Docket: IMM-517-16
Citation:
2016 FC 897
Ottawa, Ontario, August 4, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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ERIKA SOFIA
AYALA ESCALANTE
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
Erika Sofia Ayala Escalante is 30 years old and
a citizen of El Salvador. She has brought an application for judicial review of
a decision of an enforcement officer [the Officer] with the Canada Border
Services Agency [CBSA]. The Officer refused her request for deferral of her
removal from Canada. Ms. Escalante says that her risk upon returning to El
Salvador was never fully assessed by a competent body, and the Officer should
therefore have deferred her removal until a pre-removal risk assessment [PRRA]
could be completed.
[2]
For the reasons that follow, I have concluded
that the Officer’s decision was reasonable, and consistent with the limited
discretion afforded to enforcement officers by the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA]. The application for judicial review is therefore
dismissed.
II.
Background
[3]
Ms. Escalante and her sister left El Salvador on
June 24, 2012. They claimed to fear for their lives because they had received
threats from a woman named Martha Vasquez. Ms. Vasquez had purchased the
Escalante family home in 2010, but had paid only the deposit. Ms. Escalante’s
father initiated legal proceedings against Ms. Vasquez to recover the
outstanding balance. According to Ms. Escalante, Ms. Vasquez was involved in
drug trafficking and organized crime, and sent unidentified, armed men to
threaten Ms. Escalante’s family in retaliation for commencing legal proceedings
against her. Ms. Escalante says that she narrowly escaped an armed assault in an
automobile in May 2012.
[4]
On June 24, 2012, Ms. Escalante and her sister
fled to the United States of America with the intention of seeking asylum in
that country. United States border officials detained Ms. Escalante and her
sister upon their arrival. Following their release on July 13, 2012, Ms.
Escalante and her sister travelled to Canada. They made a claim for refugee
protection when they arrived on July 26, 2012.
[5]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board heard the claims of Ms. Escalante and her sister
in May 2015. In a decision dated August 13, 2015, the RPD determined that they
were neither Convention refugees nor persons in need of protection pursuant to
ss 96 and 97 of the IRPA. The RPD based its decision on adverse findings of
credibility. Specifically, the RPD found that there were numerous
contradictions between the claims they made in the United States and those they
made in Canada. The RPD also noted numerous inconsistencies and
implausibilities in their testimony.
[6]
This Court denied Ms. Escalante’s application
for leave to seek judicial review of the RPD’s decision on December 2, 2015.
[7]
On January 26, 2016, the CBSA informed Ms.
Escalante that her removal from Canada had been scheduled for February 6, 2016.
[8]
On January 27, 2016, Ms. Escalante’s sister
obtained a deferral of her removal from Canada pending determination of a
spousal sponsorship application submitted by her husband.
[9]
On January 29, 2016, Ms. Escalante requested
that her removal be deferred for a period of six months to permit her to
request a PRRA and apply for permanent residence on humanitarian and
compassionate [H&C] grounds.
[10]
In support of her deferral request, Ms.
Escalante submitted documents describing the high incidence of violence
experienced by women in El Salvador. She said that as a young, unaccompanied
woman returning to El Salvador, she could become a victim of “feminicide”, a term used to describe the killing of
women simply because they are women. Ms. Escalante said that she had lost
contact with her parents, and there were no immediate family members who could
offer her protection in El Salvador.
III.
Decision under Review
[11]
The Officer denied Ms. Escalante’s request for
deferral of her removal from Canada in a decision dated February 2, 2016. The Officer
reviewed the documents submitted by Ms. Escalante, but found that none of the
information disclosed any specific threat to Ms. Escalante. Moreover, the
Officer noted that the RPD had previously assessed any risk that Ms. Escalante
may face as a woman returning to El Salvador. The Officer was not persuaded
that a lack of support in El Salvador warranted a deferral of Ms. Escalante’s
removal. The Officer noted that Ms. Escalante would be free to make
arrangements to ensure her safety, and also noted that her family members in
Canada could offer financial support to assist in her re-establishment.
IV.
Issue
[12]
The sole issue raised by this application for
judicial review is whether the Officer’s decision was reasonable.
V.
Analysis
[13]
An enforcement officer’s decision whether to
defer removal from Canada is entitled to deference, and is reviewable against
the standard of reasonableness (Tovar v Canada (Minister of Citizenship and
Immigration), 2015 FC 490 at para 14; Baron v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81 at para 25). This Court
will intervene only if the enforcement officer’s decision lacks justification,
transparency and intelligibility, or falls outside the range of possible,
acceptable outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[14]
Pursuant to s 48(2) of the IRPA, a foreign
national against whom a removal order has been issued must leave Canada
immediately. Enforcement officers have an obligation to enforce removal orders “as soon as possible”. This may result in removal
prior to the expiration of the one year “PRRA bar”
described in s 112(2)(b.1) of the IRPA.
[15]
An enforcement officer has only a narrow
jurisdiction to consider deferral requests. In Wang v Canada (Minister of
Citizenship and Immigration), 2001 FCT 148 at para 48, [2001] 3 FC 682 [Wang],
Justice Pelletier held that a “deferral should be
reserved for those applications or processes where the failure to defer will
expose the applicant to the risk of death, extreme sanction or inhumane
treatment …”. In Canada (Minister of Public Safety and Emergency
Preparedness)v Shpati , 2011 FCA 286 at paragraph 45 [Shpati], the
Federal Court of Appeal confirmed that an enforcement officer’s functions are
limited and deferrals are intended to be temporary; they are not intended to
make, or to re-make, PRRA decisions or H&C decisions.
[16]
More recently, in Wong v Canada (Minister of Public
Safety and Emergency Preparedness), 2015 FC 966, Justice Shore held that an
enforcement officer does not have a “duty to undertake
a substantial risk assessment” when faced with a deferral request.
However, he noted that “situations of changed
circumstances of increased risk, or where applicants could be exposed to a
threat to personal safety, a risk of death, extreme sanction or inhumane
treatment could warrant a deferral, in exceptional circumstances” (at
para 18, citing Toth v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 1051 at para 23).
[17]
Ms. Escalante argues that enforcement officers
must defer removal “where there is a new allegation of
risk that has not previously been assessed”, and where the new risk
exposes the applicant to a risk of death, extreme sanction or inhumane
treatment (citing Atawnah v Canada (Minister of Public Safety and Emergency
Preparedness), 2015 FC 774 [Atawnah]). Ms. Escalante says that her
inability to contact her parents increases her risk of persecution and
constitutes a “material change in her circumstances”.
She says that she is now an unaccompanied woman returning to El Salvador, and
this new risk has never been assessed.
[18]
As Justice Mactavish observed in Atawnah,
the significant evidentiary challenge that confronts most applicants seeking a
deferral of removal is that their risk factors will have already been
thoroughly evaluated by the RPD or through the PRRA process, or both. Evidence
of a significant change in circumstances or an entirely new risk development
will therefore usually be required to demonstrate the need for a full risk
assessment. However, individuals whose allegations of risk have never been
assessed will face a lesser burden in demonstrating that their evidence
constitutes new evidence of risk. In the absence of a prior risk assessment,
almost any evidence of risk adduced by such an applicant could be considered “new” (Atawnah at paras 84-85).
[19]
Ms. Escalante relies on Justice Zinn’s decision
in Etienne v Canada (Minister of Public Safety and Emergency Preparedness),
2015 FC 415 at paragraph 54 [Etienne] as follows:
The risk the enforcement officer must
consider is not restricted to a “new” risk in the sense that it arose after a
refugee determination or other process. Risks that the enforcement officer is
also required to consider include risks that have never been assessed by a
competent body.
[20]
In this case, the Officer concluded that the
documents submitted by Ms. Escalante did not demonstrate that she faced any
specific threat upon returning to El Salvador. Moreover, the Officer found that
the RPD had already considered the risk of violence to women in El Salvador, based
on the following excerpt from the RPD’s decision:
The panel also considered the three reports
(or letters) presented regarding the claimants’ physical and/or psychological
problems … One of these documents also refers to a situation that the claimants
could face if they return to El Salvador, namely, violence against women,
something for which no specific allegation was made. Having analyzed all of the
evidence, the panel considers that the claimants failed to establish a
reasonable possibility of persecution if they returned to El Salvador or a risk
to their lives or a risk of cruel and unusual treatment or punishment, on a
balance of probabilities, if they had to return to their country of origin.
[21]
Ms. Escalante says that this excerpt,
particularly the words “something for which no specific
allegation was made”, confirms that her risk as an unaccompanied woman
returning to El Salvador was never fully assessed by the RPD. She submits that
the RPD was required to consider any ground of risk raised by the evidence,
even if she did not specifically mention it in her initial refugee application
(citing Canada (Minister of Citizenship and Immigration) v Nwobi, 2014
FC 520).
[22]
Ms. Escalante’s request for leave to bring an
application for judicial review of the RPD’s decision was denied by this Court.
The RPD’s decision is not before this Court, and cannot be collaterally
attacked in these proceedings. The decision of the RPD was final, and was
entitled to deference by the Officer (Shpati at paras 41-45). The
Officer did not fail to assess a “new risk that had not
been previously assessed by a competent body”. Rather, the Officer
deferred to the risk assessment previously conducted by the RPD, as he was required
to do.
[23]
The jurisprudence relied upon by Ms. Escalante
may be distinguished. In Atawnah, the merits of the applicants’ refugee
claims were never assessed by the RPD because their claims were deemed
abandoned. In Etienne, the risks initially advanced by the applicants in
their refugee applications were never assessed because their claims were
rejected on the ground that there was an internal flight alternative available.
In both Atawnah and Etienne, the merits of the applicants’ risk
allegations had never been assessed at all. This may be contrasted with the
present case, where the RPD considered the merits of the claims advanced by Ms.
Escalante and her sister.
[24]
The RPD specifically acknowledged the risk of
violence faced by women in El Salvador, a risk that plainly existed at the time
of Ms. Escalante’s refugee hearing. Even if Ms. Escalante’s request for
deferral had been granted, it is far from clear that a PRRA officer would have
jurisdiction to re-evaluate this risk, this time bearing in mind that Ms.
Escalante may be on her own. As Justice Frenette observed in Narany v Canada
(Minister of Citizenship and Immigration), 2008 FC 155 at paragraph 7:
It is well-established that the PRRA is not
an appeal or a reconsideration of the RPD's decision. Section 113(a) of the
IRPA provides that the decision [of the RPD] with respect to the findings on
sections 96 and 97 is final, except where evidence of new, different or
additional risks is established which could not have been foreseen by the
applicant at the time of the RPD hearing [citation omitted].
[Emphasis in original]
[25]
I am satisfied that the Officer considered the
risks advanced by Ms. Escalante in support of her request for deferral of her
removal from Canada, and reasonably concluded that the documents confirming
high rates of violence and “feminicide” in El
Salvador did not indicate a specific threat to Ms. Escalante. Ms. Escalante’s
assertion that she was no longer in touch with her parents was also considered
by the Officer, and was found to be insufficient to warrant a deferral of
removal. In my view, the Officer’s conclusion does not fall outside the range
of possible, acceptable outcomes.
VI.
Conclusion
[26]
For the foregoing reasons, the application for
judicial review is dismissed. No question is certified for appeal.
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