Date:
20091126
Docket: IMM-1762-09
Citation:
2009 FC 1215
Ottawa, Ontario,
November 26, 2009
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
MARIA
ADRIANA TORRES MARTINEZ
CANDIDO JULIAN TORRES MARTINEZ
ANGEL ADRIAN TORRES TORRES
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In June
2007, Ms. Torres Martinez was on a sidewalk with her son Angel, who
was then nine months old, when she was approached by two men. One of them tried
to make off with her bag, to distract her, while his accomplice tried to take
the baby. Fortunately, they did not succeed. She went to the police, but she
remembered only that one of the assailants had a moustache.
[2]
Several
disconcerting events occurred over the next few days. A “photographer” came to
Ms. Torres Martinez’s door and offered to photograph her baby free of
charge. Fearing that this might be related to the attempted kidnapping, she
went to her mother’s home. When she returned, a neighbour told her that someone
had come to her door again to take photographs of her son. She also received
several bizarre telephone calls.
[3]
Ms. Torres
Martinez and her son left Mexico and came to Canada on July 17. Her husband
Candido joined them on August 5. They all claimed refugee protection in Canada.
[4]
After
Ms. Torres Martinez arrived in Canada, her sister-in-law gave her the name of
a Mr. Hernandez who had threatened Mr. Torres Martinez’s
brother. Later, Ms. Torres Martinez saw a photograph of this
Mr. Hernandez. She recognized him as one of the men who had tried to
kidnap her son. She amended her PIF, describing Mr. Hernandez as “Ugo”
instead of giving his family name.
[5]
The
Refugee Protection Division (RPD) of the Immigration and Refugee Board (the
panel) rejected their claim. The panel concluded that the account was not
credible and accordingly rejected the claim for refugee protection. This is an
application for judicial review of that decision.
STANDARD OF REVIEW
[6]
The
standard of review for findings of credibility is reasonableness (Dunsmuir v.
New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
ANALYSIS
[7]
I am of
the opinion that the application for judicial review must be allowed.
[8]
First, the
panel concluded that the applicant was not credible based on the fact that she
said the attempted kidnapping took place in June 2006. The panel noted that
Angel had not yet been born in June 2006. When Ms. Torres Martinez was
questioned about this, she acknowledged that she had been mistaken: the events
in question took place in June 2007. She explained her mistake by saying that
she was confused because she was recounting her story and the sequence of
events as they related to her pregnancies. Rejecting that sensible explanation,
as the panel did, was not reasonable.
[9]
Second,
the panel was of the opinion that the fact that the applicant stated that she
had filed complaints twice with the police while her husband claimed to have
filed six complaints undermined the applicant’s credibility. It seems to me to
be plausible that Mr. Torres Martinez would have filed six complaints
without him or his wife lying: he went to the police twice with his wife, as
she asserted, and four other times with his brother, whom they believed to have
been the target of separate threats. It is unreasonable to conclude from this
that Mr. and Ms.Torres Martinez are not credible.
[10]
Third, the
panel drew negative conclusions regarding Ms. Torres Martinez’s
credibility from the fact that she used several names to refer to Mr. Hernandez
(Ugo, Eduardo and Lalo) and did not know a lot of details about his life. I do
not see what the importance is of knowing Mr. Hernandez’s given name. Ms. Torres Martinez
did not know that Mr. Hernandez was a former police officer, although that
was stated in an article she submitted to the panel. However, while that
article stated only that Mr. Hernandez was involved in criminal
activities, Ms. Torres Martinez added that this referred to drug
trafficking. She stated that her brother-in-law had given her that information.
I do not see how these small details could reasonably have affected
Ms. Torres Martinez’s credibility.
[11]
Fourth,
the panel did not analyze whether state protection was available and whether
there was an internal flight alternative. The panel suggested that once Ms. Torres Martinez
had discovered Mr. Hernandez’s identity, she could have gone back to the
police, but went no further. The panel did not analyze whether, in view of that
information, Mexico was able to protect Ms. Torres Martinez
or there was an internal flight alternative. It should have done that.
ORDER
FOR THESE REASONS,
THE COURT ORDERS that
- The application for judicial review
is allowed.
- The matter is referred back to the
panel for rehearing. The panel will consider whether state protection is
available and whether there is an internal flight alternative.
- There is no serious question of
general importance to be certified.
“Sean Harrington”
Certified
true translation
Brian
McCordick, Translator
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