Date: 20060920
Docket: IMM-7395-05
Citation: 2006 FC 1110
Ottawa, Ontario, September 20, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
CARLOS
MARTINEZ REYNOSO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
decision of a specialized tribunal is its alone to make. That is on the
basis of both the subjective and objective evidence as well as knowledge,
expertise and institutional memory of which the specialized tribunal is the repository.
The decision must, nevertheless, demonstrate an articulated inherent
reasonableness or logic, even if it is, other than the Court might have
reached.
…the more important the evidence that is
not mentioned specifically and analyzed in the agency's reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact "without regard to the evidence": Bains
v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency's burden of explanation increases with
the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency's finding of fact. Moreover, when the agency
refers in some detail to evidence supporting its finding, but is silent on
evidence pointing to the opposite conclusion, it may be easier to infer that the
agency overlooked the contradictory evidence when making its finding of fact.
(Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
1425 (QL), at paragraph 17.)
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review under subsection 72 (1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision
of a panel of the Immigration and Refugee Board, Refugee Protection Division (Panel)
which, on November 25, 2005, dismissed the Applicant’s claim for “Convention
refugee” status under section 96 of IRPA and also that of “a person in need of
protection” within the meaning of subsection 97 (1) of IRPA.
BACKGROUND
[3]
The
Applicant, Mr. Carlos Martinez Reynoso, a 39 year-old native of Mexico, alleges a
well-founded fear of persecution perpetrated by a corrupt political figure, a
deputy member, named Mr. Alejandro Gamino, belonging to the National Action
Party (PAN). Alleging that the official authorities and its agents are corrupt,
Mr. Reynoso claims he would not receive state protection.
[4]
Mr.
Reynoso’s troubles began on December 13, 2001, when two men approached him at
his “Car Repair Garage” business to request that he produces false invoices for
repairs of “official vehicles”. The men had introduced themselves as Vicente
and Marcos, the private bodyguards of Mr. Gamino.
[5]
At
first, Mr. Reynoso refused to comply; however, after being threatened and
physically assaulted by both men, he acquiesced, albeit under duress, and
produced the false invoices.
[6]
On
December 21, 2001, the same two individuals returned to the “Car Repair Garage”
to request additional invoices. Mr. Reynoso was, once again, threatened, but
this time, he refused to provide the invoices. He then denounced the incident
to the Public Ministry, Office of the County Attorney General of Justice.
[7]
On January 23, 2002, Mr. Gamino’s
bodyguards followed Mr. Reynoso to his car and apprehended him at gunpoint.
According to Mr. Reynoso, the two men, physically and verbally, abused him for having
refused to comply with Mr. Gamino’s request to stop his denunciations. Mr. Reynoso
lodged a complaint of the incident to the Public Ministry on January 25, 2002.
[8]
After
the incidents, Mr. Reynoso claims that his business was under close scrutiny by
different government agencies. As a result of this, he was forced to close down
his “Car Repair Garage” business.
[9]
On
February 20, 2002, Mr. Reynoso alleges that two individuals in a black truck
opened fire, shooting at the hood and tires of his vehicle. He claims he was
also threatened that the “next bullets will hit him.” The police arrived,
searched the area but found nothing.
[10]
Although
Mr. Reynoso went to the Public Ministry to denounce the incident, he alleges
that he did not proceed in reporting the incident any further due to warnings
which he received from the secretary who he had met in the Public Ministry. She
had clearly alerted him that he was messing with “Big Shots”.
[11]
On
March 14, 2002, Mr. Reynoso claims he heard from an informer of an attempt by the
Institutional Revolutionary Party (PRI), to damage Mr. Gamino’s image and, thereby,
to discredit his candidacy for a seat in the Senate at the Federal Elections
held in 2006.
[12]
In
light of Mr. Reynoso’s alleged fear of persecution and harassment, he decided
to flee Mexico.
[13]
On
April 4, 2002, Mr. Reynoso received his passport and requested a visa to the United States. He left Mexico and entered Canada on June 26, 2002. He
submitted a refugee claim on November 26, 2002 which was denied by the Panel on
January 20, 2004.
[14]
Mr.
Reynoso filed an Application for Leave and for Judicial Review of the failed
refugee claim which was granted on February 1, 2005. His refugee claim was
remitted for reconsideration before a newly constituted Panel pursuant to an
order of the Federal Court of Canada.
[15]
On November 25, 2005, Mr. Reynoso’s refugee claim
was refused. The hearing Panel rendered an oral decision finding the claimant
not to be a “Convention refugee” or a “person in need of protection” within the
meaning of section 96 and subsection 97(1) of IRPA. This is the decision under
review before the Court.
DECISION UNDER REVIEW
[16]
In
the written reasons, dated November 30, 2005, the Panel found that there was no
credible or trustworthy evidence on which to grant a favorable decision nor did
it find a credible basis for the claim pursuant to s. 107(2) of IRPA.
ISSUES
[17]
The
issues in the present case are as follows:
1. Are the Panel’s
findings unsupported by either law or evidence?
2. Did the Panel err
in finding that Mr. Reynoso did not rebut the presumption of state protection?
STANDARD OF REVIEW
[18]
In
matters of credibility and/or state protection, it is settled law that the
standard of review is patent unreasonableness. Decisions of the Panel which are
based on credibility findings are to be accorded a high level of deference
given the Panel has the benefit of hearing the testimony of the witnesses and
also possesses a high level of expertise. Credibility determinations lie within
“the heartland of the discretion of triers of fact” and cannot be overturned
unless they are perverse, capricious or based on erroneous findings of facts. Where
the Panel’s inferences and conclusions are reasonably open to it on the record,
this Court should not interfere, whether or not the Court agrees with the inferences
or conclusions drawn. (Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (QL), at paragraph 4; Grewal v. Canada (Minister
of Employment and Immigration), [1983] F.C.J. No. 129 (QL); Correira
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1060,
[2005] F.C.J. No. 1310 (QL), at paragraph 21.)
1. Are the Panel’s findings
unsupported by either law or evidence?
[19]
The
Panel did find key elements of past persecution, in respect of the attack,
targeting Mr. Reynoso and his having reported, at the very least, the
incident to the Public Ministry as credible. Mr. Reynoso did, in fact, have
supporting documents for both refugee hearings. He acquired objective evidence
since the date of the first hearing to give to the Panel at his second hearing.
[20]
The
Panel states:
I am well aware that corroborative
evidence is not necessary to establish a claim for refugee protection, however,
when credibility is in issue, the onus is on the claimant to establish his
claim.
[21]
Firstly,
the Panel did find key elements of the claim to be credible.
[22]
Secondly,
the Panel’s rejection of Mr. Reynoso’s overall credibility is unreasonable due
to the fact that it had accepted key elements of his claim as credible; in this
regard, Mr. Reynoso’s claim and, in this regard, the Panel neglected the
objective documentary evidence supportive of his claim.
[23]
Mr.
Reynoso did, in fact, submit new articles and they are written in English. They
appear to fully support the reasons for Mr. Reynoso’s fear. It does not appear
that the Panel read this evidence; if it would have, it would not have
described the evidence as unintelligible. Furthermore, as noted, the Panel
rendered a bench negative decision, that may not have occurred, had the Panel
taken more time to ensure that the material had been read and digested.
[24]
Given
that the Panel accepted as credible the past attacks of Mr. Gamino and his men
against Mr. Reynoso, which it did not have to do, but did, it should then have
considered the objective evidence in regard to Mr. Gamino.
[25]
On
the one hand, the Panel states that it requested a copy of the report in
respect of the complaint which Mr. Reynoso had made, subsequent to his having
been attacked; yet, on the other, the Panel had accepted, prior to such
corroboration, that Mr. Reynoso had, in fact, been attacked, without having had
received such a report. This had been already ascertained from both his
testimony and the report in regard of the Public Ministry which the Panel did
take into account as is evident from its decision.
[26]
Therefore,
in regard to this issue, the Panel’s findings are patently unreasonable.
2. Did the panel err in
finding that Mr. Reynoso did not rebut the presumption of state protection?
[27]
The
Court shows significant deference to findings of fact made by the
decision-maker; nevertheless, it is trite law that with regard to critical
findings, the decision-maker has a strict duty to provide a clear evidentiary basis
in support of each. Failure to support a finding on credibility, when such is available,
is speculation. (K.I.N. v. Canada (Minister of Citizenship and
Immigration), 2005 FC 282, [2005] F.C.J. No. 342 (QL).)
[28]
As
stated in Cepeda-Gutierrez, above, at paragraph 17 (a case involving the
refusal of an appeal by the Immigration Appeal Division of a Visa Officer’s
refusal to issue a permanent resident visa):
…the more important the evidence that is not mentioned
specifically and analyzed in the agency's reasons, the more willing a court may
be to infer from the silence that the agency made an erroneous finding of fact
"without regard to the evidence": Bains v. Canada (Minister of
Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other
words, the agency's burden of explanation increases with the relevance of the
evidence in question to the disputed facts. Thus, a blanket statement that the
agency has considered all the evidence will not suffice when the evidence
omitted from any discussion in the reasons appears squarely to contradict the
agency's finding of fact. Moreover, when the agency refers in some detail to
evidence supporting its finding, but is silent on evidence pointing to the
opposite conclusion, it may be easier to infer that the agency overlooked the
contradictory evidence when making its finding of fact.
[29]
Further,
in Townsend v. Canada (Minister of Citizenship and Immigration),
2003 FCT 371, [2003] F.C.J. No. 516 (QL) , at paragraph 22, the Court, held, in
part, as follows:
The purpose of reasons is to tell the
person concerned why a particular result was reached. Reasons allow the parties
to see that the applicable issues have been carefully considered and to
effectuate any right of appeal or judicial review (Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817; VIA Rail, supra). What
constitutes adequate reasons will depend on the circumstances of each case (VIA
Rail, supra).
[30]
In Reference
Re Remuneration of Judges of the Provincial Court of Prince Edward Island;
Reference re Independence and Impartiality of Judges of the Provincial Court of
Prince Edward Island, [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75 (QL),
the Supreme Court of Canada stated, in part, as follows :
Reasons, it has been argued, foster
better decision-making by ensuring that issues and reasoning are well
articulated and, therefore, more carefully thought out. The process of writing
reasons for decision itself may be a guarantee of a better decision. Reasons
allow parties to see that the applicable issues have been carefully considered,
and are invaluable if a decision is to be appealed, questioned or considered on
judicial review.
[31]
In
this claim, the Panel delivered a “bench negative” oral decision and reasons at
the end of the hearing. Save some individual news articles, no other references
are made to more recent, credible reports in respect to the police and state
protection.
[32]
Numerous
critical findings were made in error with regard to both the subjective and
objective components. It must be noted, as well, that at page 2 of the reasons,
the Panel clearly accepts key evidentiary aspects of Mr. Reynoso’s claim. This
includes past persecution he experienced as a victim of Mr. Gamino’s
bodyguards.
[33]
In
the face of this finding, the Panel had strayed from the evidence and simply
speculated without substantiation.
[34]
Numerous
Responses to Information Requests, within the Panel’s own documentary package,
clearly state that government agencies, including the Public Ministry and Procuraduria
General de la Republica (PGR), suffer from corruption and are ineffective in assisting
individuals, in situations similar to that of Mr. Reynoso. (Exhibit
« F », Items 9.2, 9.5, 10.2 and 10.3.)
[35]
Mr.
Reynoso’s delay in claiming refugee status, subsequent to his having fled, is
explained by his wanting to wait out the situation, in the hope that
circumstances in his country will improve so as to enable him to return. With a
daughter in Mexico, he made it known that
he felt torn; nevertheless, having learnt that his situation had not improved,
he initiated an inland refugee claim. Delay in claiming is not automatically
determinative of a lack of subjective fear. In this case, Mr. Reynoso’s
explanation remained consistent from the time of his entry into Canada until his first refugee
hearing. (Huerta v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 271 (QL); Sinnathurai v. Canada (Minister of Citizenship
and Immigration), 2005 FC 515, [2005] F.C.J. No. 653 (QL).)
[36]
As
stated in Cepeda-Gutierrez, above, this Court held that the Refugee
Division has a duty to assess the evidence and to articulate its determination.
Its failure to do so constitutes a reviewable error. In the present case, the
Panel failed to assess all the evidence, clearly not articulating its view on
key evidence which in fact contradict the rational of the Panel.
[37]
The
fact that Mr. Gamino was arrested and detained by the Capitol Police does not
serve as evidence that he will remain in prison and even be tried. Mr. Reynoso
can take little solace in this police detention and consider it as adequate state
protection. Articles reveal that Mr. Gamino had, in fact, obtained a quick
release, only to continue his previous activities, targeting his victims.
[38]
Since
the Panel did accept as credible, key incidents of persecution described by Mr. Reynoso,
it had a duty to conduct a full and fair objective risk assessment of the claim
pursuant to subsection 97 (1) (b) of IRPA. The subject of government
corruption, including police corruption and thereby, the possibility of state
protection for Mr. Reynoso, would have required an analysis by which to reach a
conclusion on state protection. That, in order, to rebut his evidence that
state protection was not available for him.
CONCLUSION
[39]
For
all above reasons, the Court finds that the Panel was patently unreasonable in
its disposition of Mr. Reynoso’s case. Consequently, the application for
judicial review is granted and the decision is returned to the Refugee Division
for redetermination by a differently constituted Panel.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be granted
and that the decision be returned to the Immigration Refugee Board for redetermination
by a differently constituted Panel.
“Michel M.J. Shore”
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