
MS-13 was trying to forcibly recruit his sisters, that they had a
continuing interest in Mr. Ramos Sanchez, and that the local police
could not respond to a request for assistance when his sister was being
sexually assaulted because they did not have transportation;
- Country documentation published after the
decision of the RPD containing more recent information about the inability
of the state to provide adequate protection to those targeted by MS-13 and
Mara 18;
- A report titled “No Place to Hide: Gang,
State and Clandestine Violence in El Salvador”, published by the Human Rights
Program of Harvard Law School in February 2007. Although published before
the hearing, this evidence was not before the RPD.
(MR at pp. 45, 54-68, 70-72, 83, 87-89, 94,
97-98, 102-124, 125-234, 243-245).
Decision of the PRRA
Officer
[16]
The
PRRA Officer took cognizance of the new evidence of all the documents except
those country documents that pre-dated the hearing. The PRRA Officer found that
the “No Place…” report could have been presented at the hearing and, therefore,
excluded it per the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (IRPA), subsection 113(a) (MR at pp. 13, 14).
[17]
The
PRRA Officer noted that Mr. Ramos Sanchez and counsel had addressed some of the
credibility concerns of the RPD. The Officer made no finding with respect to
whether the new evidence was sufficient to overcome the negative credibility
findings of the RPD and no finding as to whether he had been personally
targeted in the past. The Officer found that the new evidence does not
establish a current or future threat from Cesar or the M-18. The PRRA Officer found
that “Taken as a whole, …the new evidence does not establish a personalized risk
against Mr. Ramos Sanchez” (MR at pp. 18-19).
[18]
The
PRRA Officer also found that Mr. Ramos Sanchez has an Internal Flight
Alternative (IFA) in San
Salvador,
and that state protection is available to him. The Officer also found that he
“has not demonstrated that such changes have been wrought in El Salvador, or
in his personal situation that he would now face a risk of persecution, a
risk to life, a risk to torture, or of cruel and unusual treatment or
punishment” (Emphasis added). The Officer found that he will face less than a
mere possibility of persecution and will be unlikely to face a risk to life or
a risk of cruel and unusual treatment or punishment if removed to El Salvador,
based on the new evidence adduced. (MR at pp. 19, 24-25).
IV. Issue
[19]
The grounds for this motion for a stay of
removal are:
a. There are
serious issues to be tried in the Application for Leave and Judicial Review of
the Decision of the Respondent rejecting the Applicant’s Application for a PRRA;
b. The Applicant
will suffer irreparable harm if removed to El Salvador pending the decision;
c.
The
balance of convenience favours the Applicant.
(Manitoba (Attorney General) v. Metropolitan
Stores (MTS) Ltd., [1987] 1 S.C.R. 110; Toth v. Canada (Minister of Employment and
Immigration)
(1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440 (F.C.A.)).
V. Analysis
A. Serious Issue
[20]
The test of whether there is a serious issue to be tried is
easily satisfied, and the test is lower than the test for leave. Interim relief
should be refused on this ground only when sought in support of proceedings
that are manifestly without merit or “frivolous and vexatious” Thamotharampillai
v. Canada (Minister
of Citizenship and Immigration) (1999), 86 A.C.W.S. (3d) 1114, [1999]
F.C.J. No. 246 (QL); Sowkey v. Canada (Minister of
Citizenship and Immigration), 2004 FC 67, 128 A.C.W.S. (3d) 777).
[21]
There
are serious issues to be examined in the Application for leave and judicial
review.
PRRA Officer’s
jurisdiction
[22]
The
scope of a PRRA Officer’s jurisdiction to grant refugee protection is set out
in the IRPA, sections 112 and 113, and has been recently interpreted by the
Federal Court of Appeal in the case of Raza v.
Canada (Minister of Citizenship and Immigration), 2007 FCA
385, 162 A.C.W.S. (3d) 1013. The Court held that, while a PRRA application by a failed
refugee claimant is not an appeal or reconsideration of the decision of the
RPD, nevertheless it may require consideration of some or all of the same
factual and legal issues. The IRPA mitigates the risk of re-litigation by
limiting the evidence that may be presented to the PRRA Officer. The negative
determination by the RPD must be respected by the PRRA Officer, unless there is
new evidence of facts that might have affected the outcome of the RPD hearing
if the evidence had been presented to the RPD.
[23]
The
Court found that, in order to come to a different conclusion from the RPD, the
PRRA Officer must find the evidence to be credible, relevant, new, and material
(Raza, above at para. 13).
[24]
“Newness”
is defined as evidence that is capable of:
a. proving the current
state of affairs in the country of removal or an event that occurred or a
circumstance that arose after the hearing in the RPD;
b. proving a fact that was
unknown to the refugee claimant at the time of the RPD hearing; or
c. contradicting a finding
of fact by the RPD (including a credibility finding).
[25]
If
evidence is capable of proving only an event that occurred or circumstances
that arose prior to the RPD hearing, then the applicant must establish either
that the evidence was not reasonably available to him or her for presentation
at the RPD hearing, or that he or she could not reasonably have been expected
to have presented the evidence at the hearing. If the evidence is capable of
proving an event that occurred or circumstances that arose after the RPD
hearing, the evidence must be considered (unless it is rejected because it is
not credible, not relevant, not new or not material) (Raza, above at
para. 13).
[26]
The
decision of the Federal Court of appeal in Raza is clear that a PRRA is
not limited to assessing risk on the basis of changes in circumstances arising
after the hearing in the RPD. The PRRA Officer must also consider whether the
new evidence is capable of contradicting a finding of fact by the RPD,
including a credibility finding.
[27]
The
Reasons demonstrate that the PRRA Officer misconstrued the meaning of section
113 of the IRPA and based the decision solely on changes in circumstances. In
the concluding paragraph, the Reasons state:
…I
find the applicant has not demonstrated that such changes have been wrought in El Salvador, or in his personal situation that he
would now face a risk of persecution, a risk to life, … or of cruel and unusual
treatment or punishment.
[28]
The
new evidence consisted of statements of witnesses corroborating two key
events: 1. the attack by Mara 18 on the Church group, on November 2, 2004, and
the fact that they were looking for Mr. Ramos Sanchez; 2. the attack on Mr.
Ramos Sanchez by MS-13, on November 28, 2004. Witness Josefa Beltran Flores
also provided further evidence corroborating his claims to have been persecuted
by the gangs for many years in their attempts to recruit him. The PRRA Officer
acknowledged these witness statements.
[29]
The
PRRA Officer, however, made no finding as to whether or not this evidence was
sufficient to overturn the credibility finding of the RPD. The PRRA Officer did
not come to any determination as to whether Mr. Ramos Sanchez was subject to
the harm he alleged. Rather, the PRRA Officer simply concluded that the new
evidence on file does not establish a current or future threat from Cesar (his
half brother) nor from M18. The Officer concludes that “Taken as a whole, I
find the new evidence does not establish a personalized risk against Mr. Ramos
Sanchez”.
[30]
The PRRA Officer’s role
is ultimately to assess the likelihood of current and future risk (Raza,
above).
[31]
The PRRA
Officer was therefore obliged to exercise his jurisdiction and consider whether
the witness statements established that Mr. Ramos Sanchez could be harmed and
targeted.
[32]
If
the potential harm and targeting is credible, then the new evidence establishes
the following:
- Mr. Ramos Sanchez was personally targeted
by both MS-13 and Mara 18 before he left El Salvador in December 2004;
- The MS-13 gangsters who targeted him are
continuing to extort and harass his family. His sisters are also being
pressured to join MS;
- MS-13 has a continuing interest in Mr.
Ramos Sanchez. His sister Rosita was physically attacked by the leader of
the MS women’s group, Marta Perez, after she refused to give information
on Mr. Ramos Sanchez’s whereabouts. His sister Beatriz was sexually
assaulted by the gangster “El Toro” who also told her to send greetings
to Mr. Ramos Sanchez and to tell him that he is waiting for him.
[33]
This
is sufficient to establish a likelihood of future targeting and harm. There is
therefore a serious issue to be determined.
[34]
The
PRRA Officer found that Mr. Ramos Sanchez has an IFA in San Salvador because “he lived there
without incident with his cousin”. Mr. Ramos Sanchez stayed with his cousin in El Salvador from November 15 to
December 1, 2004, a period of just over two weeks. It is not reasonable to
conclude from such a short stay that San Salvador is a “safe refuge” or a “secure substitute
home”, particularly given the small size of the country (MR at pp. 19, 30, 40-41,
246-247; Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, 45
A.C.W.S. (3d) 141; Ahmed v. Canada (Minister of Employment and Immigration)
(1993), 42 A.C.W.S. (3d) 113, 156 N.R. 221 at para 5).
[35]
The
PRRA Officer’s finding of an IFA in San Salvador is further contradicted by the evidence
cited in the following paragraph of the Reasons:
Entire
swaths of the capital are virtually under the control of MS-13 and its rival,
Mara 18. Local police patrol warily, tending when possible to avoid those
parts of the city.
[36]
The
finding of IFA is therefore unreasonable.
State Protection
[37]
State
protection must be adequate and useful in the circumstances. The ability of a
state to protect must be assessed not only on the existence of remedies but on
the capacity and the will of the state to implement them (Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689; Canada (Minister of
Citizenship and Immigration) v. Carrillo, 2008 FCA 94, 165
A.C.W.S. (3d) 146; Erdogu v. Canada (Minister of Citizenship and Immigration),
2008 FC 407, 166 A.C.W.S. (3d) 311; Avila v. Canada (Minister of Citizenship
and Immigration), 2006 FC 359, 295 F.T.R. 35; Streanga v. Canada
(Minister of Citizenship and Immigration), 2007 FC 792, 159 A.C.W.S. (3d) 555 and
cases cited therein).
[38]
The
PRRA Officer summarizes the new country documents provided by Mr. Ramos Sanchez,
all dating from 2008. The Officer noted the following evidence; it is
demonstrative of an inability of the state to protect persons at risk from
MS-13 and Mara 18:
- Entire swaths of the capital are virtually
under the control of MS-13 and Mara 18. Local police try to avoid those
parts of the city;
- The Mano Dura or Hard Fist policies are
said to be discredited and counterproductive, prisons become gang
headquarters;
- El Salvador is one of the five most violent
countries in the world. Ten murders are reported to police daily;
- Police take little or no action with
respect to extortion threats against visiting Americans, due to a lack
of training and staffing (Note: this is from a document produced for the
purposes of providing security advice to Americans);
- Neighbourhood watch groups now employ
security firms and checkpoints;
- Gangs and other criminal elements roam
freely, day and night;
- Transnational street gangs, including
MS-13 and M-18, are major threats to public security in El Salvador;
- The PNC is still in the development stages
of becoming a modern and effective police force that can protect the
public…routine street patrol techniques, anti-gang and crime
suppression efforts remain ineffective. Equipment shortages
(particularly radios and vehicles) further limit their ability to deter
or respond to crimes effectively;
- Police estimate that there are between
10,000 and 13,500 members of the two gangs [MS-13 and Mara 18] in El Salvador, and between 60,000
to 120,000 in the region.
(Reasons, MR at pp. 19-20).
Additional evidence contained in those
documents, not referred to by the PRRA Officer, included the following:
- Murder and violent gang activities occur
routinely throughout the country, and little to no action is taken by
the police (MR 108);
- The gangs modified strategies enable them
to survive police raids and maintain control over the neighbourhoods
where they operate (MR 119);
- President Saca’s Super Manodura plan
fizzled out by late 2007 and in early April [2008] Saca admitted
that the fight against the gangs would take around 25 years. (MR 122).
[39]
The
PRRA Officer reviewed the most recent US Department of State report on El Salvador, and noted the
following:
- Protection of human rights was undermined
by widespread violent crime, including gang-related violence, impunity and
corruption;
- Inadequate training, insufficient
government funding, lack of a uniform code of evidence and isolated
instances of corruption and outright criminality undermined the PNC’s
effectiveness;
- The judiciary suffered from inefficiency
and corruption (contributing) to impunity, undermining respect for the
judiciary and the rule of law. Inadequate government funding of the PNC,
combined with intimidation and killing of victims and witnesses made it
difficult to identify, arrest and prosecute perpetrators of …crimes.
[40]
The
PRRA Officer referred to two “Response to Information Requests” issued by the
RPD Research Directorate in April 2006, concerning gangs and state response.
The documents confirm that Mara Salvatrucha is an organized, ultra violent gang
involved in serious crimes, and refer to various measures taken by the state
from 2004 to April 2006. As noted above, however, as of 2008 such “anti-gang
measures remain ineffective”. The Super Mano dura (super heavy hand) was discredited
as counterproductive, and fizzled out by the end of 2007. The President of El
Salvador admits as stated above that the fight against gangs will take around
25 years.
[41]
Despite
the overwhelming evidence that, as of 2008, the Salvadoran government cannot
protect its citizens from MS-13 and Mara 18. The only rationale provided is
that “gang members are arrested, trafficking operations are disrupted, corrupt
police are dismissed or prosecuted, and different levels of government
coordinate their efforts” (MR at p. 25).
[42]
The
PRRA Officer acknowledges that El Salvador faces serious challenges such as a high level of violence
and official corruption and inefficiency; however, as the RPD acknowledged this
and nonetheless found state protection was available, the PRRA Officer finds
that “the new information on file does not establish that this situation has
changed”. The Officer then goes on to find that state protection is available
to Mr. Ramos Sanchez.
[43]
The
PRRA Officer’s approach must be examined in light of the jurisdiction under section
113 of the IRPA. In the absence of new evidence, the PRRA Officer is not
entitled to revisit the RPD decision on state protection, no matter how
erroneous it may be; however, where there is new evidence about current country
conditions, the PRRA Officer then conducts an independent review of that
evidence, applies the correct legal tests, and determines the issue
independently.
[44]
The
RPD finding was based on evidence from 2006. In 2008, there was significant new
evidence that conditions had worsened and that the state’s “serious efforts” to
control gangs had failed. The Super Mano dura (super heavy hand) was
discredited as counterproductive, and fizzled out by the end of 2007. It is
reiterated that the President of El Salvador, himself, admits that the fight
against gangs will take around 25 years. This is evidence that refutes the RPD
finding (MR at pp. 240, 244).
[45]
Mr.
Ramos Sanchez has therefore raised a serious issue that the PRRA Officer erred
in concluding that state protection is available.
PRRA
Officer’s requirement in respect of the application of paragraph 113(a)
of the IRPA
[46]
The
PRRA officer excluded from consideration the report “No Place to Hide: Gang,
State and Clandestine Violence in El Salvador”, published by the Human Rights
Program of Harvard Law School in February 2007, on the basis that Mr. Ramos
Sanchez or his counsel could have located and presented it at the hearing. The
PRRA Officer did not accept that the evidence was not available to Mr. Ramos
Sanchez or that he could not reasonably have been expected to have presented
it. The PRRA Officer applied paragraph 113(a) of the IRPA in an
unreasonable way.
[47]
The
mere fact that this report was published prior to the hearing does not mean
that it was obvious or easily accessible to Mr. Ramos Sanchezor his counsel. It
was not obvious to the RPD research unit or the Tribunal officer whose role it
is to provide relevant evidence to the RPD. The RPD research unit produces
updated packages of documentation that are relied on in refugee claims. The
National Documentation Package (NDP) for El Salvador was updated on July
2007, and was in evidence before the RPD. It does not contain the Harvard Law School report. If the RPD
research team did not locate this document, then how could the claimant and his
counsel have reasonably been expected to do so? (MR at pp. 54, 243-245).
[48]
This
is an extremely relevant report, from a credible source. It is the result of
fact finding missions to El
Salvador
from March to September 2006, as well as months of follow-up research.
Researchers conducted personal interviews with victims, current and former gang
members, NGOs and government authorities. The information contained in the
report post-dates other evidence about the gangs contained in the NDP, and is
much more detailed. It documents the risks that youths face from the gangs, and
the inadequacy of state protection. It is evidence that is material,
particularly with respect to state protection. It is evidence that should have
been considered by the PRRA Officer (MR at pp. 129, 244; reference is also made
to Report, MR at pp. 129-234).
[49]
Furthermore,
even if the Officer may exclude a report under paragraph 113(a), the
PRRA Officer had discretion to consider the report. A PRRA Officer is not limited
to considering evidence submitted by the applicant, but rather has an
obligation to conduct sufficient independent research in order to come to a
proper determination. The Officer did consult and rely on other sources in
addition to the documents submitted, including two Response to Information
Requests from April 2006, also pre-dating the hearing. The PRRA Officer
therefore erred in that he failed to properly exercise his discretion to
consider credible, material evidence that supports Mr. Ramos Sanchez’s
allegations of risk (Immigration Manual, PP 3, paragraph 10.2 and
10.3; Elezi v.Canada (Minister of Citizenship and Immigration), 2007 FC
240, 310 F.T.R. 59 at paras. 44, 45; Hassaballa v.Canada (Minister of
Citizenship and Immigration), 2007 FC 489, 157 A.C.W.S. (3d) 602 at para.
33).
[50]
Mr.
Ramos Sanchez has therefore demonstrated that there are serious issues to be
tried. The Issues are not manifestly without merit, and a Stay is therefore
warranted.
B. Irreperable
Harm
[51]
The
definition of “irreparable harm’ is provided by Sopinka and Cory JJ. in RJR-MacDonald,
above:
“Irreparable” refers to the
nature of the harm suffered rather than its magnitude. It is harm
which either cannot be quantified in monetary terms or which cannot be cured,
usually because one party cannot collect damages from the other
[52]
Where
there is a risk of harm in the home country, this is irreparable. In the case
of Suresh v. Canada (Minister of
Citizenship and Immigration), [1999] 4 F.C. 206, 90 A.C.W.S. (3d) 443
(F.C.A.), Justice Joseph Robertson stated:
[12] …No transgression of a
basic human right can be accurately measured or compensated by money. This is
particularly true in immigration cases involving deportation to a country which
fails to abide by international norms respecting human rights…
[53]
As
stated by Justice Luc Martineau in Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] 4
F.C.R. 387:
[45] Where there is a serious issue in respect of a negative PRRA
decision resulting in exposing the applicant to persecution or subjecting him
personally to a danger of torture or a risk to life or cruel or unusual
treatment or punishment, for which a stay is sought pending the determination
of the underlying judicial review application, irreparable harm will
necessarily result and the balance of convenience in such a case will normally
favour the applicant. Thus, a stay should normally be granted by the Court
in these circumstances apart from the question of whether the underlying
judicial review application may also be otherwise rendered moot if removal is
affected… (Emphasis added).
(Reference is also made to Streanga,
above).
[54]
If Mr.
Ramos Sanchez is removed, he will have no remedy if the allegations of harm are
true. The remedy sought would be rendered nugatory by the Applicant’s removal.
[55]
Mr.
Ramos Sanchez has
raised serious issues that he would not be at risk in El Salvador. The totality
of the evidence before this Court establishes that he is at risk and would
therefore suffer irreperable harm, in that:
- He was personally targeted by both MS-13
and Mara 18 in the past;
- MS-13 continues to harass his family and
has a continuing interest in Mr. Ramos Sanchez;
- The State of El Salvador is incapable of
providing adequate protection.
C. Balance
of Convenience
[56]
In
light of the irreparable harm faced by Mr. Ramos Sanchez, the balance of
convenience favours the applicant. The harm he would face upon removal is much
greater than any inconvenience to the Respondent in removing him (MR at pp. 5, 29,
32).
[57]
The
balance of convenience therefore favours a stay.
VI.
Conclusion
[58]
Therefore,
a stay of removal is granted pending the determination of the application for
leave and for judicial review of the PRRA decision.
JUDGMENT
THIS COURT ORDERS that the Applicant’s request for a stay of removal be granted pending
the determination of the application for leave and for judicial review of the
Pre-Removal Risk Assessment decision.
“Michel M.J. Shore”
Email this Content