Munoz v. Canada (Citizenship and Immigration), 2008 FC 995

 

 

 

Date: 20080908

Docket: IMM-5324-07

Citation: 2008 FC 995

Ottawa, Ontario, September 8, 2008

PRESENT:     The Honourable Madam Justice Dawson

 

BETWEEN:

 

EUSEBIO FRIAS MUNOZ

CLAUDIA FLORES SOTO

VIVIAN AUDREY FRIAS FLORES

 

Applicants

 

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]        This application for judicial review is allowed because the Refugee Protection Division of the Immigration and Refugee Board (Board) erred in law by imposing on the applicants the wrong standard of proof.

 

[2]        The applicants are citizens of Mexico who sought refugee protection.  While the Board expressed some credibility concerns related to the identity of the agents of persecution, it made no clear credibility findings.  Instead, the Board found the determinative issue to be whether the applicants had rebutted the presumption of state protection.

 

[3]        After a cursory review of "efforts by the government to combat corruption and provide protection" in the Federal District of Mexico City, the Board concluded that:

            I am not satisfied within the preponderance of probability category, as I must be, that the authorities in the FDMC [Federal District of Mexico City] would not be reasonably forthcoming with serious efforts to protect the claimants if they were to return and approach the state for protection.

 

[4]        As authority for this statement, the Board cited the decision of this Court in Xue v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 229.  There, the Court wrote at paragraph 12:

         Having regard to the approach expressed by Dickson C.J.C. in Oakes, i.e. that in some circumstances a higher degree of probability is required, and the requirement in Ward that evidence of a state's inability to protect must be clear and convincing, I do not think that it can be said that the Board erred in its appreciation of the standard of proof in this case. If the Board approached the matter by requiring that it be convinced beyond any doubt (absolutely), or even beyond any reasonable doubt (the criminal standard), it would have erred. However, the Board's words must be read in the context of the passage in Ward to which it was referring. Although, of course, the Board does not make reference to Oakes or Bater, and while it would have been more precise for the Board to say that it must be convinced within the preponderance of probability category, it seems clear that what the Board was doing was imposing on the applicant, for purposes of rebutting the presumption of state protection, the burden of a higher degree of probability commensurate with the clear and convincing requirement of Ward. In doing so, I cannot say that the Board erred. [Emphasis added.]

[5]        However, the Federal Court of Appeal has now clarified in Carillo v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 399 that an applicant must only meet the balance of probabilities standard when rebutting the presumption of state protection.  At paragraph 21 of its reasons the Court confirmed that it is an error of law to rely upon the Xue case for the proposition that a higher degree of probability is required when rebutting the presumption of state protection.

 

[6]        Given the cursory nature of the Board's consideration of the country condition documentation, and its failure to mention elsewhere in its reasons the balance of probabilities standard, I am unable to conclude that the Board's error of law was not material to its decision.

 

[7]        For that reason, the application for judicial review will be allowed.  Counsel posed no question for certification, and I agree that no question arises on this record.

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that:

 

1.         The application for judicial review is allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada dated November 27, 2007 is hereby set aside.

 

2.         The matter is remitted for redetermination by a differently constituted panel of the Refugee Protection Division.

 

 

 

“Eleanor R. Dawson”

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-5324-07

 

STYLE OF CAUSE:                          EUSEBIO FRIAS MUNOZ ET AL., Applicants

 

                                                            and

 

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent

 

PLACE OF HEARING:                    TORONTO, ONTARIO

 

 

DATE OF HEARING:                      SEPTEMBER 3, 2008

 

REASONS FOR JUDGMENT

  AND JUDGMENT:                        DAWSON, J.

 

DATED:                                             SEPTEMBER 8, 2008

 

APPEARANCES:

 

ALYSSA MANNING                                                             FOR THE APPLICANTS

 

ADA MOK                                                                             FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

VANDERVENNEN LEHRER                                                FOR THE APPLICANTS

BARRISTERS & SOLICITORS

TORONTO, ONTARIO

 

JOHN H. SIMS, Q.C.                                                             FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA