Date: 20090512
Docket: IMM-4854-08
Citation: 2009 FC 486
Ottawa,
Ontario, May 12, 2009
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
ERNESTO
LOPEZ SALGUERO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, R.S., 2001, c. 27, of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (panel) dated September
22, 2008, which found that the applicant was neither a Convention refugee nor a
person in need of protection.
[2] For the following reasons the application for
judicial review will be allowed.
.
[3] The Court is satisfied with the explanations
given by the applicant in order to seek an extension of time to file his
application for leave and judicial review. In fact, it was due to his illness
and inability to contact his attorney that the application was filed late.
[4] The applicant’s claim for refugee protection was
rejected by the panel because his story was not deemed credible and because the
panel was not convinced there was a lack of state protection by the Mexican
authorities.
[5] In this case the applicant is a journalist who
fears returning to his home country as he had witnessed the transport of
children’s corpses and had deduced that it was linked to organ trafficking. He
was subsequently threatened and was involved in a car accident in which some
members of his family were injured. Experts would later conclude that his car’s
brake lines had been severed.
Standard of review
[6] The respondent maintains that the applicable
standard of review regarding the panel’s lack of credibility finding is that of
unreasonableness (Garcia v. Canada (Minister of Citizenship and Immigration), 2008 FC 707, [2008] F.C.J. No.
893 (QL)).
[7] When considering matters of credibility and
weighing of evidence, it is well established under subsection 18.1(4)(d)
of the Federal Courts Act, R.S.C., 1985, c. F-7, that the Court will
only intervene if the decision is based on an erroneous finding of fact, made
in a perverse or capricious manner or without regard for the material before it
(Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160
N.R. 315 (F.C.A.), 42 A.C.W.S. (3d) 886).
[8] Assessing credibility and weighing of evidence
fall under the jurisdiction of the administrative panel, which must take the
claimant’s subjective fear of persecution into account (Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.),
83 A.C.W.S. (3d) 264 at paragraph 14). Before Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, the applicable standard of review in similar circumstances was patent
unreasonableness. Since then, it is reasonableness.
[9] The appropriate standard of review in matters of
state protection is reasonableness (Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 137 A.C.W.S. (3d) 392 at
paragraphs 9 to 11; Gorria v. Canada (Minister of Citizenship and Immigration),
2007 FC 284, 310 F.T.R. 150 at paragraph 14 and Chagoya v. Canada (Minister
of Citizenship and Immigration), 2008 FC 721, [2008] F.C.J. No. 908 (QL) at
paragraph 3).
[10] In this case, the panel considered only highly
selective facts in the applicant’s narrative. Nonetheless, the applicant’s PIF
contains several significant facts which were omitted and not taken into
consideration by the panel.
[11] Furthermore, the panel twice mentions: ‘‘… There
is certainly nothing in the documentary evidence to indicate that journalists
in Mexico are at such risk that they
are murdered and that no state protection is available to them.’’ (paragraph 10
of the decision). In fact there are documents in Mexico’s National Documentation Package which
suggest the very opposite. These documents were neither mentioned nor
considered by the panel, yet this evidence was at the very heart of the claim.
[12] The panel should have considered all of the
evidence, especially the documentary evidence which might have allowed them to conclude
that the facts described by the applicant regarding his fear of persecution and
the lack of state protection were true.
[13] While one assumes that a panel has examined all of
the evidence, where there exists significant evidence which contradicts the
panel’s findings, it must provide reasons to explain why this evidence is
deemed to be neither relevant nor reliable (Simpson v. Canada (Minister of
Citizenship and Immigration), 2006 FC 970, [2006] F.C.J. No. 1224 (QL) at
paragraph 44).
[14] No questions for certification arise from this
matter.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed. The matter is referred for
reconsideration by a newly constituted panel.
‘‘Michel
Beaudry’’
Certified
true translation
Sebastian
Desbarats, Translator
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