Date: 20080205
Docket: IMM-2613-07
Citation:
2008 FC 135
Ottawa, Ontario, February 5, 2008
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]
The
pre-removal risk assessment officer (PRRA) recognized that Guatemala is a country which has faced political
upheaval for more than half a century and which has very serious problems with
street gang violence. However, he disregarded the fact that the applicant is an
active member of a religious community and that he had been a member of a youth
group, teaching alternatives to delinquency and gang membership. Accordingly,
this position made him a person who was targeted more than the rest of the
population already at significant risk (see “Human Rights Watch, January 2007,
Country Summary”, which is part of the record: this document raises a serious
doubt about the State protection referred to by the PRRA officer in support of
his decision in this case).
LEGAL PROCEEDING
[2]
This is an
application for leave and for judicial review of a decision by the PRRA officer
dated May 8, 2007, dismissing the application
filed by the applicant.
FACTS
[3]
The
applicant, David Antonio Garza Galan, is a citizen of Guatemala. He alleges that he has a fear of
persecution by a group of criminals known by the name of Maras Salvatruchas.
[4]
In support
of his application, Mr. Garza Galan submitted only two documents, as appears
from page 3 of the reasons of the PRRA decision.
[5]
The first
document was a “Human Rights Watch” report on the general conditions in Guatemala. The second document was a
report, “American Association for the Advancement of Science”, bearing on violence
in general in Guatemala.
[6]
The PRRA
officer dismissed the application after determining that Mr. Garza Galan had
not satisfied his burden of establishing that his removal would put him at risk.
[7]
Further, the
PRRA officer also determined that there was adequate State protection in Guatemala.
ISSUE
[8]
The issue
is whether the PRRA officer made a reviewable error when he failed to call the applicant
to a hearing, taking into account the circumstances of the conditions in the
country which were not considered, as the applicant had never been heard before
at any hearing (this is an individual case because of the facts).
ANALYSIS
[9]
The PRRA
officer decided that Mr. Garza Galan had not adduced sufficient evidence so
that his situation could be considered in the event that he were to return to Guatemala. He proceeded with an
improper analysis of the PRRA application in that he did not carefully analyze
the facts and context of the country.
[10]
Mr. Garza
Galan explained in his PRRA application that, from a very young age, he assumed
the leadership of his family following his father’s assassination. The PRRA
officer did not consider the tumultuous context of the country in which Mr. Garza
Galan spent his youth.
[11]
Further, Mr. Garza
Galan indicated that he was targeted by the Maras because he is a member of a religious
group; that he was responsible for a youth group, implementing social programs
and improving living conditions, inter alia giving them alternatives to
delinquency and gang membership.
[12]
Mr. Garza
Galan also stated that he had received threatening phone calls, that he was
physically and mentally tortured and that he had been shot at in an attempt to
kill him.
[13]
The PRRA
office did not assign any weight to Mr. Garza Galan’s story because, in
essence, it was not supported by documentary evidence.
[14]
The
applicant submits that the PRRA officer erred in failing to hold a hearing
pursuant to paragraph 113(b) of the Immigration and Refugee
Protection Act , S.C. 2001, c. 27 (IRPA) and section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations). In fact, the
applicant submitted that he satisfied the criteria set out in section 167
for a hearing to be held, namely the existence of the elements set out in
sections 96 and 97 of the IRPA raising a serious issue about the applicant’s
credibility.
[15]
Section 113
of the IRPA reads as follows:
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113. Consideration
of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has
been rejected may present only new evidence that arose after the rejection or
was not reasonably available, or that the applicant could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection;
(b) a hearing may be held if the Minister, on the basis
of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in
subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection
112(3), consideration shall be on the basis of the factors set out in section
97 and
(i) in the
case of an applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other
applicant, whether the application should be refused because of the nature
and severity of acts committed by the applicant or because of the danger that
the applicant constitutes to the security of Canada.
|
113. Il est disposé de la demande comme il suit:
a) le demandeur d’asile débouté ne
peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient
alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas
raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait
présentés au moment du rejet;
b) une audience peut être tenue si
le ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé
au paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au
paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre
part:
(i) soit du
fait que the demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur,
du fait que la demande devrait être rejetée en raison de la nature et de la
gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du
Canada.
|
[16]
Section 167
of the Regulations reads as follows:
|
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a)
whether there is evidence that raises a serious issue of the applicant’s
credibility and is related to the factors set out in sections 96 and 97 of
the Act;
(b)
whether the evidence is central to the decision with respect to the
application for protection; and
(c) whether the evidence, if
accepted, would justify allowing the application for protection.
|
167. Pour l’application de l’alinéa
113b) de la Loi, les facteurs ci-après servent à décider si la tenue d’une
audience est requise:
a) l’existence d’éléments de preuve relatifs aux éléments
mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question
importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de la
décision relative à la demande de protection;
c) la question de savoir si ces éléments
de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée
la protection.
|
[17]
Mr. Garza
Galan was never heard by a panel or by administrative authority.
[18]
In fact, Mr. Garza
Galan arrived at the Canadian border on January 30, 2006, and he was told that
he was ineligible because he did not qualify under 101(1)(e) of the IRPA
(i.e. “safe third country”).
[19]
When Mr. Garza
Galan returned to the border with his wife on July 20, 2006, his refugee claim
application was refused under paragraph 101(1)(b) of the IRPA. However,
he was given the PRRA documents, which he submitted to Immigration Canada on
August 25, 2006.
[20]
Mr. Garza
Galan’s credibility was never assessed or determined by any authority or panel.
[21]
In Singh
v. Canada (Minister of Employment and
Immigration), [1985] 1 S.C.R. 177, the Supreme Court of Canada
points out:
These principles do not
impose an oral hearing in all cases. The procedural content required by
fundamental justice in any given case depends on the nature of the legal rights
at issue and on the severity of the consequences to the individuals concerned.
With respect to the type of hearing warranted in the circumstances, threats to
life or liberty by a foreign power are relevant.
Appellants’ claims to refugee
status have been denied without their being afforded a full oral hearing at a
single stage of the proceedings before any of the bodies or officials empowered
to adjudicate upon their claims on the merits. In order to comply with s. 2(e),
such a hearing had to be held. Under the Immigration Act, 1976, a
Convention refugee has the right to “remain” in Canada or, if a Minister’s
permit cannot be obtained, at least the right not to be removed to a country
where life and freedom is threatened, and to re-enter Canada if no safe
country is willing to accept him. These rights are of vital importance to the
appellants. Moreover, where life or liberty may depend on findings of fact and
credibility, the opportunity to make written submissions, even if coupled with
an opportunity to reply in writing to allegations of fact and law against
interest, is not sufficient.
[22]
In Vlad
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 260, [2004] F.C.J. 292 (QL), Madam Justice Anne Mactavish, adopting
the comments of Mr. Justice Yvon Pinard, stated as follows:
[29] ... In this regard, I adopt the comments of Justice Pinard in Canada
(M.C.I.) v. Dhaliwal-Williams [1997]
F.C.J. No. 567, where he stated that “It is ... well established that
procedural fairness means at a minimum allowing each side to present its case
and providing both parties with the opportunity to be heard”.
[23]
In this
matter, the applicant submits that the PRRA officer should have required a
hearing. The applicant contends that he satisfied all of the conditions of
section 167 of the Regulations for holding a hearing. First, there is
evidence regarding the elements referred to in sections 96 and 97 of
the IRPA which raise a serious issue regarding the applicant’s credibility. Second,
this evidence is important to the decision on the refugee claim. In fact,
without hearing the applicant, it is impossible to determine his credibility. Third,
if this evidence is admitted, it would justify granting protection.
[24]
The
pre-removal risk assessment officer (PRRA) recognized that Guatemala is a country which has faced political
upheaval for more than half a century and which has very serious problems with
street gang violence. However, he disregarded the fact that the applicant is an
active member of a religious community and that he had been a member of a youth
group, teaching alternatives to delinquency and gang membership. Accordingly,
this position made him a person who was targeted more than the rest of the
population already at significant risk (see “Human Rights Watch, January 2007,
Country Summary”, which is part of the record: this document raises a serious
doubt about the State protection referred to by the PRRA officer in support of
his decision in this case).
[25]
This
matter is a special case and, as stated in Galan v. Canada (Minister of Citizenship and
Immigration),
2007 FC 749, [2007] F.C.J. 998 (QL):
[1] ... 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
be apparent, it is dangerous to draw general conclusions from a particular
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.)
CONCLUSION
[26]
For
all of these reasons, the application for judicial review is allowed and the
matter is referred for redetermination by another officer.
JUDGMENT
THE COURT ORDERS that the application
for judicial review be allowed and the matter referred for redetermination by
another officer.
“Michel M.J. Shore”
Judge
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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