Rosales v. Canada (Minister of Citizenship and Immigration), 2005 FC 1375

Date: 20051011

Docket: IMM-5331-04

Citation: 2005 FC 1375

Ottawa, Ontario, October 11, 2005

PRESENT:    The Honourable Mr. Justice O'Reilly

BETWEEN:

MARCELA IVET GONZALEZ ROSALES

JENNIFER SANDOVAL GONZALEZ

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]     In 2001, Ms. Gonzalez Rosales came to Canada with her daughter because she feared her former Mexican employer, Mr. Federico Mayorga Villanueva. Ms. Gonzalez Rosales said that Federico threatened to harm her if she failed to swear a false statement that would help clear him of involvement in the murder of a fellow employee.

[2]     A panel of the Immigration and Refugee Board heard and dismissed Ms. Gonzalez Rosales'refugee claim in 2004. The Board found that Ms. Gonzalez Rosales was probably no longer in danger from Federico, that she had failed to avail herself of available state protection, and that she could have lived safely elsewhere in Mexico. Ms. Gonzalez Rosales argues that the Board made a number of errors and asks me to order a new hearing. I agree with Ms. Gonzalez Rosales' submissions and, therefore, will grant this application for judicial review.

I.         Issue

[3]    Were the Board's conclusions supported by the evidence?

II.      Analysis

(a)     Factual background

[4]     The Board found that Ms. Gonzalez Rosales's testimony was "consistently forthright". She gave the following account of the events giving rise to her flight to Canada.

[5]     In 1994, Ms. Gonzalez Rosales began working for Federico, first in a law firm and then in a security company. Federico hired ex-police officers, including Mr. Carlos Garcia Soto, with whom Ms. Gonzalez Rosales had an intimate relationship. Carlos told her that Federico was not really a lawyer, as he claimed. Further, he said that Federico had committed crimes of insurance fraud, auto theft, kidnapping and murder in the course of his security business. In 1998, when Carlos himself was murdered, Federico was the main suspect. Carlos was having an affair with Federico's wife.

[6]     To protect himself, Federico demanded that Ms. Gonzalez Rosales sign a false statement to the effect that Carlos was trafficking in drugs and had received death threats from dealers. After Ms. Gonzalez Rosales gave her statement, she quit her job. Later, the police asked her to reiterate her statement. Before she did so, Federico reminded her of what had happened to Carlos when Carlos betrayed him.

[7]    Ms. Gonzalez Rosales felt conflicted about what to do but, fortunately for her, the investigation was closed and Federico left her alone for a while. However, in 2000, the investigation into Carlos' death was re-opened. Again, Federico urged Ms. Gonzalez Rosales to provide a false statement and threatened to harm her or her daughter if she failed to comply. She told Federico that she would do as he wished but, instead, began to make plans to leave the country.

[8]     Later, Ms. Gonzalez Rosales' sister, Yolande, told her that the police were looking for her. In order to avoid them, she went to stay with her brother in Reynosa, but the authorities went looking for her there, too. Her sister then advised her to go to Canada. She did.

[9]     Ms. Gonzalez Rosales' other sister, Norma Alicia, went to the Public Ministry's office to try to obtain a copy of Ms. Gonzalez Rosales' first police statement for purposes of her refugee hearing. She was refused. She concluded that the investigation into Federico continued to be active. Soon after, Norma Alicia started receiving death threats and was later found dead on the side of the road in Cuernavaca. She had been beaten to death. The police refused to provide the family with a report of her death.

(a)     Was Ms. Gonzalez Rosalesstill at risk?

[10]                        While the Board accepted Ms. Gonzalez Rosales' testimony about her dealings with Federico and her fear of him, it concluded that she was no longer at risk.

[11]                        The Board referred to a published journal article in which Federico, now President of the Association of Private Security Companies, was quoted on the subject of government regulation of security firms. From this article, the Board concluded that Federico was a prominent public figure and no longer under investigation. Therefore, Ms. Gonzalez Rosales had nothing further to fear.

[12]                        I cannot see a basis for the Board's conclusion. Whether Federico was head of the Association, or quoted in the media, provides no indication whether the police were still investigating him. Police do investigate persons who have a public profile. Further, Ms. Gonzalez Rosales knew that Federico had political aspirations and that her knowledge of his past could stand in his way. Accordingly, on the evidence before the Board, Ms. Gonzalez Rosales had reason to continue to fear Federico, whether or not he continued to be under investigation.

(a)     Was state protection available?

[13]                        The Board noted that Ms. Gonzalez Rosales did not tell the police about her fear of Federico. It observed that Mexico is a democratic state that provides police services to its citizens and is trying to crack down on police corruption. Therefore, the Board felt that Ms. Gonzalez Rosales should have tried to get state protection in Mexico rather than seek refuge in Canada.

[14]                        However, the Board did not consider evidence that Federico had strong ties to the police and seemed to be able to direct them to act on his behalf. Nor did it take account of the fact that Ms. Gonzalez Rosales' sister was killed after having gone to the police. In my view, there was clear evidence before the Board that Ms. Gonzalez Rosales had good reason to be afraid of seeking state protection. Therefore, her refugee claim should not have been denied on that basis. A person is entitled to refugee protection in circumstances where he or she has a well-founded fear of persecution and reasonably fears to seek state protection (s. 96, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27).

(a)    Would Ms. Gonzalez Rosalesbe safe elsewhere in Mexico?

[15]                        The Board found that Ms. Gonzalez Rosales could move from Cuernavaca, and find a job and live safely in Mexico City or Villa Hermosa, where her sister lives. It doubted Federico would seek her out in those cities.

[16]                        Again, the Board did not refer to the relevant evidence. Ms. Gonzalez Rosales said that the police, probably at Federico's behest, had come looking for her in Reynosa. It is not clear why the Board thought Ms. Gonzalez Rosales would be safe in other parts of Mexico. In addition, the Board did not consider whether it would have been reasonable for Ms. Gonzalez Rosales to move to Mexico City or Villa Hermosa, as it was obliged to do (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) (QL)).

III.    Conclusion

[17]                        I find that the Board's conclusions were unsupported by the evidence before it and I must, therefore, allow this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is granted.

2.          No question of general importance is stated.

"James W. O'Reilly"