Date: 20061221
Docket: IMM-2028-06
Citation: 2006 FC 1537
Ottawa, Ontario, the 21st day of December 2006
Present: The
Honourable Mr. Justice Blanchard
BETWEEN:
Gerson
Alejandr PEREZ BURGOS
Claudia
Yaneth CHAIDEZ CALDERON
Yaneth
Alejandr PEREZ CHAIDEZ
Gerson
Alejandr PEREZ CHAIDEZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (hereafter the IRPA), of a decision of the Immigration and Refugee
Board, Refugee Protection Division (hereafter the Board) dated April 4, 2006. The
applicants’ claim for refugee protection was rejected.
[2]
The applicants are requesting that this Court
set aside the Board’s decision and refer the matter back to a differently
constituted panel.
2. Facts
[3]
On October 19, 2005, a claim for refugee
protection was submitted to the Board by Claudia Yaneth Chaidez Calderon, the principal
applicant; by her husband, Gerson Alejandro Perez Burgos; and by their two children,
Yaneth Alejandra Perez Chaidez and Gerson Alejandro Perez Chaidez. They are all
citizens of Mexico.
[4]
The facts giving rise to the claim for refugee
protection took place when the principal applicant was operating an appliance
repair shop in the town of Obregòn, which she opened in June 2003. In July 2005, a police
commander named Franciso Chico allegedly offered her his protection in exchange
for money or sexual favours, which she refused. When his wife advised him of
this situation, Mr. Perez Burgos allegedly confronted the policeman in
question, and even more serious threats were made.
[5]
On August 10, 2005, Perez Burgos filed a complaint
with the public prosecutor’s office in Obregón against Francisco Chico for
extortion.
[6]
On August 21, 2005, the automobile belonging
to Mr. Perez Burgos was stolen. He reported this theft to the police,
mentioning that he suspected Francisco Chico. Later on that day, the applicant
was assaulted in a narrow, dimly lit street by two men who allegedly tore up
the complaint he had filed.
[7]
On August 31, 2005, the applicants took refuge
in the city of Cucliacan in the
state of Sinaloa, a distance of approximately seven hours from Obregón.
[8]
On September 12, 2005, as the principal
applicant was leaving the house where her family was hiding, she allegedly saw
one of the police officers who she often saw in the company of Francisco Chico.
A little while later, a man allegedly told her to be careful, as people were
looking for her. On that same day, the applicants complained to higher
authorities at the office of the attorney general of the state of Sinaloa.
[9]
On October 2, 2005, while the applicants were
driving along a road in an automobile, they were attacked by Franciso Chico and
three other armed men, who tied them up. A bus stopped to help them, causing
the attackers to flee. Before they left, they told the couple they had been
marked for death.
[10]
The applicants then took refuge in the city of Hermosillo, where they obtained their
passports.
[11]
They left Mexico for Canada on October 19, 2005.
3. Impugned
decision
[12]
On April 4, 2006, the Board decided that the
applicants were not refugees within the meaning of section 96 of the IRPA
or persons in need of protection within the meaning of section 97 of the
IRPA.
[13]
The decision was based on the fact that the
Board had serious doubts as to the truth of the applicants’ story, because the
Board found it implausible that the alleged persecutors would drive seven hours
to attack them alongside a busy road. The Board also criticized the applicant,
Mr. Burgos, for not having gone to a clinic after having been beaten and
for not having made a new complaint at that time, as the police would have had
evidence of extortion.
[14]
The Board was also of the opinion that the
applicants failed to meet their obligations by not seeking state protection
following the two most serious incidents, that is, the assault in the alleyway after
the theft of the automobile and the attack on the road in Culiacan. The Board added that Mexico was a democratic state able to
protect its citizens.
4. Issues
[15]
The issues to be dealt with by the Federal Court
in this case may be summarized as follows:
A.
Did the Board make a reviewable error in
assessing the credibility of the applicants?
B.
Did the Board make a reviewable error in
determining that there was adequate protection in Mexico?
5. Standard
of review
[16]
The first issue concerns credibility. It is
trite law to say that the standard applicable to such determinations is that of
patent unreasonableness. See: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL); R.K.L. v. Canada (Minister of Citizenship and
Immigration) [2003] F.C.J. No. 162 (QL) and Khaira
v. Canada (Minister
of Citizenship and Immigration), 2004 F.C. 62. A
decision is patently unreasonable when, in view of the circumstances, it is
clearly abusive, flagrantly unjust, contrary to common sense or lacking any basis
in law or in fact.
[17]
The second issue to be dealt with by this Court
concerns the determination of the ability of the state to ensure the protection
of the applicants. In Chaves v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 232 (QL), Madam Justice Danièle
Tremblay-Lamer of this Court, after conducting a pragmatic and functional
analysis to determine the applicable standard of review, concluded this was a
question of mixed fact and law, to which the standard of reasonableness simpliciter
applies. I will adopt the analysis and standard applied in Chaves for
the purposes of considering the second issue in dispute. An unreasonable decision is one that is not
supported by any reasons of fact or of law that can stand up to a somewhat probing
examination. (Director of Investigation and
Research v. Southam Inc., [1997] 1 S.C.R. 748.)
6. Analysis
A.
Did the Board make a reviewable error in
assessing the credibility of the applicants?
[18]
The applicants essentially submit that the
conclusion reached by the Board on the issue of credibility was patently
unreasonable. Accordingly, they argue that the decision is ambiguous in that
the Board decided that they were not credible without giving reasons for its
conclusions. They add that their testimony was credible, was given in good
faith, and was not put into issue by the decision-maker. They also submit that
the Board did not give any reasons for its finding it implausible that Chico
Francisco travelled seven hours to hunt them down.
[19]
The respondent submits that the Board’s decision
is well founded in fact and in law.
[20]
There is a well-established principle in case
law to the effect that an administrative tribunal is in a privileged position
to assess the credibility of witnesses, which implies that the Court must exercise
deference when it reviews this type of conclusion. This principle is expressed
in R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (QL). In this decision, the Court ruled that “the
Board is entitled to conclude that an applicant is not credible because of
implausibilities in his or her evidence as long as its inferences are not
unreasonable and its reasons are set out in ‘clear and unmistakable terms’”.
[21]
In spite of the deference it must show, this Court
has the authority to intervene in matters of credibility where there are
patently unreasonable errors.
[22]
Over time, case law has developed a certain
number of principles which must be applied when assessing the credibility of a party.
Accordingly, the Federal Court of Appeal has determined that the failure to
explain the reasons for casting doubt on a party’s credibility in clear and
unmistakable terms may open the door to judicial review (Hilo v. Canada (Minister
of Employment and Immigration), [1991] F.C.J. No. 228 (F.C.A.) (QL);
Armson v. Canada (Minister of Employment and Immigration), [1989]
F.C.J. No. 800 (F.C.A.) (QL)). I am of the opinion that the
following excerpt from the decision rendered by Mr. Justice Darrell Heald in Hilo is relevant to the case at bar:
In its reasons,
the Board made the following comments with respect to the appellant’s testimony
(pages 176-177):
|
|
|
|
|
|
The claimant's
testimony lacked detail and was sometimes inconsistent. He was often unable
to answer questions and sometimes appeared uninterested in doing so. While
this may be partly due to the claimant’s young age, the panel was not fully
satisfied of his credibility as a witness."
|
|
The appellant
was the only witness who gave oral testimony before the Board. His evidence was
uncontradicted. The only comments as to his credibility are contained in the
short passage quoted supra. That passage is troublesome because of its
ambiguity. It does not amount to an outright rejection of the appellant’s
evidence but it appears to cast a nebulous cloud over its reliability. In my
view, the Board was under a duty to give its reasons for casting doubt upon the
appellant’s credibility in clear and unmistakable terms. The Board's
credibility assessment quoted supra is defective because it is couched
in vague and general terms. The Board concluded that the appellant’s
evidence lacked detail and was sometimes inconsistent. Surely particulars of
the lack of detail and of the inconsistencies should have been provided.
Likewise, particulars of his inability to answer questions should have been
made available. (Emphasis added.)
[23]
However, the Federal Court of Appeal determined
there was a difference in the way conclusions on the issue of credibility must
be considered, depending on whether they are based on contradictions in the
evidence or on implausibilities. Although the Board may conclude that a story
is implausible, its conclusion must “be
based on the totality of the evidence and must be clearly supported in the
Board’s reasons.” Moreover, upon
judicial review, the Court is not required to show as much deference, because
triers of fact are not in a better position to assess credibility on the basis
of criteria that are extrinsic to testimony (Leung v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 774 (F.C.A.) (QL); Giron v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 481 (F.C.A.) (QL)).
[24]
The Board’s reasons concerning the credibility
of the applicants are summed up in the following paragraphs:
To begin with,
the panel strongly doubts the veracity of their story. The documentary evidence
confirms that police corruption exists in Mexico, and it may be that a police force member tried to extort money from
the female claimant, who operated a business.
However, the
panel considers it implausible that this same policeman and his men pursued the
family to Culiacan, a seven‑hour
journey, to attack four people beside a busy highway. That makes no sense.
[25]
I am of the opinion that the Board failed to
support in clear and unambiguous terms its conclusion to the effect that the
applicants were not credible. Upon reading the reasons given, it becomes clear that
the Board did not mention the source of the doubts it had concerning the truth
of the applicants’ story. This alone warrants the review of the Board’s
decision on the issue of credibility. The following, which was written by Mr.
Justice Reid of the Ontario Divisional Court, underlines the importance of providing reasons for determinations
on issues of credibility:
The task of determining credibility may be a difficult one but it
must be faced. If the board sees fit to reject a claim on the ground of
credibility, it owes a duty to the claimant to state clearly its grounds for
disbelief. The board cannot simply say, as the member did here, “I feel
that I have not received credible evidence to rescind the decision of the
Respondent.” Some reason for thinking the evidence not credible must be
given if an appearance of arbitrariness is to be avoided.
In a now famous address, Sir Robert McGarry, Vice-Chancellor of
England, has reminded judges that the most important person in a lawsuit is not
the judge, sitting in elevated dignity on the dais, nor the lawyers, however
eminent they might be; it is the losing party: see “Temptations of the Bench”
[1978] XVI Alta. L. Rev., p. 406. In order that faith may be maintained in
the legal system, it is necessary that losing parties be satisfied that they
have been fairly dealt with, that their position has been understood by the
judge, and that it has been properly weighed and considered. It is,
therefore, important that the reasons for a decision be stated, and stated in
language that the party who has been dealt the blow can comprehend.
I think that this applies with equal weight to the decisions of
tribunals. (Pitts v. Ontario (Minister of Community and Social Services), 51 O.R.(2d) 302) (Emphasis added.)
This is reason enough
to review the Board’s decision on the issue of credibility; however, in the
interests of being thorough, I will continue with the examination of these
conclusions.
[26]
One of the reasons supporting the Board’s
conclusion is an implausibility it noted in connection with the last incident
of which the applicants were victims. The Court does not have to show such a
high degree of deference when reviewing such a conclusion, even though the
standard of judicial review is still that of patent unreasonableness. In the
case at bar, I am of the opinion that the evidence submitted to the Board did
not admit such an inference.
[27]
The documentary evidence established that
corruption was commonplace in Mexican police forces. This same evidence shows
that a small proportion of crimes committed are reported to the authorities,
and very few of these reported crimes are investigated. More specifically, the
documentary evidence in the Board’s National Documentation Package dated December 7, 2005, reveals the following
information:
-
in an opinion poll conducted by Universal
Survey, more than half of the respondents reported having been victims of
extortion by police officers;
-
in spite of initiatives undertaken by President
Fox, public and private corruption continued on a regular basis in 2003 and in
2004;
-
in an opinion poll, more than 39 per cent of business
owners polled admitted having paid off civil servants to ensure the continued
operation of their businesses;
-
the level of corruption varies according to the institution,
but the police and local courts are considered to be especially corrupt;
-
persons in charge of law enforcement
acknowledged having difficulties in prosecuting cases involving corruption;
-
in Mexico, for every one hundred crimes committed, approximately twenty are
reported to the authorities;
-
of the twenty offences reported, five or six
were being investigated in the state of Oaxaca at the time the study was written, and this sample is
representative of the country as a whole.
[28]
Moreover, the testimony given by the applicants
was not contradicted and is supported by documentary evidence, that is, copies
of the various complaints they made to the Mexican authorities. The fact that
Chico Francisco’s men were allegedly stalking the applicants when they were in Culiacan was not doubted by the Board. The
applicants explained that their persecutor wanted to make an example of them
for the other merchants. They also testified that the merchants in Obregón
would have known about the reprisals by Chico Francisco because all deaths are
published.
[29]
Insofar as the Board did not cast doubt on any
of this evidence, the Court cannot conclude that the applicants’ story is
implausible. With respect, I am of the opinion that this error in the
assessment of the applicants’ credibility is reviewable because it was not
based on the uncontradicted evidence available to the Board. Moreover, as I
mentioned earlier, the Board’s failure to explain its reasons concerning
credibility in clear and unambiguous terms is in itself a sufficient ground to
warrant intervention by this Court.
B. Did the Board make a
reviewable error in determining that there was adequate protection in Mexico?
[30]
Next, the applicants submit that the Board did
not properly analyze the matter of state protection, in that the applicants
requested this protection on several occasions, but to no avail. They add that
the Board should not have even considered the issue of state protection, in
that the Board did not believe the applicants’ story. Accordingly, they suggest
that the matter be referred back to a differently constituted panel so that an
analysis of state protection might be conducted in more detail. Finally, they
submit that they have discharged the burden of proof on them in presenting
clear and convincing evidence of the inability of the state to protect them.
[31]
The respondent, however, argues that the
applicants failed to exhaust all the courses of action open to them and did not submit clear and convincing evidence of the state’s
inability to provide protection. From this perspective, the respondent notes that
Mexico is a democratic state
and that it has been determined in several decisions that Mexico was able to protect its citizens
even when the persecutors were police officers. The respondent also submits
that the burden of proof on the applicant is directly proportional to the level
of democracy in the state in question.
[32]
The Supreme Court of Canada, in a judgment
written by Mr. Justice Laforest in Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, ruled that, in the absence of a complete
breakdown of state apparatus, it must be presumed that a state is able to
protect its citizens. He added that, in the absence of an admission from the state
of its inability to provide protection, a claimant must submit clear and
convincing evidence on that point. Moreover, Laforest J. stated that “[a]lthough
this presumption increases the burden on the claimant, it does not render
illusory Canada’s provision of
a haven for refugees”.
[33]
Mexico has been recognized on many occasions by
this Court as being a democratic state able to protect its citizens, even if
the persecutor is a member of a police force or the government (B.O.T. v.
M.C.I., 2005 FC 284, paragraph 4; Valdes v. M.C.I., 2005
FC 93, paragraph 4; Filigrana v.M.C.I., 2005 FC 1447). Accordingly, for
her claim for refugee protection to be granted, the applicant had to adduce
clear and convincing evidence of the state’s inability.
[34]
The matter of determining what is clear and
convincing evidence has been the subject of numerous decisions. In Kadenko v.
M.C.I.,[1996] F.C.J. No. 1376 (F.C.A.) (QL), paragraph 5, the Federal Court
of Appeal ruled that the applicant’s burden of proof was directly proportional
to the level of democracy in the state in question. The Court of Appeal also
added that, in that case, a simple allegation that steps undertaken with the
police were fruitless is insufficient to establish the state’s inability.
[35]
Mr. Justice Denis Pelletier of the Federal Court,
as he then was, stated that the failure of local authorities to maintain order in
an effective manner is not equivalent to a lack of state protection (Zhuravlvev
v. Canada (M.C.I.), [2000] F.C.J. No. 507 (QL)). He added that the
evidence must establish a broader pattern of state inability or refusal
to extend protection in order to prove the lack of state
protection.
[36]
However, when it considers the issue of state
protection, the Court cannot require that the protection currently available be
perfectly effective. The following excerpt written by Mr. Justice James
Hugessen in Villafranca v. M.E.I., [1992] F.C.J. No. 1189 (F.C.A.)
(QL), sets out this principle:
On the other
hand, where a state is in effective control of its territory, has military,
police and civil authority in place, and makes serious efforts to protect its
citizens from terrorist activities, the mere fact that it is not always
successful at doing so will not be enough to justify a claim that the victims
of terrorism are unable to avail themselves of such protection
[37]
In spite of this, the mere willingness of a state
to ensure the protection of its citizens is not sufficient in itself to
establish its ability. Protection must nevertheless have a certain degree of effectiveness
(Bobrik v. M.C.I., [1994] F.C.J. No. 1364 (T.D.) (QL).
[38]
In the case at bar, the applicants submitted copies
of the two complaints of extortion against Chico Francisco that they filed with
the Mexican authorities. The applicants’ narrative shows that, following the
first complaint made to local authorities, Mr. Burgos was attacked that same
day by two men who allegedly tore up the complaint he filed. Following this assault,
the applicants left for Obregòn. The first complaint was made to local
authorities, and the second was made to the office of the attorney general of justice
of the state of Sinaloa. However, the applicants’ story shows that each time
they made a complaint their situation got worse. The Board blamed the
applicants for not having reported the two most important incidents to the
police, that is, the attack on Mr. Burgos following the first complaint and the
attack when they were on the road after having made the second complaint to the
office of the attorney general because they now had evidence to support their
complaints. As far as this omission was concerned, the Board also rejected the
applicants’ explanation to the effect they had lost confidence in the police.
[39]
Mr. Justice François Lemieux recently noted that
each case concerning state protection turns on its own facts (Arellano v.
Canada (Minister of
Citizenship and Immigration), 2006 FC 1265).
[40]
In the case at bar, I do not think that the
applicants can be blamed for not having made complaints following the assaults
on August 21, 2005, and October 2, 2005. The first assault seems to
have been a direct consequence of the complaint made locally. To the extent
that the local police did not offer efficient protection on one occasion, the
applicants were warranted in leaving the city to ensure their safety rather
than simply making a new complaint. The second assault by commander Francisco
Chico and three armed men, which was not reported to the authorities, took
place approximately two weeks after a complaint had been made to the office of
the attorney general of Sinaloa. Insofar as no effective protection was given
either by the local police or by the attorney general, and as there is no
evidence on record showing that certain measures were actually taken by the
authorities, it was not unreasonable for the applicants to leave the state of Mexico rather than make another complaint. However,
it should be noted that, in its decision, the Board appears to attach
significance to the applicants’ failure to report these two assaults when they
apparently had the opportunity to provide the authorities with evidence supporting
their allegations at that time. Insofar as nothing shows that the failure of
the authorities to give the applicants protection is a result of the lack of
evidence in support of their complaints, I am of the opinion this is not
relevant to the analysis of state protection.
[41]
The Court acknowledges that Mexico is a democratic state generally able
to protect its citizens and that President Fox is making significant efforts to
eliminate corruption. The Court also acknowledges that it is impossible to
expect perfect state protection. Notwithstanding these findings, case law recognizes
that the presumption of state ability is rebuttable, even when dealing with a
democratic state. In fact, Laforest J. stated, as mentioned earlier, that this
presumption must not “render illusory Canada’s provision of a haven for refugees”. However, it is obvious in this case that the
police officers were involved in the threats and assaults against the
applicants. In addition, the applicants made a complaint at the local level,
tried to seek refuge in another state in Mexico and
tried without success to file a complaint with the office of the attorney general
of that state. Considering the evidence and the special circumstances in the
case at bar, I am of the opinion that the presumption of state protection was
rebutted. Therefore, in these circumstances, I am satisfied that the applicants
discharged their burden of proof in presenting clear and convincing evidence of
the inability of the state of Mexico to protect them in this case.
[42]
By determining that there was adequate protection
in Mexico and that the applicants could have made a complaint following the
incidents of August 21, 2005, and October 2, 2005, the Board rendered an
unreasonable decision, in that it failed to take into consideration that the
situation of the applicants was aggravated on both occasions when they made
complaints to two different authorities. This conclusion is contrary to the
principle established by the Supreme Court in Ward, according to which
an applicant does not have to “risk his or her life seeking ineffective protection of a
state, merely to demonstrate that ineffectiveness”. This
error warrants intervention by this Court insofar as this determination could
not stand up to a probing examination.
7. Conclusion
[43]
For these reasons, the application for judicial
review is allowed.
[44]
The parties did not suggest a serious question
of general importance to be certified as provided under paragraph 74(d)
of the IRPA. I am of the opinion that no such question is raised in this case,
Therefore, no question will be certified.
ORDER
THE
COURT ORDERS that:
1. The
application for judicial review be allowed.
2. The decision of the Board be set aside, and
the matter be referred back to a differently constituted panel for rehearing
and redetermination.
3. No
question be certified.
“Edmond P. Blanchard”
Certified true
translation
Michael Palles
Email this Content