Date: 20020820
Docket: IMM-445-02
Neutral citation: 2002 FCT 893
Vancouver, British Columbia, Tuesday the 20th day of August 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ISRAEL AGUIRRE FLORES
OMAR AGUIRRE BARRERA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Aguirre Flores and Mr. Aguirre Barrera, the applicants, are cousins and citizens of Mexico who bring this application for judicial review from the January 3, 2002 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), which decided that they were not Convention refugees.
BACKGROUND
[2] Both Mr. Aguirre Flores and Mr. Aguirre Barrera state that they have a well-founded fear of persecution in Mexico due to their perceived political opinion and due to being members of a particular social group, namely family members of a person perceived to be a supporter of the Zapatistas.
[3] The CRDD found both applicants to be credible and trustworthy. Mr. Aguirre Flores stated that, in 1994, he came to the rescue of his brother Mario who had escaped from detention where he had been severely beaten by members of the Mexican military for his perceived membership in, or support of, the Zapatista movement.
[4] Almost three years later, in November 1996, Mr. Aguirre Flores was initially mistaken for his brother Mario by the Mexican military, detained, beaten, questioned as to his brother's whereabouts and released. As a result of this incident, in January of 1997 Mr. Aguirre Flores and his brother Mario moved to different provinces of Mexico. In 1999, Mario fled to Canada where he sought and obtained protection as a Convention refugee.
[5] Later, on December 20, 2000, a soldier arrived at Mr. Aguirre Flores' place of work inquiring of Mr. Aguirre Flores' home address. On being so advised, Mr. Aguirre Flores went into hiding at his niece's home, and then at the home of his cousin, Mr. Aguirre Barrera. Ultimately, Mr. Aguirre Flores fled Mexico for Canada on January 23, 2001.
[6] On January 29, 2001, officers from the Attorney General's office led by a Commander Martinez attended at Mr. Aguirre Barrera's home and questioned him about both Mr. Aguirre Flores and Mario. In February 2001, Commander Martinez and armed officers forcibly entered Mr. Aguirre Barrera's home, demanding to know the whereabouts of Mr. Aguirre Flores and Mario, and the location of weapons and drugs. Mr. Aguirre Barrera's home was searched and, when nothing incriminating was found, Mr. Aguirre Barrera and his male partner were beaten. Mr. Aguirre Barrera was taken into custody, verbally harassed about his sexual orientation, beaten and tortured, and questioned repeatedly about Mario and Mr. Aguirre Flores. Mr. Aguirre Barrera was obliged to transfer title to his car to Commander Martinez as a result of extortion. Mr. Aguirre Barrera was then taken to court were he was released on bail.
[7] Commander Martinez subsequently attempted, by threats to Mr. Aguirre Barrera and his partner, to extort confidential banking customer information from Mr. Aguirre Barrera, who worked in a bank. Mr. Aguirre Barrera refused to provide this information. As a result, Mr. Aguirre Barrera was subjected to more beatings and torture. He then decided to flee Mexico for Canada, arriving on March 30, 2001.
THE DECISION OF THE CRDD
[8] The CRDD, despite finding both applicants to be credible and trustworthy, did not accept that they had a nexus to a Convention ground because the agents of persecution were found to be corrupt members of the military, and not the Mexican military itself. As a result, the applicants were found to be victims of criminality. The CRDD found the applicants to have an obligation to approach the state for protection, which the CRDD found could reasonably be expected. Further, with respect to Mr. Aguirre Barrera, the CRDD accepted his evidence as to his sexual orientation, but found that he did not have a well-founded fear of persecution on that ground.
ANALYSIS
[9] It was conceded by counsel for the Minister that the applicants were not randomly targeted by the military authorities. The uncontradicted evidence was that they were initially targeted due to their relationship with Mario, who was perceived to have ties to the Zapatistas. Mr. Aguirre Flores testified that when first arrested he was questioned about Mario's whereabouts and asked about the people who were passing on weapons to Chiapas and the Zapatistas. Mr. Aguirre Barrera testified that when first arrested by Commander Martinez he was constantly asked about Mario, Mr. Aguirre Flores, drugs and weapons.
[10] Both counsel conceded that, as a matter of law, a sufficient nexus to sustain a claim to be a Convention refugee may be established where the motivation for persecution is mixed, but at least partially related to a Convention ground.
[11] Notwithstanding, the CRDD based its finding as to a lack of nexus on the testimony of Mario and Mr. Aguirre Flores that they believed that the members of the military who were seeking Mr. Aguirre Flores in December of 2000 were likely corrupt members of the military involved in criminal activity, and on the testimony of Mr. Aguirre Barrera that he was targeted by corrupt police officials who were looking for Mr. Aguirre Flores. The CRDD found "the motive of these particular representatives from the military is not clear".
[12] In Shahiraj v. Canada (Minister of Citizenship and Immigration), 2001 FCT 453; [2001] F.C.J. No. 734, at paragraph 19, Justice McKeown wrote:
It is not for the Board to base its determination as to whether or not a claimant has established a nexus to the Convention on the subjective belief of the alleged persecutors themselves, especially since these alleged persecutors are obviously not present at the hearing before the Board and cannot testify as to their own state of mind. Moreover, nothing turns on the applicant's opinion as to the subjective beliefs of the alleged persecutors. This evidence is merely opinion evidence that does not prove that the police did not believe that the applicant was connected to the militant movement in India.
[13] I agree, and accept and adopt those principles which apply equally to this case.
[14] Moreover, in simply relying upon the applicants' speculation as to the motivation for their persecution, the CRDD failed to refer to or to analyse the documentary evidence before it to the effect that state officials in Mexico are known to assert false charges of weapon and drug trafficking in an attempt to prosecute alleged Zapatistas. These were the very charges the military authorities were ostensibly questioning the applicants about.
[15] Therefore, in failing to analyse the documentary evidence as it was relevant to the applicants' testimony, in relying upon the applicants' speculation as to the subjective belief of their alleged persecutors, and in failing to consider that the motive for persecutory conduct could be mixed, the CRDD erred in reaching its conclusion as to nexus. These errors justify allowing the application for judicial review.
[16] While the CRDD did find as well the existence of adequate state protection, such finding was premised upon its conclusions as to nexus and that the applicants were simply the victims of corrupt members of the military involved in criminal activity. Given that the conclusion was so premised, the finding of state protection is insufficient to sustain the decision.
[17] In the result, the application for judicial review will be allowed. It is not necessary in this circumstance to consider whether or not the CRDD further erred in respect to Mr. Aguirre Barrera's nexus to a Convention ground on the basis of his sexual orientation.
[18] Counsel posed no question for certification and no question is certified.
ORDER
[19] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated January 3, 2002, is hereby set aside. The matter is remitted for redetermination by a differently constituted panel in a manner not inconsistent with these reasons.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-445-02
STYLE OF CAUSE: Israel Aguirre Flores, Omar Aguirre Barrera v. M.C.I.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 13, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: August 20, 2002
APPEARANCES:
Bediako K. Buahene FOR THE APPLICANTS
Banafsheh Sokhansanj FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Bediako K. Buahene FOR THE APPLICANTS
Vancouver, British Columbia
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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