Date:
20130708
Docket:
IMM-9181-12
Citation:
2013 FC 758
Ottawa, Ontario,
July 8, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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MIGUEL DANIEL ROJAS LUNA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a decision by a member [Member] of the Refugee
Protection Division [RPD] determining that the Applicant is neither a refugee
nor a person in need of protection.
II. BACKGROUND
[2]
The
Applicant, a citizen of Mexico, was a student, an activist and radio announcer.
He was part of a group of six friends who set up a local newspaper in his city.
The newspaper was critical of local government, police and their respective
involvement in criminal activities and connections to organized crime. The
newspaper published 1,000 free weekly copies.
[3]
The
Applicant’s troubles began in May 2005 when he was robbed and assaulted at
gunpoint while distributing newspapers. He complained to the police.
[4]
In
early 2006 uniformed police officers came to the Applicant’s house, seized the
publishing equipment and took the Applicant and his friends in handcuffs to a
warehouse where they were beaten. The Applicant filed a complaint with the Federal
Agency of Investigation but was told that no investigation would be conducted
and to stop badmouthing police.
[5]
Six
months later, after publishing another article critical of government and its
“dirty money”, one of the newspaper group members was shot by men identifying
themselves as being part of the Gulf Cartel. The cousin was denied the
opportunity to file a complaint as the police said that they could not help and
that the group members should change their identities and flee.
[6]
Towards
the end of 2006, after publishing a special article accusing the Gulf Cartel of
the shooting, the group received a threatening telephone call from a person
identifying himself as a federal police officer.
[7]
After
a group member was shot and killed by unknown men and another member was
arrested for the murder, the Applicant went “on the run” hiding at relatives.
However, he managed to publish an article with a local newspaper where he was
staying in which he attributes corruption in the area to the Juarez Cartel and local
government. He then had to leave that area.
[8]
Due
to his mother’s illness, the Applicant returned home, where he was kidnapped,
taken to a warehouse, tortured, beaten and left for dead. He made a fourth
complaint to police naming the Gulf Cartel as his kidnapper.
[9]
In
February 2008 the Applicant arrived in Canada, overstayed his visa and
ultimately filed his refugee claim in 2010. He had some initial assistance with
the claim but when he finally retained a lawyer, a more fulsome claim was made.
[10]
While
the refugee claim was proceeding, the Applicant was informed that his parents
were being held by the Juarez Cartel in exchange for his return to Mexico.
[11]
The
Member concluded that the fatal flaw in the Applicant’s claim was the lack of
evidence going to the subjective element of the claim. The principal reasons
for the finding were the delay between the first threat in 2005 and the
Applicant leaving in 2008, combined with his delay in claiming in Canada and the absence of detail in his PIF.
[12]
The
Member also found the Applicant not credible as he was never targeted by
criminals. That fact was not raised in his original narrative nor was his work
in journalism. The Member observed that the Applicant was not a brave or bold
person (qualities that the Member expected of a person who had the profile the
Applicant painted). The psychological report indicating PTSD, depression and
anxiety was acknowledged but not accepted as an explanation.
[13]
The
Member further found no nexus to a s 96 ground and no personalized risk required
under s 97. There is a brief state protection analysis which finds adequacy
based on serious and genuine efforts by Mexicans to deal with issues of crimes
and drugs.
III. ANALYSIS
[14]
There
is well-established precedent that in cases such as this, which turn on
credibility, that the standard of review is reasonableness (Aguebor v Canada
(Minister of Employment and Immigration), 160 NR 315, 1993 CarswellNat 303
(FCA)).
[15]
There
are three interconnected major issues:
•
whether
the Applicant was a journalist;
•
whether
he had been targeted; and
•
whether
subjective fear was established.
[16]
I
find the Member’s comments about the Applicant’s journalism activities to be
very problematic. The comments turn on demeanour, the nature of his journalism,
how he conducted his reporting and the absence of journalistic evidence in his
original PIF.
[17]
What
is missing is a finding that the Applicant was not a journalist, that he never
published critical articles or that his narrative on this aspect of his life
was fabricated. It is critical to this case that there be a specific finding on
this aspect of his narrative. If the Applicant was a journalist, and if he and
his friends published the articles produced in evidence, then there is arguably
a nexus to s 96 – political opinion.
[18]
The
Member seems to draw a negative inference from the Applicant’s claim that he
interviewed witnesses at a crime scene and did not have press credentials. The
actual evidence was that the interviewing took place in a public area – it is
difficult to imagine police allowing the press into a crime scene. There is no
evidence that a person needs press credentials in Mexico to qualify as a
journalist. The Member does not address the Applicant’s role in writing for or
producing a newspaper.
[19]
In
discussing whether the Applicant was targeted, the Member seems to dismiss the
newspaper as irrelevant because it was publishing articles on crime and
corruption that other larger national newspapers were also doing. The Member
does not address that the Applicant’s paper was focused on local corruption.
There was no basis advanced that somehow local stories of corruption were not
likely to spark a more local, immediate and violent response.
[20]
The
Member dismisses the Applicant because his demeanour was not consistent with the
Member’s image of a brave person. Demeanour can be an important factor in
assessing credibility, but in this case it was used unreasonably. The very
features which the Member looked for were addressed in the psychologist’s
report. The Member is not bound to accept the report but, in this case, to do
so required an explanation of the basis for rejection other than a comment that
despite the report, these qualities should have come through somehow.
[21]
In
holding that the Applicant was not targeted by criminals, the Member relied on
the absence in the PIF about the Applicant’s journalism work. The Applicant
provided an explanation that a community centre advisor told him to put in a
bare-bones PIF and expand on it when he had a lawyer.
[22]
It
is open to the Member to reject the explanation but in so doing the Member must
explain away the actual evidence of the Applicant writing articles and the
publication of the newspaper articles. This was not done.
[23]
The
Court’s conclusions above are sufficient to justify granting the judicial
review but there are other aspects of the decision which are troublesome. The
Member appears to conclude that because the criminals who attacked the
Applicant did not kill him, the attacks, beatings, etc. did not occur. That is
an unreasonable basis upon which to conclude that the Applicant had not been
persecuted.
[24]
In
the Member’s “targeted/persecution” analysis and in the state protection
analysis, the Member does not address the Applicant’s four attempts to engage
state protection through complaints to both local and federal police
authorities. If the evidence is true, it is corroborative of persecution and of
the absence of state protection for this individual whatever the efforts of the
government may be.
[25]
Lastly,
the Member does not comment upon the kidnapping of the parents. If true, the
kidnapping could be corroborative of the Applicant’s core narrative; if untrue,
and particularly if knowingly untrue, that would reinforce a negative
credibility finding. In either event, the allegation of kidnapping is material
to the claim.
IV. CONCLUSION
[26]
Therefore,
this judicial review will be granted, the decision quashed, and the matter
remitted back to a different member for a new determination.
[27]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the decision is quashed, and the matter is to be remitted back to a
different member for a new determination.
“Michael L. Phelan”
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