Docket: IMM-5113-10
Citation: 2011 FC 1368
Ottawa, Ontario, November 25, 2011
PRESENT: The Honourable Mr. Justice
Mandamin
BETWEEN:
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CATALINA
AVELDANO GARCIA
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Applicant
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and
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THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Ms. Catalina Aveldano Garcia applies for judicial review of
an August 18, 2010 decision of a Member of the Immigration and Refugee Board’s
Refugee Protection division (RPD) refusing her refugee claim because her claim
to fear kidnappers had no credible basis and that state protection was
available.
[2]
The RPD identified inconsistencies in Ms. Garcia’s claim
and disbelieved her testimony. The RPD found there was no credible basis for
the claim. The RPD also concluded, while there was conflicting documentary
evidence regarding the situation of domestic abuse victims, that there is
effective and adequate state protection in Mexico as the government is making a serious effort to address domestic abuse. The
RPD was satisfied that should Ms. Garcia return to Mexico and seek protection from the authorities, protection would be reasonably
forthcoming.
[3]
Ms. Garcia submits the RPD made a number of errors in fact
finding. She also submits the RPD erred in analysing the adequacy of state
protection from a domestic abuse perspective when she was a target of criminals
seeking to compel her unwilling cooperation in criminal activity by threats and
express kidnapping.
[4]
For reasons that follow, I am granting the application for
judicial review.
Background
[5]
Ms. Garcia is a citizen of Mexico from Mexico City. She had three children
with her partner, Moises Sanchez Cedillo (“Moises”) before separating in 2006.
She worked briefly as a police officer, and then began working as the manager
of collection, accounts, and payroll in her ex-partner’s office, which oversaw
the administration of condominiums where wealthy residents lived.
[6]
Moises told Ms. Garcia that he was kidnapped on July 26,
2008 while he was out with their daughter. He told Ms. Garcia she would have to
co-operate with the kidnappers or her family would be in danger. She began
receiving threatening phone calls and her car was vandalized. On July 28, 2008,
she met “El Chato” and another man whom she believed may have been Daniel
Venegas Martinez, the criminal gang leader. The men demanded she provide
financial and banking information concerning the buildings she managed.
[7]
Ms. Garcia says she was kidnapped on August 7, 2008,
stripped of outer garments, assaulted, and locked in a room. When she regained
consciousness, she escaped and went to the police, wearing only a blouse and
underwear. She had previously reported the threatening calls but not the damage
to her car. After making her report about the kidnapping, the police drove her
home. She was kidnapped again on August 10, 2008, at which time she was forced
into a car and again threatened if she did not comply. The kidnappers left her
off in a far away location.
[8]
During the course of these events, Ms. Garcia sought
counselling from her psychologist in Mexico to help her deal with the trauma. After the second kidnapping, Ms. Garcia
went into hiding and fled Mexico on September 16, 2008.
[9]
Ms. Garcia’s hearing took place over two hearings on April
29, 2010 and July 15, 2010. She claimed that she believed she was targeted
because she was a woman and vulnerable to be extorted, threatened and
victimized. She claimed that women are vulnerable in Mexico and not protected by the police.
Decision Under Review
[10]
The RPD found problems with Applicant’s credibility, as it
found she had given different answers at different times, specifically:
·
Her escape from her first kidnapping: the RPD noted that
the details as described during the counselling sessions only mentioned her waking
up on the ground, whereas her testimony and Personal Information Form (PIF)
described an escape through a window;
·
Her claim of a lack of state protection: the RPD found that
the police were willing to help her by taking her report and driving her home,
but the Applicant had not properly waited to see whether the police would help.
As such, the RPD found that this diminished the Applicant’s credibility;
·
Whether she had met Martinez;
·
Whether her daughter had been kidnapped as well as her
ex-husband since the Applicant had not mentioned in her written narrative that
her daughter had been kidnapped as well;
·
Whether the IFE database could be used to track Ms. Garcia
anywhere in Mexico. The RPD found that the
documentary evidence indicated the IFE information was strictly confidential, and therefore rejected the
Applicant’s claim that other people could access the IFE. The RPD found that this also diminished her credibility;
·
Whether her car had been damaged. The RPD found it
unbelievable the Applicant would not report this to the police and would only
report it to the insurance company.
As a result, the RPD
found there was no credible basis for the Applicant’s claim.
[11]
The RPD also considered the availability of state
protection and found that the Applicant did not provide clear and convincing
evidence that state protection in Mexico is inadequate. The RPD noted that the Applicant only made one police
report and the police co-operated with her and were willing to support her by
filing the report and driving her home. The RPD noted that she did not report
the three incidents of vandalism to her car or her second kidnapping to the
police. The RPD found that “there is no information to suggest that police
were not making genuine and earnest efforts to investigate the claimant’s
allegations and apprehend the claimant’s perpetrator. The claimant’s choice to
go into hiding and leave Mexico shortly thereafter has diminished any further state protection that may
have been forthcoming.”
[12]
Although the Applicant claimed that women in Mexico are not taken seriously and the police do not protect
them, the RPD found that the documentary evidence indicated otherwise. Mexico had enacted civil, administrative, and criminal
legislation prohibiting domestic violence against women. The RPD also briefly
noted that Mexico had enacted federal
legislation: The General Law on Women’s Access to a Life Free of Violence.
The RPD then extensively discussed the legislation put in place by Mexico to address domestic abuse.
[13]
As such, the RPD found no persuasive evidence that the
Applicant would face persecution or a risk to her life or to cruel and unusual
treatment or punishment or a risk of torture if returned to Mexico.
[14]
The RPD therefore concluded that the Applicant was not a
Convention refugee or a person in need of protection.
Relevant
Legislation
[15]
The Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] provides:
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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.
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…
107. (1) The Refugee Protection Division shall accept a
claim for refugee protection if it determines that the claimant is a
Convention refugee or person in need of protection, and shall `otherwise
reject the claim.
No credible basis
(2) If the Refugee Protection Division is of the
opinion, in rejecting a claim, that there was no credible or
trustworthy evidence on which it could have made a favourable decision, it
shall state in its reasons for the decision that there is no credible basis
for the claim.
(Emphasis added)
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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.
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,
107. (1) La Section de la protection des réfugiés accepte
ou rejette la demande d’asile selon que le demandeur a ou non la qualité de
réfugié ou de personne à protéger.
Preuve
(2) Si elle estime, en cas de rejet, qu’il n’a été
présenté aucun élément de preuve crédible ou digne de foi sur lequel elle
aurait pu fonder une décision favorable, la section doit faire état dans sa
décision de l’absence de minimum de fondement de la demande.
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The Refugee Protection Division Rules, SOR/2002-228 provides:
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7. The claimant must
provide acceptable documents establishing identity and other elements of the
claim. A claimant who does not provide acceptable documents must explain why
they were not provided and what steps were taken to obtain them.
28. (1) All
documents used at a proceeding must be in English or French or, if in another
language, be provided with an English or French translation and a
translator’s declaration.
(Emphasis added)
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7. Le demandeur
d’asile transmet à la Section des documents acceptables pour établir son
identité et les autres éléments de sa demande. S’il ne peut le faire, il en
donne la raison et indique quelles mesures il a prises pour s’en procurer.
28. (1) Tout
document utilisé dans une procédure doit être rédigé en français ou en
anglais ou, s’il est rédigé dans une autre langue, être accompagné d’une
traduction française ou anglaise et de la déclaration du traducteur.
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Standard of Review
[16]
The standard of review is reasonableness for findings on
credibility: Jiang v Canada (Minister of Citizenship and Immigration),
2008 FC 775 at paras 9-10; Higbogun v Canada (Minister of Citizenship and Immigration),
2010 FC 445 at para 21. Reasonableness is also the standard for findings of
state protection: Zepeda v Canada (Minister of Citizenship and Immigration),
2008 FC 491 at para 10.
[17]
Procedural fairness questions are reviewable on a standard
of correctness: Pacheco Silva v Canada (Minister of Citizenship and Immigration),
2007 FC 733 at para 8.
Issues
[18]
I would frame the issues as follows:
1. Did the Board err in its credibility finding?
2. Did the Board err in its analysis of state protection?
Analysis
[19]
The Applicant says she was the subject of threats and two
kidnappings. She says she escaped from the first kidnapping and was released on
the second kidnapping. She was the accounts manager of collection, accounts,
and payroll in her ex-partner’s office, which oversaw the administration of
condominiums where wealthy residents lived. She says the purpose of the
kidnappings was to force her to cooperate in providing information from the
condominium accounts she managed.
[20]
To understand the context of the Applicant’s claim of being
twice kidnapped, it is necessary to appreciate the phenomenon of express
kidnappings in Mexico. The
2009 US
Department of State Human Rights Report: Mexico describes ‘express kidnapping’ as involving detaining a victim for a
short period usually to extract payment. It reported many kidnapping cases are
unreported for fear of repercussions and remains a serious problem in Mexico.
[21]
The RPD did not believe the Applicant because it decided
her testimony about the first kidnapping was not consistent with a translated
psychologist’s report (Spanish to English). The Applicant had been seeing the
psychologist to cope with the trauma of the kidnappings and threats.
[22]
The RPD stated:
In essence, the
claimant has provided conflicting information related to her kidnapping.
Although I did not ask the claimant to explain this contradiction, it is
evident that the probative value of this information is diminished to the
misinformation provided either in her psychology report or through her
testimony and as such is given little credence by me.
[23]
The RPD also found other inconsistencies leading to its
conclusion of no credible basis.
[24]
I consider the RPD’s finding with respect to the
psychologist’s report to be crucial to its finding of no credible basis. The
report is important in that it is a report by a professional of what the
Applicant said shortly after her kidnapping.
Did
the Board err in its credibility finding?
[25]
The Applicant takes issue with the RPD’s conclusion of no
credible basis and vigorously challenges each finding of fact by the RPD.
[26]
The Respondent outlines the jurisprudence on section 107(2)
of the IRPA concerning findings of ‘no credible basis’ and points out
that the Applicant bears the onus of providing credible or trustworthy evidence
in support of their refugee claim which the Applicant has failed to do so.
[27]
The Respondent submits that the RPD properly met its
obligations; the discrepancies were not minor and dealt with the very events
central to the Applicant’s refugee claim.
[28]
The Respondent does not dispute the psychological report
that was not fully translated. The Respondent points out that the onus is on
the Applicant to provide accurate and complete documents to the RPD, and it is
the Applicant’s responsibility to provide the translated documents under the Refugee
Protection Division Rules.
[29]
The Respondent concludes that the RPD reasonably determined
on the evidence before it there was no credible or trustworthy evidence on
which a favourable decision could be made.
[30]
In Sheikh v Canada (Minister of Employment and Immigration),
[1990] 3 FC 238 (CA), the Court wrote:
The concept of
"credible evidence" is not, of course, the same as that of the credibility
of the applicant, but it is obvious that where the only evidence before a
tribunal linking the applicant to his claim is that of the applicant himself
(in addition, perhaps, to "country reports" from which nothing about
the applicant's claim can be directly deduced), a tribunal's perception that
he is not a credible witness effectively amounts to a finding that there is no
credible evidence on which the second-level tribunal could allow his claim.
(Emphasis added)
[31]
Ouedraogo v Canada (Minister of Citizenship and Immigration),
2005 FC 21 also provides a useful description of no credible evidence. At paragraph
18 the Court sated:
18 In Rahaman
v. Canada (Minister of Citizenship and Immigration), the Federal Court of
Appeal stated that, if there is no credible evidence on which the Board can
rely in acknowledging refugee status, a determination that there is no credible
basis is justified:
Finally, while I have
not been able to accept the position advanced by counsel for Mr. Rahaman in
this appeal, I would agree that the Board should not routinely state that a
claim has "no credible basis" whenever it concludes that the claimant
is not a credible witness. As I have attempted to demonstrate, subsection
69.1(9.1) requires the Board to examine all the evidence and to conclude
that the claim has no credible basis only when there is no trustworthy or
credible evidence that could support a recognition of the claim.
For these reasons, I
agree with Teitelbaum J. that, having considered the oral and documentary
evidence before it, the Board committed no reviewable error in stating that Mr.
Rahaman's claim lacked a credible basis. Accordingly, I would dismiss the
appeal and answer the certified question as follows:
Whether a finding that
a refugee claimant is not a credible witness triggers the application of
subsection 69.1(9.1) depends on an assessment of all the evidence in the case,
both oral and documentary. In the absence of any credible or trustworthy
evidence on which each Board member could have determined that the claimant was
a Convention refugee, a finding that the claimant was not a credible witness
will justify the conclusion that the claim lacks any credible basis.
[Emphasis in original]
[32]
The RPD read the Applicant’s description in the psychologist’s
notes of her escape in a way to believe the Applicant was left injured on the
ground which differed from her testimony about escaping through a window.
However, the translation was obviously incomplete. The psychologist’s notes
continue in Spanish to account the details of her escape corresponding to the
Applicant’s testimony.
[33]
The error in translation is obvious on its face. The
English translation of the Applicant’s August 8, 2008 session with the
psychologist is approximately one page in length and ends in mid-sentence. The
Spanish original is two and one half pages in length.
[34]
The RPD discounted the occurrence of the kidnapping, the
core element of the Applicant’s claim, on the basis of an incomplete
translation and found a non-existent inconsistency since the Spanish report
corresponds to the Applicant’s testimony. Moreover, the RPD acknowledges its
failure to bring the contradiction to the Applicant’s attention.
[35]
I find the Applicant was not given the opportunity to
explain this apparent contradiction.
[36]
In Muthusamy v Canada (Minister of Employment and Immigration),
[1994] FCJ No 1333 at paragraph 4, Justice Cullen wrote:
Moreover, the Board
drew an adverse inference from the lack of proper translation of the
Applicant's identification documents. During the course of the hearing, it
failed to bring this matter to the attention of the Applicant. It is a
well-settled principle of natural justice that one must know the case to meet.
If the Board was to rely on the translated identity documents but had concerns
about the accuracy of the translation and their authenticity, they had a duty
to alert the Applicant. To not do so and then base their decision on an issue
to which the Applicant did not reply, is a breach of natural justice.
(Emphasis added)
[37]
In Santos v Canada (Minister of Citizenship and
Immigration), 2004 FC 937 at paragraph 18, Justice Mosley also found that
the RPD should have alerted the Applicant to concerns that it had about the
reliability of the Applicant’s documentary evidence, which was significant to
the Applicant’s claim.
[38]
The RPD attempts to excuse this error by claiming it to be
a minor inconsistency which it could have accepted but not for other
inconsistencies, but clearly the RPD used this to show the Applicant’s claim
lacks a credible basis. The RPD cannot rely on this to ground an adverse
finding against the Applicant and then claim that it is too minor to constitute
an error in procedural fairness.
[39]
The RPD’s failure to confront the Applicant with the
contradiction and provide her with an opportunity to remedy the error in
translation is a reviewable error.
[40]
I also find problematic the RPD’s use of the “no credible
basis” provision. The record, in matters such as the security of the police IFE system, discloses contrary evidence was submitted to the
RPD. The RPD must weigh the evidence, choosing one over the other. This does not
mean that there is a complete absence of credible evidence for the claim made,
particularly given that the substantial aspects of the Applicant’s story are
corroborated in her PIF, her oral testimony, the police denunciation and the
psychological report taken mere days after the reported kidnapping.
State
Protection
[41]
The Applicant challenges the RPD’s finding there is
adequate state protection.
[42]
The Respondent responds that the Applicant has not met her
burden to show that she was unable to obtain state protection. The Respondent
points out that the one time the Applicant sought state protection, it was
forthcoming because the police registered a report and drove the Applicant
home. Instead, the Respondent argues, that the Applicant made no effort to follow
up with the police. She went into hiding just one week after she made the
police report and left Mexico one month after that. The Applicant must make
reasonable efforts to seek state protection: Romero v Canada (Minister of Citizenship and
Immigration), 2008 FC 977 at para 25.
[43]
The test for state protection is described in Flores v Canada (Minister of Citizenship and
Immigration), 2008 FC 723 at paragraph 10:
As noted by the
Federal Court of Appeal in Carillo, the decision of the Supreme Court in
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 stressed that
refugee protection is a surrogate for the protection of a claimant's own state.
When that state is a democratic society, such as Mexico, albeit one facing
significant challenges with corruption and other criminality, the quality of
the evidence necessary to rebut the presumption will be higher. It is not
enough for a claimant merely to show that his government has not always been
effective at protecting persons in his particular situation: Canada (Minister
of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R.
(2d) 130 (F.C.A.).
(Emphasis added)
[44]
The Applicant submits that the threshold for state
protection is not the same for all democracies, especially in the case of Mexico. The Applicant argues that it is only incumbent on
claimants to seek protection if it is seen as being reasonably forthcoming:
Chagoya v Canada (Minister of Citizenship and Immigration), 2008 FC 721 at
para 5; Shimokawa v Canada (Minister of Citizenship and Immigration),
2006 FC 445 at para 21; Mendoza v Canada (Minister of Citizenship and
Immigration), 2008 FC 795 at para 16.
[45]
It is unnecessary for me to assess the question of the
degree of state protection in Mexico as I conclude the RPD failed to examine whether the police can offer
adequate protection to a woman targeted by a criminal kidnapping gang such as
the Applicant claims.
[46]
The RPD instead focused on Mexico’s efforts to assist women who have been subjected to domestic abuse from
their spouses. This analysis does not address the Applicant’s situation since
her persecutors are organized criminals.
[47]
The RPD made only cursory reference to The General Law
on Women’s Access to a Life Free of Violence which requires federal and
local authorities to prevent, punish, and eradicate violence against women. It
failed to have regard to evidence about whether that law has been implemented
or delayed notwithstanding there was documentary evidence on that subject. Nor
did the RPD consider the problems of kidnapping in Mexico which the 2009 US Department of State Human Rights Report
on Mexico describes as a serious problem in Mexico.
[48]
I find the RPD misdirected itself on the question of state
protection and failed to conduct a state protection analysis relevant to the
Applicant’s claim and circumstances.
Conclusion
[49]
I conclude the RPD breached procedural fairness when it
failed to provide the Applicant an opportunity to explain the apparent
contradiction between the incomplete translation of the psychologist’s report
and her testimony.
[50]
I further find the RPD’s analysis of state protection was
unreasonable as it focused on the issue of state protection with respect to
domestic abuse instead of state protection against criminal activity as claimed
by the Applicant.
[51]
The application for judicial review is granted and the
matter will be remitted back for re-determination by a different decision
maker.
[52]
Neither the Applicant nor the Respondent has proposed a
question of general importance and I certify none.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is granted
and the matter will be remitted back for re-determination by a different
decision maker.
2. I do not certify any question of general
importance.
“Leonard S. Mandamin”
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