Date: 20030306
Docket: IMM-1114-02
Neutral citation: 2003 FCT 279
Toronto, Ontario, Thursday, the 6th day of March, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
SAMUEL DOMINGUEZ GARCIA,
GLORIA REYES DE DOMINGUEZ,
PILAR DOMINGUEZ REYES
and SAMUEL ULISES DOMINGUEZ REYES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated January 21, 2002, wherein the CRDD determined that the Applicants are not Convention Refugees.
[2] The Applicants are citizens of Mexico. The principal Applicant, Samuel Dominguez Garcia, is accompanied by his wife and their two children. The principal Applicant claims a well-founded fear of persecution that would flow from his "blowing the whistle" on the politically-motivated criminal activity (specifically, the disappearance of his father and the murder of his mother) by people who hold or held state positions as Federal Police Officers or PRI deputies. The remaining Applicants base their claim on membership in a Particular Social Group, as the principal Applicant's family.
[3] The Applicants originally entered Canada in 1988. They submitted a refugee claim, which was rejected in 1993. In 1997, they returned to Mexico. As such, the current claim is based entirely on events that took place between 1997 and 2000, when they returned to Canada and applied for refugee protection once again.
[4] The principal Applicant submits that he is a target of the PRI, a political party in Mexico. He believes that members of the PRI were responsible for the disappearance of his father in 1988 and the murder of his mother. He claims that this is due to the high profile his father held in the PAN (National Action Party), an opposition party to the PRI. The Applicant claims that he poses a risk to the PRI officials, because he can identify them and make their crimes known. As a result, they seek to eliminate him and his family. The Applicant described two incidents to the CRDD; in one he was badly beaten and the other was an attempt to abduct his daughter. Threatening telephone calls were also received warning not to approach the police.
[5] It is important to note that the CRDD made a specific positive credibility finding with respect to the factual events attested to by the Applicants. The CRDD also made a positive finding accepting the subjective fear which the Applicants hold. However, with respect to the objective basis for the fear held, the CRDD made three critical negative findings:
While the panel accepts as credible the beating of the principal claimant as well as the attempted kidnapping, the panel does not accept that these events are attributable to the reasons expressed by the claimants.
.....
Additionally the panel does not accept that the claimants are being sought because of knowledge they have or are imputed to have concerning the disappearance of the claimant's father and mother.
.....
While the panel accepts the claimants do appear to have a subjective fear of returning to Mexico and that the principal claimant was badly beaten and there was an attempted kidnapping, it is not plausible that the fear relates to the reasons expressed.
(Decision, pp 2-3)
[6] With respect to plausibility findings generally, the law is clear as stated by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1131, at paragraphs 6 to 7 as follows:
Presumption of Truth and Plausibility
The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.
A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[7] As no reasons are given substantiating the critical negative plausibility finding made in the present case as above quoted, I find that the decision was made in reviewable error.
ORDER
Accordingly, I set aside the CRDD's decision and refer the matter back for redetermination before a different constituted panel.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1114-02
STYLE OF CAUSE: SAMUEL DOMINGUEZ GARCIA, GLORIA REYES DE DOMINGUEZ, PILAR DOMINGUEZ REYES, and SAMUEL ULISES DOMINGUEZ REYES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MARCH 5, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: THURSDAY, MARCH 6, 2003
APPEARANCES BY: Mr. Neil Cohen
For the Applicants
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Neil Cohen
Barrister and Solicitor
Suite 115 - 2 College Street
Toronto, Ontario
M5G 1K3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030306
Docket: IMM-1114-02
BETWEEN:
SAMUEL DOMINGUEZ GARCIA, GLORIA REYES DE DOMINGUEZ, PILAR DOMINGUEZ REYES, and SAMUEL ULISES DOMINGUEZ REYES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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