Date: 20091015
Docket: IMM-1486-09
Citation: 2009 FC 1048
Ottawa, Ontario, October 15, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
Ulises FUENTES SIERRA
Loth Katiuska MARTINEZ MAGANA
Cristian Ulises FUENTES MARTINEZ
Carlos Samuel FUENTES MARTINEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated March 4, 2009 (Decision) refusing the Applicants’
application to be deemed Convention refugees or persons in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants - a husband, a wife and their three sons - are citizens of Mexico. The Principal
Applicant was formerly a radio reporter in Morelia who conducted
an investigation into drug traffickers, their links to police, and the joint crimes
committed by both.
[3]
The
Principal Applicant was threatened and assaulted because of his investigation. He
sought protection from the Department of Justice but was told that nothing
could be done. Both the Principal Applicant and his wife experienced further
threats.
[4]
The
Applicants relocated to the Federal District Mexico City (FDMC). The Principal Applicant
was told that his family would be harmed if he did not return to Morelia. Again, he
sought police protection but was told that the police could not assist.
[5]
After
returning to Morelia, the
Applicants continued to receive threats of harm and death. The Principal Applicant
fled to Canada on June 23,
2008. After an alarming incident in which the Female Applicant and her children
were victims of an intentional automobile collision, the Applicant’s wife and children
fled to Canada on July 19, 2008. The family then filed a refugee claim.
[6]
A
hearing date was set for December 23, 2008. The Applicants were informed of the
requirement to submit a Confirmation of Readiness. The Board never received
this form.
[7]
On
December 1, 2008, the Applicants’ new counsel requested an adjournment to allow
more time to gather documents and prepare for the hearing. This request was
denied by the Board. The Applicants and their counsel appeared for the hearing
on December 23, but the hearing was adjourned to February 20, 2009, due to the unavailability
of a Board member.
[8]
On
February 20, 2009, an assistant for the Applicants’ counsel appeared to request
an adjournment because counsel was ill. The Board denied the request and the
hearing proceeded without counsel present.
DECISION UNDER REVIEW
[9]
The
Board found that the failure of the Mexican authorities to apprehend the
unidentified agents who threatened and attacked the Principal Applicant and his
wife did not rebut the presumption of state protection.
[10]
The
Board was also concerned about numerous inconsistencies between the Applicants’
written and oral testimony, including the addition of events not previously reported
and date discrepancies of events that had been reported. The Board went on to
make a series of plausibility and credibility findings.
[11]
The
Board did not believe that the Principal Applicant was an investigative reporter
who had been targeted for years and as a result of the incriminating knowledge
he had amassed in his short career. The Board also did not believe that the Principal
Applicant would have been the only person targeted as a result of his radio
program if it had truly been a threat to criminals and corrupt officials.
[12]
The
Board determined that the Applicants’ return to Morelia from FDMC
was not credible. The Board believed that such a move would further endanger
the Principal Applicant’s family and would do nothing to ensure protection for
his extended family. Their return to Morelia caused the Board to question
and doubt the Applicants’ well-founded fear.
[13]
The
Board found it unbelievable that, as an inexperienced investigator, the Principal
Applicant could have gathered information in 2005 that would still be a threat.
Moreover, the Board doubted that an investigative reporter would endure years
of threats without being able to identify the agents of persecution.
[14]
The
Board also doubted whether the Principal Applicant would leave his wife and
children in a situation of danger in order to assess a country of asylum. In
addition, the Board did not believe that the Female Applicant and children would
maintain a predictable pattern of programs in Mexico, including
day care and school, if their lives were in danger.
[15]
The
Board was sceptical of the police report filed by the Female Applicant five days
prior to her arrival in Canada. The Board reasoned that the Female
Applicant likely filed the report to “bolster the claims for refugee
protection.”
ISSUES
[16]
The
Applicants submit the following issues on this application:
1)
Did
the Board err in law in that its credibility findings were made without regard
for the evidence before it or were otherwise unreasonable?
2)
Were
the Applicants denied natural justice, or fundamental justice under the Charter,
when the Board proceeded with their hearing in the absence of their counsel?
STATUTORY PROVISIONS
[17]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
|
STANDARD OF REVIEW
[18]
In Dunsmuir v.
New Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9, the Supreme Court of Canada recognized that,
although the reasonableness simpliciter and patent unreasonableness
standards are theoretically different, “the analytical problems that arise in
trying to apply the different standards undercut any conceptual usefulness
created by the inherently greater flexibility of having multiple standards of
review.” Consequently, the Supreme Court of Canada held that the two
reasonableness standards should be collapsed into a single form of
“reasonableness” review.
[19]
The Supreme Court of Canada in Dunsmuir
also held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[20]
The Court in Sukhu
v. Canada (Minister of
Citizenship and Immigration), 2008 FC
427, determined that reasonableness
is the appropriate standard for reviewing findings of credibility. Accordingly,
reasonableness will be used to review the Board’s credibility
findings.
[21]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir at paragraph 47).
Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[22]
The
Applicants have also raised a procedural fairness issue to which the standard
of review is correctness: see Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1
and Dunsmuir at paragraph 60.
ARGUMENTS
The Applicants
[23]
The
Applicants submit that the Board made numerous errors in its Decision: it failed
to consider the totality of evidence before it; it made inconsistent findings
of credibility which undermined the Decision; it made implausibility findings
based on erroneous cultural assumptions; and it committed errors of fact with
regard to the evidence that it purported to consider.
The Newspaper
Article
[24]
The
Board relied on the newspaper article provided by the Applicants from the Seguiridad
on October 29 of 2005 to discount their argument of the unavailability of state
protection. However, the Board gave this article no weight as corroboration of
the Principal Applicant’s story. In Tekie v. Canada (Minister of
Citizenship and Immigration), 2005 FC 27, it was determined that pieces
of evidence either “had no weight and should be disregarded or they are
relevant and taken as part of the proof [of] their contents in all respects.”
[25]
The
Applicants submit that this error is compounded by the importance of the
newspaper article in corroborating the Applicants’ claim. The newspaper article
described the Principal Applicant as a “known reporter” who was beaten by men
who emerged from unmarked vehicles and was admitted to hospital. The report
also said that this attack had taken place after the Principal Applicant had
received “several threats by strangers.”
[26]
This
evidence corroborated the central elements of the Applicants’ claim. The Board
did not doubt the authenticity or credibility of the newspaper article. Accordingly,
the Board erred in its determination of credibility based on its erroneous
treatment of this evidence.
Inconsistencies
[27]
There
are numerous inconsistencies within the Board’s Decision. For instance, the
Board determined that it was not credible that the Principal Applicant was the
only person targeted because of his radio program. However, in the same
paragraph, the Board acknowledged the Principal Applicant’s explanation that
Mauricio Estrada Zamora had been kidnapped as a result of the Applicant’s radio
show. These statements are mutually exclusive. The Applicants contend that the Board
made erroneous findings of fact central to the determination of credibility.
[28]
The
Board also found that other family members had been threatened, but then stated
that the Applicants were unsure as to whether or not other family members had
been threatened. It is impossible for both of these statements to be correct. The
evidence on record shows that the Applicants’ extended family had not been
threatened. Rather, the Principal Applicant feared harm to his immediate
family if he did not follow the wishes of those who threatened him.
Implausibility
Findings
[29]
The
Board is entitled to make findings of plausibility. However, such findings must
be reasonable and supported by evidence. See Yada v. Canada (Minister of
Citizenship and Immigration) 140 F.T.R. 264 and Giron v. Canada (Minister of
Employment and Immigration)(1992), 143 N.R. 238.
[30]
The
Board found it implausible that the Principal Applicant had: (1) gathered
incriminating evidence in 2005 that remained a threat three years later; (2) suffered
three years of threats without being able to identify the agents of persecution;
and (3) fled Mexico before his
wife and children.
[31]
The
Applicants submit that the Board’s first finding of implausibility was made
without consideration of the nature of the evidence uncovered by the Principal Applicant.
He obtained evidence naming a powerful criminal gang and a high-ranking police officer
who was corrupt. It was unreasonable for the Board to overlook the plausibility
that the Principal Applicant was still a threat to the criminals in question, even
after the passage of three years.
[32]
The
Board’s determination regarding the Principal Applicants’ inability to identify
the agents of persecution is also unreasonable. This determination was made
without regard to the evidence on the record. The Applicants were aware of who
was behind the threats and assaults; they were simply unable to personally
identify the attackers. It is not uncommon for high-ranking officials or drug
traffickers to hire anonymous thugs to make threats and commit assaults.
[33]
The
Board also erred in neglecting to consider why the Principal Applicant might
flee Mexico prior to his
wife and children. The Principal Applicant provided an honest answer that he
believed they were safer in Morelia with his wife’s family.
The Female Applicant testified that she had attempted to lead as normal a life
as possible in Mexico. However, she felt unable to continue living in
FDMC when her vehicle was intentionally struck by thugs trying to locate her
husband and the men inside the other vehicle threatened her.
[34]
The
Board failed to consider the Applicants’ explanation for their conduct. Their
explanations were not implausible and should have been considered. Furthermore,
it was unreasonable for the Board to judge the plausibility of the Applicants’ security
arrangements. The Board’s assessment fails to take into account the different risk
tolerances of people who live in violent societies. Although the Board was
entitled to accord little weight to these explanations, it was not entitled to
ignore them (Giron, supra).
[35]
The
Board also discounted the final police report filed by the Female Applicant
because it was “more probable” that the report was simply made to “bolster the
claims for refugee protection.” The Applicants contend that this finding was
made without any supporting evidence. Moreover, this determination is faulty
since it is based on the Board’s other erroneous credibility findings.
[36]
The
Board decided that the Principal Applicant’s story was implausible because of
the Board’s own cultural biases and prejudices. The impugned portion of the
interview is as follows:
I find it exceptional that a large radio
station would have a 19 year old person investigation crime, criminal gangs and
police and political corruption and then exposing themselves on the radio
When I watch news in Canada or the U.S., the reporters are much more mature than
you are. Today you’re still 22 years old. I find it exceptional that a man of
your youth would be making a regular broadcast with his own investigations and
being exposed to this type of problem. I wonder why that would be that they
gave you this responsibility.
[37]
There
was no evidence before the Board with regard to the ages of Mexican radio
presenters or reporters. The Board made an erroneous judgment on the plausibility
of the Principal Applicant’s story based its perception of the age of North American
anchorpersons. The Board was unable to render a reasonable finding on the
plausibility of the Applicant’s story because the Board was influenced by a North
American cultural paradigm.
[38]
Both
personal and general corroboration existed for the Applicants’ story that was
overlooked by the Board. Such evidence includes: the newspaper article; a medical
report from a hospital dated October 28, 2005; a letter from a psychotherapist;
and a medical report from a nurse, dated March 25, 2008.
[39]
The
Board also failed to consider the documentary evidence demonstrating the
persecution suffered by journalists and other whistleblowers in Mexico. This
evidence was clearly consistent with the Applicants’ story. One report provided
as follows:
[p]owerful drug cartels and escalating
violence associated with criminal groups have made Mexico one of the world’s deadliest countries
for reporters. Since 2000, 23 journalists…have been killed, at least seven in
direct reprisal for their work. Seven journalists have disappeared since 2005.
[40]
Other
evidence adduced by the Applicants showed at least five cases of disappeared
journalists who had been investigating the link between local government
officials and organized crime prior to their disappearance:
The main source of danger for journalists
is organized crime – and the second is the government…The worst scenario for
journalists is when organized crime and the government become partners. And in
many parts of this country, they are completely intertwined.
Even a security advisor to the United
Nations found that there are parts of Mexico where “you can’t
distinguish between local police and criminals, and it has become very
dangerous for journalists who report on this situation.”
[41]
The
Board cannot reasonably find the Principal Applicant’s story implausible while
ignoring cogent documentary evidence to the contrary. By doing so, the Board
has committed a reviewable error. See Ali v. Canada (Minister of Citizenship
and Immigration), 2008 FC 448; Santos v. Canada (Minister of
Citizenship and Immigration), 2004 FC 937.
Procedural
Fairness
[42]
The
Applicants further submit that the Board’s decision to proceed with their hearing
in the absence of counsel was a breach of procedural fairness.
[43]
The
Federal Court of Appeal canvassed factors relevant to the Board’s discretion to
grant an adjournment in Modeste v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1027 at paragraph 15:
1.
Whether
the applicant has done everything in her power to be represented by counsel;
2.
The
number of previous adjournments granted;
3.
The
length of time for which an adjournment is being sought;
4.
The
effect on the immigration system;
5.
Whether
the adjournment would needlessly delay, impede or paralyse the conduct of the
inquiry;
6.
The
fault or blame to be placed on the applicant for not being ready;
7.
Any
previous adjournments granted on a peremptory basis;
8.
Any
other relevant factors.
These factors parallel those set out in
subsection 48(4) of the Refugee Protection Division Rules.
[44]
The
Applicants submit that the brief reasons given by the Board for proceeding
without counsel failed to address most of the issues relevant to granting an
adjournment. The reasons were incomplete and inaccurate.
[45]
The
Applicants were mistaken in their belief that they had retained counsel. When
they finally managed to retain counsel, their counsel could not confirm that
they were ready to proceed on December 23, 2008 because they were not prepared
for the hearing. Counsel requested an adjournment which was denied. Counsel and
the Applicants appeared for the hearing. However, this hearing was adjourned
due to the absence of a Board member to hear it. The Applicants’ counsel did
not object to an adjournment. Accordingly, the hearing was set for February 20,
2009.
[46]
The
Applicants’ counsel was ill on February 20, 2009. She sent her assistant to
request an adjournment. The Board member refused the adjournment and proceeded
with the hearing in the absence of counsel. At the end of the hearing, the
Board member failed to advise the Applicants of their right to make submissions
supporting their claim. Consequently, the Applicants made no submissions and
the Board adjourned the hearing.
[47]
The
Applicants submit that the Board’s characterization of the February 20, 2009 hearing
as peremptory was erroneous. The December 23, 2008 adjournment was not due to a
failure on the part of the Applicants, but rather to the absence of a Board
member to hear the claim. The Applicants should not have been deemed responsible
for this adjournment. Nor should they have been penalized for the illness of
their counsel on February 20, 2009.
[48]
The
Applicants were prejudiced as a result of the refusal to adjourn since they
made no submissions to support their claim. The Applicants were denied their
right to a fair hearing because the Board forced them to proceed without
counsel.
The
Respondent
[49]
The
Respondent submits that the Board is in the best position to gauge the
credibility of an applicant and to draw the necessary inferences: Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315. It is
not the Court’s place to substitute its discretion for that of the Board.
[50]
The
Board doubted the Applicants’ well-founded fear because they had returned from
the FDMC to Morelia. The Board
did not find it credible that the Applicants would return because of threats
against other family members.
[51]
In
the November 30th report, and in the FDMC report, the Principal Applicant
failed to mention his subsequent returns to the police. The Principal Applicant
said these omissions were an oversight. It was not unreasonable for the Board
to draw a negative inference from the omissions, since these events are
relevant to the claim.
[52]
The
Principal Applicant was working in a furniture store when the incident that
prompted him to leave Mexico occurred. It was not unreasonable for the
Board to doubt that the Principal Applicant, without being able to identify the
agents of persecution, would face ongoing threats years after his
investigations.
State
Protection
[53]
It
is presumed that the state can provide protection to its citizens: Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689. It is the Applicants’ burden to
provide clear and convincing evidence to rebut this presumption. It is not
enough for the Applicants to show that government protection has not always
been effective. The imperfection of state protection is not enough to justify a
conclusion of insufficient state protection: Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th)
334.
[54]
The
Female Applicant filed a police report on July 14, 2008 and arrived in Canada
five days later. It was reasonable for the Board to conclude that she had
concluded too quickly that no protection would be forthcoming. It was also
reasonable for the Board to doubt her subjective fear, since she did not leave
the country at the same time as her husband.
[55]
The
Board is presumed to have considered all the evidence unless the contrary is
shown. A failure to refer to all of the evidence does not mean that evidence
was ignored if the reasons suggest that the totality of the evidence was
considered. See Florea v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 598.
No Breach of
Procedural Fairness
[56]
The
Board’s decision with regard to granting adjournments is discretionary. There
is no presumption that a claimant is entitled to an adjournment. The Court
should not interfere with the refusal to grant an adjournment unless exceptional
circumstances exist. See Siloch v. Canada (Minister of
Employment and Immigration) (1993), 10 Admin L.R. (2d) 285; Pierre
v. Minister of Manpower and Immigration, [1978] 2 F.C. 849; Prassad v. Canada (Minister of
Employment and Immigration), [1989] 1 S.C.R. 560.
[57]
The
Federal Court has held that a fair hearing may occur without counsel present.
As found in Dadi v. (Canada Minister of Citizenship and Immigration) (1999),
173 F.T.R. 123, “the right to be represented by counsel is not an absolute
right. It is predicated on all parties and counsel acting reasonable in all circumstances.”
[58]
The
Board’s decision to proceed on February 20, 2009 without counsel present was
reasonable. The Applicant had been given ample time to find counsel. Moreover,
it was made clear to the Applicants that the case would proceed on this date
with or without counsel present.
[59]
The
transcript shows that the Board considered the relevant factors in determining
whether or not to exercise its discretion to refuse an adjournment. Consequently,
it was open to the Board to proceed with the hearing. See R.B. v. Canada (Minister of
Citizenship and Immigration), 2005 FC 197 at paragraph 5 and Antypov
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1589 at paragraph
7. In fact, the Court has held that “where a matter has been set for a
peremptory hearing, a postponement should be granted only in exceptional
circumstances”: Tripathi v. Canada (Minister of
Citizenship and Immigration), 2000 F.C.J. No 1232 at paragraph 11.
[60]
The
Respondent disputes the Applicants’ claim that they were not allowed to make
submissions. The Board asked the Principal Applicant if he had anything else to
say before the end of the hearing. The Board also asked the Applicants if there
was “anything I did not ask you that you want to say.”
[61]
Finally,
the Applicants’ counsel was aware that documents could be submitted to the
Board after the hearing. The Applicants had the chance to submit further
evidence.
[62]
There
is no evidence that a breach of procedural fairness occurred. The Applicants
were aware of the hearing process, and their claims were refused without error.
ANALYSIS
[63]
There
are portions of this Decision that are very difficult to understand. For
example, why does the Board find it implausible that the Principal Applicant
would be the only person at the radio station who was targeted when the Principal
Applicant testified that he was not the only person who was targeted?
The Board appears to have decided that the Applicants’ story was implausible
without addressing the significant evidence that supported their claim, and by
utilizing the evidence in an inconsistent way to support its finding of implausibility
and credibility. The Board is also inaccurate in its conclusions about some of
the Applicants’ testimony.
[64]
For
example, the Board uses a newspaper article to discredit the Principal
Applicant’s testimony that the Department of Justice he approached for
assistance refused to take a report, but the Board completely disregards the other
evidence in the same article that corroborates attacks upon the Principal
Applicant. It is not reasonable for the Board to selectively rely upon evidence
to doubt one aspect of the Applicants’ story but then to overlook the same
evidence that strongly supports the central aspects of the Applicants’ claim
relating to physical abuse in retaliation for the Principal Applicant’s radio
exposures of links between drug traffickers and police. See Tekie at
paragraph 11.
[65]
The
Board also asserts that it is not credible “that the claimant, whose wife and
children were threatened, would leave them in Mexico, precede them to Canada to
assess a country of asylum, or that the female claimant would continue to
attend predictable and regular programs like day care and school in Morelia if
their lives were in danger.”
[66]
Whether
or not this sequence of events is credible depends upon whether there were good
reasons for the Applicants to arrange their departure from Mexico in the way
they did. There is nothing inherently incredible about members of a family
leaving at different times if the exigencies of the situation call for such a
procedure.
[67]
The
Applicants provided an explanation for why they fled separately. The Board
certainly did not have to accept the explanation; but it does have to address
the actual facts of their departure and say why it disbelieves the explanation
provided. Instead, the Board simply makes a general statement to the effect
that the Principal Applicant would not have come to Canada if his wife and children
were threatened. This reveals that the Board was determined not to believe the
Applicants rather than engage with, and assess, the particulars of their
evidence. There are other credibility and plausibility findings that create the
same impression and, overall, I am left with the conclusion that the
Applicants’ evidence has not been addressed in a reasonable manner by the Board
as required by Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL) and Ali.
[68]
This
impression is confirmed by the Board’s total failure to engage with, and
address, a large body of documentary evidence that supports the Applicants’
claim including: the newspaper article; a medical report from a hospital dated
October 28, 2005 that confirmed the injuries suffered by the Principal
Applicant; a letter from a psychotherapy centre confirming further treatment
for an “acute episode paranoid” arising from the physical and psychological
injuries he had suffered; and a medical report from a nurse dated March 25,
2008, the day upon which the Principal Applicant was subjected to a “mock
execution” by persons who came to his home. There was also significant evidence
before the Board concerning the murder and disappearance of reporters who expose
drug traffickers and corrupt police, all of which evidence confirms the
Applicants’ fears but is never mentioned by the Board. The Board cannot simply
ignore evidence that contradicts its own conclusions. I must conclude that the
Board either failed to appreciate that this evidence was before it or
deliberately ignored the evidence because it did not support the Board’s own
conclusions. This was a reviewable error that renders the Decision
unreasonable.
[69]
All
in all, I am not convinced that the Board has addressed the full evidentiary
record before it. The Decision is unsafe and unreasonable and this matter must
be returned for reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
Email this Content