Date:
20050121
Docket:
IMM-3912-04
Citation:
2005_FC 89
Ottawa, Ontario, January 21, 2005
PRESENT: THE HONOURABLE MR. JUSTICE
BEAUDRY
BETWEEN:
OLGA
CADENAS MUNOZ
Applicant
and
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
[1]
This is an application for judicial review pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001 c.27 (Act) of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (panel) dated March 24, 2004. In that decision, the panel determined
that the applicant was not a Convention refugee as defined in section 96 or a
“person in need of protection” under section 97.
ISSUE
[2]
Did the panel make a patently unreasonable error in determining that the
applicant was not credible?
[3]
For the reasons that follow, I must answer this question in the
affirmative. Accordingly, the application for judicial review must be
allowed.
BACKGROUND
[4]
The applicant is 34 years old and a citizen of Mexico. She alleges that
her refugee claim is based on a well-founded fear of persecution because of her
membership in a particular social group, i.e. that of women victims of conjugal
violence in Mexico. The applicant says that there is a risk to her life or to a risk of cruel and unusual treatment or punishment
if she were to return to her country of origin.
[5]
The applicant states that she was persecuted in her country by Luis
Hernandez, a judicial police officer in Mexico, who was her boyfriend. In
January 2002, the applicant told him that she wanted to end their relationship
because of his possessive and controlling behaviour. He promised to change and
asked her to marry him. She refused. On March 7, 2002, she decided to meet
Luis Hernandez to tell him how she felt about one of her friends, Anna Garcia.
He was furious and insulted her.
[6]
On March 9, 2002, Luis Hernandez began to harass and persecute her.
After he caught the applicant and her friend Anna kissing, he insulted her
again, attacked her and threatened to kill her. He repeated his threats during
a telephone conversation on March 17.
[7]
The next day, she went to work. It was then that she learned that
someone had accessed her e-mail, including the list of all of her clients and
suppliers, and had sent them a series of photos of herself posed naked and in
compromising positions. The applicant is convinced that this was the work of
Luis Hernandez, who as a police officer used his contacts in order to pull off
this wrongful act.
[8]
Three days after that incident, she was asked to resign. When she
refused, she was dismissed by her employer without a letter of reference. She
was then afflicted by serious depression. She claims that Luis Hernandez still
continues to harass her with phone calls.
[9]
Fearful of her persecutor, no complaint was filed with the police. The
applicant claims that her mother became seriously ill because of this
situation.
[10]
In May 2002, the claimant changed her telephone number in order to put
an end to the endless calls from Luis Hernandez. A few days later, he reached
her and continued to threaten her.
[11]
In October 2002, the applicant made a trip to Canada but had to return
to her country because her mother was threatened by Hernandez. She hid at her
father’s home in the Chiapas region. When she contacted her mother again, her
mother told her that the persecutor’s threats were still ongoing.
[12]
During the month of March 2003, she was kidnapped for four to five hours
by Hernandez’s men. Fearing for her life, she decided to leave the country on
March 17 to head for the United States, where she stayed for six months.
During that time, she was admitted to emergency at the hospital following a
nervous breakdown. After consulting counsel in New York, she arrived in
Montréal where she asked for Canadian protection.
IMPUGNED DECISION
[13]
The panel determined that the applicant did not qualify as a “Convention
refugee” or as a “person in need of protection” based on her lack of credibility.
The decision-maker criticized her for failing to provide the e-mail message
accompanying the photos sent to her co-workers and to her clients. He also
noted the exaggerated role attributed to Hernandez. He did not believe that
there was a reasonable subjective fear of persecution because the claimant
ended her trip to Canada to go back to find her mother. He did not assign any
probative value to the psychological report filed by the applicant or to the
letters from her co-workers corroborating the intrusion on her computer and
that compromising photos had been sent.
ANALYSIS
1. Did the panel make a patently unreasonable error in
determining that the applicant was not credible?
[14]
The standard of review for credibility issues is that of patent
unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (F.C.A.) (QL) at paragraph 4).
[15]
The panel criticizes the applicant in particular for failing to file the
e-mail message to which the compromising photos were attached. It is true that
this document could have been additional evidence adding weight to the
applicant’s claim. However, the Court considers it patently unreasonable that
the co-workers’ letters confirming receipt of the message with the photos were
excluded or set aside. The same can be said of the letter from her mother
corroborating the claimant’s story on that point. The photos in question were
sent to the applicant’s clients and suppliers, thereby violating her dignity
and her expectation of privacy.
[16]
The panel emphasized that the employer’s dismissal letter is completely
silent on the subject of the e-mail in question dated March 18, 2002. To the
contrary, the Court is not at all surprised that the employer, Panasonic of
Mexico, did not want to make such a reference in its letter. It is absolutely
normal that such a large company, with a human resources director in its
employ, would have decided not to refer to that e-mail.
[17]
The Court considers unwarranted and inappropriate the following
paragraph from the decision (page 4, last paragraph)
At
another point in the hearing, she added that . . . she had never had a sexual
relationship with Ms Garcia, that they had merely kissed and that she had not
seen her again since March 2002. Without making a judgment, the panel
nevertheless finds it surprising that the intimacy with Ms Garcia of the
claimant, who also testified that she had had urges or had felt attracted to a
classmate while in secondary school, should be limited to one kiss.
[18]
After a careful review of the passage in the stenographer’s notes on
this subject, the Court cannot see any basis for this extrapolation by the
panel. The applicant categorically denies that she had sexual relations with
that woman.
[19]
Finally, relying on the claimant’s behaviour at the hearing, the panel
considered the psychological report filed was largely exaggerated. Her counsel
pointed out that there was a break after his questions for the applicant and
those asked by the decision-maker. This could very well explain the change in
the applicant’s decision.
[20]
The statements by Martineau J. in R.K.L. v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL) at
paragraph 25, are applicable in this case:
. . .
Furthermore, in its zealous pursuit of inconsistencies, the Board placed too
much importance on peripheral elements and failed to focus on the real issues
that were before it: the applicant's subjective fear of persecution and the
objective basis for such fear. The Board seems to have ignored a great amount
of highly relevant evidence that appears on record. The psychological report,
which was admitted into evidence and remained uncontroverted, finds the
applicant credible and fully supports her story. . . .
[21]
After taking into consideration the evidence filed before the panel as
well as the stenographer’s notes, it is my opinion that the patently
unreasonable errors raised warrant the intervention of the Court.
[22]
The applicant’s counsel stated that he wanted to submit a question for
certification. The Court had told him that he had to submit it no later than
January 19 at noon. With respect to the opposing party, it should have made
its submissions known no later than January 20 at noon. The Registry received the
submissions by the applicant’s counsel, Mr. Istvanffy, at 4:30 p.m. on January
19, and I refused them. When a time limit is set by the Court, it must be
respected unless there are particular circumstances which must be explained,
which was not the case here. This matter does not raise any serious question of
general importance, therefore no question will be certified.
ORDER
THE COURT
ORDERS that the application for judicial review be allowed. The
applicant’s claim is referred to a differently constituted panel of the
Immigration and Refugee Board for reconsideration. No question is certified.
“Michel
Beaudry”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF
RECORD
DOCKET: IMM-3912-04
STYLE OF CAUSE: OLGA
CADENAS MUNOZ v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: January
18, 2005
REASONS FOR ORDER
AND ORDER: THE
HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: January
21, 2005
APPEARANCES:
Stewart Istvanffy FOR
THE APPLICANT
Mélanie Brouillette
Marie-Claude Paquette FOR THE
RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR
THE APPLICANT
Montréal, Quebec
John H. Sims FOR
THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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