Date: 20110704
Docket: IMM-5539-10
Citation: 2011 FC 815
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, July 4,
2011
PRESENT: The Honourable
Mr. Justice Lemieux
BETWEEN:
PEDRO
CERVANTES YANEZ
MARIA AMANDA BARAJAS
GARIBAY
PEDRO ALEXIS CERVANTES
BARAJAS
DIEGO IVAN CERVANTES
BARAJAS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a member of the Refugee Protection Division of the Immigration and Refugee
Board
(panel) submitted in accordance with subsection 72(1) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27.
[2]
The
applicants are members of the same family and are all Mexican citizens. The
panel rejected their refugee claim solely on the basis of an internal flight
alternative (IFA) in one of three cities: Mexico City, Monterrey or Merida, places
far from the cities of Guadalajara and Santiago, in which reside the agents of
persecution, two judicial police officers and two attorneys within the Office
of the Public Prosecutor, four corrupt people involved in the drug trade,
according to the applicants. Their daughter’s refugee claim was withdrawn in
advance of the hearing before the Board; she lives in the United States.
[3]
The
source of the applicants’ persecution lies in the complaint that the principal
applicant, Pedro Cervantes Yanes, filed with the Office of the Public
Prosecutor
for the
city of Guadalajara against police officers Lopez and Hernandez, who were
extorting from him. The principal applicant said that they threatened,
kidnapped, tortured and attempted to murder him. He managed to escape and flee
Mexico for Canada, where he was joined by his family members after his daughter,
Amanda Priscila Cervantes Barajas, was raped by Officer Hernandez.
[4]
The
applicants’ credibility was not tainted despite the fact that the panel, in its
decision, had some reservations. The existence of an IFA was determinative for the
panel.
[5]
Counsel
for the applicants raises one issue against the panel’s decision. She argues
that the panel disregarded evidence that police officers Lopez and Hernandez would
easily be able to locate the applicants if they returned to live in Mexico
given that the police have access to government databases containing their contact
information. She cites the recent decision of my colleague, Justice Michel Shore, in
Vargas v. Canada (Citizenship and Immigration), 2011 FC
543.
[6]
In
this case, the panel stated the following:
[30] With respect to an IFA, the
claimants’ evidence is that the agents of persecution are localized. The
principal claimant testified that both Hernandez and Lopez are located in
Guadalajara, where they also work, as are Norma Hernandez Reyes and Flavio Gonzales Lopez
from the Attorney General’s office in Jalisco, who they also allegedly fear.
. . .
[34] I also find the claimants’
belief that they would be located elsewhere in Mexico through their use of
identity documents to obtain employment, make payroll deposits and to services
such as telephones is not compelling. The principal claimant also testified that
the agents of persecution would use their governmental authority to access all
of the databases and find them. These concerns are largely speculative, in
light of the principal claimant’s evidence that he based his knowledge that the
agents of persecution could access databases from what he had seen on the news,
and by what the agents of persecution had told them. It is particularly
speculative, given the absence of evidence that the agents of persecution have
used or accessed such information in the past. . . .
[7]
The
applicants submitted as evidence Exhibits P-14 and P-15 (Tribunal Record, at
pages 428 to 433), two documents from El Universal.com.mx, dated April
19 and 21, 2010, respectively, that show the existence of an illegal trade in
personal information from databases that gang members and the police can access.
[8]
In C.M.M.V.,
above, Justice Shore wrote the following:
[17] In addition, the Applicants
submitted newspaper articles from La Presse, The Globe and Mail, The Toronto Star, The
National Post, Embassy Mag, El Confidential, El Universal,
CNN.com and The Guardian (Tribunal Record (TR) at p 264 and
following). The objective evidence clearly demonstrates that the Applicants’
persecutors are well organized and extremely dangerous. Drug cartels in Mexico
are structured, powerful organizations. As an example, The Guardian’s
article “The Zetas: gangster kings of their own brutal narco-state” explains:
The crucial point about the “relative
peace” in areas held by the Zetas is that it is peace whereby the cartels
controls every fact of life, is uncontested by its rivals and presides over an
omnipresent reign of terror.
(TR a p 381)
[18] In addition, at the hearing,
the principal Applicant explained that their persecutors were collaborating
with corrupt police officers; and, that their persecutors would, therefore, be
able to find them anywhere in Mexico (TR at p 428). The Applicants testified that
their persecutors could easily obtain their address, phone number, credit cards
and other personal information. Since the credibility of the Applicants had
been accepted by the Board, the matter becomes self-evident.
[19] In the present case, the Board
failed to explain why it did not accept the pertinent evidence which fully
supported the Applicants’ arguments. This failure constitutes a reviewable
error. The Court, thus, acknowledges that this case, within its particular
context and distinct evidence, requires a more significant analysis. The Board
was under obligation to explain why it had ignored evidence which corroborated
the Applicants’ allegations.
[9]
I
believe that the case before me is identical.
[10] For these
reasons, the application for judicial review will be allowed.
[11] No question of
importance was raised by the parties.
JUDGMENT
The
application for judicial review is allowed. The decision dated
August 25, 2010, by a member of the Refugee Protection Division of the
Immigration and Refugee Board is set aside and the matter is referred back to a
differently constituted panel of the Board for redetermination.
“François
Lemieux”
Certified
true translation
Janine
Anderson, Translator
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