Date: 20090127
Docket: IMM-3316-08
Citation: 2009 FC 85
Ottawa, Ontario, January 27,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LAURA
GONZALEZ AGUILAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review contains a difficult twist: while the decision contains almost
exclusively a detailed and reasonable analysis of state protection in Mexico, it states
as its conclusion that there is no nexus between the Applicant’s claim and one
or more of the Convention grounds under section 96 of the Immigration
and Refugee Protection Act (IRPA). The Respondent concedes that the nexus
finding is wrong and attributes it to a “cut and paste” error in the
preparation of the decision. The difficulty is that the reasons, which are
focussed entirely on state protection, do not accord with the conclusions upon
which the application for refugee status and protection were dismissed. The
problem faced by the Court is determining whether this application for judicial
review should be granted with the likelihood that such a conclusion is likely
to be largely a matter of form overtaking substance.
[2]
The
substance of this case is an application for review of a decision of the Refugee
Protection Division (Board) which determined that the Applicant is neither a
Convention refugee nor a person in need of protection.
II. FACTS
[3]
The
Applicant, a citizen of Mexico, alleged that she became targeted by her
ex-boyfriend with whom she had an eight-month relationship starting in July
2005. She alleged that he had become physically and psychologically abusive to
her. She further alleged that she had been physically assaulted by him in March
2006, which resulted in fractured ribs and bruising which required her hospitalization
for two days.
[4]
Although
the Applicant refused to see her ex-boyfriend after March 2006, she claimed
that he continued to harass and stalk both her and her friends. Even after she
fled to another location to live with her grandmother, the ex-boyfriend
appeared there and continued to issue threats. The Applicant left Mexico for Canada in September
2006, and made her refugee claim in March 2007.
[5]
The
Board, having set out the facts, began its analysis with a consideration of the
existence of state protection in Mexico. The Board first examined
the guiding legal principles and the burden which rests on an applicant.
[6]
The
Board then went on to consider the particular aspects of state protection in
Mexico, noting the country’s development as a democracy with a relatively
independent and impartial judiciary, that Mexico controls its territory, has a
functioning security or police force, and that it has both a system for and a
practice of dealing with complaints against police misconduct. Finally, the Board
examined efforts made by that country to enhance the integrity and training of
its police force.
[7]
Having
considered the general evidence of state protection, the Board went on to
consider the Applicant’s actions in not making a report to the police other
than after the first incident of abuse, at which point the police had informed
her they needed witness verification in order to act. The Board further
considered the absence of evidence that the police would not investigate a
complaint and the Applicant’s failure to approach the police again about other
incidents where there were witnesses to buttress her complaint. The Board then
considered all of these facts in light of evidence of other problems with
police corruption in Mexico.
[8]
The
Board reached a finding that there was adequate state protection in Mexico and that the
problems with police corruption or inaction are being addressed. The Board
noted that its conclusions were supported by decisions of this Court upholding
findings of state protection in Mexico.
[9]
Having
set out this analysis of state protection, the Board went on to make its final
conclusions, which created the problem in this case. The conclusion of the
decision reads as follows:
For all these reasons, the panel finds
that there is no objective basis for the claimant’s alleged fear.
CONCLUSION
Having considered all of the evidence,
including the submissions of counsel, the relevant provisions of the (IRPA)
and to the jurisprudence on which this panel has relied, the panel finds that
the claimant does not have a well-founded fear of persecution pursuant to
section 96, because she has failed to establish a nexus to one of the five convention
grounds.
The panel is then tasked with considering
the applicability of section 97 of the IRPA. The panel, by the
same reason, concludes that with respect to a risk to life or a risk of
cruel and unusual treatment or punishment, or danger of torture, this claim
must also fail.
[Emphasis added]
[10]
The
Court is satisfied that the state protection analysis and finding is reasonable
on the basis of the evidence before the Board, but that the Board’s conclusion
is not. The Board gave no consideration to section 96, much less to the issue
of a nexus between the Applicant’s claim and any of the Convention grounds.
[11]
The
problem with the section 96 conclusion is compounded in the section 97
conclusion by the reference to “the same reason”. This is potentially a
reference to the nexus issue (because it uses the singular), or potentially a
reference to “reasons” (which refers to state protection) in the final
paragraph immediately before the “Conclusions”. It is therefore unclear on what
basis the Board reached its s. 97 conclusion.
[12]
The
Respondent’s submission that the “Conclusions” were a “cut and paste” error of
transposing conclusions from another case to this decision is a plausible one –
perhaps the most plausible one. The fact remains that mistakes, if this is one,
do have consequences. Left uncorrected, the “Conclusions” stand as the basis
for the Board’s decision.
[13]
The
Court is reluctant to send the matter back in a situation where the result is
likely to be the same, where the core of the decision is sustainable, and where
one can see what the true intent of the decision maker was. The Court also
recognizes that the Board does not have the benefit that courts have of
correcting for errors and omissions.
[14]
However,
in this case, the errors are so egregious, the explanation for the errors so
speculative, and the consequences to the Applicant so important that it is best
to avoid any potential injustice by granting this judicial review. This is a
case that stands on the very cusp of “form over substance,” but the worst
mischief that may be done by referring the matter back is to cause some delay
in resolving the Applicant’s case. The mischief created by letting the decision
stand is that there is a conclusion which bears no resemblance to the analysis
in the decision and unfairly reflects the Applicant’s case.
[15]
Therefore,
this application for judicial review will be granted, the decision of the Board
will be quashed and the matter is to be remitted back to the Board for a new
determination before a different member. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the decision of the Board is
quashed, and the matter is to be remitted back to the Board for a new
determination before a different member.
“Michael
L. Phelan”
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