Date: 20080922
Docket: IMM-1104-08
Citation: 2008 FC 1058
OTTAWA, Ontario, September 22,
2008
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
Enrique SANCHEZ GARCIA
Maria del Rosario MONTES VALDEZ
Jorge Manuel SANCHEZ MONTES
Jose Antonio SANCHEZ MONTES
Joshua Isai SANCHEZ MONTES
Ariel Noe SANCHEZ MONTES
Ana Paolo SANCHEZ MONTES
Isaac SANCHEZ MONTES
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants are a family of eight, all citizens of Mexico. They
allege that the family became a target of extortion as a result of a computer
business the adult male applicant, Mr. Sanchez, operated in Mexico City. After
refusing to pay, he was kidnapped in April 2004 and seriously injured before his
wife Ms. Montes paid part of a ransom demand. A complaint to police had no
result.
[2]
On
the advice of a lawyer in Mexico City, the family moved to
the state of Hidalgo, where they
remained without incident until September 2006. Mr. Sanchez again operated a
computer business. They assert that in September 2006, friends of theirs were
assaulted by unknown men wanting to know their whereabouts. They received
threatening phone calls and Ms. Montes was followed home. The lawyer was again
consulted and, on his advice, they fled Mexico for Canada and claimed
refugee protection.
[3]
The
Refugee Protection Division (RPD) decided on February 13, 2008 that they were
neither Convention refugees nor persons in need of protection. The Panel
member found that they were the victims of crime and, as such, there was no
nexus to any of the Convention grounds. It was also found that they had not
rebutted the presumption that the Mexican authorities were willing and able to
protect them from persecution and that they had a viable internal flight
alternative (IFA) available to them in Pachuca.
[4]
The
applicants raise two issues: (1) whether they were denied procedural fairness
and (2) whether the Panel member considered the wrong standard of proof in
finding that state protection exists.
[5]
It
is well established that a reviewing Court must set aside a decision which is a
result of an unfair process, unless there is no possibility that a fair process
would result in a different decision. The selection of the wrong standard
against which to assess evidence is an error of law and may result in a grant
of relief pursuant to section 18.1(4)(c) of the Federal Courts Act.
[6]
In
their original submissions, the applicants argued that the Panel member denied
them a fair process by deciding their case for reasons which included an
internal flight alternative and credibility. At the close of the applicants’
hearing, the member had indicated clearly to them and their counsel that state
protection was the only issue remaining at play. They asserted that this
denied them a proper opportunity to be heard and thus breached the rules of
natural justice.
[7]
The
respondent submitted that any denial of procedural fairness was immaterial,
given that the RPD’s findings on internal flight alternative and credibility
were made in the alternative to the finding that state protection was
available.
[8]
In
reply, the applicants agreed that the three findings were separately made and
conceded that if the state protection finding was made without error the RPD’s
decision should stand.
[9]
Given
that I do not find that the Panel member applied the wrong standard to the
evidence regarding state protection, the issue of procedural fairness must be
addressed. I find that it was clearly wrong for the RPD to direct the applicants
to confine their submissions to one limited area if the Panel member had
broader concerns which informed his or her decision. The opportunity to be
heard, while variable, must include the opportunity to know the case to be met
and to attempt to meet it. Such an opportunity was here denied. However,
since state protection is a complete answer to a refugee claim, it is true
that, as that decision was correctly and reasonably made, there is no benefit
to sending this case for reconsideration.
[10]
In
the case at bar, the applicants submit that the RPD erred in relying on Xue
v. Canada (Minister of
Citizenship and Immigration) (2000), 195 F.T.R. 229, when stating that
the applicable standard of proof for a finding of state protection was higher
than the balance of probabilities, being “within the preponderance of
probability category”. The Federal Court of Appeal clarified this point in Carillo
v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, holding that Xue
should not be read to mean that the standard of proof was higher than normal
for state protection.
[11]
Despite
the respondent’s denial that a standard other than that of the balance of
probabilities was applied, I cannot see how else to read the relevant passage.
That said, the Carillo decision was released approximately one month
after the decision here under review. As such, the Panel member’s statement of
the law was correct at the time it was made; it nevertheless is incorrect at
the present time.
[12]
I
allow the present application for judicial review and return the matter for a
new hearing on the issue of state protection based on the standard of the
balance of probabilities.
[13]
No
question of general importance was submitted for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application is
allowed and the matter is hereby returned for a new hearing on the issue of
state protection based on the standard of the balance of probabilities.
"Max
M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1104-08
STYLE OF CAUSE: ENRIQUE
SANCHEZ GARCIA ET AL v. M.C.I.
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: September
4, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: TEITELBAUM D.J.
DATED: September
22, 2008
APPEARANCES:
|
Alyssa Manning
|
FOR THE APPLICANT
|
|
Bridget A.
O’Leary
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Vandervennen
Lehrer
Barristers and
Solicitors
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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