Date: 20110725
Docket: IMM-7069-10
Citation: 2011 FC 926
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, July 25, 2011
PRESENT: The Honourable
Madam Justice Bédard
BETWEEN:
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JORGE OCTAVIO PINEDA
SANCHEZ, MARIELA RIVERO MURILLO, MAYRA KAREN PINEDA RIVERO, LISSET MARIEL
PINEDA RIVERO, JORGE LUIS PINEDA RIVERO
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by the
Immigration and Refugee Board (Board) dated November 10, 2010, that the
applicants are not refugees or persons in need of protection.
I. Background
[2]
The
applicants are citizens of Mexico. The claim of the male applicant’s
spouse, Mariela Rivero Murillo (female applicant), and of their children is
based on that of the principal applicant, Jorge Octavio Pineda Sanchez (male
applicant), and on the events that occurred after the male applicant left Mexico.
[3]
The male
applicant’s refugee claim was based on the following allegations.
[4]
The male
applicant worked as a self-employed driver for the Mexico-Tultepec automotive
transportation cooperative company (the cooperative), located in Villa de las
Flores, municipality of Coacalco, State of Mexico, starting in 2000. The cooperative
was in a conflict situation with the Mexican Social Security Institute (IMSS)
because it had failed to remit the contributions collected from its drivers. In
November 2005, the IMSS seized property belonging to the cooperative as well as
trucks belonging to drivers. Some drivers filed complaints. The heads of the cooperative
then hired lawyers to contest the seizure, and forced the drivers to help pay the
lawyers’ fees. At a certain point, the male applicant and other coworkers
noticed that the IMSS officials who had seized the property and the representatives
of the cooperative seemed to be in collusion. The male applicant voiced his
discontent and the situation with the heads of the cooperative became adversarial.
[5]
In March
2007, the male applicant quit his job because of the conflicts and because he
feared for his life. He left to run a business with the female applicant. When
the male applicant quit, the cooperative owed him severance pay for his years
of service. On February 18, 2008, the male applicant was called to a general
meeting of the cooperative in which several employees participated. They were
to discuss, among other things, the amounts that were to be paid as severance
pay. During this meeting, the male applicant was informed that the cooperative
would not be paying him the amounts owing because of problems within the cooperative
and a lack of funds.
[6]
The
meeting between the workers and the heads of the cooperative was heated. During
the meeting, the male applicant took exception to the cooperative’s position
and threatened to file a complaint to reveal the embezzlement committed by the heads
of the cooperative and of the IMSS. He also distributed a confidential document
that he had managed to obtain, listing the cooperative’s debts to the IMSS and mentioning
a possible agreement on the repayment of the cooperative’s debt to the IMSS that
the cooperative had refused to sign. At the end of the meeting, the male
applicant was threatened by cooperative officials. The male applicant states that
[TRANSLATION] “they threatened [him] by telling [him] that if this got
complicated, there would be consequences.”
[7]
Two days
later (on February 20, 2008), three individuals showed up at his business with
firearms and threatened him with death. The threats were also directed at his
family. The applicants took refuge with an aunt of the female applicant for two
days and, on February 22, 2008, they went to Tomatlan, State of Veracruz, to the home of a cousin of
the female applicant. The male applicant left Mexico on March 6, 2008, to come to Canada. The female applicant stayed
in Mexico until May 6, 2008.
[8]
After the male
applicant’s departure, the female applicant and her children continued to live
with her cousin. On April 4, 2008, the female applicant was accosted by two
individuals in the municipality of Cordoba,
State of Veracruz, where she had found work. The
individuals showed her a photo of the male applicant and asked her
[TRANSLATION] “Do you know him? Do you have a relationship with him? Is this
your husband?”. The individuals uttered death threats against her and told her
that she was going to be sorry if she did not tell them the truth. After that
incident, the female applicant decided to join her husband in Canada with her children and seek
refugee protection.
II. The Board’s decision
[9]
The Board
did not question the applicants’ credibility. It found that the applicants were
not refugees because their fear did not fall under any of the five Convention
grounds. It then analyzed the refugee protection claim under subsection 97(1)
of the IRPA and rejected the claim on the ground that there was an internal
flight alternative (IFA) for the applicants. The Board identified the city of
Merida in Yucatan and the Federal District of
Mexico as IFAs.
[10]
The Board
found that the applicants had not established, on a balance of probabilities,
that they could not live safely in the two locations identified. The Board’s
finding is based on the following:
a. The
Board found that the available evidence showed that the claimants’ problems
were in Ecatepec, in the State of Mexico, where the male applicant was living
with his family.
b. The Board noted that the male
applicant had left his job in March 2007 and had had no problems between March
2007 and February 2008. The Board therefore concluded that when the male
applicant cut ties with the cooperative, his problems stopped.
c. The Board analyzed the
documentary evidence that was contradictory and accepted the evidence
supporting the claim that it was difficult to trace individuals using
government databases. The Board inferred from that that the documentary
evidence did not indicate that the applicants would be traced in the Federal
District of Mexico or Merida.
d. As for the reasonableness of
the proposed IFA, the Board found that, aside from the male applicant’s
statement, it had no credible information suggesting that the applicants would
be traced in the Federal District of Mexico or Merida in Yucatan.
e. The Board found that the
evidence did not indicate that the heads of the cooperative could easily trace
the applicants or that they would have an interest in pursuing them in the cities
identified as IFAs. The Board added that it seemed highly unlikely that the heads
of the cooperative would be interested in the applicants, particularly since
the applicants had not filed a complaint about the embezzlement they had
witnessed and the threats they had received.
III. Issue
[11]
This
application for judicial review raises the following issue:
Did the Board err in its assessment of
the evidence that led to the finding that there was an IFA for the applicants?
IV. Standard of review
[12]
It is
settled law that the standard of review applicable to the Board’s finding of an
IFA is reasonableness (Guerilus v. Canada (Minister of Citizenship and Immigration),
2010 FC 394 at para. 10 (available on CanLII); Krasniqi v. Canada (Minister
of Citizenship and Immigration), 2010 FC 350 at para. 25 (available on CanLII);
Martinez Ortiz v. Canada (Citizenship and Immigration), 2011 FC 726 at para.
10 (available on CanLII); Ramos Villegas v. Canada (Minister of Citizenship
and Immigration), 2011 FC 699 at para. 11 (available on CanLII)).
[13]
The same
standard applies to the Board’s assessment of the evidence. The Court owes
deference to the Board’s findings and will intervene only if the Board’s
findings are perverse or capricious or made without regard for the evidence (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 39).
V. Analysis
[14]
The
applicants argue that the Board made several errors in its assessment of the
evidence. They contend, among other things, that the Board failed to consider
and/or address evidence that clearly contradicts its findings that the
applicants’ problems were local and that the heads of the cooperative would
have neither the ability nor the interest in tracing the applicants in the
Federal District of Mexico or in the city of Merida, in Yucatan. The applicants also maintain that the
Board made an unreasonable assessment of the evidence by finding that the
applicants’ problems stopped when the male applicant quit his job in March
2007. The applicants also argue that the Board made an unreasonable assessment
of the documentary evidence concerning the possibilities of tracing individuals
through national registries.
[15]
The
respondent argues that the Board’s analysis of the evidence and the conclusions
it drew from it are entirely reasonable and fall within the range of possible
outcomes with regard to the evidence adduced. In addition, the respondent
maintains that it must be understood from the decision that the Board found
that when the male applicant had cut ties with the cooperative in 2007, his
problems had ended and that the events of 2008 were sporadic and insufficient
to preclude an IFA.
[16]
With
respect, I consider that the Board drew inferences that cannot reasonably be
supported by the evidence and that it failed consider evidence that was
important and that is inconsistent with its findings.
[17]
It is
important to keep in mind that the Board did not question the applicants’ credibility.
This means that it believed their account, which must be accepted as fact.
[18]
The Board
found that when the male applicant had cut his ties with the cooperative, his
problems stopped. It based this conclusion on the fact that the male applicant
had no problems between March 2007 (the period when he quit) and February 2008.
[19]
The
applicants contend that this finding is unreasonable because the evidence shows
that the most serious problems that led to their leaving Mexico and seeking refugee
protection started on February 18, 2008, during the cooperative’s general
meeting. I share their opinion.
[20]
The
evidence shows that the male applicant had not cut all ties with the
cooperative in March 2007 because he was still waiting to receive the amounts
owing to him as severance pay. In February 2008, the male applicant still had
ties to the cooperative and the positions he took during the February 18, 2008
meeting rekindled his dispute with the heads of the cooperative. In addition,
the applicants’ principal allegations rely on the fact that it was the events
that occurred on February 18 and 20 and on April 4, 2008, that led them to
leave Mexico and seek refugee protection in Canada. The fact that the male applicant had no
problems between March 2007 and February 2008 is in no way determinative in the
applicants’ refugee protection claim.
[21]
The events
that took place between February and April 2008 were, moreover, highly relevant,
not only for addressing the risk alleged by the applicants, but also for
determining the IFA issue. Yet, the Board did not consider them in its
analysis.
[22]
During the
hearing, counsel for the respondent argued that the Board had mentioned the
events that occurred in February and April 2008 in its decision, which shows
that it did consider them in its analysis. She added that it must be understood
from the decision that the Board found that it was the male applicant who rekindled
his ties with the cooperative in February 2008, that the incidents were
isolated and that when the male applicant did not maintain contact with the
cooperative, his problems ended. She also noted that it must be inferred from
the decision that the Board also considered that the passage of time since the
incidents made it even less likely that the heads of the cooperative would retain
any interest in the applicants.
[23]
With
respect, that is making the decision say more than it actually says. It is true
that the Board mentioned in its decision the events that occurred during the
meeting of February 18, 2008 (paragraph 12 of the decision), the threats
received by the male applicant on February 20, 2008 (paragraph 13 of the
decision), and the incident of April 4, 2008, during which the female applicant
was accosted by individuals who asked for her husband (paragraph 14 of the
decision).
[1]
However,
it was not enough for the Board to mention these events in its summary of the facts;
it had to also consider them in its analysis, which it did not do. The case law
has established that the Board must mention in its decision the pieces of evidence
that concern an important element and that contradict the findings made by the
decision-maker. In Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R.. 35, 83
A.C.W.S. (3d) 264 (FC), Justice Evans aptly stated the applicable principles:
[15] The Court may infer
that the administrative agency under review made the erroneous finding of fact
"without regard to the evidence" from the agency's failure to mention
in its reasons some evidence before it that was relevant to the finding, and
pointed to a different conclusion from that reached by the agency….
[16] On the other hand,
the reasons given by administrative agencies are not to be read hypercritically
by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm.
L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of
evidence that they received that is contrary to their finding, and to explain
how they dealt with it (see, for example, Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be
far too onerous a burden to impose upon administrative decision-makers who may
be struggling with a heavy case-load and inadequate resources. A statement by
the agency in its reasons for decision that, in making its findings, it
considered all the evidence before it, will often suffice to assure the
parties, and a reviewing court, that the agency directed itself to the totality
of the evidence when making its findings of fact.
[17] However, the more
important the evidence that is not mentioned specifically and analyzed in the
agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.)….
[24]
In the
case at bar, the incidents of February 18, February 20 and April 4, 2008,
which, it must be remembered, must be accepted as fact, are central to the
applicants’ refugee protection claim and to their allegation that there is no
IFA for them. The Board could not simply ignore them, especially since they
tend to contradict certain findings of the Board.
[25]
The Board
also found that the evidence showed that the applicants’ problems were local
and that it did not support a finding that the heads of the cooperative had the
ability and interest to trace the applicants elsewhere than in the city of Ecatepec. This finding completely
overlooks the fact that the female applicant had been traced after the events
of February 2008 to the municipality of Cordoba, and not Ecatepec.
This is a relevant indicator as to the ability and willingness of the heads of
the cooperative to trace the male applicant and his family outside of Ecatepec.
Yet, the Board did not take these facts into account in its analysis.
[26]
I
therefore consider that the Board made errors in its assessment of the evidence
that warrant the Court’s intervention.
[27]
In view of
my finding, it is not necessary to address the alleged errors concerning the
Board’s analysis of the documentary evidence.
[28]
The
parties have not submitted any question of general importance for certification
and this matter does not give rise to any.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review is allowed and that the
matter is referred back for reconsideration by a differently constituted panel.
“Marie-Josée
Bédard”
Certified
true translation
Susan
Deichert, LLB
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