Date:
20121210
Docket:
IMM-1734-12
Citation:
2012 FC 1460
Ottawa, Ontario,
December 10, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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PAULINA ALEXANDRA
SANCHEZ MANTILLA (A.K.A. PAULINA ALEXAND SANCHEZ MANTILLA), JHONNY JAVIER BILBAO MORILLO, EMILY GIULIANA BILBAO SANCHEZ, and MARIA FABIOLA MANTILLA PROANO
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision rendered
by the Refugee Protection Division of the Immigration and Refugee Board of
Canada (Board) on January 20, 2012, in which the applicants’ claim for refugee
protection pursuant to sections 96 and 97(1) of the Act was denied.
Factual
Background
[2]
The
applicants are citizens of Ecuador and members of the same family. Paulina
Alexandra Sanchez Mantilla (the principal applicant) is married to Jhonny
Javier Bilbao Morillo (the second applicant). Emily Giuliana Bilbao Sanchez is
their five (5) year-old daughter (Emily), and Maria Fabiola Mantilla Proano
(Maria) is the principal applicant’s mother.
[3]
The
principal and second applicants arrived in Canada on October 23, 2009 with
their daughter Emily and applied for refugee status on the same day. Maria
arrived in Canada on May 5, 2010, and also sought protection (Affidavit of the
principal applicant, Applicants’ Application Record, p 17).
[4]
The
second applicant is a psychologist. Using this training, the principal and
second applicants developed a fourteen (14)-week motivational program based on
Christian values towards the end of 2003 entitled “Skimming”. Their first
centers initially opened in the cities of Quito and Ambato in 2005. As their
business expanded, they hired Ms. Patricia Mendoza and Mr. Santiago Lemos
Jaramillo (Mr. Lemos) to work for them. Mr. Lemos was transferred to the Ambato location, but the applicants found out he was not following their program, was
criticizing it and using their business name to make purchases. It is alleged
that Mr. Lemos disagreed with the Christian focus of the program. The principal
and second applicants dismissed Mr. Lemos and Ms. Mendoza on September 13, 2005.
Mr. Lemos allegedly threatened the principal and second applicants that they
would regret dismissing him.
[5]
On
September 14, 2005, the principal and second applicants travelled to the city
of Riobamba to lease an additional space for their growing business. They were
told that Mr. Lemos had already tried to rent the same space, but the owner
rented it to the applicants because they had an existing relationship. On
September 15, 2005, the principal and second applicants attended a public fair
to promote their business. They were confronted by Mr. Lemos, who said they had
stolen his facility in Riobamba. He then allegedly threatened to kill the
second applicant and started fighting with him. The principal and second
applicants managed to leave the fair with the help of bystanders. They claimed
to have reported to the Attorney General’s office the following day, but that
they were told they would have to pay more money for a full investigation and
chose not to pursue it further.
[6]
In
June 2006, the principal applicant’s purse was stolen from her office, which
contained her documents, bank statements, as well as keys to the office.
Despite reporting the theft to the police, the principal applicant claims there
was no investigation.
[7]
The
principal applicant asserts that when she was pregnant in 2007, they began
receiving strange telephone calls at home and at their office in Quito. The callers were male, would ask for the principal or second applicant, and hang
up. The callers allegedly knew when the principal applicant was alone at home
and would threaten her on that basis, saying they knew she was alone and
pregnant.
[8]
In
mid-February 2007, the principal applicant was alone in her home when
individuals tried to break in. The principal applicant claims to have contacted
the police, who told her no one was available at the station to help. She
called her neighbours who allegedly screamed at the men to leave, and they
finally did. A similar episode is said to have occurred in October 2007, but
the police came. Since no one had been hurt and nothing stolen, they could not
do anything and did not let the principal applicant file a report. The
principal and second applicants linked these events to Mr. Lemos because they
both occurred when the second applicant was visiting Latacunga (and thus Mr.
Lemos would have known the principal applicant was alone). The applicants state
that they often called the police during the period of 2007-2008, but claim
they never came.
[9]
Following
other problems with employees, the principal and second applicants had to
dismiss a number of people. They encountered financial struggles which they
attributed to Mr. Lemos’s influence.
[10]
The
principal and second applicants moved on January 1, 2009 and continued to
receive threatening phone calls. In May 2009, they moved in with the principal
applicant’s mother, Maria. The phone calls allegedly persisted.
[11]
Ms.
Mendoza allegedly told the principal and second applicants that Mr. Lemos
believed they had cursed him, and that the only way to break the curse was to
have sexual relations with their daughter, Emily. In September 2009, the
principal and second applicants saw Mr. Lemos in church. Afraid for her
daughter, the principal applicant went to the nursery where she claims she saw Mr.
Lemos asking the person in charge for their daughter. The principal applicant
took her daughter and Mr. Lemos allegedly ran away from the premises. Fearing
for their daughter, they decided to leave in the last week of September 2009.
[12]
The
principal applicant’s mother, Maria, had money stolen from her bank account in
October 2009. Maria allegedly received several threatening phone calls after
the principal and second applicants left with their daughter, and a vehicle
reversed in her front door damaging it. In January 2010, a man allegedly tried
to get into Maria’s car without success since she managed to drive away. On
January 29, 2010, a man succeeded in breaking the passenger window of her car
and taking her purse with Maria’s cell phone. That same evening, a man
allegedly called the principal applicant’s brother and other friends asking for
her and the second applicant. Maria was able to make a police report for lost
identification only, the theft being deemed minor. She was subsequently hit by
a taxi driver, and when three (3) men got out of the taxi, they allegedly
called out something similar to “say hi to Paulina (the principal applicant)”.
Maria tried to report all these events to the police, feeling they were
connected, and went to the Prosecutor General’s office on March 31, 2010. The
police told her they could not act unless she made formal accusations and
identified her attacker, which she could not do.
[13]
The
applicants’ hearing before the Board was held on September 16, 2011 and
November 24, 2011. The decision was rendered on January 20, 2012.
Impugned
Decision
[14]
The
Board provides an extensive summary of the facts and allegations in the
applicants’ case (Tribunal Record, pp 4-9). It found no issue with their
identities. The Board concluded that the applicants were not Convention
refugees as they were allegedly persecuted by Mr. Lemos as victims of crime,
corruption or vendettas – motives which are generally not within the definition
of a Convention refugee because of lack of nexus with one of the five grounds
enumerated in section 96.
[15]
Therefore,
the Board followed with its analysis of factors under section 97, which it
elaborated under the single subheading “Credibility”. The Board referred to the
death threats received and the assault initiated by Mr. Lemos at the public
fair in September 2005. The Board was ultimately of the view that there was no
persuasive evidence that Mr. Lemos was involved in the series of events which
the applicants claim have happened, aside from the incident at the public fair
and the church. The Board held that Maria’s statement in her PIF that her
attackers during the taxi incident had said “Say hi to Paulina” was an
embellishment of her story, based on her uncertainty during questioning at the
hearing.
[16]
The
Board concluded that, on a balance of probabilities, it was not credible that
the claimants would be at risk to their lives or at risk of cruel and unusual
treatment or punishment should they return to Ecuador. The applicants were
therefore neither Convention refugees, nor persons in need of protection.
Issue
[17]
The
sole issue before the Court in this case is whether the Board’s decision is
unreasonable. The applicants are not disputing the Board’s finding as it
pertains to section 96 of the Act, but are arguing that his conclusion that
they face no risk under section 97 of the Act is unreasonable.
Statutory
Provisions
[18]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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PART 2
Division 1
Refugee Protection, Convention Refugees and Persons in Need of
Protection
Convention refugee
96. A Convention refugee is a person who, by reason
of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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PARTIE
2
Section
1
Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention –
le réfugié – la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b) soit, si elle n’a
pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
97. (1) A person in need of protection is a person in
Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
(b) to a risk to their life or to a risk
of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la personne
qui se trouve au Canada et serait personnellement, par son renvoi vers tout
pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans
lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales – et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Standard of
Review
[19]
The
parties agree that the applicable standard of review for questions of
credibility assessment is that of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190). As such, the decision must fall “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir, above, at para 47).
Analysis
[20]
The
Court acknowledges the respondent’s argument that much deference must be shown
to administrative decision-makers on questions of credibility. However, the
Court is of the opinion that this case warrants its intervention.
[21]
While
an important portion of the Board’s decision is written under the “Credibility”
subheading, it does appear from a careful reading of the reasons that the
events recounted by the applicants were believed. However, the Board did not
believe that Mr. Lemos was involved in all of the events. This is not a
negative finding with regards to credibility since the applicants have no
knowledge or proof of Mr. Lemos’s personal involvements in the events. They have,
however, asserted their belief that he is the source of the incidents of the
past few years. Without drawing any negative conclusions with regards to the
applicants’ credibility, the Board goes on to dismiss their application because
it was not persuaded that the same person was behind all the incidents that had
plagued the applicants. The Court finds this conclusion to be unreasonable. The
Court agrees with the applicants that the Board made an “adverse plausibility
finding” without referring to contradictions or inconsistencies to support this
conclusion (Mahmood v Canada (Minister of Citizenship and Immigration),
2005 FC 1526 at paras 14 and 16, 143 ACWS (3d) 1091 [Mahmood]).
[22]
The
Board stated that it did not find there was “persuasive evidence that Lemos was
involved in any of these matters.” [Emphasis added]; (Board’s decision
at para 37, Tribunal Record, p 14). The fact remains that there were many such
“matters” and the applicants strongly believed that Mr. Lemos was responsible.
The Board failed to refer and address the evidence (Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration), 157 FCT 35, 1998 CanLII
8667) even though many documents were provided:
a.
a
lease showing the applicants moved on January 1, 2009 (Applicants’ Application
Record, p 106);
b.
a
declaration from Maria’s maid pertaining to the phone calls received at Maria’s
house and ambushes of the vehicles (Applicants’ Application Record, p 110);
c.
a
letter from the church with regards to the incident allegedly involving Mr.
Lemos with their daughter Emily (Applicants’ Application Record, p 135);
d.
a
letter from an employee about Mr. Lemos’ threats upon dismissal and subsequent
phone calls received at the office (Applicants’ Application Record, p 139);
e.
a
letter from a neighbour about the men breaking into the principal and second
applicants’ home (Applicants’ Application Record, p 146);
f.
a
complaint made in regards to the September 2005 incident at the fair
(Applicants’ Application Record, p 175);
g.
a
complaint to the police about the principal applicant’s purse and documents
being stolen (Applicants’ Application Record, p 177);
h.
a
complaint to the police about Maria’s money being stolen from her bank account
(Applicants’ Application Record, p 179);
i.
a
complaint to the police about phone calls received at Maria’s house (Applicants’
Application Record, p 184);
j.
a
complaint to the police about Maria’s documents being stolen (Applicants’
Application Record, p 187).
[23]
However,
despite this evidence, the Board concludes that “it is not credible that the
claimants would be at risk to their lives […] if they returned to Ecuador” (Board’s decision at para 39, Tribunal Record, p 13). The Court finds it
unreasonable to accept the sequence of incidents that has happened to the
applicants, as the Board did, to make no negative assessment of credibility but
to conclude that there is no risk on a balance of probabilities because the Board
had concerns over Mr. Lemos’ participation. In Theophile v Canada (Minister of Citizenship and Immigration), 2011 FC 961, 396 FTR 33, Justice
Russell held that a proper analysis under section 97 should have been done even
though the applicant could not prove who his attacker was. Justice Russell also
held that the evidence indicated “some kind of targeting of the Applicant and
strenuous attempts to kill him” (Theophile, above, at para 62).
[24]
In
the case at bar, the Court is of the view that to seemingly accept the factual
basis supporting the applicants’ claim and then to conclude that it is not
credible that they would be at risk is a contradictory and unreasonable
finding. The decision does not fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, para 47). The application for judicial review will therefore be granted.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. No question is certified.
“Richard Boivin”
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