Docket: IMM-3611-18
Citation: 2019 FC 521
Ottawa, Ontario, April 25, 2019
PRESENT: The Honourable Madam Justice Strickland
| BETWEEN:
|
| JOSE ARNULFO RECINOS
|
| Applicant
|
| and
|
| THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
|
| Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of the July 12, 2018 decision of a Senior Decision-Maker [Decision-Maker] of Immigration, Refugees and Citizenship Canada refusing the Applicant’s request to reopen a danger opinion, which found, pursuant to s 115(2)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], that the Applicant is inadmissible on grounds of serious criminality and constitutes a danger to the public.
Background
[2]
The Applicant is a citizen of El Salvador. He became a permanent resident of Canada on July 12, 1988. Between 2005 and 2015, the Applicant accumulated a lengthy criminal record including convictions for assault, assault causing bodily harm, assault with a weapon, criminal harassment and uttering threats. He also amassed multiple convictions relating to impaired driving including driving while impaired, dangerous operation of a motor vehicle and driving while disqualified, in addition to convictions for failure to comply with recognizances, probation orders, bail conditions, and to attend court. His last convictions were on May 27, 2015.
[3]
On October 27, 2017, the Decision-Maker issued a Danger Opinion pursuant to s 115(2)(a) of the IRPA [Danger Opinion]. The Danger Opinion reviewed the Applicant’s criminal record and found that the Applicant was inadmissible to Canada for serious criminality, pursuant to s 36(1)(a) of the IRPA, as a result of his November 24, 2006 conviction for operating a motor vehicle while having consumed alcohol in such a quantity that he had more than 80 mgs of alcohol in 100 mls of blood. The Decision-Maker then considered whether the Applicant was a danger to the public. She discussed his lengthy criminal record including the convictions involving violence and the fact that, while a license suspension should have deterred the Applicant, he continued to reoffend and was now subject to a lifetime driving prohibition. While accepting that the lifetime prohibition and measures taken by the Applicant’s common law spouse (keeping all car keys in a lock box) were mitigating factors, the Decision-Maker found that the Applicant’s recurring pattern of driving while disqualified, combined with the high number of varied breach-related offences, lead her to believe that the Applicant was more likely than not to reoffend. The Decision-Maker weighed this pattern of behaviour against the Applicant’s more recent attempts to rehabilitate himself while in prison and on parole. She concluded that when weighing the Applicant’s reckless record against his rehabilitative efforts and best intentions of late, she was not satisfied that he had made significant and lasting gains whereby he would no longer pose a danger once released into the community, in an unrestricted environment. Based on the evidence before her that the Applicant’s criminal offences were serious, repetitive and dangerous to the public, in addition to the lack of sufficient evidence of rehabilitation, she found, on a balance of probabilities, that the Applicant represented a present and future danger to the Canadian public, whose presence in Canada posed an unacceptable risk.
[4]
In assessing the risk the Applicant would face if returned to El Salvador, the Decision-Maker considered country conditions documentation and stated that it is well established that El Salvador is struggling with a serious problem of violent crime stemming principally from existing conflicts between criminalized gangs. Indeed, it has become one of the most violent countries in this hemisphere where the young are most vulnerable. However, the Decision-Maker was of the opinion that the mere presence of an individual on Salvadorian soil was not, in and of itself, a factor that could justify issuing a protection measure. Based on the country condition documentation, the Applicant’s profile as a deportee and an alcoholic would not directly result in him being personally targeted. As a small business owner, he might be susceptible to a greater risk of extortion, but there was insufficient evidence before the Decision-Maker to suggest he would become a self-employed business owner if removed to El Salvador. And, as a skilled tile setter, he could potentially seek employment within an existing business. Having considered the evidence as well as the possible risks to life, liberty and security of the person as set out in subsection 115(1) of the IRPA and section 7 of the Charter, the Decision-Maker found, on balance, that the Applicant would not face a personal risk to life, liberty or security of the person if returned to El Salvador.
[5]
The Decision-Maker then assessed humanitarian and compassionate [H&C] considerations, including the hardship the Applicant’s common law spouse and her three adult children would face as a result of his removal, his family ties in Canada including his biological son and lack of familial support in El Salvador, adjustment to Salvadorian culture, and the Applicant’s alcoholism. Having taken into cumulative consideration all of the information related to H&C factors, the Decision-Maker was of the opinion that they did not outweigh the danger that the Applicant posed to the Canadian public.
[6]
The Decision-Maker concluded, having fully considered all facets of the case, including H&C aspects, and assessing the possible risks that the Applicant might face if returned to El Salvador and the need to protect Canadian society, that the risk to the Canadian public outweighed the risk that the Applicant might face if returned to El Salvador and accordingly found that he could be removed pursuant to s 115(2)(a) of the IRPA.
[7]
The Applicant applied for leave and judicial review of the Danger Opinion which was denied on April 3, 2018. He brought a motion before this Court seeking to have the negative leave decision reconsidered. This was refused on May 24, 2018. The Applicant was scheduled to be removed on June 13, 2018. He applied for a deferral of removal based on a request to reconsider the Danger Opinion. The request to re-open and reconsider the Danger Opinion was refused by decision dated July 12, 2018, which is the decision now under review.
Decision Under Review
[8]
The Decision-Maker acknowledged that ENF 28, Chapter 7.16 “Reconsideration of Danger Opinion”
[ENF 28] explicitly recognizes the possibility that a danger opinion can be reopened and reconsidered based on new evidence or a breach of the principles of natural justice. However, after reviewing the evidence presented, which included new country condition documentation and affidavits and letters of support attesting to the Applicant’s good nature and continued efforts towards rehabilitation and lack of danger to the public, she found that the new evidence was not materially relevant to either the danger the Applicant poses to the Canadian public, his risk on return to El Salvador, or to the H&C considerations. Accordingly, she refused to reopen the Danger Opinion, which she found to remain factually and legally viable.
[9]
The Decision-Maker also rejected the Applicant’s submission that errors in the Danger Opinion violated natural justice and denied his request for an oral hearing as the evidence submitted did not lead her to question the Applicant’s credibility.
Issues and Standard of Review
[10]
While the Applicant identified many issues, in my view, these are all encompassed by the following two questions:
Did the Decision-Maker breach procedural fairness?
Was the Decision-Maker’s refusal to reopen the Danger Opinion reasonable?
[11]
The first of these issues is reviewable on a standard of correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43) and the second is reviewable on the standard of reasonableness (Clarke v Canada (Citizenship and Immigration), 2017 FC 393 at para 12 [Clarke]).
Issue 1: Did the Decision-Maker breach procedural fairness?
[12]
In determining whether to reopen the Danger Opinion, the Decision-Maker referenced ENF 28, which reads as follows:
A decision maker will review the request and determine whether to reopen the original danger decision based on whether the request (along with any accompanying submission) demonstrates one of the following:
• New Evidence has been submitted that meets all of the following criteria:
a) Reliable: Is the evidence reliable, considering its source and the circumstances in which it came into existence?
b) Relevance: Is the evidence relevant to the decision type, in the sense that it is capable of proving or disproving a fact that is relevant to the proceeding?
c) Materiality: Is the evidence material, in the sense that the decision maker may have come to a different conclusion if it had been known?
d) Newness: Is the evidence new in the sense that it is capable of:
i. proving the current state of affairs in the country of removal
ii. proving a fact that was unknown at the time of the original decision
iii. contradicting a finding of fact made by the original decision maker?
• A principle of natural justice was violated by the original decision maker.
REOPENING AND RECONSIDERING
Where the decision maker decides that a reopening of the original danger opinion is required based on either or both of the 2 above assessments, it becomes as though the initial decision was never finalized, and a new decision must therefore be made. The second decision is termed the reconsideration decision. Before the new decision is rendered, the subject of the danger opinion and/or their counsel should be informed of the decision to reconsider, and a further opportunity for submissions should be provided.
REFUSAL TO REOPEN AND RECONSIDER
Alternatively, after reviewing the request to reconsider and any submissions made in support of the request, the decision maker may deny the request. The decision maker must explain the reasons for refusing to reopen the original decision with regard to the applicant’s submissions and the policy guidelines. This may be done in letter format.
[13]
While acknowledging that guidelines are not law, the Applicant submits that there is a reasonable expectation that they will be followed (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36; Clarke at paras 21 and 31). He submits that ENF 28 clearly indicates that the threshold for reopening a Danger Opinion is a low one and that the Decision-Maker did not follow the stipulated process because she assessed each piece of evidence and then made definitive determinations as to whether each would have changed the outcome of the Danger Opinion. Further, the Decision-Maker imposed a higher evidentiary threshold than specified.
[14]
I note first that Clarke is distinguishable on its facts. Subsequent to Clarke being decided, ENF 28 was revised to reflect its current form. Second, upon review of the decision in whole, I agree with the Respondent that the Decision-Maker did follow the process outlined in ENF 28 and that there was no breach of procedural fairness in that regard. Rather, she found that the new evidence before her failed to meet the ENF 28 requirements. The Applicant points to phrases in the decision concerning the new evidence, such as “it does not constitute new evidence that would materially affect the outcome of that decision”
, as illustrating that the Decision-Maker failed to appreciate that what was required was a lower evidentiary standard, being whether the evidence was material “in the sense that the decision maker may have come to a different conclusion if it had been known”
. However, viewed in context, these examples show the Decision-Maker undertook the required evidentiary analysis. If evidence would not materially affect the outcome, then it could not meet the materiality threshold, which requires that the Decision-Maker may have come to a different conclusion. I also note that the proposed new evidence must meet all of the stipulated criteria in order for a danger opinion to be reopened.
[15]
The Applicant also submits that while the Decision-Maker refused his request for an oral hearing by stating that she did not have any credibility concerns, the nature of her decision that the Applicant is not rehabilitated is essentially a negative credibility finding (Cho v Canada (Minister of citizenship and Immigration), 2010 FC 1299 at para 29). While I agree that where credibility is in issue, procedural fairness may require an oral hearing, here the Decision-Maker did not disbelieve the Applicant’s evidence supporting his view that he had taken adequate rehabilitation measures, or the evidence, such as his former wife’s view as to the Applicant’s potential danger to the public. Rather, she found that his evidence did not meet the threshold required for reopening the Danger Opinion. Evidence may be accepted as true, but be found not to be relevant, material, or new so as to warrant the reopening the Danger Opinion. Contrary to the Applicant’s submissions, the Decision-Maker did not make a veiled credibility finding.
[16]
The Applicant also submits that the Decision-Maker imposed an impossible test, which was also a breach of procedural fairness. She attempted to justify her decision by stating that any rehabilitation by the Applicant was irrelevant as he was detained. In other words, no matter what he does, he can never establish that he is rehabilitated and, therefore, a negative Danger Opinion is a forgone conclusion.
[17]
This submission is of no merit because, when considering the evidence submitted with the reopening request, the Decision-Maker made no such finding. She identified the new evidence and also noted her findings on rehabilitation and danger to the public in the Danger Opinion and that much of the new evidence was simply more of the same. Her conclusion was that the new evidence, had it been before her when considering the original Danger Opinion package, would likely have been afforded little weight.
[18]
In sum, the Applicant has not established a breach of procedural fairness.
Issue 2: Was the Decision-Maker’s refusal to reopen the Danger Opinion reasonable?
[19]
The Applicant submits that the Decision-Maker’s dismissal of the new evidence as not materially relevant was unreasonable.
Risk due to imputed political opinion
[20]
The Applicant submits that in the Danger Opinion, the Decision-Maker acknowledged that the original application that the Applicant submitted as a sponsored refugee was no longer available. He submits that, as a result, the new evidence in support of the request to reopen the Danger Opinion was the first time the Decision-Maker was made aware of the nature of the risk that resulted in him being afforded refugee protection and her rejection of this evidence as not materially relevant to the Applicant’s risk of return to El Salvador was, therefore, unintelligible.
[21]
I would first note that, contrary to the Applicant’s submissions, the Decision-Maker did not acknowledge that this new evidence established that the Applicant was at a heighted risk of being targeted due to imputed political opinion. Rather, she stated that the Applicant had mentioned that members of the Recinos family were specifically targeted for political activity and, as a result, the Applicant was at a heightened risk of being targeted due to his family’s past connections. She went on to find that while the evidence did shed light on the family’s experience when they fled El Salvador some 30 years ago, it did not constitute new evidence that would materially affect the outcome of the Danger Opinion. In my view, this assessment is reasonable in the absence of any evidence to suggest that any risk the Applicant faced 30 years ago is a continuing one.
[22]
Further, in the Danger Opinion, the Decision-Maker not only noted that the Applicant’s original sponsored refugee application was no longer available, she also noted that there was indication on file, and from the Applicant’s sister by way of a letter of support dated November 2, 2015, that he fled El Salvador to escape the civil war. The same sister filed an affidavit in support of the request to re-open the Danger Opinion, in which she states that she is providing new information, including details of the Applicant’s refugee claim and reasons he was forced to flee El Salvador. I would first note, as does the Respondent, that this is not new information. It was known to both the Applicant and his sister prior to the making of the Danger Opinion. Further, the affidavit states that his sister fled El Salvador because her husband was at risk there due to his participation in protests. As to her brothers left in El Salvador, they were young and at risk of being forcibly recruited into the army to fight in the civil war. As to her father’s murder, she states that this was for an unknown reason and at the hands of a member of a bandito who terrorised the neighbourhood. Eventually, by way of the Archdiocese of Toronto, her siblings were sponsored into Canada. Significantly, this affidavit does not suggest that the reason the Applicant fled El Salvador was due to a risk to him arising from her husband’s protest activities.
[23]
Some documents from the Archdiocese are attached as an exhibit to the affidavit. One of these, a March 31, 1998 sponsorship update, does describe four unnamed siblings then in Mexico who fled El Salvador because they were receiving threats due to the political activities of their brother-in-law. However, this is not supported by the content of the affidavit and, in any event and as the Respondent submits, this evidence is not material to a forward-looking risk assessment.
Murder of the Applicant’s friend
[24]
The affidavit of the Applicant’s sister also states that one of the Applicant’s friends was deported from Canada a couple of years ago and was killed. She states her belief that he was targeted because he was being followed and, that he stood out because of his accent and the way he walked. She states he may also have been targeted because of his tattoos. The Applicant submits this was significant evidence as to risk upon return as he too would stand out because of his accent.
[25]
The Decision-Maker noted the submission that the Applicant’s friend was removed to El Salvador and was murdered soon after. Further, that his sister believed that the friend was targeted and killed because he stood out as a result of his accent and the way he walked. The Decision-Maker stated that it would be speculative to infer that the same fate would befall the Applicant simply based on the fact that he may speak with a western accent and is being removed from Canada.
[26]
The Applicant submits that the Decision-Maker disregarded this evidence and erred in law in her conclusion because it appears as though she was employing a proof beyond a reasonable doubt test, and that anything else is just speculation. There is no merit to this position. Nothing in the reasons suggests the application of a proof beyond a reasonable doubt test. Moreover, the affidavit provides no basis for the belief that the Applicant’s friend was followed and targeted because of his walk, or his accent or possibly his tattoos. And, as the Respondent points out, evidence as to this murder was provided by the Applicant in support of the Danger Opinion, his sister’s affidavit may add detail – in the form of unattributed hearsay and her speculation as to why the friend was killed – but this does not constitute new evidence. Nor is use of the word “speculative”
by the Decision-Maker somehow reflective of using a reasonable doubt standard. Rather, as indicted in the Decision-Maker’s conclusion, the new information was not sufficiently relevant or material to justify reopening the Danger Opinion.
Risk as deportee
[27]
In his submissions to the Decision-Maker, the Applicant included excerpts from various newspaper articles concerning risks to deported individuals. The Decision-Maker noted that the Applicant had previously submitted, in connection with the Danger Opinion, that he was at risk of persecution including being extorted by gangs due to his identity as a deportee, which had been taken into consideration in that decision. While the new evidence post-dated the Danger Opinion, she found that it did not suggest that country conditions in El Salvador had changed so significantly as to warrant reconsideration of the original decision. While sources do indicate that deportees, for example those returning from the United States with money or who have been under threat before they left, may be subject to extortion by criminal gangs, this was further evidence of the same kind that was already before her at the time of the Danger Opinion decision and did not materially affect the outcome.
[28]
The Applicant submits that the article excerpts provided new evidence of deportees from North America being at an increased risk of targeting upon return to El Salvador due to perceived wealth. The Applicant submits that evidence of the “massive increase in Trump era deportations”
was not included in the original submissions as confirmed by the fact that the Decision-Maker’s analysis of risk to deportees was limited to one sentence indicating that, according to the UNHCR Guidelines, the Applicant’s profile as a deportee or an alcoholic would not directly result in him being personally targeted. Given that the Decision-Maker did not have the new evidence before her, she should not have dismissed the totality of this evidence on the grounds that it had been taken into account in the original decision.
[29]
As pointed out by the Respondent, there was evidence before the Decision-Maker indicating that returnees from abroad with financial resources were subject to extortion. I note that the Danger Opinion referenced the Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from El Salvador in that regard and considered various risk factors, including being a deportee, but ultimately concluded that, given his profile, it was unlikely that the Applicant would be singled out alongside his fellow Salvadorian citizens. While the Danger Opinion reference to risk to deportees was brief, I am satisfied that the risk was before and was considered by the Decision-Maker at that time. Given that the Applicant is being deported from North America, the analysis of risk in that decision impliedly accounted for his connection to North America and the perception of wealth associated with that status. Further, upon review of the excerpts provided, the published and complete versions of which are not found in the record, it was not unreasonable for the Decision-Maker to find that these articles do not suggest that country conditions have changed so significantly as to warrant reconsideration. For example, the quote from the Latin American Working Group in January 2018 states that the situation of insecurity, corruption, and impunity that all deported migrants return to remains the same and in some cases has deteriorated – but does not suggest that this is the case with respect to deportees perceived to be wealthy. Another extract of an article that the Applicant states pertains to ongoing deportations under the Trump administration, does not reference that administration nor does it suggest heighted risk simply due to increased numbers of returnees or increased risk due to perceived wealth. In my view, the Decision-Maker did not err in concluding that the new evidence was further evidence of the same kind that was already before her at the time of the Danger Opinion decision and did not materially affect the outcome.
[30]
The Applicant also submits that the purpose of the excerpts was to show the inability of deportees to find employment, which, he submits, contradicts the Danger Opinion finding that the Applicant could potentially seek employment within an existing business. Given that this premise was used to offset the Applicant’s heightened risk for extortion, the new evidence required consideration.
[31]
In the Danger Opinion, the Decision-Maker was addressing the risk of extortion when she accepted that, as a small business owner the Applicant may be susceptible to a greater risk, but she found that as a skilled tile setter he could potentially seek employment with an existing business. As such, his risk of extortion was not heightened. In doing so the Decision-Maker was addressing risk, not making a finding as to the potential of the Applicant to obtain employment. Further, the Decision-Maker stated that the fact that the Applicant’s reintegration into the Salvadorian workforce would present challenges was considered in the Danger Opinion. Given that the evidence submitted in support of the request to re-open does not foreclose the possibility that the Applicant could obtain employment within an existing business, it was reasonably open to the Decision-Maker to conclude that this new evidence was immaterial.
Rehabilitation
[32]
The Applicant makes lengthy submissions in support of his view that the Decision-Maker erred in her determination on rehabilitation. Specifically, she erred in dismissing the new evidence that he submitted in that regard. While I have considered all of the Applicant’s submissions, I am not persuaded that the Decision-Maker erred in her conclusion that the new affidavits and letters of support were simply further evidence in the same vein as the evidence presented at the time of the Danger Opinion and presented no novel arguments. She concluded that the evidence did not change her original assessment as to the difficulty that a possible separation might cause the Applicant and his family nor did it supply reliable and unbiased evidence of rehabilitation.
[33]
In essence, the Applicant took issue with the Decision-Maker’s reliance in the Danger Opinion on police notes surrounding his convictions in June 2005 and her alleged failure to properly consider the new affidavit provided by his ex-wife and a letter from his former brother-in-law pertaining to that matter. The police notes indicated that the Applicant attended at his brother-in-law’s home and began yelling at his ex-brother-in-law accusing him of knowing his ex-wife was involved in a relationship with another man. During this encounter, he made death threats towards this brother-in-law and used an axe to destroy two granite tiles and a glass window in the lobby of the apartment building. The Applicant then drove to his ex-wife’s residence and used his van to ram her motor vehicle. He then proceeded to flee the scene, operating his vehicle in a manner dangerous to the public. The police notes state that on a later date, the Applicant’s ex-wife received a letter from the Applicant, while he was in prison, which expressed his rage and hatred for her, that she could run but not hide from him and, threatened her life.
[34]
In the affidavit of the Applicant’s ex-wife, under the heading “Errors and omissions in the Danger Opinion”
, she states that she has looked over the Danger Opinion and does not believe that the events in which she was involved were properly recorded. She does not, however, dispute the central tenets of evidence in the police notes, and confirms that the Applicant confronted her brother and caused damage to the lobby of his building and damaged her vehicle. She says that she does not recall that they pressed charges and that she was not afraid of the Applicant and did not seek any restraining orders. If one was granted, it was not because she applied for it. She states that while she received the letters referred to in the Danger Opinion, they were not translated properly as presented therein. However, how she knows this is unclear as she also states that she no longer has copies of the letters and is not sure how they made it into the hands of the police. She states that she does not believe that the Applicant was trying to physically threaten her, that she believes that he has changed, and that she does not believe that he poses a danger to society. The Applicant’s former brother-in-law provided a letter stating that despite the incident, he has remained friends with the Applicant, who he believes is rehabilitated.
[35]
In considering the Applicant’s objection to the Decision-Maker’s reliance on police notes, the Decision-Maker noted that police notes were credible sources of information concerning the circumstances of the offence, and that her depiction of the Applicant as a violent individual was not solely based on police notes, but was based on her thorough assessment of all of the evidence before her which demonstrated the Applicant’s lengthy criminal record, spanning over 20 years and 35 convictions, the serious nature of his convictions as well as the lack of palpable gains toward rehabilitation. The Decision-Maker found that, in comparison, the affidavit from the Applicant’s ex-wife and letter from his former brother-in-law would not appear to be unbiased sources, given their close personal relationships. Further, had they been before her in the original Danger Opinion package, she would likely have afforded them little weight.
[36]
I note that that this “new”
evidence could have been provided at the time of the Danger Opinion. Regardless, I also agree with the Respondent that the Decision-Maker reasonably considered and assessed this evidence but was entitled to place considerable weight on the police note. These which were made contemporaneously with the events and from which events convictions were entered. I do not agree that the only basis for the Decision-Maker’s discounting of the affidavit and letter was the personal relationship of the ex-wife and her brother to the Applicant. The Decision-Maker was required to consider the evidence in its entirety and view that new evidence, including its reliability, in the context of the whole of the evidence, which she did. In my view, the Applicant simply seeks to have this Court re-weigh the evidence, which is not its role. Nor do I agree that the Decision-Maker’s treatment of the new evidence as to rehabilitation is indicative of a closed mind, as the Applicant suggests.
[37]
The Applicant also submits that the Decision-Maker erred in dismissing all of the Applicant’s new evidence concerning rehabilitation on the grounds that it was simply further evidence “in the same vein”
. He submits that her reasoning is unclear, unintelligible and in opposition to ENF 28. However, in reading the decision as a whole, I am not persuaded that her reasoning is unclear and unintelligible. She carefully reviewed the evidence and found that it was “in the same vein”
in the sense that it was substantively similar to the prior evidence concerning rehabilitation. While the Applicant disputes this characterization, in my view, it was reasonably open to the Decision-Maker. Further, the Applicant’s submission referencing Clarke is again distinguishable.
[38]
Finally, as to the further affidavit of the Applicant’s sister, dated February 4, 2019, which notes that the Applicant is now out of detention and addresses his further rehabilitative efforts, this affidavit was not before the Decision-Maker and is inadmissible for purposes of this application for judical review (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at para 19. And, although the Applicant made various other arguments, many of these amount to collateral attacks on the Danger Opinion, which the Applicant has had the opportunity to challenge previously in this Court.
[39]
In sum, it was reasonable for the Decision-Maker to find that the new evidence was not sufficient to meet the criteria set out in ENF 28 and warrant the re-opening of the Danger Opinion.
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