Date: 20100122
Docket: IMM-2051-09
Citation: 2010 FC 76
Toronto, Ontario, January 22,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JULIO FERNANDO, GUTIERREZ
MURILLO
OLIVIA URZUA SALAS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal Applicant is a Mexican citizen who for the past fifteen years has
served as a police officer in that country. The other Applicant is his wife.
[2]
The
Applicants made a claim for refugee protection in Canada on the basis
that, as a police officer who would not comply with demands made by organized
criminals, the principal Applicant would be killed by these criminals or those retained
to do their bidding. That claim was rejected by the Immigration and Refugee
Board by a decision dated March 25, 2009. It is that decision that is
under review here. I have determined that
the decision must be set aside and re-determined by a different Board Member.
[3]
The
Board Member based his decision on two grounds; credibility and state
protection. Usually, a finding of a Member as to credibility is given
considerable deference. However, in this case, after a careful review of the
evidence, the bases upon which lack of credibility was found are weak or
non-existent. It was not reasonable for the Member to have found lack of
credibility as he did. To cite some examples:
·
Zetas:
The Applicant stated that he feared organized criminals. When pressed to give a
name, he said, “Zetas”, a group which is retained by organized crime to do
enforcement work. This is well established in the evidence. The Member seems to
have found in some documentary evidence material that led him to conclude that
Zetas were not active in the Applicant’s area. The documents do not say that, they
say that Zetas are actively expanding in many areas of Mexico and that
maps illustrate some of these areas, but they are not to be taken as accurate.
·
So-called
contradiction in dates: The Applicant could not remember, for instance, if an
event happened in November or December. The Member seems to have proceeded on
the basis that the date would have been indelibly impressed in the Applicant’s
mind. This was unreasonable. The Applicant gave a reasonable explanation as to
why such dates could not be accurately remembered at the hearing.
·
Failure
to produce documentary evidence of the Applicant’s complaint made to the police
authorities: The Applicant gave a reasonable explanation as to why the document
was unavailable.
·
Failure
to make further complaints to other police authorities: The Applicant, a
fifteen-year veteran of the police force, gave a reasonable answer in saying
that further complaints would be futile.
·
Delay
in leaving Mexico: Two months
to leave Mexico is not an
unreasonable time in these circumstances. The Applicant explained that he kept
himself sequestered.
·
Delay
in applying for refugee status: In the circumstances a four-month delay was not
unreasonable and was adequately explained.
[4]
I
find that the Member’s conclusions as to credibility were not reasonable. He
focused on trivial matters and lost sight of the main basis of the claim, a
threat to the principal Applicant’s life for refusing to co-operate with
criminals.
[5]
As
to state protection, the Member looked only at what he described as efforts
that Mexico was making
to improve. He did not give consideration to present circumstances, and the
threat to the lives of policemen who refuse to collaborate with criminals.
[6]
This
matter should be revisited by a different Member who will give full
consideration to all the evidence presented by each of the parties.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is allowed;
2.
The matter
is to be reconsidered by a different Member;
3.
No party
asked for certification, and none is given; and
4.
No Order as to costs.
“Roger
T. Hughes”
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