Date: 20071001
Docket: IMM-4409-06
Citation: 2007 FC 985
Ottawa, Ontario, October
1, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JESUS
GIRON SOBERANIS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of
decision of the Refugee Protection Division of the Immigration and Refugee Board
(the Board) dated July 17, 2006, which determined that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant seeks:
1. an order in the nature of
certiorari setting aside the decision of the Board; and
2. an order in the nature of
mandamus directing the Board to grant the applicant a new hearing before
a differently constituted panel of the Board.
Background
[3]
The
applicant, Jesus Giron Soberanis, is a citizen of Mexico. He alleged
having a fear of persecution based upon his membership in a particular social
group, namely, homosexual men. The applicant also claimed to be a person in
need of protection. The circumstances leading to the applicant’s claim for
protection were set out in his Personal Information Form narrative (PIF).
[4]
The
applicant explained that as a homosexual man, he had faced discrimination,
harassment and abuse in his home-town. His family was deeply religious and
strongly opposed to his lifestyle. He claimed to have attempted suicide as a
result of the psychological abuse he had suffered. The applicant was aware of
at least ten homosexual people killed on account of their sexual identity in
the last five years; however, nothing had been done to investigate their
deaths. The applicant moved to Acapulco in order to escape
abuse, but continued to face discrimination.
[5]
The
applicant met Oscar Irrar in January 2003, and they entered into a
relationship. The relationship started well, but became abusive. Oscar worked
for the official political party (PRI) and asked the applicant to help campaign
in the region where he used to live. The applicant’s role was to contact voters
and offer them accident insurance for school children as an incentive to vote
for the PRI. The scheme surfaced at the end of the campaign, which was
politically costly to the PRI. The applicant was suspected of having leaked
information about the vote-buying scheme.
[6]
The
applicant never told Oscar that he had mentioned the scheme to his friend,
Merced Morales. Regardless, Oscar was angry with him and beat the applicant for
ruining his political career. The applicant later heard that Merced had been
stabbed on election day, and that he might be next. He went to see his family,
however, his father had been informed of his sexual identity. The applicant’s
nephew overheard his father say that he would prefer him dead over being
homosexual.
[7]
The
applicant returned to Acapulco and was abducted by two
men. The men cut him with a razor blade and inserted a stick into his anus. He
fainted and upon awakening, sought refuge at a friend’s home. He did not seek
medical attention as he was ashamed of the incident and feared making the
situation worse. Following his friend’s advice, the applicant reported the
incident to the police. The police insulted him and laughed at the incident.
They made him wait for hours and did not take his complaint seriously, saying
that he had enjoyed the abuse. The police refused to make an official report,
therefore, the applicant and his friend left the station.
[8]
The
applicant called Oscar, who asked him if he was having fun. The applicant asked
Oscar if he was going to murder him like he had murdered Antonio. Oscar had
dated Antonio and later arranged to have him murdered. Oscar responded by
saying that the applicant knew what was going to happen to him. The applicant
did not seek protection from Oscar, because he feared revenge. In addition, he
believed that the police would not take his complaint seriously. The applicant
claimed that he feared the Mexican police because they mistreated homosexuals.
He gave several examples of such abuse.
[9]
The
applicant also claimed that he was shot at by two men in a car. When he
returned to work, a co-worker stated that two men had been looking for him.
Their description matched that of the men who had shot at him earlier. The
applicant feared for his life and prepared to leave Mexico. He fled Mexico for Canada on March 5,
2005, and claimed refugee protection on March 22, 2005. The applicant’s refugee
hearing took place on April 4, 2006, and his claim was refused by the Board, by
decision dated July 17, 2006. This is the judicial review of the Board’s
decision.
Board’s Reasons
[10]
The
determinative issues with respect to the claim were the well-founded nature of
the applicant’s fear of persecution and the availability of state protection.
The Board found that in light of documentary evidence indicating that Mexico was making
serious efforts to protect its citizens, there was no objective basis for the
applicant’s fear. On the issue of potential criminality and violence from his
former partner and fear of discrimination, the Board found that there was
adequate enforcement of laws against criminal behaviour in Mexico.
[11]
The
documentary evidence indicated that state protection was available to the
applicant in Mexico. While there
was considerable crime in Mexico, the evidence indicated that the
government was engaged in meaningful efforts to combat crime and corruption.
The Board noted that the presumption of state protection applied to Mexico, as
it was a functioning democracy (see Canada (Attorney
General)
v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1). The applicant failed
to rebut this presumption and the Board noted that local failures to provide
effective policing did not amount to a lack of state protection (see Zhuravlev
v. Canada (Minister of
Citizenship and Immigration), [2000] 4 F.C. 3, (2000) 187 F.T.R. 110
(T.D.)).
[12]
The
applicant stated that he did not seek state protection because he was afraid
that his former partner would seek revenge, and believed that the police
mistreated homosexuals. The Board found the documentary evidence more credible
than the applicant’s opinion of state protection. The evidence showed that Mexico had
legislative, enforcement and correctional institutions to protect victims of
corruption and crime. Mexico was also making efforts to end corruption
and had developed internal control mechanisms to deal with police misconduct.
[13]
The
Board found that the applicant’s failure to take any steps to ensure his own
protection was unreasonable (see Szucs v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1614 (QL)). It was noted
that state protection need not be perfect. The Board was not convinced that Mexico would not be
reasonably forthcoming with serious efforts to protect the applicant, if he
were to return there (see Zalzali v. Canada (Minister of
Citizenship and Immigration), [1991] 3 F.C. 605, (1991) 126 N.R. 126
(F.C.A.)).
[14]
The
Board acknowledged that strong homophobic sentiment existed in Mexico, which
resulted in discrimination, harassment and arrests. However, it was found that
Mexico was adequately addressing the problems faced by homosexuals through
legislative and policy efforts, and that political gains had been made by
sexual minorities in metropolitan areas. The applicant had failed to meet his
obligation to approach the state for protection, given that there was
documentary evidence to the effect that it was available. The psychological
report of Dr. Judith Pilowsky was given some weight with respect to the
applicant’s psychological state, but was not relevant to the Board’s state
protection finding. The Board concluded that the applicant was neither a
Convention refugee nor a person in need of protection.
Issues
[15]
The
applicant submitted the following issues for consideration:
1. Did the Board err in law
by making a decision in a perverse or capricious manner when it failed to
properly consider the evidence of the applicant on the record?
2. Did the Board violate the
applicant’s right to natural justice and procedural fairness when it arrived at
its decision?
[16]
I
would rephrase the issues as follows:
1. Did the Board err in
finding that state protection was available to the applicant?
2. Did the Board violate the
principles of procedural fairness by referring to an undisclosed document in
support of its decision?
Applicant’s Submissions
[17]
The
applicant submitted that the Board improperly considered evidence regarding his
efforts to seek state protection in Mexico (see Gagliano v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1629 (QL) (F.C.T.D.)).
The Board’s reasons state that the applicant did not seek state protection in Mexico. However,
the applicant’s testimony and PIF narrative show that he sought protection from
the police and explained why he did not seek further assistance.
[18]
The
applicant submitted that the Board misinterpreted his evidence in making the
following finding:
In
oral and written evidence, the claimant stated that he did not seek state
protection because he was afraid of revenge from Oscar and because he believed
that the police “mistreats gays”.
[19]
It
was submitted that the applicant’s statement was taken out of context. In
response to a question from counsel about his efforts to obtain police
protection, the applicant described the incident where he was unable to obtain
help from them. In his PIF, the applicant indicated that he feared revenge from
Oscar and believed that the police did not protect gays. The applicant submitted
that his belief that the police would not protect him was supported by his
previous experience in seeking their help.
[20]
The
applicant submitted that in light of documentary evidence indicating the police
were corrupt, it was reasonable for the applicant not to seek additional
protection after being rebuffed by the police. It was submitted that the Board
failed to consider the impact of corruption in Mexico upon the
applicant. The applicant submitted that the Board failed to give appropriate
consideration to the psychological report. It was submitted that the report
should have been given more weight, as it demonstrated the psychological impact
of the state’s failure to protect the applicant.
[21]
The
applicant submitted that the Board violated the principles of procedural
fairness by relying upon evidence that was not on the record (see Noormohamed
v. Canada (Minister of
Employment and Immigration) (1993), 67 F.T.R. 66 (F.C.T.D.); Chalal v.
Canada (Minister of
Citizenship and Immigration) (2003), 232 F.T.R. 36, 30 Imm. L.R. (3d)
17). It was submitted that the applicant did not know the case to meet and
could not reply to the undisclosed document. Further, it was submitted that
the Board breached Rule 29 of the Refugee Protection Division Rules,
S.O.R./2002-228 (the Rules) in failing to disclose the document.
Respondent’s Submissions
[22]
The
respondent submitted that there was sufficient basis without the undisclosed
document for the Board to conclude that state protection was available. It was
submitted that the applicant had not indicated how he would have presented his
claim differently had he been provided with the document, and had therefore
failed to show that he was denied procedural fairness (see Monteagudo v.
Canada (Minister of Citizenship and Immigration) (2004), 135 A.C.W.S. (3d)
904, 2004 FC 1687).
[23]
In
Noormohamed above, the undisclosed document was an important part of the
Board’s decision. In Chalal above, the decision was entirely based upon
undisclosed evidence. The respondent submitted that these cases were
distinguishable from the case at hand, since the undisclosed document was one
of many relating to the availability of state protection. Further, it was
submitted that the document was not important to the decision. In Uppal v.
Canada (Minister of
Citizenship and Immigration) (2006), 289 F.T.R. 196, 2006 FC 338, the
Court held that there was no breach of procedural fairness where the applicant
was aware of the case to meet and had been given an opportunity to participate
in the process.
[24]
The
respondent submitted that even if the Board had not referred to the document,
or had disclosed it, the decision would have been the same. It was submitted
that it was futile to allow an application for judicial review because of the
undisclosed document (see Yassine v. Canada (Minister of
Citizenship and Immigration) (1994), 172 N.R. 308, 27 Imm. L.R. (2d) 135
(F.C.A.)).
[25]
The
respondent submitted that absent a complete breakdown of the state, it was
presumed that Mexico could
protect the applicant (see Ward above). It was submitted that the
applicant was obligated to provide clear and convincing evidence to rebut this
presumption. The respondent noted that state protection could be available from
state run or funded agencies, not only the police. It was noted that the
applicant did not try to access state protection after his sole report to the
police (see Pal v. Canada (Minister of
Citizenship and Immigration) (2003), 123 A.C.W.S. (3d) 737, 2003 FCT
698). The respondent submitted that in light of the documentary evidence, it
was open to the Board to find that state protection was available to the
applicant. It was submitted that the Court should not reweigh the evidence.
[26]
The
respondent submitted that given Mexico’s status as a
democratic state, the applicant had to do more than make one report to the
police in order to rebut the presumption of state protection. It was submitted
that the more democratic a state, the more the applicant must have done to
exhaust all avenues of protection (see N.K. v. Canada (Minister of
Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532, 206 N.R. 272
(F.C.A.)). The applicant only sought protection one time in Mexico. The
respondent submitted that it was open to the Board to find that he had not
taken all reasonable steps to avail himself of state protection.
[27]
Although
the Board failed to mention the applicant’s sole attempt to seek protection, it
was submitted that it was open to the Board to find that he had failed to rebut
the presumption of state protection. The Board had noted that local failures in
policing did not amount to a lack of state protection. It was submitted that
the Board was entitled to prefer the documentary evidence regarding state
protection over that of the applicant (see Zhou v. Canada (Minister of
Employment and Immigration) (1994), 49 A.C.W.S. (3d) 558 (F.C.A.)).
Finally, it was submitted that the psychological report was irrelevant to the
Board’s finding of state protection.
Applicant’s Reply
[28]
The
applicant submitted that it was impossible to determine if the Board’s decision
would have been the same without the undisclosed document, therefore, the
decision should not be allowed to stand. In the alternative, it was submitted
that the Court should not condone the Board’s improper actions in the case. The
applicant submitted that he was not obligated to demonstrate how he would have
presented his claim differently if the document had been disclosed.
[29]
The
applicant submitted that the Board failed to understand that he sought
protection from the police and was rebuffed. It was submitted that had this
evidence been considered, the Board may have reached a different conclusion
regarding state protection. The applicant noted that the Board’s decision
failed to mention his attempt to seek police protection.
[30]
The
applicant submitted that upon a proper review of the documentary evidence, it
was not clear whether there was adequate state protection for the applicant. It
was submitted that the Board inappropriately preferred evidence in order to
support its desired conclusion. The applicant submitted that there was
sufficient documentary evidence on the record to show that the police regularly
did not protect homosexuals.
Analysis and Decision
Standard of Review
[31]
The
prevailing view is that while the underlying factual findings are subject to
the standard of patent unreasonableness, the Board's findings on the adequacy
of state protection is a question of mixed fact and law that is reviewed on a
standard of reasonableness (see Machedon v. Canada (Minister of
Citizenship and Immigration) (2004), 256 F.T.R. 211, 2004 FC 1104). It is
well established that breaches of procedural fairness and natural justice are
subject to review on a correctness standard.
[32]
Issue
1
Did the Board
err in finding that state protection was available to the applicant?
The
Board reached the following conclusion with respect to the issue of state
protection.
In this particular case, the claimant did
not take all reasonable steps. Indeed, the claimant took no steps at all.
The panel is of the opinion that the claimant ought to have shown that he had
taken all steps reasonable in the circumstances before seeking international
protection in Canada.”
(Emphasis added)
[33]
The
applicant’s PIF narrative stated the following regarding his attempt to seek
protection from the police in Mexico, following a savage beating:
The next day David asked me to go to the
police station to report the incident. I was hesitant but he insisted, so we
went. The only thing that happened at the police station was that we were
subjected to all kinds of insults and we were laughed at by the police officers
and the people who were supposed to help us. First they made us wait for three
hours and when they told us that faggots like us only caused problems and that
we liked complaining about everything except having things up the ass. When
they finally asked us to explain what had happened, they started to laugh at my
story and said that the nature of the things that had happened were not worth
the paper they were using, because we were describing something that we
certainly enjoyed. They even said that it was not their fault if the games
that we participate in sometimes get out of hand. They refused to make a
report of the incident. I was so furious and frustrated that I just asked
David to go, and we did. After that I saw no point to get protection from the
police or any other authorities.
[34]
The
applicant’s testimony regarding his attempt to seek help from the Mexican
police is as follows:
COUNSEL FOR THE CLAIMANT:
What efforts did you make to get protection from Oscar, say by going to the
police or other state officials?
CLAIMANT: Yeah, I went to the
police station.
COUNSEL: And what did they do
there when you went there?
CLAIMANT: I came to put a
denunciation about the threats and the things that he was doing to me.
COUNSEL FOR THE CLAIMANT: And
were you able to make that denunciation and get protection from Oscar?
CLAIMANT: We tried to make a
denunciation. They did not accept the denunciation.
COUNSEL FOR THE CLAIMANT: Do
you know why they didn’t accept the denunciation?
CLAIMANT: I was with a friend
and they made fun of us because we were homosexuals. They made us wait for
three hours and at the end – and we had to leave the station because they were
allowing other people to go through and not us.
COUNSEL FOR THE CLAIMANT: So
ultimately was the report taken or not?
CLAIMANT: No, they said that
they were not going to waste any paper on us, that they could not do anything
about homosexual cases and we were looking for those problems.
[35]
In
my view, the Board’s finding that the applicant made no effort to seek state
protection is clearly erroneous. The applicant’s PIF narrative and testimony
both set out the circumstances surrounding his attempt to seek protection from
the Mexican police. I would note that the Board did not make any findings with
respect to the applicant’s credibility. I believe that the Board made a patently
unreasonable finding of fact regarding this aspect of its state protection
analysis.
[36]
I
agree that a failure of state officials at the local level does not necessarily
answer the question of state protection. However, in the present case, I have
no way of knowing what the Board’s finding on state protection would have been
had the Board considered the evidence of the applicant’s experience with the
Mexican police.
[37]
Because
of my finding on Issue 1, I need not deal with the other issue.
[38]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for reconsideration.
[39]
The
applicant submitted the following question for my consideration for
certification as a serious question of general importance:
Can
the Refugee Division (the tribunal) rely on evidence it introduces after the
conclusion of the hearing without giving the claimant (applicant) a chance to
respond?
I am not
prepared to certify this question as there is already jurisprudence of this Court
on this issue.
JUDGMENT
IT IS ORDERED that the application for
judicial review is allowed and the matter is referred to a different panel of
the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
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,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
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,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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The
Refugee Protection Division Rules, S.O.R. 2002/228:
|
29.(1) If a
party wants to use a document at a hearing, the party must provide one copy
to any other party and two copies to the Division, unless these Rules require
a different number of copies.
(2) If the
Division wants to use a document at a hearing, the Division must provide a
copy to each party.
(3) Together
with the copies provided to the Division, the party must provide a written
statement of how and when a copy was provided to any other party.
(4) Documents
provided under this rule must be received by the Division or a party, as the
case may be, no later than
(a) 20 days
before the hearing; or
(b) five days
before the hearing if the document is provided to respond to another document
provided by a party or the Division.
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29.(1)
Pour utiliser un document à l'audience, la partie en transmet une copie à
l'autre partie, le cas échéant, et deux copies à la Section, sauf si les
présentes règles exigent un nombre différent de copies.
(2)
Pour utiliser un document à l'audience, la Section en transmet une copie aux
parties.
(3)
En même temps qu'elle transmet les copies à la Section, la partie lui transmet
également une déclaration écrite indiquant à quel moment et de quelle façon
elle en a transmis une copie à l'autre partie, le cas échéant.
(4)
Tout document transmis selon la présente règle doit être reçu par son
destinataire au plus tard:
a)
soit vingt jours avant l'audience;
b)
soit, dans le cas où il s'agit d'un document transmis en réponse à un
document reçu de l'autre partie ou de la Section, cinq jours avant
l'audience.
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