Date: 20011217
Docket: IMM-5295-01
Neutral citation: 2001 FCT 1394
BETWEEN:
JUAN RAUL HERRERA
(Applicant)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
(Respondent)
[1] This motion, which was heard on Thursday, November 22, 2001 at 1:00 PM, was for the stay of a deportation which was to have occurred on Monday, November 26 at 9:30 AM. An Order granting a brief stay was issued on November 23, 2001 and these are the Reasons for that Order.
[2] The applicant and his wife and three sons, ages 21, 13 and 11, are from Lima, Peru. The applicant worked as a police officer in Peru from 1976-1994 and, because of this employment, was found to be complicit in the commission of crimes against humanity under Article 1, section F(a) of the United Nations Convention relating to the Status of Refugees. For this reason the Convention Refugee Determination Division ("CRDD") found that, although he faced possible persecution in Peru from the Shining Path and the Tupac Amaru, he was not entitled to refugee status. The applicant sought leave and judicial review of the CRDD's decision but his application was dismissed because it was never perfected. The other members of the applicant's family were given refugee status.
[3] Although, the CRDD's decision was dated November 9, 2000, its hearings had concluded and it had received all the applicant's subsequent submissions by late 1999. Accordingly, the CRDD's decision about the applicant's risk of persecution was based on information which was available in 1999.
[4] In January of 2000, the applicant submitted a Humanitarian and Compassionate Application. It included extensive submissions about the risks faced by the applicant in Peru. Although it was submitted in a timely way, it has not yet been decided and there is no evidence about when a decision can be expected.
[5] There was no statutory requirement for a risk assessment in association with the applicant's deportation. However, the officer responsible for the applicant's removal apparently asked for one and it was done. It is noteworthy that the Risk Assessment Officer had before her the information which had been before the CRDD and, in addition, had more current information which the CRDD did not have. As well, she had the applicant's submissions in support of his Humanitarian and Compassionate Application. Based on this material she concluded that the applicant was not at risk (the "Assessment").
[6] The Assessment was presented to the applicant and his counsel at a meeting on November 15, 2001 and they expressed their disagreement with the conclusion reached. The next day the applicant's request for a deferral of his deportation was refused. The applicant submitted that only a risk assessment which is conducted as part of his Humanitarian and Compassionate Application could meet the requirement set in Farhadi v. Canada, [2000] F.C.J. 646, (2000), 257 N.R. 158, for a pre-removal risk assessment in accordance with the principles of natural justice. He also submitted that the principles of fundamental justice required that he be given an opportunity to review and comment on the Assessment and he said that it would constitute irreparable harm to deport him if his rights under Section 7 of the Charter had not been respected.
Conclusions
[7] In my view, assuming that the applicant was entitled to a Risk Assessment, in the circumstances of this case there was no basis for his submission that his could only be conducted as part of the consideration of his Humanitarian and Compassionate Application.
[8] Given the urgency of this matter, I reached no conclusion about whether this applicant's rights included a right to comment on the Assessment. However, the applicant believed that certain facts in the documents before the Risk Assessment Officer may have been overlooked or given insufficient weight. In those circumstances, a short stay afforded the applicant the opportunity to provide his written comments on the Assessment. The stay could be brief because the applicant and his counsel received the Assessment on November 15, 2001.
[9] Accordingly, an order was made granting a stay to permit the applicant and his counsel to submit written comments on the Assessment. This was to be done before 4:00 PM on Tuesday, November 27, 2001.
[10] The order provided that the comments were to be considered by the Risk Assessment Officer on or before noon on Friday, November 30, 2001. If she changed her opinion about the risk, the applicant's removal was to be stayed pending the result of his Humanitarian and Compassionate Application. If she did not change her opinion, the applicant's removal was allowed to proceed as of Saturday, December 1, 2001.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
December 17, 2001