Docket: IMM-4644-11
Citation:
2012 FC 175
Ottawa,
Ontario, February 8, 2012
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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LUIS ANGEL LOPEZ BASURTO
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
applicant, young Angel Lopez Basurto, came to Canada with his mother and his
half‑brother to seek its protection against Louis Lopez Sanchez, his
father, who is his mother’s second husband and the step‑father of his
half‑brother. Apparently, he beat all of them. Since they had already
unsuccessfully applied for refugee protection in Canada in 1995, neither
Angel’s mother, Diana Basurto Valencia, nor his half‑brother, Erick
Ramirez Basurto, could claim refugee status in Canada a second time. It is
immaterial that the grounds for their first application were different from the
grounds alleged this time. However, it is important to bear in mind that they
can, nonetheless, apply for a pre‑removal risk assessment (PRRA).
[2]
Angel
was only ten years old when he testified before the Refugee Protection Division
(RPD) of the Immigration and Refugee Board of Canada about events that had
occurred some years earlier. The presiding RPD member dismissed his application
for refugee protection because neither his mother nor his half‑brother,
who testified in his name, were credible. On this application for judicial
review, the issue is whether that decision was reasonable. In my view, it is
not.
[3]
It
was completely reasonable to find that Angel’s mother was not credible. In fact,
she blatantly lied and submitted a number of falsified documents. Requests for
information from the Mexican authorities conclusively established that those
documents were fraudulent.
[4]
Angel’s
half‑brother, Erick, was also deemed not credible because of certain
inconsistencies between his testimony, his mother’s and Angel’s as to exactly
when and where Angel was beaten. This finding is highly suspect since Angel
testified that his father had beaten him on a number of occasions and there was
no evidence to support a presumption that his half‑brother had been
present during each of those episodes.
[5]
Even
though Angel’s mother and his half‑brother lied to strengthen their own
PRRA applications, saying that they too had been beaten, it does not
necessarily follow that Angel also lied. His testimony was simple and direct
not only with respect to the main events but also regarding the peripheral
elements of his refugee claim, such as the time when his father went to get him
at his primary school in Mexico, the courses he was taking at school, his
academic performance, etc.
[6]
In
fact, the presiding member found that Angel lied because the two others had
lied. The resulting inference is that Angel’s mother prepared him to give false
testimony.
[7]
In
my view, this inference cannot be drawn from the established facts. The
presiding member’s finding is purely speculative and theoretical. In Canada
(Minister of Employment and Immigration) v Satiacum, 99 NR 171,
[1989] FCJ No 505 (QL), MacGuigan J. explained as follows at paragraphs 34
and 35:
The common law has long recognized the
difference between reasonable inference and pure conjecture. Lord Macmillan put
the distinction this way in Jones v. Great Western Railway Co. (1930),
47 T.L.R. 39 at 45, 144 L.T. 194 at 202 (H.L.):
The dividing line
between conjecture and inference is often a very difficult one to draw. A
conjecture may be plausible but it is of no legal value, for its essence is
that it is a mere guess. An inference in the legal sense, on the other hand, is
a deduction from the evidence, and if it is a reasonable deduction it may have
the validity of legal proof. The attribution of an occurrence to a cause is, I
take it, always a matter of inference.
In R. v. Fuller (1971), 1 N.R. at 114, Hall J.A. held for
the Manitoba Court of Appeal that “[t]he tribunal of fact cannot resort to
speculative and conjectural conclusions.” Subsequently a unanimous Supreme
Court of Canada expressed itself as in complete agreement with his reasons: [1975]
2 S.C.R. 121 at 123, 1 N.R. 110 at 112.
[8]
As
the Good Book says, “a son is not to suffer for the sins of his father, nor a
father for the sins of his son. To the upright man his integrity will be
credited, to the wicked his wickedness.” (The Jerusalem Bible, New York,
Doubleday, 2000, Ezekiel 18:20).
[9]
In
the circumstances, I am of the view that the presiding member’s decision is
unreasonable. After finding the applicant and the witnesses not credible, she
unfortunately did not consider whether state protection or an internal flight
alternative were available. At the redetermination, the presiding member will
need to take those factors into account.
[10]
As
agreed by both parties at the hearing, there is no serious question of general importance
to certify.
ORDER
FOR THE
FOREGOING REASONS,
THE COURT
ORDERS as follows:
1.
The
application for judicial review of the decision by a presiding member of the
RPD of the IRB dated June 21, 2011, in file MA9-02262, in which she
determined that the applicant was not a Convention refugee, is allowed.
2.
The
decision of June 21, 2011, is set aside, and the matter is remitted for
redetermination before a different presiding member of the RPD of the IRB. The
new decision shall consider whether state protection or an internal flight
alternative is available in Mexico.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
Certified true
translation
Mary Jo Egan, LLB
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