Date: 20080221
Docket: IMM-5785-06
Citation: 2008
FC 235
Ottawa, Ontario, February 21, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
KEMEL MENA NARVAEZ; ILEANA
AGLAE
CASTILLO DE MENA; SAHAFADI EMIR MENA
CASTILLO;
DELFINA SALEH MENA CASTILLO;
KEMEL ADALIO MENA CASTILLO
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Minister of Citizenship and Immigration (the “Applicant”) seeks judicial review
of the decision of the Immigration and Refugee Board, Refugee Protection
Division (the “Board”), dated September 29, 2006. In its decision, the Board
determined that Mr. Kemel Mena Narvaez, his wife Ileana Aglae Castillo de Mena
and his children Sahafadi Emir Mena Castillo, Delfina Saleh Mena Castillo and
Kemel Adalio Mena Castillo (the “Respondents”) were persons in need of
protection, although not Convention refugees, and accepted their claims.
[2]
The
Respondents are citizens of Mexico. The Principal Respondent was
involved in the cattle business. In 1985, he entered into partnership with Mr.
Diaz. According to his Personal Information Form (“PIF”) narrative, the
Principal Respondent began encountering problems with members of the Diaz
family. The problems included an assault upon the Principal Respondent at his
office. One of the employees of the Principal Respondent was assaulted at the
same time. The incident was reported in a local newspaper.
[3]
The
Principal Respondent and his family suffered from other forms of harassment,
including telephone calls to the Principal Respondent’s wife. Threats were made
against the safety of his daughter and one of his sons was the object of an
attempted abduction. As well, demands for money were made by the Diaz family.
[4]
The
Principal Respondent attributed all these events to the Diaz family. He
provided details in this regard in his PIF narrative and reviewed them again at
the first day of the hearing of his claim. That hearing was held on April 29,
2005 and the matter was then adjourned, resuming on May 29, 2006.
[5]
In the
meantime, by Notice of Intent to Participate, dated January 9, 2000, the Applicant
advised the Board that pursuant to subsection 170(e) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), he intended to
participate in the hearing of the Respondents’ claim and to present evidence,
examine the Respondents and make representations.
[6]
According
to the Notice of Intent to Participate, the Applicant wanted to participate in
the hearing because he had received information that the Principal Respondent
was wanted in Mexico for charges of fraud relating to a cheque that had been
issued on November 20, 2003 to one Angel Abel Rodriguez Novelo for the purchase
of cattle. The cheque was rejected on December 5, 2003 because there were insufficient
funds in the payor’s account to cover it. The Applicant took the position in
the Notice of Intent, that the Principal Respondent was inadmissible pursuant
to section 1F(b) of the United Nations Convention Relating to the Status of
Refugees, on the grounds that there were serious reasons to believe that he
had committed a serious non-political crime.
[7]
On March
5, 2004, Mr. Novelo presented a petition to file charges against the Principal Respondent.
On August 16, 2004, the Public Prosecution Service charged the Principal
Respondent with fraud. On August 26, 2004, a warrant was issued for the arrest
of the Principal Respondent.
[8]
When
questioned on behalf of the Applicant about the outstanding charge at the
resumption of the hearing, the Principal Respondent stated that he became aware
of the outstanding charge and warrant in May 2004, upon being advised of same
by his lawyer in Mexico. When asked to explain why he
had not mentioned these matters at the earlier sitting before the Board, the
Principal Respondent testified that he had no documents to substantiate the
charge and the warrant and it did not occur to him to get a letter from his
lawyer in Mexico.
[9]
The Board
found that the Respondents were credible and that the charge was “trumped up”
and fraudulent. It concluded that they were persons in need of protection and
that state protection was not available because the agent of persecution was
the “powerful” Diaz family. It further found that the Principal Respondent was
not excluded by reason of committing a serious non-political crime because the
charge was fabricated.
[10]
The
Applicant challenged the Board’s decision on the grounds that the Board failed
to address the non-disclosure by the Principal Respondent of the existence of
the outstanding charge and warrant. These matters were not mentioned in his
Personal Information Form (“PIF”) nor in his testimony at the first hearing
before the Board nor at any time before the Applicant gave notice of his
intention to participate in the hearing of the claim for protection.
[11]
The first
matter to be addressed is the applicable standard of review, having regard to a
pragmatic and functional analysis. Four factors are to be considered: the
presence or absence of a privative clause; the expertise of the tribunal; the
purpose of the legislation and the nature of the question.
[12]
There is
no privative clause in the Act. No full right of appeal is provided but
judicial review is available, if leave is granted. Accordingly, the first
factor is neutral.
[13]
The Board
is a specialized tribunal and this favours deference.
[14]
The broad
purpose of the Act is to regulate the admission of immigrants into Canada and to maintain the security
of Canadian society. This involves consideration of many interests that may be
in conflict with each other. Decisions made in a polycentric context tend to
attract judicial deference. The final factor is the nature of the question. Here,
the decision turns on the Board’s finding that the Principal Respondent gave
credible evidence. Credibility findings are “quintessentially questions” of
fact; see Dr. Q v. College of Physicians and Surgeons of British Columbia,
[2003] 1 S.C.R. 226 at para. 38.
[15]
Upon
balancing the four factors involved in a pragmatic and functional analysis, I
conclude that the applicable standard of review in this case is that of patent
unreasonableness.
[16]
The
Applicant relies upon the decision in Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration),
157 F.T.R. 35 in support of his argument that the Board committed a reviewable
error by ignoring material evidence on a key issue that contradicts its
findings.
[17]
In this
case, the Board determined that the fraud charge was “trumped-up” and
fraudulent because it found the Principal Respondent to be credible. In my
opinion, the Board erred in making this credibility finding because, in doing
so, it apparently ignored the evidence of the existence of the outstanding
charge, the outstanding warrant of arrest and the non-disclosure of this
evidence by the Principal Respondent at the earliest possible time. This
evidence, had it been considered by the Board, may have affected its
credibility findings. As noted by the Court in Cepeda-Gutierrez, the
more important the evidence that is ignored by the Board, the more likely the
Court will infer that this decision was made without regard to the evidence.
[18]
In the
result, the application for judicial review is allowed. There is no question
for certification arising.
JUDGMENT
The application for judicial review is allowed.
There is no question for certification arising.
“E.
Heneghan”
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