Docket: IMM-3980-13
Citation:
2014 FC 715
Calgary, Alberta, July 17, 2014
PRESENT: The
Honourable Mr. Justice Hughes
|
Docket: IMM-3980-13
|
|
BETWEEN:
|
|
JOSE LUIS CUEVAS MENDOZA ALEJANDRO MALSONADO FLORES
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is the third time that this matter has come
before this Court from judicial review and, for a third time, it will be
returned for re-determination by a different Member. The matter should not
become a ping-pong matter between the Court and the Refugee Protection Division
(RPD), it should be done right this time.
[2]
The Applicants are a husband and wife, both
citizens of Mexico. They resided in Ciudad Juarez, arguable one of the most
violent places in that country if not in much of the world. They are educated
people, he is an engineer and she has an MBA. The undisputed evidence is that
they were approached by a violent group known as the Zetas who demanded, and
were not paid, a substantial sum of money; an extortion demand. The Applicants
fled Mexico and came to Canada where they claimed refugee protection. That
claim has been rejected three times as, each time the Member hearing the case,
determined that the Applicants has an Internal Flight Alternative (IFA) in
Mexico. The first time the IFA was said to be Mexico City, the second time Ensenada, the third time, Mexico City again.
[3]
The first decision of the RPD was, by the Minister’s
own assessment, flawed. On the motion of the Minister and consent of the
Applicants the matter was sent back for re-determination. There is little on
the record concerning this first decision except the decision itself dated 17
June, 2011. The Member (paragraph 12) accepted that the Applicants have,
individually, been targeted through the criminality of gang members which were,
later in the reasons, identified as the Zetas.
[4]
The second decision of the RPD was made by a
different Member. It was dated 30 March, 2012. The Member (paragraph 33) found
the Applicants to be credible. Concerning the Zetas the Member made certain
findings, including the following:
[52] The Zetas are notoriously the most
violent of all the cartels in Mexico. The Zetas are a sophisticated criminal
enterprise with more than 1,000 members. Drawing on military-style skills and a
penchant for the gruesome, the group has expanded its illegal activities and
has established itself as the most feared and destructive player in the Mexican
drug trade. The Zetas have ruthlessly seized market share, raged a bloody
campaign against the authorities, and use coercion and bribery to hollow out
government institutions from within. They have done more than any other entity
to foster the cycle of violent chaos, in which the country is currently
trapped.
[53] The Zetas have distinguished themselves
not only with their audacity but also with their savagery. The Zeta operatives
subject their captives to prolonged torture before executing them, often by
decapitation, immolation, strangulation, and other grizzly methods. The Zetas
kill huge numbers of persons at once and bury their victims in mass graves.
[54] I find that the Zetas truly do have the
capacity to hunt down anyone they want to hunt down and they are ruthless. The
Zetas have this capability. They could use government databases, their own
technological networks, and personnel to search out the claimants anywhere in Mexico. It is possible for the Zetas to find the claimants in Mexico.
[5]
Thus the Member found that the Zetas were very
violent, had capability and the technology to track down anyone in Mexico. The conclusion reached was that it was possible for the Zetas to find these
Applicants in Mexico.
[6]
Strangely however the Member then took a turn in
the reasons. I repeat only a portion:
[61] The evidence of penetration into a
certain region does not answer the question of whether the claimants would be
subjected on a balance of probabilities to a risk to life in Ensenada.
…
[63] I have looked through the documentary
evidence presented in this case and I cannot find one example of any cartel
searching out such low level persons like the claimants – and I am only using
the word “low level” in terms of their risk of harm that a person faces. I cannot find
that the Zetas would be so incensed about the claimants not following through
on paying them after the principal claimant was asked to do so, that the Zetas
would use their muscle to hunt the claimants down anywhere in Mexico, and
especially in Ensenada where the Zetas do not control.
[64] In this case, the Zetas are not missing
cash, drugs or guns because of the claimants. Their sense of honour has not
been violated by any action done by the claimants. The claimants do not know
persons within the Zeta organization that would make the Zetas personally angry
at them. The claimants have not been sexually involved with any Zeta member or
a girlfriend of a Zeta member.
[65] The claimants merely were asked to turn
over money, as countless persons have been asked to do, in Ciudad Juarez.
[66] The claimants have alleged that
businesses are closing and many persons are fleeing Ciudad Juarez since there
cannot comply with the Zetas’ demands. There is no evidence that such persons
are later hunted down in Mexico, in cross border areas of the United States or in Canada.
[67] I do not find that the claimants have
irked the Zetas sufficiently that they would search for them anywhere in Mexico.
[68] The evidence is that a local Zeta gang
had pursued the claimants at their home several years after they left the city.
I find that this kind of search for claimants simply represents the efforts of
a local Zeta gang to obtain money from a known source, that is the claimants.
The Zetas use isolated cells that maintain control over a certain slice of the
turf.
[69] Once the claimants left the area, the
Zetas attempted to threaten them in a desperate act by breaking into their home
and hanging out at the associated claimant’s family’s home. They still wanted
easy money, right in the town where the local gang lives. The local zetas, who
may have actually been associated with the local police force, asked the
associated claimant’s sister if she knew where the claimants were living. If
the claimants’ had been in Ciudad Juarez that day, or the day the Zetas had
broken into their home, I find that the Claimants could have been killed. But
since they were not in Ciudad Juarez, and because the claimants will not return
to Ciudad Juarez, I find that the claimants are simply off the local Zetas’
active list of targets. The local Zetas simply will look for other available
cash cows locally, to gather all the money they can from the local citizenry of
Ciudad Juarez. This is the claimants’ evidence.
[70] Ciudad Juarez is one of the most
dangerous cities in all of Mexico. The Zetas will stop at nothing in their
attempt to make money there.
[71] To search for the claimants in Ensenada or anywhere would, in fact, be distraction from the Zeta’s core business – making
easy money. The claimants’ utility to the Zetas is now over. Out of sight and a
person’s wealth or business loses their utility to the Zetas unless the Zetas
are especially perturbed. The claimants did not annoy the Zetas to such a
degree that the Zetas would use their arsenal to find the claimants. The claimants
have not raised the ire of the Zetas; they just skipped town.
[72] I asked the claimants if their many
family members in Mexico City had been contacted by the Zetas in all these
years in search to find out where the claimants are. The principal claimant
testified that no one has contacted their extended family in search to find out
where the claimants are living. Likewise the Zetas have not contacted the
associated claimant’s parents who are residing in the very same state of Chihuahua, the same state where Ciudad Juarez is located.
[73] There are hot spots of violence, like Ciudad Juarez, and there are also places like Ensenada, where drug violence has
diminished. As the Sinaloa cartel has tightened its control in Baja California, violence there has dropped in Ensenada.
[74] For these reasons, I find on a balance
of probabilities that the claimants do not face a risk to their lives in Ensenada, the designated IFA.
[7]
This reasoning was analyzed by Justice Kane of
this Court in reviewing the decision. (IMM-4016-12, December 20, 2012). She
found that it was speculative and the matter should be sent back for
re-determination. She wrote in part:
In this case, the Board’s assessment of the
risk faced by the applicants and their need for protection in the proposed IFA
is based, to a great extent, on speculation. This Court has cautioned against
speculative reasoning in several recent cases.
…
In this case the Board speculated that the
applicants “are simply now
off the local Zetas’ active list of targets” and that they “did
not annoy the Zetas to such a degree”
that the Zetas would want to track them down. As noted above, such speculation
is illogical given the Board’s acceptance of the brutality of this gang and its
capacity to track down and harm anyone in Mexico. The Board had also accepted
as a fact that the applicants had no previous connection with the Zetas, yet
they had been targeted for extortion and threatened. The Board had also found
that the Zetas could have killed them if they had been found.
The Board’s finding that the applicants
would not be at risk because the Zetas had no quarrel with them in inconsistent
with the fact that the applicants were targeted for extortion and threatened,
despite the Zetas having no quarrel or connection with the applicants in the
first place. This speculation about how the Zetas would operate vis à vis the
applicants is illogical and unreasonable.
…
Because I have found that the decision
regarding the IFA was unreasonable, it is not necessary to determine if the Board
erred in refusing to consider the humanitarian and compassionate factors in
assessing the reasonableness of the IFA.
For the reasons noted above, the Board’s
finding that there was no serious possibility of the applicants being
persecuted in the proposed IFA (Ensenada), on a balance of probabilities, was
not reasonable. Given the evidence the Board accepted and the applicants’
evidence which was found to be credible, the decision, which relied on
speculation, was not justified or intelligible and it did not fall within a
range of acceptable outcomes.
[8]
Turning to the third decision of the Board, the
one under review here, we find that, notwithstanding the Board’s statement that
speculation would constitute a reasonable error, it does just that. I repeat part
of the reasons:
[8] I have reviewed the Court’s judgment and
I am cognizant that speculation on my part would constitute a reviewable error.
I am also mindful that there is an appearance of inconsistency to say on the
one hand, that the Zetas have the capacity to hurt anyone in Mexico and yet say on the other hand, that these particular claimants would not be at risk
in the proposed IFA. In the reasons to follow, I will respond to this apparent
inconsistency. I will rely on the facts of this case and where there is
speculation, I will accord the appropriate weight to that particular evidence.
…
[16] The claimants were targeted by the
Zetas in Ciudad Juarez. The Board's documents indicate that although the Zeta
organization has a presence throughout large regions of Mexico, the Zetas organization is “a network comprised of isolated cells that all maintain
control over a certain slice of turf”. The claimants have not demonstrated that
it is more likely than not that the Zetas would be motivated or inclined to
seek the claimants, outside their “slice of turf,” that is, Ciudad Juarez.
[17] The events occurred mostly in 2008,
approximately five years ago. There is little persuasive evidence that members
of the Zetas are still motivated or inclined to seek the claimants today, to
harm them. The claimants testified that the Zetas left a cardboard note in
their abandoned home, demanding the extortion payment. This occurred shortly
after the claimants’ flight to Canada. It is probable that the Zetas did this,
as a follow up to the original threat. The claimants testified that members of
the Zetas have repeatedly gone to the other family members, inquiring about the
claimants’ whereabouts. I find this implausible, based on the documents which
demonstrate that the Zetas are notorious and brutal.
[18] They (the Zetas) can and do resort to
bribery, but they lean toward intimidation and violence. Their mode of
operation tends to be far less subtle than that of their Sinaloa counterparts,
and with a leadership composed of former special operations soldiers, they are
quite effective in employing force and fear to achieve their objectives.
[19] Based on the information on hand, and
based on the claimants’ own fear of the Zetas, it is more likely than no that
the Zetas would have resorted to brutal intimidation tactics on the family
members to force the claimants to pay the extortion, or as a punishment for not
paying, rather than occasionally checking up on the family members over a
period of five years to inquire about the claimants. Furthermore, the claimants
testified that to their knowledge, the Zetas have not extorted the family
members while in their pursuit of the claimants. This makes the story that the
Zetas are still looking for the claimants even less credible. The statements
made by the family members is not probative and so that testimony can only be
assessed in light of the documents, which state clearly that the Zetas have no
compunction towards violence, thus making the family members’ allegations less
believable, since they have not been harmed or extorted themselves in the past
five years since the claimants fled.
[20] The claimants have family members
living in the Mexico City. There was no evidence presented that the family
members in the Mexico City have been approached by members of the Zetas to
indicate that they were still looking for the claimants.
[21] The burden of proof in this instance is
a balance of probabilities, which in the circumstances of this case, have not
been established. There is the passage of time since theses incidents occurred.
There is the credibility factor that the Zetas have repeatedly contacted the
family members in pursuit of the claimants, without themselves facing
consequences. Then there is the fact that the family members in Mexico City have not been contacted by the Zetas in the past five years. These factors
combined do not establish the risk to the claimants to that of a balance of
probability.
[22] I have considered the evidence, and
notwithstanding the testimony of the claimants, I determine that there is an
IFA for the claimants in Mexico City. Therefore, under the first prong of the
IFA test, the claimants has not established, on a balance of probabilities,
that they would be subject personally to a risk to life or to a risk of cruel
and unusual treatment or punishment in Mexico City members of the Zetas.
[9]
Thus the Member has done precisely what Justice
Kane has said not to do, engaged in speculation. The Member is not “balancing” the
evidence, the Member is ignoring it. The evidence in this particular case us
that the Zetas are extremely violent, that the Applicants have been menacingly
threatened and that the Zetas have the capacity, whether through isolated cells
or communicating cells, to find the Applicants.
[10]
In paragraph 19 and again in paragraph 21
the Member is basing his speculation on credibility. In paragraph 19 he says
that the Applicants says that the Zetas are still looking for them is “less
credible”. In paragraph 21 the Member, in considering the “balance of
probabilities” refers to the “credibility factor”.
[11]
In considering credibility
in these contexts the Member should have been mindful of two things. First, as
stated by this Court in Valtchev [2001] F.C.J. No 1131 at paragraph 7
plausibility, i.e. credibility, findings should only be made in the clearest of
cases. The second is that the Member, at the outset of the hearing, announced that credibility would not be an issue unless he
raised it at the hearing. There was no credibility issues raised at the hearing.
I repeat what the Member said at the outset of the hearing:
PRESIDING MEMBER: Okay. This hearing is a
return from the Federal Court. The Court found fault with the Board’s past
decision and sent the hearing back to the Board for another hearing.
Counsel, we’re going to raise the same
issues essentially that were raised in the last hearing. And we’ll have a
discussion on that before we proceed with the rest of the hearing.
Credibility was defined at the last hearing.
The member didn’t have any credibility concerns, or didn’t express any
credibility concerns. Credibility is always an issue in refugee hearings. But I
will accept the finding of the past member, unless I have my own concerns that
are raised in this hearing.
COUNSEL: I will note they were found
credible at their first hearing as well.
PRESIDING MEMBER: Okay.
COUNSEL: There was no issues at either
hearing.
PRESIDING MEMBER: Okay. Okay so given that,
we won’t have to cover again the material aspects of their testimony.
[12]
Therefore the matter must go back for
re-determination for a fourth time. The Member hearing the matter must be
mindful that:
(1)
Do not speculate
(2)
Credibility is not an issue unless clearly
raised and discussed at the hearing.
[13]
No party requested certification.
Email this Content