Date: 20070713
Docket: IMM-2613-07
Citation:
2007 FC 749
Ottawa,
Ontario, July 13, 2007
Present:
The Honourable Mr. Justice Shore
BETWEEN:
DAVID
ANTONIO GARZA GALAN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This is case
unto itself, following the events described and raised by the applicant in his
application to stay the removal order.
Given that quasi-judicial
decisions cannot be made on an assembly line, a unique case requires
reflection, patience, active listening and an open mind. To ensure that natural justice prevails and that
procedural fairness is apparent, it is dangerous to draw general conclusions
from a specific premise.
[translation]
... in Harrison v.
Carswell, Mr. Justice Laskin describes Peters as an individual
case indisputably tied to the
particular facts submitted to him from which, as a result, a general statement
cannot be formulated as a precedent. As the individual case
is not contemplated by the law, it requires the court to examine it in light of
specific rules which do not necessarily govern the general rules. “it is up
to the courts to
determine in individual cases whether the right to counsel is infringed, and,
if so, what remedy, if any, is appropriate in the circumstances. (Juridictionnaire, last update, 2006-07-27.)
JUDICIAL PROCEEDING
[2]
This
application to stay follows an application for leave and judicial review filed
by the applicant on May 8, 2007, against a decision by the pre-removal risk assessment
officer (PRRA).
ANALYSIS
[3]
In
Toth v. Canada (Minister of Employment and Immigration), 86 N.R. 302
(F.C.A.), the Court of Appeal adopted three (3) requirements:
a.
The
existence of a serious issue;
b.
The existence
of irreparable harm;
c.
The
assessment of the balance of convenience.
SERIOUS
ISSUE
[4]
The PRRA
officer proceeded to an incomplete factual summary of the applicant’s
story in this particular case.
[5]
The
applicant explained in his PRRA that, when he was very young, he became the
head of his family following his father’s assassination. The PRRA officer did
not take into consideration the specific personal background to the effect that
the applicant had spent his youth in Guatemala, taking into account the
history of the country and recent events.
[6]
The
applicant also specified that he became a target of the Maras because he
was a member of a religious group and because he took care of a youth group, implementing
social programs and improving living conditions, giving them alternatives to
delinquency and membership in a street gang.
[7]
He
stated that he received threatening phone calls, that he was physically and
mentally tortured and that he had been shot at in an attempt to take his life.
[8]
In
these circumstances, the applicant fled his country for Canada, as there
was a threat to his life.
[9]
With
the knowledge that the applicant had never been heard by a panel or an
administrative authority, it would have been necessary, in this rare case, to
seek clarifications about the possible danger to the applicant.
[10]
As
the evidence indicated the possibility of direct danger targeting the applicant,
according to the principle of natural justice in this particular case, some
clarifications would have been essential to test the applicant’s claims and
therefore to ensure that there was procedural fairness.
[11]
Even
though it does not have an effect on the PRRA regarding the personal danger to
the applicant’s life in Guatemala, the Court nevertheless observes that,
further, the applicant’s wife is three (3) months pregnant and the applicant’s
presence with her would be an advantage, to help her during her pregnancy as
well as during the first months after the child’s birth.
[12]
Indeed,
the PRRA acknowledges that Guatemala is a country that has
faced many political upheavals for more than the last half-century and that it
is facing very serious problems with street gang violence.
[13]
However,
the officer ignored the fact that the applicant is an active member of a
religious community and that he had been a member of this youth group, teaching
alternatives to delinquency and gang membership. Accordingly, this position is
such that he is a person who is more targeted than the rest of the population which
is already facing a serious risk.
[14]
The
applicant submits that he has serious questions to raise.
irreparable
harm
[15]
With
regard to irreparable harm, the applicant submits that a panel or administrative
authority never took the applicant’s story into consideration – not in a
significant manner. The PRRA officer is the only authority to whom the applicant
could have submitted his arguments. The failure to compensate for this
shortcoming is such that the applicant would be at risk of cruel and unusual
treatment if he were to be removed to Guatemala.
[16]
Finding
that the applicant was not at risk of cruel and unusual treatment or
persecution in his country is an error in law; the standard of review is a “reasonable chance of persecution” and a contradiction
worthy of consideration before this Court.
balance
of convenience
[17]
The
applicant believes that if he returns to Guatemala, his life
will be in danger while awaiting his return to the country.
[18]
Taking
into account the foregoing, the three (3) justificatory requirements are met
and neither the Minister nor the public interest will suffer as a result of the
requested stay.
CONCLUSION
[19]
For
all of these reasons, the application to stay the removal is allowed.
JUDGMENT
THE COURT ORDERS that the
application to stay the removal be allowed.
“Michel M.J. Shore”
Certified true
translation
Kelley
A. Harvey, BCL, LLB
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