Date: 20091021
Docket: IMM-2199-09
Citation: 2009 FC 1065
Toronto, Ontario, October 21,
2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
YENI
HERNANDEZ PEREZ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Refugee
law does not require altruism from those who seek protection from persecution nor
does it exclude those who publicize their fears.
[2]
In
this case, the Board member repeatedly criticized the applicant’s recourse to the
media to call attention to her victimization. The member’s comments that the
applicant “failed frequently to address corruption before it affected her”,
used “duplicity and threats” to press her case and lacked “altruistic intent”,
reflect judgments about the applicant’s integrity that are legally irrelevant
and taint the entire decision.
[3]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board of
Canada (the Board) dated April 8, 2009, wherein it was determined that the
applicant was not a Convention refugee and not a person in need of protection.
These are my reasons for determining that the application must be allowed and
the matter reconsidered by a differently constituted Panel.
Background
[4]
Ms.
Yeni Hernandez Perez, the applicant, a member of the judicial police in the Mexican State of Hidalgo was fired
when she refused the sexual advances of the Director of the Ministerial Police.
The applicant made a formal denunciation with the Attorney General’s Office in
which she sought to have the Director summonsed to answer to the charge. She
also sought reinstatement to her position.
[5]
Instead
of reinstatement, state agents including the Director himself initiated a
campaign to silence her through threats to her life.
[6]
The
Attorney General advised the applicant he was working to get her job back but
the applicant felt he was lying to her and so she went to the media. Friends
and relatives held a protest in support of the applicant in front of government
offices and her case became well known. She gained access to the Governor to
press her case but was ultimately advised to leave the country as he could not
help her. The applicant testified that her resolve remains to be reinstated and
to have her denunciation of the Director result in his prosecution.
Decision Under Review
[7]
The
member found that the applicant had failed to rebut the presumption of state
protection with clear and convincing evidence and that her attempts to seek
state protection had been hindered by a lack of supporting evidence and her reliance
on media exposure to press her case.
[8]
The
member stated that there is a well-defined process to be followed when
reporting corruption in Mexico. The Member found that the applicant
would have known of the Ministry of the Public Service (SFP) and its
responsibilities and would have been better served if she would have sought the
assistance of this institution instead of approaching the media with her
allegations.
[9]
It
was determined that if the applicant feared a high level director of the police
as an agent of persecution, it was a contradiction of that fear that the
applicant sought media exposure naming him openly before seeking international
protection.
[10]
The
member was not persuaded that the applicant was motivated solely by altruism
and questioned her integrity in going to the media instead of approaching the
appropriate authorities. The member questioned the applicant’s claim that her
intent was to be reinstated so as to address corruption in the police force.
Issues
[11]
The
sole issue is whether the member erred in her consideration of the availability
of state protection in Mexico.
Analysis
[12]
Several
decisions of this Court have held that Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] S.C.J. No. 9, has not changed the law in respect of factual
findings subject to the limitation in paragraph 18.1(4)(d) of the Federal
Courts Act: De Medeiros v. Canada (Minister of Citizenship and
Immigration), 2008 FC 386, [2008] F.C.J. No. 509; Obeid v. Canada
(Minister of Citizenship and Immigration), 2008 FC 503, [2008] F.C.J. No.
633; Naumets v. Canada (Minister of Citizenship and Immigration), 2008
FC 522, [2008] F.C.J. No. 655. It has also been held that a tribunal’s decision
concerning questions of fact is reviewable upon the standard of reasonableness:
Sukhu v. Canada (Minister of Citizenship and Immigration), 2008 FC
427, [2008] F.C.J. No. 515.
[13]
The
Board member’s analysis of the evidence and exercise of discretion are central
to the member’s role as a trier of fact. As such, these findings are to be
given significant deference by the reviewing Court. The member’s factual findings
should stand unless the reasoning process was flawed and the resulting decision
falls outside the range of possible, acceptable outcomes which are defensible
in respect of the facts and the law: Dunsmuir, supra, at para. 47.
[14]
In
a case such as this, there might be more than one reasonable outcome. As long
as the process adopted by the member and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome: Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12,
at para. 59.
[15]
I
agree with the respondent that this Court has found that state protection is
available in Mexico despite evidence of high levels of corruption within public
authorities such as the police: Santiago v. Canada (Minister of Citizenship
and Immigration), 2008 FC 247, [2008] F.C.J. No. 306; De La Rosa v.
Canada (Minister of Citizenship and Immigration), 2008 FC 83, [2008] F.C.J.
No. 98; Guzman v. Canada (Minister of Citizenship and Immigration), 2008
FC 490, [2008] F.C.J. No. 624; Ortiz Juarez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 288, [2006] F.C.J. No. 365; Sanchez
v. Canada (Minister of Citizenship and Immigration), 2008 FC 134, [2008] F.C.J.
No. 182.
[16]
I
also agree with the respondent that to rebut the presumption of state
protection in the case of a democracy with a well-developed judicial and
protective apparatus, claimants face a heavy burden of proving that they
exhausted all the possible protections available to them and will be exempted
from this obligation to seek state protection only in the event of exceptional
circumstances: Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171, [2007] F.C.J. No. 584.
[17]
I
would not interfere with the decision in this case but for my conclusion that the
member unreasonably discounted the efforts made by the applicant to seek state
protection and put too much emphasis on the manner in which the applicant
pressed her case for recourse.
[18]
The
member’s reference to a “single” denunciation ignores the evidence. The
applicant made repeated attempts to get the authorities to hear her case and to
protect her. Her efforts led directly to the State Attorney General whom she
met with on several occasions over the course of three months. She reported
repeated threats to herself and her family to the police. Eventually, the
applicant took her case to the State Governor following which she was advised
to leave the country.
[19]
In
her decision, the member suggests that the applicant should have sought the
intervention of the Ministry of the Public Service (SFP), a federal agency.
According to the documentary evidence, the SFP is mandated with the monitoring
and oversight of anti-corruption efforts in the federal public service.
[20]
The
member states that “[t]he claimant might have been better served to seek this
institution instead of approaching the media … Her employment and contacts
indicate that she would know of this Ministry and its responsibilities”. There
are two problems with this suggestion. The first is that it was made without
any analysis of whether the SFP would have a role to play in a case involving Hidalgo state
authorities. The evidence in the record does not contain any information to
indicate that the SFP would protect the applicant, in theory or in practice.
The second problem is that the applicant was given no opportunity to explain
why she did not approach the SFP as no question was put to her about this
during the hearing.
[21]
The
claimant was not required to show that she has exhausted all avenues of
protection but rather, that she has taken all steps that are reasonable in the
circumstances. On the evidence, requiring that the applicant approach the SFP
before seeking international protection was not objectively reasonable.
[22]
I
am also troubled by what counsel characterized as a “biting cynicism” in the
member’s discussion of the core elements of the claim. Without making a
credibility finding, the member was evidently sceptical that the sexual
harassment had occurred. But she does not directly address that question,
preferring to insinuate that the allegation was “unsubstantiated” and hence
unfounded and that the applicant would not have acted as she did, “if” she
actually feared the Director. A clear finding on this issue would have been
more consistent with the principles of justification, transparency and
intelligibility as per Khosa, supra, at para. 59.
[23]
In
conclusion, I find that the reasoning process employed by the member was flawed
and the resulting decision falls outside the range of possible, acceptable
outcomes. Consequently, it is open to this Court to intervene. For these
reasons, the decision of the RPD is vacated and Ms. Perez’s case is remitted to
the Board to be assessed by a differently constituted panel.
[24]
Neither
party proposed a serious question of general importance for certification.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that this application is allowed and the matter is
remitted to the Board for consideration by a differently constituted panel. No
questions are certified.
“Richard G. Mosley”
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