Date: 20100119
Docket: IMM-1222-09
Citation: 2010 FC 50
Ottawa, Ontario, January 19,
2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
ESTEBAN SANCHEZ FOCIL
ARIANNA YURIE SANCHEZ NARITA
KAZUE NARITA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This concerns an application brought pursuant to section 72 of the Immigration
and Refugee Protection Act (the “Act”) by Esteban Sanchez Focil, his wife
Kazue Narita and their minor child Arianna Yurie Sanchez Narita (all three
applicants being collectively referred to as the “Applicants”) seeking the
judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the “Panel”) rejecting the Applicants’ refugee
protection claims under section 96 and subsection 97(1) of the Act.
[2]
The Applicants arrived in Canada on December 14, 2006 and claimed
refugee protection on that date. The Applicant, Mr. Sanchez Focil, is a citizen
of Mexico, his wife Mrs. Narita is a citizen of Japan and their daughter is a
citizen of both Mexico and Japan. The Applicant, Mr. Sanchez Focil, claimed
refugee status and protection based on his allegation that a left-wing group
operating in Mexico had threatened him. His wife, the Applicant Mrs. Kazue
Narita, claims fear of persecution in Japan because of her past connection with
a marginal Christian sect operating in Japan, and, their daughter alleges
discrimination in Japan because of her mixed origins.
Background
[3]
The Applicants have provided a detailed and exhaustive narrative
explaining their personal situation which takes some 35 pages of single lined
typed text in their personal information forms. The following is a partial
summary of this narrative.
[4]
The Applicant, Mr. Sanchez Focil, has worked in the film industry in Mexico
and as an English as a second language teacher. His work has included
involvement in many American cinematographic and television productions filmed
in Mexico. He claims to be strongly identified in Mexico with American film and
television production companies.
[5]
The Applicants lived in León in the state of Guanajuato, Mexico from
January 2001 to November 2006. For a little more than two months (from October
to December of 2005) the Applicant, Mr. Sanchez Focil, travelled to the state
of Oaxaca in Mexico to work on the Paramount Pictures and Nickelodeon Studios
film “Nacho Libre”. His job consisted in ensuring that Mexican cast members
could communicate with the American film crew and in teaching the Mexican
“extra” various basic words in English. During this work assignment, the
political situation in the state of Oaxaca deteriorated and the province was in
the grips of major civil strife surrounding a teachers’ strike.
[6]
Mr. Sanchez Focil asserts that during his brief stay in Oaxaca, he had
political discussions with some of his Mexican students who were part of the
film production. He claims he stated to his students that he liked working for
American production companies and he defended their presence in Mexico. This
was apparently ill-received by some of the students who viewed the American
companies as exploiters and who criticized him for being paid what was
perceived as a large salary for his services.
[7]
After Mr. Sanchez Focil left Oaxaca State and returned to the city of
León sometime in December of 2005, the political situation in Oaxaca continued
to deteriorate. This state became more and more embroiled in severe civil
strife requiring forceful intervention by the Mexican federal authorities. This
civil strife was expanded to other areas of Mexico by associations developed
between various left-wing groups in Mexico in support of the quasi-insurrection
in Oaxaca. This resulted in threats of violence and actual violent acts in Oaxaca
and in other areas of Mexico, notably bombings in Mexico City.
[8]
The Applicant, Mr. Sanchez Focil, states that he has often been mistaken
as an American or the son of a Mexican politician since he speaks very good
English with an American accent, is married to a Japanese citizen, and
basically carries out his life in a Westernized fashion, using English as the
language of communication with his wife. He believes that he and his wife have
been targeted by left-wing groups for these reasons.
[9]
On November 11, 2006, almost one year after having worked in Oaxaca, the
Applicant Mr. Sanchez Focil claims to have received an anonymous call from a
man with an Oaxaca accent who allegedly told him the teachers would get the
money the Applicant had received from American studios by any means necessary,
and then hung up. This was allegedly followed by a series of anonymous phone
calls during the nights between November 11 and 16, 2006 where no one would
answer at the other end of the line.
[10]
Early in the morning of November 16, another call from another man with
an Oaxaca accent was allegedly received by Mr. Sanchez Focil. This second
caller again stated that the money he received from the American studios would
have to be returned or he would not finish the year. This was perceived as a
death threat by Mr. Focil. Following this call, Mr. Focil went that same day to
the police in León for assistance. He was however unable to secure preventive
protection from the police or a wiretap operation on his phone. In light of the
circumstances, both Mr. Sanchez Focil and Mrs. Narita decided to move with
their daughter and their son to the town of El Cercado in the state of Nuevo
León to stay with friends of the family.
[11]
The stay in El Cercado was brief and the Applicants returned to the city
of León on December 1, 2006 to secure a passport for their son, but out of
fear, they stayed at a hotel rather than return to their residence. Mr. Focil’s
mother and father returned to the Applicant’s residence to gather belongings and,
while they were there, the mother would have answered a telephone call with an
anonymous caller seeking to secure the whereabouts of her son and making
threats. The mother immediately reported this incident to the local police in
León.
[12]
Later that day, Mr. Sanchez Focil and Mrs. Narita claim they were
pursued by car in the city of León and threatened by the occupant of that
vehicle who tried to hit their own vehicle. After this incident, they decided
to leave Mexico permanently. They first stayed with family friends in San Juan
de Rio in the state of Queretaro until they could secure their passage to Canada
on December 14, 2006. Their son remained in Mexico with Mr. Sanchez Focil’s
parents since no passport had been secured for him.
[13]
The Applicants submitted a long letter from Mr. Sanchez Focil’s parents
supporting their claims, as well as copies of various police reports. Both Mr.
Sanchez Focil and Mrs. Narita testified before the Panel.
[14]
As for the Applicant Mrs. Narita, she claims that it would be difficult
for her to live in Japan and she essentially seeks refugee status and
protection on the basis of her husband’s application. She is nevertheless also
claiming refugee status in regard to Japan on the basis of her former
membership in a fringe Christian sect known as “The Family” and also known as
“The Children of God” or “The Family of Love”. This former association is said
to make her a pariah in Japanese society to the point of persecution. Mrs.
Narita’s association with this group started as a child where she was raised in
Japan by her grandparents who were members of this group. In light of the
particularities of Japanese society, Mrs. Narita asserts that it would be
impossible to conceal her past connection to this group, and she would be for
all intents and purposes unemployable in Japan.
[15]
Mrs. Narita completed her education in Japan within the school system
managed by “The Family” in order to please her grandparents who were her de
facto parents. She did not wish to continue belonging to this sect and she
left Japan for Mexico in September of 1997 at age 19. She claims to have been
forced to leave Japan since, outside the boundaries of the fringe sect “The
Family”, there is no permanent place for her in the tightly knit Japanese
society. The sect she was raised in is said to be shunned by Japanese society,
having been the object of many negative press reports.
[16]
Moreover, she claims her grandparents are prominent members of this
religious group, and she also claims her grandmother is a main spokesperson for
the group. Mrs. Narita testified that at least one other member of “The Family”
committed suicide after leaving the sect as a result of not being able to
adjust to Japanese society. Mrs. Narita noted that there is often incredulity
in Canada when she asserts her refugee claims concerning Japan, and she
attributes this to the general lack of knowledge and understanding of Japanese
society compared to other Western nations. Individualism as practiced in other
Western countries is alien to Japanese society were she claims it is commonly
held that the individual is responsible not only for his or her own deeds, but
also those of the individual’s family. She believes that in light of her
association with the sect, she would have no future in Japan, that she could
not be employable there and that she would be ostracized from the general
Japanese society should she return.
[17]
Mrs. Narita also claims that her daughter would face racial
discrimination in Japan since she is of mixed ethnicity and has a foreign looking
appearance to Japanese. In a recent trip to Japan to attend to her dying
mother, Mrs. Narita brought her young daughter with her and she claims to have
encountered, during her brief stay, discrimination in securing for her
daughter’s medical services and day care services. Mrs. Narita supports these
claims with numerous reports and articles concerning alleged discriminatory
treatment afforded in Japan to the Ainu, the Baraku, the Koreans and foreigners
generally. She also submitted a medical report concerning her daughter dated
July 14, 2008 concluding that the child had difficulties adapting to change and
new environments and has high anxiety levels directly related to the anxiety
levels of her parents.
The Panel’s Decision
[18]
In its decision, the Panel rejected all the claims of the Applicants.
[19]
The Panel rejected the claims of the Applicant, Mr. Sanchez Focil,
essentially on the basis that his story was not credible. In a nutshell, the
Panel did not find credible that one year after Mr. Sanchez Focil carried out a
short work assignment in Oaxaca, some of his former students and their
left-wing associates would have pursued him in the far away city of León. As
noted by the Panel at paragraph 27 of the decision: “[n]one of this makes any
sense, and the panel concludes that there is no evidence that those students
were involved in anything.”
[20]
Moreover, the Panel also found, based on the police reports which were
produced, that the Mexican police authorities had taken very seriously the
alleged telephone threats concerning Mr. Sanchez Focil. A negative inference
was drawn against Mr. Sanchez Focil for having refused to install a caller
identification device on his telephone as recommended by the police. As noted
by the Panel at paragraph 30 of the decision: “[i]f the calls truly did occur,
the panel is of the opinion that the claimant made no effort to identify who
was threatening him”.
[21]
Having found the claim not credible, the Panel did not deem it useful to
deal with the alleged vehicle chase prior to the departure of the Applicants
for Canada.
[22]
The Panel concluded as follows at paragraph 33 of the decision
concerning the claims raised by Mr. Sanchez Focil:
Ultimately, the claimant has
framed a story around the chaotic situation in Oaxaca in 2006. He had worked in
Oaxaca for only two months in 2005, and then went home to Léon, which is a
long distance from Oaxaca. Because of certain remarks he made to his so-called
students in the fall of 2005, they allegedly informed on him to an opposition
movement, after obtaining his personal information while occupying a bank. The
movement, Teachers’, APPO or something else, allegedly pursued him a long way
from Oaxaca to demand his pay, which it regarded as being too high in
comparison to what was paid to people who did not speak English. That story is
implausible, and the claimant has provided absolutely nothing to prove it.
[23]
Concerning Mrs. Narita’s claims, these are rejected in an analysis which
reads as follows:
[36] The panel is of the
opinion that the female claimant has provided no evidence to support her claim
that she might be persecuted if she were to live in Japan because of her former
membership in a sect. As well she provided no documents regarding the sect. The
panel also notes that the claimant went back to Japan on September 1st,
2005, to look after her mother. She returned to Mexico in June 2006. The
claimant has reported no significant facts to show that she herself was
subjected to anything that might corroborate her statements.
[24]
The claims related to the daughter are also rejected for the following
reasons:
[37] The problems that her
daughter Arianna allegedly had with other children or a doctor, or getting
admitted to a childcare centre, are insufficient to support a claim for refugee
protection. The psychiatric report dated July 14, 2008, concludes that
Arianna’s anxiety seems to be directly related to the level of anxiety felt by
her parents. That does not establish a connection with the situation she
experienced in Japan.
Analysis
[25]
The standard for reviewing decisions of the Refugee Protection
Division of the Immigration and Refugee Board based on issues of witness
credibility and the assessment of evidence is that of reasonableness: Aguebor
v. Canada (Minister of Employment and Immigration) (F.C.A.), (1993) 160
N.R. 315, [1993] F.C.J. No. 732 at para. 4; Sukhu v. Canada
(Minister of Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No.
515 at para. 15; Sierra v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1048, [2009] F.C.J. 1289 at para. 20. I will
accordingly apply that standard in proceeding with this judicial review.
Consequently, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at para. 47).
[26]
There was clearly a troubling political situation and a social uprising
in Oaxaca during the period between the short work assignment of Mr. Sanchez
Focil in that state in the fall of 2005 and the arrival of the Applicants in Canada
in December of 2006.
[27]
One issue of importance to this judicial review is whether the Panel
made an unreasonable assessment of the evidence in finding that Mr. Sanchez
Focil’s claims of being pursued by a left-wing Oaxaca group in the context of
that uprising were simply not credible and were unsupported by the evidence.
[28]
The Panel found that it was not credible that left-wing organizations or
individuals in Oaxaca would be seeking to harass Mr. Sanchez Focil in a far
away city more than one year after his brief work assignment in Oaxaca. This
finding falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law. It was not unreasonable for the
Panel to have concluded that the Applicant’s narrative was not credible in
these circumstances. The Applicant states that over one year after a brief work
assignment in Oaxaca, and based on a brief conversation with students involved
in an American movie production there, a left-wing organization would suddenly
decide to pursue him in a far away city for the purposes of threatening his
life. The conclusion of the Panel here is an acceptable outcome. This Court may
have arrived at a different conclusion, but this is not its mandate, which is
limited to ensuring that the Panel’s decision falls within the range of
acceptable outcomes and complies with legislation and principles of fairness
and of natural justice.
[29]
Moreover, it is almost inconceivable that an internal flight alternative
within Mexico would not have been available to the Applicants even if their
narrative is to be believed. The position advanced by the Applicants is that
their left-wing persecutors would pursue them over vast distances throughout Mexico,
yet no evidence was submitted to substantiate such a claim.
[30]
In recent years, the Supreme Court of Canada has clearly stated that in
reviewing a decision from an administrative tribunal, a superior court should
avoid substituting its own assessment of the evidence to that of the tribunal.
This is particularly the case where the administrative tribunal, such as here,
has had the opportunity of hearing the testimony viva voce and is thus
in a much better position to evaluate the credibility of witnesses. The
function of this Court is to ensure that the Panel carried out its
responsibilities within the legal framework set out by its constitutive
legislation and with due regard to the rules of fairness and of fundamental
justice. Where this legal framework has been followed and the rules of
fundamental justice adhered to, a reviewing court should not interfere unless
the decision is clearly unreasonable. The conclusions of the Panel here are not
unreasonable.
[31]
Concerning the claims of Mrs. Narita, it is obvious that Japan is an
advanced democracy committed to upholding human rights. However, in every
society, even the best of societies, particular and unusual personal
circumstances may be such as to require at the very least a serious and deep
inquiry in order to determine if such special and unusual circumstances justify
the extension of protection to the concerned individual: Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689.
[32]
In this case, and as the Panel found, no independent third party
evidence of special and particular circumstances was advanced by Mrs. Narita,
who supported her entire case solely on her own testimony before the Panel and
on her long narrative in her personal information form. She did not bring
forward any independent proof of her past involvement with the sect or of her
filiations with her grandparents, nor any news clippings or other independent
confirmation of the negative media profile of the group in Japan or concerning
the most pertinent aspects of her testimony and narrative. At best, she
referenced in her narrative an unofficial Internet site concerning the sect and
its activities. However, no independent third party evidence confirming that
Mrs. Narita was part of the sect was provided to the Panel, nor was the Panel
provided with any objective evidence of persecution of these sect members or
former members of this sect in Japan.
[33]
Moreover, Mrs. Narita spent many months in Japan between September of
2005 and June of 2006, and, as the Panel noted, no evidence of persecution was
submitted by her concerning the period of her stay there. Obviously, Mrs.
Narita would prefer not to live in Japan since she sees no real future for her there.
That may well be her personal preference; however this does not make her a
Convention refugee or a person in need of protection. Refugee protection is not
an alternative immigration vehicle. It serves specific purposes geared to Canada’s
human rights commitments and international obligations.
[34]
In these circumstances, the decision of the Panel regarding Mrs. Narita
“falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, supra, at para. 47).
[35]
Concerning the claims made for the daughter of Mr. Sanchez Focil and of
Mrs. Narita, the Panel concluded that it was not possible to grant refugee
status or protection on the simple basis of alleged difficulties resulting from
insensitive comments by a doctor or difficulties with a day care center
encountered within the context of a seven month trip to Japan. This conclusion
of the Panel is reasonable.
[36]
This case raises no important question justifying certification pursuant
to paragraph 74(d) of the Immigration and Refugee Protection Act, and
consequently no such question shall be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review is dismissed.
"Robert
Mainville"
Email this Content