Date: 20081009
Docket: IMM-880-08
Citation: 2008
FC 1147
Toronto, Ontario, October 9, 08
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
JULIAN MONDRAGON ESCOBAR
ELSA MARTINEZ ZEPEDA
ERICK MONDRAGON MARTINEZ
ADDITY MONDRAGON MARTINEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges a decision made on February 5, 2008 by the
Refugee Protection Division (RPD) in which the Applicant’s claim for refugee
protection was denied on the basis of a global negative credibility finding.
[2]
The
Applicant’s claim is based on a detailed factual scenario. As a police officer
in Mexico with 17 years experience and being
charged with investigating drug trafficking, the Applicant participated in the
interception of a $25 million shipment of cocaine. As a result, he provided
evidence against an accused drug lord which resulted in a conviction. Following
a second trial of the same drug lord in which the Applicant again provided evidence,
the Applicant received threatening phone calls, was denied protection by the
security forces, was terminated from his job, was kidnapped twice, and in the
second kidnapping, was severely beaten and left for dead; in addition, his wife
was assaulted. The Applicant gave evidence to the RPD to substantiate his fears
that the violence he suffered was at the hand of the drug lord and was intended
to silence him. The Applicant testified to s.97 prospective fear of this drug
lord should he be required to return to Mexico.
[3]
The RPD’s negative
global credibility finding stated in the decision under review is as follows:
In the morning questions by the counsel for the Minister,
the claimant insisted he never made an arrest without a warrant. His role was
only to execute the warrants of a judge. Further, whenever he made an arrest,
a representative of Human Rights would be present.
In the afternoon, in answer to my question, he initially
stated he always worked with an arrest warrant. When I asked, during his 17
years on the force as part of an investigation did he never see someone
committing a crime and make an arrest, then the claimant responded yes.
When asked why, if he made arrests during the committing of
a crime, he had not answered yes to the question did he ever make an arrest
without a warrant the claimant responded that he did not understand.
I do not accept this explanation. This questions [sic] or
ones similar were asked by counsel for the Minister and myself on numerous
occasions. It is not plausible the claimant would not understand any of
these questions asked throughout the hearing.
I am satisfied the claimant made an attempt to withhold
evidence from the counsel to the Minister in order to protect himself from
being excluded from the protection of Canada.
Hence, I make a negative credibility inference. [Emphasis added]
(Tribunal Record, p. 8)
[4]
Counsel
for the Applicant argues that the Applicant’s responses are based on a
misunderstanding. On this issue, during the RPD hearing, the Applicant was
questioned by Counsel for the Minister as to whether he is inadmissible to
claim refugee protection as a member of an organization that commits torture,
being the Mexican police, and by the RPD Member with respect to the merits of
the claim for protection itself. The conduct of this questioning, and the
answers the Applicant gave are as follows:
Q [posed by the Counsel for the Minister]: When you
arrested individuals, did you always have an arrest warrant?
A: Yes.
Q: These packages of documentation repeatedly say that
arrests were frequently made without warrant.
Does that statement surprise you?
A: Yes, because we always had arrest warrants from a judge.
Q: Did you ever hear of people being arrested and detained
without warrant?
A: Well, maybe if that person is committing a crime.
Q: But, you had never heard of illegal arrests or
detentions?
A: No.
(Tribunal Record, pp. 1563 – 1564)
[…]
Q [posed by the RPD Member]: When you were a police
officer in Mexico, did you ever make an arrest
that was not a result of a judge signing a warrant?
A: No, I always worked with arrest warrants.
Q: So, you never were involved in an investigation where
you found somebody right there involved in a criminal act, and you made an
arrest immediately?
A: Yes.
Q: You did that.
A: Yes.
Q: Did you have a warrant?
A: No, but he was committing a crime.
Q: Well then, sir, did you ever make an arrest in Mexico of someone where you didn’t
have a warrant signed by a judge, why wasn’t the answer yes?
You’re now telling me you did make arrests when you didn’t
have a warrant.
A: If a person is committing a crime, it is my
responsibility to arrest them.
Q: Of course.
So why wasn’t that the answer to my first question yes?
A: I told her.
Q: Well, I just asked you, sir, did you ever make an arrest
when you didn’t have a warrant?
You said ‘no’.
A: (speaking)
Q: Sir, listen to me.
That makes absolutely no sense whatsoever that a 17-year
police officer involved in investigations in Mexico would never make an arrest without a
warrant.
So, when I asked you, were you never involved in an
investigation where right there in front of you, you found somebody breaking
the law, and you said, yes, I was, and yes, I made an arrest.
So, why wasn’t the answer to the first question yes?
A: Maybe I didn’t understand. [Emphasis added]
(Tribunal Record, pp. 1571 - 1572)
[5]
On the
face of this record, it is quite possible that the Applicant believed he was
being questioned about his role as a drugs investigator when he said that he
always arrested on a warrant, but easily offered the evidence that during his
long career as a police officer, he has arrested people without a warrant whom
he found committing a crime. Instead of accepting the Applicant’s statement
that, in effect, he and his questioners where operating at cross purposes, the
RPD found that the exchange quoted provides evidence that the Applicant is
guilty of lying. In my opinion, given the state of the evidentiary record, this
is a totally unsubstantiated conclusion. Indeed, the RPD provides no clear
reasons required to ground the implausibility of the Applicant’s statement that
he did not understand.
[6]
As a
result, I find that the decision under review is made in reviewable error.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back for re-determination before a
differently constituted panel.
There is no question to certify.
“Douglas
R. Campbell”
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