Date: 20030424
Docket: IMM-2957-02
Neutral citation: 2003 FCT 508
Toronto, Ontario, Thursday, the 24th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
OMAR ALEXANDER MERINO SORIANO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD"), dated June 14, 2002, wherein the IAD refused to grant a stay of execution of a removal order against the Applicant dated August 23, 1999.
[2] The Applicant is a citizen of El Salvador who came to Canada in 1992, at the age of fifteen, and was landed as a permanent resident in 1995. In 1998, the Applicant was convicted of sexual assault and was sentenced to twelve months in prison and three years probation. The removal order under consideration by the IAD was made as a result of this conviction. It is agreed that at the time of the hearing before the IAD, the Applicant was the subject of an unexecutable deportation order to El Salvador; the deportation order being unexecutable because of the Applicant's Convention Refugee status which required further action to be taken by the Respondent before it could be put into affect. The important point to be taken from the existence of the deportation order is that, at the time of the IAD's consideration of the Applicant's appeal, the country of his removal was determined to be El Salvador.
[3] The IAD found that there was no reason to justify a stay of the removal order. The IAD found that the Applicant is an untreated sexual offender, has not taken sex offender or alcohol abuse counselling, and is more likely than not to re-offend.
[4] I find that the IAD's decision was made in breach of natural justice. In my opinion, for the reasons which follow, the IAD erred in not providing the Applicant a full opportunity to produce relevant evidence in support of his appeal.
[5] The Applicant's application before the IAD was brought under s. 70(1)(b) of the Immigration Act which allows him to make an argument that, "having regard to all the circumstances of the case", he should not be removed from Canada. It is agreed that the IAD is required to take hardship to the Applicant into consideration were he to be returned to the known country of deportation, being El Salvador. The contention between the Applicant and Respondent is with respect to the evidence which can be produced in support of the hardship argument.
[6] It is agreed that a fact to be taken into consideration by the IAD in the present case is that the Applicant is a Convention Refugee. However, I agree with the Respondent's position that, in considering the circumstance of hardship, the IAD is not allowed to engage in a determination on the basis of Refugee Convention grounds. That is, I agree that the IAD cannot purport to act as the CRDD would in determining risk of persecution on a body of evidence presented under s. 70(1)(b). This limit is placed by the Supreme Court of Canada's decision in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 where at paragraph 84 Justice Iacobucci said this:
Only the C.R.D.D. has the jurisdiction to determine that an individual is a Convention refugee. The I.A.D. cannot make such a finding, nor does it do so when it exercises its discretion to allow a permanent resident facing removal to remain in Canada. When exercising its discretionary jurisdiction, the I.A.D. does not directly apply the 1951 Geneva Convention, which protects individuals against persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Instead, the I.A.D. considers a broader range of factors, many of which are closely related to the individual being removed, such as considerations relating to language, family, health, and children. Even when examining country conditions, the I.A.D. can consider factors, such as famine, that are not considered by the C.R.D.D. when determining if an individual is a Convention refugee. These foreign concerns are weighed against the relevant domestic considerations in making the final decision as to the proper exercise of the I.A.D.'s discretion. As a result of this broad-based balancing exercise, the protections offered to non-refugee permanent residents are of a different nature than those provided to Convention refugees. In this respect, I reiterate that it is only refugees who are protected from refoulement, as guaranteed by Article 33 of the 1951 Geneva Convention (enacted into Canadian law by s. 53 of the Act).
[7] However, I agree with the Applicant that, quite apart from a finding on the basis of Convention grounds, proof of hardship does include evidence of the social, economic, and political situation facing the Applicant were he to return to El Salvador. In my opinion, evidence of the reality of the situation is a circumstance that the IAD is required to consider.
[8] In the present case, the IAD heard evidence from the Applicant's aunt that, as a convicted criminal, were the Applicant to be returned to El Salvador he might be perceived to a gang member and, therefore, would risk being killed by death squads. At the IAD hearing, counsel acting on behalf of the Applicant attempted to file documentary evidence supporting the aunt's evidence. Despite in-country conditions in El Salvador being in play by the aunt's evidence, the IAD did not allow the admission of the documentary evidence tendered on the basis that the IAD was not allowed to consider such evidence because it was not allowed to consider Convention Refugee grounds as an element of hardship. In this respect, I find the IAD erred.
[9] It might very well be that the IAD made a correct finding of law in rejecting the evidence for the reasons it gave on the Convention Refugee issue, but I find it was a denial of natural justice not to admit the evidence as an element of proving the lawless situation in El Salvador to which the Applicant might be returned.
[10] I see no distinction between the relevance of "lawlessness" and Justice Iacobucci's finding that "famine" might be a relevant consideration before the IAD. In my opinion, the in-country conditions which are capable of producing a hardship to the Applicant are relevant; it is for the IAD to decide the weight to be placed on the evidence.
[11] On this basis, I find that counsel for the Applicant was entitled to submit the documentary evidence tendered to substantiate the Applicant's aunt's evidence, and should not have been restricted in attempting to do so. I find that the restriction is a denial natural justice.
ORDER
Accordingly, I set aside the IAD's decision and refer this matter to a differently constituted panel for redetermination.
As the order herein turns on an evidentiary issue, I find there is no question of evidence to certify.
"Douglas R. Cambpell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-2957-02
STYLE OF CAUSE: OMAR ALEXANDER MERINO SORIANO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MARCH 23, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, APRIL 24, 2003
APPEARANCES BY: Mr. Rocco Galati
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: GALATI, RODRIGUES, AZEVEDO & ASSOCIATES
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030424
Docket: IMM-2957-02
BETWEEN:
OMAR ALEXANDER MERINO SORIANO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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