Aguirre v. Canada (Minister of Citizenship and Immigration), docket IMM-4110-97

Date: 19980529

Docket: IMM-4110-97

BETWEEN:

     CARLA KARINA AGUIRRE PORTILLA,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent

     REASONS FOR ORDER

ROTHSTEIN J.

[1]      In this judicial review of a decision of a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board, the Applicant raises three arguments.

[2]      The Applicant is a citizen of Mexico. When she was 14 she, along with other school mates, began circulating pamphlets and painting graffiti against the government. The Applicant testified that as she was returning from school one day three men in a dark blue car stopped her and made her get in the car. She believed that the men were judicial police because they told her to stop painting graffiti.

[3]      The Applicant says she went into hiding for six months and then was brought by her sister to Canada as a visitor. She made no refugee claim at the time. After being in Canada for over a year, she returned to Mexico when Canadian Immigration Officials requested that she depart. She returned a few months later and applied for refugee status. The Applicant says the Mexican judicial police remain interested in persecuting her.

[4]      The panel found the Applicant was an unreliable witness. It did not find credible that a 14 year old middle class student's "wall daubings" would be of immediate interest to the Mexican judicial police or that such graffiti would be of ongoing concern to them.

[5]      As to the first issue, Applicant's counsel says that in finding the Applicant's story was implausible the panel disregarded documentary evidence. However, the documentary evidence to which counsel refers is general in nature. While in some cases such evidence might have significant probative value, in this case the implausibilities in the Applicant's story were related to the specifics of the Applicant's situation. I am satisfied the panel's credibility findings were based on the evidence before it.

[6]      As to the second issue, the Applicant believed she had been apprehended by the Mexican judicial police because, amongst other things, they "drove a big dark blue car". Panel member Burke, making reference to subsection 68(4) and (5) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, advised the parties that he had lived in Mexico from 1977 to 1981 as Canadian Consul and had made recent visits to Mexico and that it was common to see large cars in Mexico, many of which have tinted windows because of the sun. Mr. Burke called the information he gave "specialized knowledge". Subsection 68(4) and (5) provide:

[7]      Applicant's counsel says the information given by Mr. Burke was not specialized knowledge within the meaning of subsection 68(4) and I am inclined to agree with her. However, I would think that for purposes of the subsection, Mr. Burke must have thought it was at least a generally recognized fact that it is common to see big cars in Mexico.

[8]      After Mr. Burke's statement and objection by counsel, the Chairman of the panel advised counsel that the panel would be prepared to receive further evidence or submissions in respect of vehicles in Mexico City. The Applicant did not submit further evidence.

[9]      While panel members should take care to concentrate on evidence given before them, there will be occasions when a panel member will have some knowledge that will cause him or her to invoke subsections 68(4) and (5). The purpose of these provisions is to ensure that parties have an opportunity to make representations when a panel may take notice of generally recognized facts or information or opinion that is within its specialized knowledge. That opportunity was afforded the applicant in this case. Mr. Burke's statement that it was common to see large cars in Mexico was innocuous and does not give rise to a reasonable apprehension of bias.

[10]      Nor was there any obligation on the panel to make express reference to Mr. Burke's statement in its reasons. The panel did make reference to the Applicant's evidence that the men who abducted and assaulted her were driving a big dark blue car and that she thought that they were judicial police. However, it noted that she could provide no further details about the car. Clearly the panel was not prepared to infer, just because the Applicant said that the men who abducted and assaulted her were driving a big dark blue car, that they were Mexican judicial police. The panel concluded that it was implausible that the Mexican judicial police were interested in continuing to persecute the Applicant. The panel was not obliged to make explicit reference to Mr. Burke's observations in its reasons, although it appears they had some influence on its conclusion. The important point is that the Applicant was given the opportunity to submit evidence and make representations in response to Mr. Burke's statement. In providing that opportunity the Board complied with subsection 68(5) of the Immigration Act.

[11]      The judicial review is dismissed.

                             (Sgd.) "Marshall E. Rothstein"

                                 Judge

Vancouver, British Columbia

May 29, 1998

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING DATED:          May 26, 1998

COURT NO.:              IMM-4110-97

STYLE OF CAUSE:          Carla Karina Aguirre Portilla

                     v.

                     MCI

PLACE OF HEARING:          Vancouver, BC

REASONS FOR ORDER OF ROTHSTEIN, J.

dated May 29, 1998

APPEARANCES:

     Ms. Jennifer Watt          for Applicant

     Ms. Emilia Pech          for Respondent

SOLICITORS OF RECORD:

     Simkin & Co.

     Vancouver, BC          for Applicant

     George Thomson          for Respondent

     Deputy Attorney General

     of Canada