Date: 20000317
Docket: IMM-2347-99
OTTAWA, ONTARIO, THE 17TH DAY OF MARCH, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between:
MARIA TERESA FRANCO JUAREZ
JUAN ANTONIO MANDUJANO FRANCO
MONICA MANDUJANO FRANCO
CLAUDIA MANDUJANO FRANCO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The application for judicial review is allowed. The matter is sent back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.
Certified true translation
Martine Brunet, LL.B.
Date: 20000317
Docket: IMM-2347-99
Between:
MARIA TERESA FRANCO JUAREZ
JUAN ANTONIO MANDUJANO FRANCO
MONICA MANDUJANO FRANCO
CLAUDIA MANDUJANO FRANCO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Division") that the applicants are not Convention refugees.
[2] The applicants, Maria Teresa Franco Juarez (the female applicant), her son Juan Antonio Mandujano Franco and her daughters Monica and Claudia Mandujano Franco, aged 47, 17, 23 and 27 respectively, are citizens of Mexico. They allege a well-founded fear of persecution because of their membership in a particular social group, the family.
[3] The essential facts of this case are reported by the panel in its decision:
[Translation] The claimant and her three children had to flee Mexico because they were victims of political persecution by the government and the military. They base their story on the story of the claimant's brother, Mariano Franco Juarez, who has been in Canada since 1995 with his family. In 1994, he was the alleged victim of extortion attempts while he was a Chrysler Corporation manager. Convinced that guerrillas were involved, he informed the police of the matter, and was told by them that this was common in Mexico and that they could do nothing for him. Consistently refusing to yield, the principal claimant's brother was constantly harassed and threatened by the extortionists. As a member of the executive of the Party of the Democratic Revolution (PRD), he discussed the matter with party members. The PRD hired some private investigators to get to the root of the matter. They discovered that those responsible for the extortion attempts were people in the government who also had some support in high places. A victim of several attacks on himself and his family, the claimant's brother left for Canada, where he obtained refugee status on February 10, 1997.
[4] In its decision, the panel notes that the applicants base their claim entirely on that of the female applicant's brother, having cut out and pasted his reply to question 37 on the Personal Information Form ("PIF") "[Translation] about the only difference being that it is preceded by two short paragraphs of personal information". The panel holds that the applicants did not alter their PIF although they were given an opportunity to do so at the commencement of the hearing, and that this affects their credibility.
[5] It is trite law that the panel's task is to assess the probative value of the evidence and to draw negative inferences about the claimants' credibility if some facts it considers relevant were added to the PIF through alterations made during the hearing. But in this case, the female applicant sent an appendix to her PIF prior to the hearing and, pursuant to the panel's invitation, her counsel even made some corrections at the commencement of the hearing.
[6] The incidents peculiar to the applicants are not, it is true, recounted in the female applicant's PIF, but it is incorrect to say that the applicants did not avail themselves of the opportunity to amend their form.
[7] This error is crucial, since it undermined the applicants' credibility. The issue of credibility was at the heart of the claim, so the panel committed an error that warrants the intervention of this Court in finding that the applicants lacked credibility on the basis of an erroneous interpretation of the facts.
[8] The panel also found that there was no link with any of the five grounds in the definition of refugee. It drew this conclusion solely from a so-called unsolicited reply by the female applicant "that they would take it out on her out of vengeance". But a reading of the transcript reveals that this was not an unsolicited reply but rather a reply to a leading question by the chairperson of the panel.
[9] Although the issue of whether a claimant sustains a fear of vengeance or persecution is a question of fact within the expert knowledge of the tribunal, the latter's determination must be based on all of the evidence on the record, which is not so in the case at bar.
[10] As to a change in circumstances, I believe the documentary evidence does not support the panel's finding. True, it is said that the Mexican government is trying to eliminate corruption, but it is observed that corruption still exists. In an article dated August 26, 1998, it is reported that President Zedillo himself said the effects of the program will not be felt for one or two years. Thus at the time of the hearing there was no change in circumstances.
[11] For these reasons, the application for judicial review is allowed. The matter is sent back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.
OTTAWA, ONTARIO
March 17, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-2347-99
STYLE: MARIA TERESA FRANCO JUAREZ et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: 15-MAR-2000
REASONS FOR ORDER OF TREMBLAY-LAMER, J.
DATED: 17-MAR-2000
APPEARANCES:
LENYA KALEPDJIAN FOR THE APPLICANTS
SHERRY RAFAI FAR FOR THE RESPONDENT
SOLICITORS OF RECORD:
LENYA KALEPDJIAN FOR THE APPLICANTS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Applicants' Record, at p. 7.
Peng v. M.E.I. (February 1, 1993), A-1054-90 (F.C.A.); Packhov v. M.C.I. (1999), 160 F.T.R. 49.
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