Date : 20000330
Docket : IMM-253-00
Between:
Rigoberto Valencia Soriano
Applicant
- and -
The Minister of Citizenship and Immigration
Respondent
REASONS FOR ORDER
MULDOON J.
[1] This is a motion, pursuant to section 18.2 of the Federal Court Act, R.S.C. 1985, Chapter F-7, for a stay of an exclusion order and of the execution of a removal order, made against the applicant by the respondent, until such time as this application for leave and for judicial review has been dealt with by this Court. The motion was heard in Vancouver on January 31, 2000. By order dated February 7, 2000, this Court dismissed the motion, stating that written reasons would follow. These are those reasons.
Facts
[2] The moving party, Mr. Rigoberto Valencia Soriano, was born in El Salvador on November 16, 1962. He has remained a citizen of that country despite the horrors visited upon him while living there. His mother was an alcoholic, his parents split up and he ended up, in time, with a grandmother who would box his ears. At 19 he found his father lying on his shop floor, shot dead and with signs of having been beaten and tortured. He states that he fled to the mountains not far from New San Salvador and became a FMLN guerilla. The details of his life with the guerillas are scant. He offers only that he once buried a large cache of arms. He does recount a set of narrow escapes, however, from one armed militia.
[3] The moving party states that he was shot at by a passing car in his mother"s neighbourhood and left for dead in the street. Subsequently taken to a hospital, he returned to his bed one day only to find that the men in the beds on either side of him had been shot by people looking for him. It was at this point that he began his long journey first to Mexico, then to the United States and, ultimately, to Canada.
[4] On October 22, 1988, the moving party entered Canada and made a claim for refugee status. While awaiting the decision of the Convention Refugee Determination Division (hereinafter CRDD), he got into trouble with the law, being convicted, in September of 1990 in Edmonton, of possession of narcotics.
[5] The moving party eventually met Ms. Dorothy Shaw, eventually fathering a child on July 11, 1991. Later, on January 9, 1993, the two were wed.
[6] The CRDD finally wrote the moving party, in a letter dated March 4, 1993, concluding that he was not a convention refugee. An application for leave to seek judicial review was filed with this Court but denied by way of an order from Rothstein J. dated June 24, 1993. The moving party then sought, in August of 1993, to make an application for permanent residence on humanitarian and compassionate grounds, enlisting his wife as a sponsor. In a decision dated October 31, 1995, the Minister determined that there were sufficient humanitarian and compassionate grounds on which to approve the application. Such approval was made contingent, however, on the Minster receiving a proof of a pardon for his narcotics conviction. The pardon was granted on June 18, 1996 and the moving party was given permanent residence status on November 18, 1997.
[7] The moving party and his wife eventually separated in 1997, the latter leaving the country in order to get away from him. He entered into a relationship with Ms. Pamela Ryan. A daughter was conceived in 1998 but this relationship, too, came to an end, the girlfriend seeking to get away from the moving party.
[8] On July 27, 1998, the moving party was convicted of mischief, breaking and entering the apartment of his former girlfriend and failing to comply with a probation order by having direct contact with his ex-girlfriend and by visiting her child"s elementary school. On October 9, 1998, the moving party was again convicted of breaking and entering into his ex-girlfriend"s apartment and with failing to comply with a probation order. On February 23, 1999, the moving party was convicted a third time of breaking and entering into his ex-girlfriend"s apartment. This time he was also convicted of breaching four conditions of his probation, including failing to report to his probation officer, and of assaulting his ex-girlfriend"s neighbour.
[9] At the moving party"s sentencing, Cronin J. noted that the ending of the moving party"s relationship with his ex-girlfriend had resulted in a court order requiring him to stay away from her but he did not seem capable of obeying it or any of the subsequent orders. He wrote:
| Three probation orders in effect and you continually breach each order. |
[...]
| You continually go back to this woman [Ms. Shaw], you assault her, break her windows, break into her house, just will not stay away from her. |
Cronin J. handed down a sentence of nine months in prison and three years probation.
[10] While at the Nanaimo Correctional Centre, the moving party attended and completed an alcoholics' rehabilitation program called Beyond Blame. He also obtained a place in Victory Homes Rehabilitation Ministries for the time after his release from custody.
[11] Later in the summer of 1999, then-counsel for the moving party sought a psychiatric evaluation to determine the cause of the moving party"s spate of offences in 1998 and 1999. By way of a report dated October 25, 1999, Dr. Elizabeth Zoffman detailed her conclusions. For instance, she notes that the moving party told her of his love for his children and of his great desire to see them. Concerning the two women of his life, she writes:
| He describes with some degree of regret, an acceptance of the decision that these women have made to be rid of him. |
[...]
| Thus, while he wants to take responsibility for his children and have contact with them, he is quite clear that he has no real relationship with either of these women. |
Dr. Zoffman also describes how the moving party became extremely agitated when relating to her the time that he found his father dead on the floor and the time that he was ambushed, shot and left for dead in the street.
[12] Dr. Zoffman concludes that the moving party is suffering from alcohol dependence and abuse. She also diagnoses him with chronic post traumatic stress disorder (hereinafter p.t.s.d.), that to which she relates his terror of returning to El Salvador and his legal and relationship difficulties. She notes, however, that she saw no signs of symptoms of paranoia, delusions, perceptual distortions, suicidal or homicidal fantasies. Finally, she concludes that, without him adopting a risk management plan, the moving party poses a low to moderate risk for violence but that, with a plan, there will only be a minimal risk of reoffending. Of course, in common with other mortals, Dr. Zoffman is not clairvoyant.
[13] By way of letter dated August 16, 1999, the respondent was notified that a Minister"s opinion may be issued pursuant to paragraph 46.01(1)(e) of the Act to the effect that he is a danger to the public in Canada. The moving party was invited to forward to the respondent any representations, information or evidence regarding the issue of danger.
[14] On August 24, 1999 an inquiry was held and a deportation order issued against the moving party. As his sentence, handed down in February of 1999, was coming to a close, he was transferred to the custody of immigration officials. He was eventually released on November 3, 1999 on condition that he reside at Victory Homes in Langley, B.C.
[15] By way of letters dated November 26 and December 17, 1999, counsel for the moving party made submissions in regard to the danger opinion mentioned above. On November 30 and December 20, 1999, an immigration officer forwarded the moving party"s submissions along with other documents to the Minister.
[16] By way of letter dated December 21, 1999, a Minister"s delegate decided that, in his opinion, the moving party constituted a danger to the public
[17] When eventually released from the custody of immigration officials, the moving party received permission to have supervised visits with Ms. Ryan and his child and, as a result, he spent the day at her apartment on November 12, 1999. This led to Ms. Ryan stating in a letter that she wished to allow him access on weekends. This led to further visits at Christmas, New Years and on the child"s birthday. Things looked particularly bright, no doubt, when his estranged wife even telephoned him at New Years as their son wanted to talk to him. As for her, however, she delivered an affidavit to the respondent telling of how the moving party has continued to follow her, despite her having fled the country, and has telephoned many times in spite of appeals not to do so.
Legal Issues
[18] Both parties agreed that the Court, in considering wether to grant a stay, is to be guided by the three-part test adopted in Toth v. Canada (Minister of Employment and Immigration) (1989) 86 N.R. 302 (F.C.A.). The first issue to consider, therefore, concerns whether there be any serious issues in the moving party"s application for leave. Though the moving party did not include a copy of his application in this motion"s material, the respondent did not dispute it . The second issue concerns whether the moving party will suffer irreparable harm if the exclusion and deportation orders are enforced prior to his application for leave being heard. The third issue concerns whether the balance of inconvenience favours the moving party or the respondent.
Serious Issue
[19] In respect of the first question, the moving party submitted that there are several serious issues in his application for leave. The first two issues concern whether the respondent violated the moving party"s rights under sections 7 and 12 of the Canadian Charter of Rights And Freedoms , Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (hereinafter Charter) by attempting to return him to El Salvador without first conducting an assessment of the risks that he might face on his return. In the alternative, if a risk assessment did occur, the moving party raised the issue of whether such an assessment was completed pursuant to the requirements of section 7 of the Charter and the principles of procedural fairness. The third issue concerns whether the Minister"s delegate failed to consider all of the evidence which the moving party submitted shows that he is not likely to reoffend.
[20] With regard to section 12 of the Charter, the Court of Appeal noted recently, in Suresh v. The Minster of Citizenship and Immigration (A-415-99, January 18, 2000) (F.C.A.) at paragraph 78, that the respondent cannot be held responsible for another state"s actions and will not be in violation of section 12 in putting someone into the hands of the state in question. There is no legal basis, therefore, for the moving party"s submission. As a result, whether returning the moving party to El Salvador without a risk assessment constitutes a breach of section 12 cannot be considered a serious issue.
[21] There are several reasons for which this Court cannot dispose of the section 7 issue as peremptorily as the respondent may wish. First, there is the fact, not disputed by the respondent, that no risk assessment was carried out in tandem with the process used to reach the danger opinion. The respondent alleged that such an assessment was completed back in 1993 when the CRDD convened a refugee hearing on behalf of the moving party. This does not completely answer the moving party"s claim, however, which is that the removal process requires an up-to-date, full-fledged, independent risk assessment. In addition, this Court is reluctant to accept that the Minister"s delegate can, per se , piggy-back on a seven-year old CRDD finding which, as the moving party points out, may or may not have contained an adequate risk assessment. The fact that this Court accepted the CRDD"s conclusions on an application for leave to seek judicial review by the moving party changes nothing; applications for leave are not the appropriate forum for vetting a risk assessment; Farhadi v. Canada (Minister of Citizenship and Immigration) , [1998] 3 F.C. 315 (F.C.T.D.) (hereinafter Farhadi) at paragraph 23.
[22] Second, the respondent submitted no jurisprudence to suggest that the current process of reaching a danger opinion without first carrying out a risk assessment satisfies the procedural aspects of section 7 of the Charter. For instance, in Chiarelli v. Canada (1992), 16 Imm.L.R. (2d) 1 (S.C.C.), the Supreme Court noted merely that the substantive aspects of section 7 were not violated by deportation of certain people. In Suresh , the Court of Appeal looked at whether the procedural aspects of fundamental justice were satisfied by the process used in reaching an opinion pursuant to paragraph 53(1)(b) of the Act. The Court"s inquiry, however, did not touch on whether a risk assessment was required. In addition, the Suresh judgment focussed on a Minister"s opinion made in respect of a suspected terrorist and may not be applicable to those who are deemed, under subsection 70(5) of the Act, to be a danger to persons living in Canada.
[23] Counsel for the moving party faces stiff headwinds in establishing that the law favours his client. The partial shelter he seeks in Farhadi, may prove to be cold comfort. He also faces a considerable barrier in the decision of Suresh, supra. Nevertheless, it is clear that it would take a prolonged examination of the merits of each party"s case in order to make findings on the section 7 issues he raises. As it is impossible to do so on a preliminary assessment, the issue must await greater consideration at a judicial review.
[24] As it has not been established that any risk assessment was carried out by the respondent as part of the danger opinion-making process, this Court does not need to look at the moving party"s submissions made in the alternative. With regard to whether the Minister"s delegate failed to consider all relevant matters needs not to be addressed, there is absolutely no evidence which supports the moving party"s position. It cannot, therefore, be considered a serious issue.
Irreparable Harm
[25] There being at least one serious issue in the moving party"s application for leave, it now falls to this Court to consider whether the moving party is reasonably likely to suffer irreparable harm. The moving party submits that he may suffer irreparable harm in several different ways if the deportation order is not stayed and he is returned to El Salvador. First and foremost, he points to the risks of torture, kidnapping and extrajudicial execution he might face. Second, he points to the psychological trauma to which he will be subjected by having to live in to El Salvador. Third, he points to the psychological trauma he will suffer if separated from his family. Finally, counsel at the hearing pointed to the loss of the moving party"s supports garnered in his fight against alcoholism and the vitiating of any benefits from the hearing of his leave application.
[26] The law surrounding irreparable harm is treated somewhat differently in the immigration law context than it is when other areas, such as intellectual property, are involved. In the latter case, a moving party has the onus of proving that it will suffer irreparable harm; R.J.R. - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 312 (hereinafter R.J.R. - MacDonald Inc.) at 348. This high burden of proof has been downgraded in the immigration context so that a moving party has merely to prove that there is a reasonable likelihood that irreparable harm will be suffered; Toth, supra. More recently, in Suresh (F.C.A.), supra at paragraph 12, Robertson J.A. endorsed Southey J."s reference to an unjustifiable risk of irreparable harm in Suresh v. Canada (1999), 42 O.R. (3d) 797 (Ont. Div. Ct) at 799.
[27] What constitutes irreparable harm has also been modified from its application to the commercial world to better fit the deportation context. Thus, in Kerrut v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 (F.C.T.D.) (hereinafter Kerrut), MacKay J. looked to whether a moving party"s life or safety would be put in jeopardy, noting that any harm from deportation must be grave, that is, more than the mere unfortunate hardship which inevitably accompanies any removal from Canada. Counsel for the moving party submitted the decision of Gibson J. in Calabrese v. Canada (Minister of Citizenship and Immigration) (1996) 115 F.T.R. 213 (F.C.T.D.) (hereinafter Calabrese) to suggest that the loss of family support and drug counselling constitutes irreparable harm. As pointed out by Gibson J., however, his decision departs from the line of authorities followed in a number of cases, including Kerrut, supra. It should be noted that the losses which may be suffered are not on the same random footing as a lightning strike : they are always caused directly by the deportee's own previous misbehaviour from which he seeks to evade all personal responsibility.
[28] On considering the lines of authority represented by Kerrut, supra and from which Calabrese, supra is drawn, this Court is convinced that irreparable harm is not a mere inconvenience which may be managed. It is not a hardship which may be overcome or damage which may be readily repaired. It is, as stated in Kerrut, supra, the type of harm which is irreparable. It is, as found in R.J.R. - MacDonald Inc., supra at 341, harm which is irrevocable or permanent. To suggest otherwise is to depart from the test for stays as originally formulated in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, a formulation adopted by the Court of Appeal in Toth, supra and upheld by the Supreme Court of Canada in R.J.R. - MacDonald Inc., supra.
[29] In respect of the risk of torture, kidnapping and extrajudicial execution facing him in El Salvador, that which clearly constitutes irreparable harm, the moving party adduced evidence from Amnesty International and other human rights bodies. Their documents, surprisingly, show that the danger from human rights violations peaked in El Salvador during the mid-1990s. Since then, however, Amnesty International has begun reporting fewer incidents. Animosities continue, but are cooling and the authorities continue in their struggle both to suppress violence and bolster the justice system. Nevertheless, the human rights violations once reported in alarming numbers have decreased and appear today to be largely directed at current players on the political field and alleged criminals. Fortunately for the moving party, he is neither. This Court, therefore, is not convinced that his father"s past actions, his membership in the FMLN or his activities on the group"s behalf fifteen years ago is reasonably likely to result in his suffering the harm he suggests on being returned to El Salvador.
[30] The moving party also submitted that he will suffer psychological trauma if returned to his native country. Counsel for the respondent chose not to address this point. Nevertheless, the Court is well equipped to dispose of the submission. Prior to this, however, it must be noted that the evidence of the sort of psychological trauma facing the moving party should he be returned to El Salvador is compellingly and clearly laid out in the report of Dr. Zoffman. This report reveals a deep fear, on the part of the moving party, of El Salvador which the doctor diagnosed as p.t.s.d. She even noted that the moving party burst into tears and began sweating and shaking when he retold the story of his father"s death and of the time he was shot and left for dead.
[31] Neither party referred to any jurisprudence on this matter but this Court notes the decision in Garcia v. Canada (Minister of Employment and Immigration) (1993) F.T.R. 177. In this case, Dubé J. found that an moving party"s suicidal tendencies constituted irreparable harm. In contrast to this, there was no evidence adduced in the case under review showing that the moving party"s psychological problems would lead to similarly irrevocable harm. In fact, Dr. Zoffman"s report clearly dismisses the likelihood of any similar psychiatric issues. As difficult to bear as his fears may be, therefore, the moving party"s psychological trauma cannot be seen as irreparable. All the evidence, in essence, points to the severity of harm, not to its irrevocable, irreparable nature, as required by the test.
[32] A similar conclusion must follow in respect of any psychological trauma which the moving party may experience from the loss of his families. In any event, as the moving party concedes, the stress of a family split cannot base a finding of irreparable harm by itself; Calabrese, supra. As for the evidence of potential mental harm, there is little to suggest that such harm will, in fact, arise. Dr. Zoffman reports that the moving party has accepted that his wife and his ex-girlfriend want nothing to do with him and that he has no real relationship with either of them. This is not surprising, in light of the little time which he has spent with them over the last few years. That his ex-girlfriend has recently allowed him to spend several weekends with her and the child she bore him changes little. It certainly does not imply such a strong resurgence of ties between the three as to suggest that the moving party will be traumatized if forced away.
[33] Counsel for the moving party also argued at the hearing of this matter that the moving party will suffer from having to be separated from the supports he has garnered in his battle against alcoholism if removed from the country. No evidence was adduced, however to suggest that equivalent supports were neither available nor accessible to the moving party once deported, as was adduced in Calabrese, supra. The Court is not prepared, therefore, to consider that any harm which may result from the moving party"s alcoholism is both reasonably likely or irreparable in nature.
[34] Counsel also argued that, as in Suresh (F.C.A.), supra, he will be denied a chance to benefit from the hearing of the merits of his application for leave to seek judicial review. The moving party cannot, however, rely on Suresh (F.C.A.), supra in the circumstances. First, permission to appeal a judicial review to the Court of Appeal was granted in that case while, in the case under review, the application for leave has not even been decided. Second, the Court of Appeal was concerned about first, whether the Sri Lankan authorities would release the moving party if the judicial review was overturned and second, whether the moving party would then be allowed to return to Canada. In the case under review, there is no evidence to suggest that the moving party will not be able to enjoy the fruits of victory should he win in subsequent proceedings.
Balance of Inconvenience
[35] There are several factors which are relevant to determining the party most likely to suffer the greatest inconvenience if the order on this motion were to lie against them. First among them is the public interest, in the form of future deportees who will want their section 7 rights respected and in the form of those in the moving party"s community in B.C. This last element of the public interest must include, of course, the moving party"s estranged wife who, having gone into hiding in a foreign country, has been forced to continue to stay one step ahead of the moving party in order to feel secure. Also relevant is the respondent"s need to be free from unwarranted judicial interference with her administrative procedures and to administer the law as is her duty. Finally, there is the plight of the moving party if he should end up in El Salvador which, while not constituting irreparable harm, has to be considered highly stressful for him. Too bad : he is the author of his own "misfortune".
[36] Together, these factors tilt the balance away from the moving party, suggesting that the public interest and in particular the estranged wife, will suffer a greater amount of inconvenience should the removal order be stayed than the moving party will suffer were the order carried out. In so concluding, this Court wishes to note the inability of the moving party to respect judicial authority, in the form of probationary orders, and to control his alcohol consumption. His is a curable addiction and Dr. Zoffman was optimistic about his chances. This Court, however, considers that his actions give the lie to such optimism and the Court concludes that he still poses a threat to those around him.
Conclusion
The moving party having not succeeded on any of his submissions, his application is dismissed.
F.C. Muldoon
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