Docket:
IMM-4703-11
Citation:
2012 FC 173
Ottawa,
Ontario, February 8, 2012
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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ANTONIO LOPEZ
AGUILERA
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
It
all began in 1998, when Mr. Lopez Aguilera filed a complaint with the
police following a break‑in at his house. The police demanded bribes from
him to investigate. They pursued him for the next ten years throughout Mexico
to obtain more bribe money and finally beat him severely in 2008. At that
point, Mr. Aguilera left Mexico to come to Canada and claim refugee status
for himself, his wife and his children.
[2]
In
his oral decision at the hearing, the presiding member of the Refugee
Protection Division (RPD) of the Immigration and Refugee Board of Canada rejected
Lopez Aguilera’s refugee claim. If the decision had been written the way
that counsel for the Minister argues that it could have been, the rejection of the
refugee claim could have been justified. However, the reasons for decision must
be considered as they are. They are wrong in law, and therefore the application
for judicial review will be allowed and referred to another decision‑maker
for redetermination.
[3]
The
presiding member stated at paragraph 14 of his reasons, as written after the
hearing:
I am going to reject your refugee protection claim
for two fundamental reasons.
[4]
Based
on my interpretation, the two reasons are intertwined. One deals with Mr. Aguilera’s
credibility and the other with his failure to present documents to support his
refugee claim. It is clear, however, that the presiding member found him not
credible because he had not submitted documents to corroborate the facts
alleged in his claim.
[5]
The
presiding member found no inconsistency in Mr. Aguilera’s testimony other
than where he testified at the hearing that he had told a lawyer about
everything he had experienced, a fact that he had not initially revealed.
[6]
However,
I have not found any specific finding that Mr. Aguilera was not credible
on the basis of his testimony. It is settled law that there is a rebuttable
presumption that the applicant’s allegations are true unless there are reasons
to doubt their truthfulness (Maldonado v Canada (Minister of Citizenship and
Immigration), [1980] 2 FC 302, [1979] FCJ No. 248 (QL)).
[7]
In
my opinion, it is the application of rule 7 of the Refugee Protection
Division Rules and subsection 100(4) of the Immigration and Refugee
Protection Act that it is determinative in this case.
[8]
Rule 7
provides as follows:
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The
claimant must provide acceptable documents establishing identity and other
elements of the claim. A claimant who does not provide acceptable documents
must explain why they were not provided and what steps were taken to obtain
them.
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Le
demandeur d’asile transmet à la Section des documents acceptables pour
établir son identité et les autres éléments de sa demande. S’il ne peut le
faire, il en donne la raison et indique quelles mesures il a prises pour s’en
procurer.
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[9]
Subsection 100(4)
of the Act states:
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The burden of proving that a claim is
eligible to be referred to the Refugee Protection Division rests on the
claimant, who must answer truthfully all questions put to them. If the claim
is referred, the claimant must produce all documents and information as
required by the rules of the Board.
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La preuve de la recevabilité incombe au
demandeur, qui doit répondre véridiquement aux questions qui lui sont posées
et fournir à la section, si le cas lui est déféré, les renseignements et
documents prévus par les règles de la Commission.
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[10]
No
doubt the presiding member was expecting, correctly, that Mr. Aguilera
would submit documents to corroborate the facts alleged in his refugee claim.
The issue is whether he took the appropriate steps to obtain these documents.
Essentially, Mr. Aguilera testified that he had asked his mother, who is
still in Mexico, to obtain the documents for him, but she was unable to do so.
The presiding member criticized Mr. Aguilera for not personally requesting
these documents from the Mexican authorities, from Canada. The reasons do not
indicate the reason why Mr. Aguilera, thousands of kilometres from Mexico,
would be in a better position than his mother to obtain these documents.
[11]
It
is unreasonable to expect that Mr. Aguilera would personally take steps to
obtain these documents rather than using an agent. No investigation was initiated
to ascertain what steps his mother took and whether those steps were
reasonable.
[12]
It
is wrong in law to draw a negative inference about an applicant’s credibility from
the mere fact that no documents were submitted to support the refugee claim. As
Mr. Justice Beaudry stated in Pinedo v Canada (Minister of
Citizenship and Immigration), 2009 FC 1118, [2009] FCJ No. 1585 (QL), at
paragraph 13:
A
panel cannot draw a negative inference from the mere fact that a party failed
to produce any extrinsic documents corroborating his or her allegations, except
when the applicant’s credibility is at issue (Ahortor v. Canada (Minister of
Employment and Immigration), (1993), 65 F.T.R. 137 (FCT); Nechifor v.
Canada (Minister of Citizenship and Immigration),
2003 FC 1004, [2003] F.C.J. No. 1278 (QL) at paragraph 6).
[13]
The
Minister also submits that the refugee claim was rejected because state
protection was available. I cannot agree with this argument. At paragraph 29 of
his reasons, the presiding member criticized Mr. Aguilera for not filing a
complaint with the police about the 2008 attack:
. . . Therefore, in my opinion,
Mr. Lopez Aguilera, given this alleged assault against him in
February 2008, did not do what was necessary to inform the authorities and to
try to obtain their protection.
[14]
Given
that here, the police were the aggressors, the presiding member should have
conducted an analysis to determine whether it would really have been worthwhile
to file a complaint. In this case, I do not believe there was an adequate
analysis of the availability of state protection.
[15]
As
both parties agreed at the hearing, there is no serious question of general
importance to certify.
ORDER
FOR
THE ABOVE‑NOTED REASONS;
THE
COURT ORDERS as follows:
1.
The
application for judicial review of the decision by a member of the RPD of the
IRB dated June 8, 2011, in file MA8-16741, in which the applicant’s
refugee claim, is allowed.
2.
The
decision of June 8 , 2011, is set aside and the matter is referred for redetermination
by another member of the RPD of the IRB.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
Certified true
translation
Mary Jo Egan,
LLB
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