Date: 20020301
Docket: IMM-2228-01
Ottawa, Ontario, March 1, 2002
Before: Pinard J.
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
- and -
Maria Del Socorro CHAVEZ PORTAL
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on April 12, 2001 that the defendant is a Convention refugee is dismissed.
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Yvon Pinard
JUDGE
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
Date: 20020301
Docket: IMM-2228-01
Neutral Citation: 2002 FCT 214
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
- and -
Maria Del Socorro CHAVEZ PORTAL
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division on April 12, 2001 that the defendant is a Convention refugee.
[2] The defendant is a citizen of Mexico. She alleged a fear of persecution in that country on account of her membership in a social group, the family.
[3] On finding the defendant, an elderly person, to be frank, sincere, open and entirely credible, the Refugee Division accepted her testimony and granted her refugee status.
[4] The following comments by the members in the decision in question are worth reproducing:
Mr. Quirion:
[TRANSLATION]
In view of the claimant's testimony, and also in view of the fact that her son was already granted refugee status in 1999, for problems which he alleged in his account, further in view of the fact that the claimant here is the mother of the claimant accepted in 1999, and in view of the fact that the person feared is a person with important responsibilities in Mexico, the tribunal comes to the conclusion that Maria Del Socorro CHAVEZ PORTAL is a "Convention refugee" [reference omitted], as defined in s. 2(1) of the Immigration Act . . .
Mr. Éthier:
[TRANSLATION]
. . . The testimony and the subjective fear is a crucial point, but not the only one, on the basis of which we can decide whether a person runs a reasonable risk of being persecuted. I think we are right to conclude that even if the claimant said "I am not afraid personally", I think her statements were the statements of a mother [and meant] "You know, at the age where I am, I have never had any problems, I will probably not have any myself", but at the same time the message she is sending us is that "I am likely to be the tool which is used to get to my son". I further interpret it as "I do not have any fear for myself but I know I can be used to get to my son".
I think this is the real meaning of her testimony and it is quite clear. I think that in this regard the political connotation which one can in fact find in the evidence submitted to the tribunal is that in view of the political climate in that country, because the documentary evidence indicates that it is very difficult to separate personal interests from the partisan interest of the government, and the entire climate is a mixture of corruption so that, when it is reasonable to think that a person may react in order to preserve his personal authority, I think that when corruption is so widespread at all levels and in all organizations, even if once again things seem to be moving in the right direction in Mexico, in improving things for the future, it is absolutely impossible to make a separation between personal interests and the interests of the ruling class. I agree with my colleague about the claimant's connection as a family member to a person already admitted as a refugee: I think there is sufficient connection in view of all this evidence, even though the claimant said she was not afraid, to conclude likewise that it is predictable and reasonable that she would run a risk of persecution if she ever had to return to her country.
[5] This is a case in which, despite an erroneous statement of principle regarding the subjective fear required, this Court's intervention is not warranted. The tribunal appeared to think that a person could not have a subjective fear if she was not herself a direct target of the persecuting agent. Such a belief is incorrect. In my opinion, if a person establishes that she fears being persecuted because she might be used as a tool or instrument to bring about the appearance and capture of a third person she can use this as a means of establishing the existence of a subjective fear of persecution.
[6] In the case at bar a non-microscopic reading of the decision readily indicates that the tribunal granted refugee status on the basis of the plaintiff's statement that while she did not herself feel that she was a political target in Mexico, she feared that she might be used as a tool or instrument to get to her son, who was such a target. The plaintiff was regarded as entirely credible and, though she did say she did not fear for herself, she gave the following answer, at p. 16 of the transcript of her testimony of April 9, 2001 (p. 361 of tribunal's record):
[TRANSLATION]
Q. But there are other things. Forget everything to do with sentiment, we will have to speak more specifically, more harshly. Do you have any fear or wish to be here or really there is nothing against me or something against you?
A. I know there is something against you and if they ever find me, they will surely force me to speak since they will not be able to make me speak, it is probable that . . . they might cause me to have an accident, something like that, and like that they say . . . like that they will force him to come and see his mother. That is all, yes, because fear for myself, no, no.
[7] This testimony, which was found credible, provides unquestioned factual evidence that effectively establishes the essential requirement of subjective fear of persecution. In the circumstances, it is not this Court's function to usurp the tribunal's duty to assess the evidentiary value of this relevant fact.
[8] The application for judicial review is accordingly dismissed.
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Yvon Pinard
JUDGE
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OTTAWA, ONTARIO
March 1, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2228-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
v.
MARIA DEL SOCORRO CHAVEZ PORTAL
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 7, 2002
REASONS FOR ORDER BY: PINARD J.
DATED: MARCH 1, 2002
APPEARANCES:
DANIEL LATULIPPE FOR THE PLAINTIFF
OSCAR FERNANDO RODAS FOR THE DEFENDANT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE PLAINTIFF
DEPUTY ATTORNEY GENERAL OF CANADA
OSCAR FERNANDO RODAS FOR THE DEFENDANT
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