Date: 20050805
Docket: IMM-3687-05
Citation: 2005 FC 1071
BETWEEN:
OSCAR JESUS MALPARTIDA NAVARRO
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] The applicant filed an application for a stay of his removal to Peru, scheduled for August 5, 2005. He is asking that he not be removed until the Court has decided his application for leave and for judicial review against the decision dated May 18, 2005, by the pre-removal risk assessment officer.
Facts
[2] The applicant is a citizen of Peru and he is 55 years old. He was an insurance broker. In the beginning of 2001, he became a member of a "neighbourhood committee". His duties were to report those who were disturbing public order: car thieves, drug dealers and other offenders in his neighbourhood. With the information that he provided, the police were able to arrest the offenders.
[3] Because of the quality of his work, he had been named as coordinator of his committee. Shortly thereafter, he began to receive letters and telephone calls threatening his life and the lives of his family members. He was asked specifically to resign from his work with the committee and to stop reporting people.
[4] He was first the target of some minor crimes, which he reported to the police. Then, on July 29, 2001, when he was walking not far from his home, he was targeted by a group of individuals and he narrowly escaped a gunshot in his direction. He immediately advised the police of the incident by telephone, and they sent a patrol car to the location.
[5] Rather than go to the police station the next morning to file a more complete report, as he had been asked to do, he decided to flee the area and did not return home until one month later. Noting that the police had done nothing and fearing for his safety, he decided to leave his country. His daughter, who lives in Canada, bought him a plane ticket and he arrived in the country on October 4, 2002, and claimed refugee protection on November 6, 2002.
[6] Without questioning the applicant's credibility, the Immigration and Refugee Board denied his refugee claim on August 1, 2003, on the grounds that he had not established that the Peruvian State was unable to protect him. In particular, it was considered that if the police had not followed up on his complaint, it was because the applicant had not taken the appropriate measures in that he had failed to go to fill out his report. Second, the Board stated that in its opinion, the authorities had taken measures since the fall of the Fujimori government to eradicate the problem of corruption in law enforcement.
[7] The Federal Court dismissed his application for leave and for judicial review on December 4, 2003. On December 12, 2003, he filed an application for visa exemption on humanitarian and compassionate grounds. Finally, he was given a pre-removal risk assessment on January 20, 2005.
[8] In her decision dated May 18, 2005, the officer responsible for the pre-removal risk assessment denied Mr. Navarro's application. After noting that the applicant's submissions essentially raised the same fears as those presented before the Board, the officer determined that they did not establish that the Peruvian State would be unable to protect him, especially since there had been no significant change in the conditions in Peru since the Board's decision. The applicant is now challenging that decision through an application for leave and for judicial review before this Court.
Issue
[9] The only issue to decide is whether this application for a stay satisfies the tests elaborated in RJR MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, and Toth v. Canada (Minister of Employment and Immigration), (1988) 86 N.R. 302.
Analysis
[10] In order to succeed, the applicant must therefore establish that his application raises a serious issue, that he would suffer irreparable harm if the order were not granted, and that the balance of convenience favours granting the order, given the respective situations of the two parties.
[11] First, considering the existence of a serious issue, it is sufficient for the applicant to establish that his submissions are neither frivolous nor vexatious. In the context of an application for stay, that requirement is a bare minimum. In this case, the applicant submits that the PRRA officer did not seriously consider and analyse the two new documentary exhibits that he filed. The first of these documents is an excerpt from the news on the internet site of the Peruvian television channel "frecuencialatina" reporting the assassination of the head of a neighbourhood committee in Lima and detailing the complaints of neighbourhood residents regarding the lack of security and the inactivity of civil security. The second is a newspaper article relating the assassinations carried out that year against leaders of neighbourhood committees, and indicating that the police did not find those responsible.
[12] In her decision, the PRRA officer referred to those documents, saying simply that they[TRANSLATION] "set out fears previously described by the applicant and analyzed by the RPD. They are not a basis for determining that the Peruvian State would be unable to protect him".
[13] The applicant submits that those documents are worthy of a more rigorous analysis, considering their relevance and the similarity with the facts reported by the applicant. It is true that administrative decision-makers are not obliged to comment on and carefully review each and every piece of evidence submitted to them. However, when this evidence tends to dispute their determinations, submits the applicant, they cannot simply dismiss it without explanation. In this case, it was the first evidence of similar facts, supporting not only the applicant's fears but also his submission that law enforcement is powerless before such assassinations. On its very face, this argument is not unfounded and it is my opinion that the applicant satisfies the first requirement for the issuance of a stay to the extent that he raised a serious question with respect to way that this new evidence was treated.
[14] With respect to irreparable harm, the applicant argued that he would fear for his life and for his bodily integrity if he were to return to Peru. Taking into consideration the new evidence submitted and the fate of other neighbourhood representatives over the last few years, it is not unreasonable for the applicant to feel vulnerable. As his credibility was never questioned, and as the Board itself conceded that his resignation would not automatically shelter him from reprisals, I think that his return to Peru could cause him harm that could not later be remedied in the event that he were to succeed on his application for judicial review of the PRRA decision.
[15] Finally, in view of the foregoing, it is my opinion that the balance of convenience clearly favours the applicant. It is true that the Immigration and Refugee Protection Act obliges the respondent to enforce removal orders as soon as it is possible to do so. I consider however that a delay of several months for the enforcement of this measure is far more preferable to the serious harm that the applicant could suffer if he were to be removed to Peru before his application for leave and judicial review could be examined.
[16] The applicant's application to stay his removal from Canada is therefore granted and he is allowed an extension of time until the Court has denied him leave to pursue judicial review proceedings or, if that leave is granted, until this Court has decided the application for judicial review.
"Yves de Montigny"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3687-05
STYLE OF CAUSE: OSCAR JESUS MALPARTIDA NAVARRO v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 4, 2005
REASONS FOR ORDER: Mr. Justice de Montigny
DATE OF ORDER: August 5, 2005
APPEARANCES:
Serban Mihai Tismanariu FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Serban Mihai Tismanariu
Avocat
Montréal, Quebec FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
Certified true translation
Kelley A. Harvey, BCL, LLB