Date: 20090126
Docket: IMM-3319-08
Citation: 2009 FC 76
Ottawa, Ontario, January 26,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ITZEL
MALINALLI PATRON PEDROZA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an application for judicial review of the rejection of the Applicant’s
refugee claim. The substantive issue is whether the findings of the Immigration
and Refugee Board (IRB) on credibility and plausibility, as well as state
protection, are reasonable. The Applicant has also raised the issue of adequacy
of reasons. The facts in issue concern an alleged date rape and whether the
Applicant sought state protection.
II. BACKGROUND
[2]
The
Applicant is a 23-year old female citizen of Mexico. Her claim
is based on a fear of persecution on the grounds of gender violence at the
hands of David Antonio Velasco Chedraui (Antonio) who is currently mayor of the
Applicant’s home town, though he was not mayor at the time of the rape.
[3]
On
November 18, 2004, the Applicant and her friend, Alma, met with two men,
Antonio being one of them. During the evening, the Applicant felt ill and lost
consciousness. Upon recovering consciousness, she found Antonio in the midst of
raping her and was unable to secure assistance from either of her two
colleagues.
[4]
Upon
the Applicant’s arrival at home that night, the Applicant’s mother brought her
to their family doctor, who then accompanied the Applicant and her mother to
the local hospital adjacent to the police station where she was examined. The
Applicant also spoke to a police officer at that time.
[5]
The
Applicant alleges that when the aggressor’s name was mentioned to the police
officer, he went to consult with another officer and, at the instructions of the
other officer, the interview was terminated.
[6]
Subsequently,
the Applicant and her family received numerous threatening telephone calls. During
this time, they went to the police on several occasions. At one point the
Applicant’s mother and brother were visiting the police weekly to press for the
investigation of the date rape incident.
[7]
The
Applicant hired a lawyer to investigate what had happened to their complaint
and learned that there was no police report. The lawyer had been unable to locate
the hospital’s medical report as well.
[8]
The
Applicant’s father was kidnapped for a few days in February 2007. After this
incident, the Applicant asked her lawyer to stop investigating the matter. In
addition, the lawyer left his professional practice and his home because of the
difficulties caused to his practice as a result of his acting for the
Applicant.
[9]
In
June of 2007, Antonio called the Applicant and informed her that she was smart
not to pursue the charges, that he would be in touch with her, and that he
wanted to renew the events of November 18, 2004. From this, the Applicant drew
the conclusion that Antonio was obsessed with her and wanted to rape her again.
She ultimately left Mexico and sought refugee status in Canada.
[10]
The
IRB rejected the Applicant’s claim because the Member found that the claimant
was not credible in recounting core events of her narrative. The Member did not
believe that the Applicant had filed a complaint with the police or had even
been examined at the hospital. Specifically, the Member noted that the
Applicant could not remember the name of the doctor or of the hospital. The
Member also found that the Applicant had sufficient proof to persuade the
police to investigate because the Applicant had a witness – Alma – who could
have corroborated her story. The Member further did not believe that the
Applicant, through her lawyer, had attempted to contact the Attorney General
with regard to the absence of any investigation of her complaint.
[11]
Lastly,
the Member found that there was no likelihood of danger to the Applicant
because Antonio knew that the complaint had been withdrawn, and was pleased.
The Member based this conclusion on the June 2007 conversation between the
Applicant and Antonio, where he expressed continuing interest in her.
III. ANALYSIS
[12]
The
parties are agreed, and the Court concurs, that post-Dunsmuir (Dunsmuir
v. New
Brunswick,
2008 SCC 9), the standard of review in respect of plausibility and credibility
findings is reasonableness. The same is true of the standard of review for the
state protection issue in this case. The standard of review for the obligation
to give adequate reasons is unnecessary to establish here, for reasons
discussed below.
[13]
As
a general rule, the Court is reluctant to overturn credibility findings of the
IRB, particularly where they are based on observations of witnesses. Many of the
findings of credibility and plausibility in this case, however, are based on the
documentary evidence. That being the case, any deference owed is significantly
reduced.
[14]
There
are a number of problems with the IRB decision which makes the conclusions as
to credibility and plausibility unreasonable. It is unclear from the decision
whether the gist of the decision is based upon a challenge to the Applicant’s
story of her rape and the events immediately thereafter or whether the IRB
decided that the Applicant had not rebutted the presumption of state
protection.
[15]
The
Member’s comments on the post-rape circumstances of the medical examinations
and reports to the police suggest that the Member may have questioned whether
there was in fact “gender violence”. If the Member had in fact accepted that
rape occurred, one would have expected to see some reference to the Guideline
given the nature of the process and decision. Yet there is no reference to the IRB’s
Women Refugee Claimants Fearing Gender-Related Persecution Guideline, despite
there being no real finding that the rape did not occur.
[16]
There
are also a number of problems with the specific findings that were the basis
for the non-credibility and implausibility conclusions of the Member. The first
of these is the Member’s comment that the Applicant had failed to mention the
name of the doctor that she had seen at the local hospital.
[17]
The
Member’s reliance on the Applicant’s failure to name the doctor is unreasonable
because the Applicant was never asked, even once, for the name of the doctor. Yet
failure to mention the doctor by name is held against the Applicant as a matter
that undermines her credibility.
[18]
There
is no question that such a doctor existed and that that doctor performed an
examination on the Applicant. The evidence indicates that the examining doctor was
authorized by the police to perform examinations in sexual violence cases. That
fact is established both by reference to the letter of the Applicant’s lawyer
and to the psychiatric report which was filed before the IRB.
[19]
The
Member then goes on to find that the failure to give the proper name of the
hospital was further evidence of lack of credibility of the Applicant. The
Respondent, quite properly, accepts that this finding is “vulnerable”. The
evidence of the Applicant was that she knew the name of the hospital as it is
described locally, in other words as the San Jose Hospital. She also clearly
identified the hospital building and its location adjacent to the police
station.
[20]
Further,
it is evident that the Member misunderstood the nature of the discussion
between the Applicant and Antonio in June 2007. The Member found the
Applicant’s credibility undermined because the Member apparently thought that
the conversation related principally to the withdrawal of the complaint. However,
the complaint had long been withdrawn and the real purport of that conversation
is that Antonio wanted to see the Applicant again. It is that intention of the
rapist which causes the Applicant to fear a return to Mexico. This is a
part of the evidence that the Member clearly missed or misunderstood.
[21]
The
Member’s conclusion that the Applicant is not credible in respect of her police
complaints is also seriously flawed. The Member concluded that the Applicant
was not truthful about her difficulty pursuing the police complaints because he
found that Alma, as a
witness, could prove the Applicant’s claim. However, the evidence is that Alma had
disavowed herself of the Applicant and any involvement in the incident,
possibly because of fear of Antonio. To conclude that the Applicant had Alma available to
assist her with a police complaint is entirely inconsistent with the evidence.
[22]
Not
only is the decision undermined by the findings with respect to credibility and
plausibility, the decision is seriously undermined by the failure to consider
some of the most important evidence with respect to state protection. The IRB
does not discuss the 14-month efforts by the Applicant and her family to cause
further investigation by the police. The IRB ignores the role of the Applicant’s
lawyer in assisting these efforts. The IRB does not discuss the threats to the
Applicant’s family members which are consistent with the Applicant’s story, and
the failure of the police to take any action. The issue is not that the IRB did
not find these matters credible, it is that the IRB never referred to this
critical evidence relied upon by the Applicant to show that state protection
was not available to her in these particular circumstances.
[23]
The
Applicant’s arguments with respect to the failure to give reasoned reasons are
actually subsumed in the arguments with respect to credibility and
plausibility. The Court does not concur with the Applicant’s suggestion that
the IRB was under a positive obligation to confront the Applicant during the
course of the hearing with the Member’s concerns about credibility. Credibility
is always an issue and the IRB is not required to reach preliminary conclusions
on credibility and afford an applicant an opportunity to respond to those
concerns before deciding a matter. However, the IRB must, when it makes its
credibility findings, make them on a reasonable and accurate basis. In this
case, the IRB failed to do so.
IV. CONCLUSION
[24]
For
all of these reasons, this application for judicial review will be granted. The
decision of the Immigration and Refugee Board will be quashed and the matter is
to be referred back to another panel for a new determination. There is no
question for certification as this matter turns on the facts of this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the decision of the Immigration and
Refugee Board in this matter is quashed and the matter is to be referred back
to another panel for a new determination.
“Michael
L. Phelan”
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