Date: 20030611
Docket: IMM-3626-03
Citation: 2003 FCT 725
BETWEEN:
REBELINO ANTONIO CASTILLO CORTEZ, GLORIA del CARMEN
ENAMORADO de CASTILLO, ROBERTO RIBELINO CASTILLO
ENAMORADO and JOSE ADONI CASTILLO ENAMORADO
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR ORDER
KELEN J.:
[1] The applicants, citizens of El Salvador, filed a motion to stay the execution of a deemed deportation order to the United States that has been issued against them until such time as their application for leave and judicial review of a negative Pre-Removal Risk Assessment ("PRRA") decision dated May 1, 2003 is determined.
[2] The applicants arrived in Canada on July 27, 2001 and claimed refugee status based on their membership in a particular social group defined as persons targeted for extortion by criminals. Rebelino Castillo Cortez was the principal claimant. The other applicants are his wife and two children. Their claims were denied on June 10, 2002 because there was no nexus between the persecution the applicants feared and one of the Convention refugee grounds. The panel found the applicants to be credible witnesses at page 2 of its decision:
Both principal claimant and female claimant testified in a forthright and trustworthy manner and were able to elaborate when asked. At no time were they vague or evasive. The panel has no reason to doubt their testimony nor the documents submitted on their behalf.
[3] The applicants did not seek to have the Refugee Division's decision judicially reviewed. Rather, they filed an application under the Post-Determination Refugee Claimants in Canada class ("PDRCC"). Brief submissions were made in support of their application. In October 2002, the applicants were informed that their application was being converted to a PRRA in accordance with the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") and they were invited to make new submissions. The applicants obtained some news articles about El Salvador from the internet and submitted them to the PRRA officer.
[4] The applicants' PRRA application was refused in a decision dated May 1, 2003. The PRRA officer stated that in the absence of new evidence of persecution, there was still insufficient evidence to conclude that they would be subjected to risk if returned to El Salvador. In the alternative, the PRRA officer found that the state was willing and able to provide adequate protection to the applicants. The applicants filed an application for leave and judicial review of the PRRA decision on May 16, 2003. It remains outstanding.
[5] There is a three-part test that the applicants must meet for an order staying the execution of the deemed deportation order that has been made against them: Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123 (F.C.A.). The applicants must demonstrate the existence of a serious issue to be tried, that they will suffer irreparable harm if removed, and that the balance of convenience lies in their favour.
[6] The serious issue identified by the applicants is the impact that paragraph 113(a) of the IRPA has had upon their right to a full and fair PRRA. Paragraph 113(a) is found in Part 2, Division 3 of the IRPA, which deals with PRRA applications, and reads as follows:
Consideration of application
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;
Examen de la demande
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;
[7] Gibson J. considered the impact of this provision upon the PRRA process when he made the following comments in obiter in O.N. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 246 at para. 53:
In the context of the scheme of the Immigration and Refugee Protection Act, paragraph 113(a) make eminent sense since a panel of the Convention Refugee Determination Division that considers a Convention refugee claim is required also to consider whether or not the person is a person in need of protection. That was not the case when the Applicant in this matter had her Convention refugee claim considered. Thus, consideration of the Applicant's need of protection and the evidence of such need, while such evidence was before the CRDD, was not considered in that context by the CRDD but rather was considered by the PCDO who arrived at the decision here under review, a decision that I have determined to be flawed. While I am deeply cognizant of the fact that it is not my role to suggest to the Respondent that paragraph 113(a) of the Immigration and Refugee Protection Act should be ignored, I cannot help but comment that if it is applied in its strictest terms to the Applicant's pre-removal risk assessment, the result will be that the Applicant will in effect have received no valid and meaningful determination of whether she is a person in need of protection from a return to Ukraine.
[8] The applicants claim that scenario envisioned by Gibson J. has come to fruition in the case at bar. The applicants' refugee claims were determined in accordance with the now repealed Immigration Act, R.S.C. 1985, c. I-2 as amended (the "former Act"). The Refugee Division dismissed the claims because they were not connected to any of the Convention refugee grounds. Under the provisions of the former Act, the Refugee Division did not consider whether they qualified as persons in need of protection as that was the function of a PDRCC application.
When the PDRCC process was eliminated by the IRPA, the applicants' PDRCC application was converted to a PRAA application. Due to paragraph 113(a), the applicants could not rely upon the evidence they presented to the Refugee Division to demonstrate to the PRRA officer that they were persons in need of protection. As a result, they did not receive a "valid and meaningful determination" of whether they qualify as persons in need of protection from a return to El Salvador.
[9] Without such a determination, the applicants argue that they will be deprived of their security of the person in a manner that is not in accordance with fundamental justice in violation of section 7 of the Canadian Charter of Rights and Freedoms, which states:
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
[10] Before moving to an analysis of the applicants' argument, I wish to touch upon the case of Bukhari v. Canada (Minister of Citizenship and Immigration), 2003 FCT 467, where paragraph 113(a) came under the judicial scrutiny in the context of a stay application. The refugee claims of the applicants in Bukhari were denied under the former Act, while their PRRA
applications were handled under the IRPA. In seeking to stay a removal order against them, they raised Gibson J.'s obiter comments in O.N. Rouleau J. responded with the following observations at paragraph 11:
It is submitted that at the time this refugee claim was entertained by the CRDD, no risk assessment was considered and that the obiter written by Gibson, J. suggests that there may be some restrictions imposed on the PRRA officer since he or she would be bound only to consider evidence that arose after the rejection and was not reasonably available to the applicant when the refugee claim was entertained.
I have not been persuaded that paragraph 113(a) imposes restrictions on the PRRA officer but, if it does, it is evident from her reasons that she carefully reviewed the CRDD file as well as the documents contained therein. I am also of the view that the newspaper clippings which could be considered new evidence, which refer to current conditions in Pakistan, did not in any way make any specific reference to these applicants.
[11] The task before me is to figure out how this case fits into the landscape carved out by O.N. and Bukhari. Paragraph 113(a) may impose restrictions upon the PRRA officer. For the purpose of the serious issue test I am willing to accept that paragraph 113(a) operates as the applicants' contend for the purposes of this motion. If that is the case, then I agree with the applicants that the case at bar is precisely the situation Gibson J. was concerned about when he made his comments in O.N. Because the applicants claim to have suffered persecution that was not connected to a Convention refugee ground, the provisions that grant refuge to persons in need of protection are critical. But their evidence was not considered in that context by the Refugee Division, and due to the operation of paragraph 113(a), only new evidence was considered by PRRA officer. This means the applicants were not given the opportunity to present their evidence to the PRRA officer.
[12] Further, unlike Bukhari, it cannot be said that the PRRA officer carefully reviewed the Refugee Division file. From the officer's reasons it is not apparent that he or she examined the evidence underlying the Refugee Division's findings. This raises the possibility that the applicants were not given a meaningful chance to be assessed as persons in need of protection, something which could violate the provisions of the Charter. For that reason, I find that they have raised a serious issue to be tried upon judicial review.
[13] With respect to irreparable harm, the Refugee Division found the applicants to be credible witnesses and did not doubt the veracity of their claims. The panel did not question the claim that they had been the target of extortion by criminal groups in El Salvador, including personalized serious threats of murder and child kidnapping. If returned to El Salvador, they face danger because of those criminal groups.
[14] Due to my conclusions with respect to the first two branches of the Toth test, it follows that the balance of convenience favours the applicants.
[15] For these reasons this motion for an order staying the execution of the deportation order against the applicants is granted. Execution of the order is stayed until the applicants' application for leave and judicial review of their negative PRRA decision is determined.
"Michael A. Kelen" ________________________________
J.F.C.C.
CALGARY, ALBERTA
JUNE 11, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-3626-03
STYLE OF CAUSE: REBELINO ANTONIO CASTILLO CORTEZ,
GLORIA del CARMEN ENAMORADO de
CASTILLO, ROBERTO RIBELINO CASTILLO
ENAMORADO and JOSE ADONI CASTILLO
ENAMORADO v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 10, 2003
REASONS FOR ORDER : Kelen, J
DATED: June 11, 2003
APPEARANCES:
Ms. Rishma N. Shariff FOR APPLICANTS
Ms. Carrie Sharpe FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners LLP FOR APPLICANTS
Calgary, Alberta
Morris Rosenberg, Deputy Attorney General FOR RESPONDENT
of Canada
Ottawa, Ontario
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030611
Docket: IMM-3626-03
BETWEEN:
REBELINO ANTONIO CASTILLO CORTEZ, GLORIA del CARMEN ENAMORADO de CASTILLO, ROBERTO RIBELINO CASTILLO ENAMORADO and JOSE ADONI CASTILLO ENAMORADO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER