Date: 20090723
Docket: IMM-4128-08
Citation: 2009 FC 754
Toronto, Ontario, July 23,
2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MANUEL FERNANDEZ ORTEGA
ANTONIA HERNANDEZ RIVERA
FLOR ANDREA FERNANDEZ HERNANDEZ
DANIEL FERNANDEZ ORTEGA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Manuel Fernandez
Ortega, a citizen of Mexico, arrived in Canada in December 2006. His wife, Antonia Hernandez Rivera, and
their daughter, Flor Andrea Fernandez Hernandez, followed in January 2007. The
family claimed protection in Canada on the basis of fear of persecution due
to Manuel’s membership in La Antorcha Campesina, a group that helps poor and
indigenous peoples. Manuel’s brother, Daniel, after one unsuccessful attempt to
enter Canada in January 2007, arrived in Canada in June 2007 and made a separate claim
for protection.
[2]
The claims by Manuel
and his family were heard together with that of Daniel, since the subject
matter of the claims was similar for both. In a decision dated July 18, 2008, a
panel of the Immigration and Refugee Board, Refugee Protection Division (the
Board) concluded that the Applicants were neither Convention refugees nor
persons in need of protection. The sole reason for the rejection was the lack
of credibility of Manuel and Daniel; the Board simply did not believe their
stories. The Applicants challenge the Board’s decision in this Application for
Judicial Review.
[3]
The standard of
review of a decision of the Board is that of reasonableness. Unless the
decision is one that is not within the range of possible outcomes, the Court
cannot intervene.
[4]
The Board’s decision
concerning Daniel is carefully considered. The Board, in its reasons, sets out
numerous instances where Daniel’s testimony was inconsistent in areas
fundamental to his claim. Having reviewed the tribunal record and each of the
inconsistencies, I am satisfied that Daniel’s testimony supports the Board’s
conclusion that Daniel “simply could not tell a consistent story from one
version of their story to the next”. The Board’s decision, with respect to
Daniel, is reasonable and ought not to be disturbed.
[5]
The situation with
respect to Manuel is dramatically different. In its decision, the Board makes
only three references to Manuel’s testimony. Two of those references were in
regard to explanations offered by Manuel about Daniel’s story. Only one problem
with Manuel’s direct testimony was noted by the Board. That problem allegedly
arose because Manuel incorrectly stated the name of a group as “Union of
Indigenous Farmers” rather than “Union of Independent Farmers”. Given that
Manuel was more familiar with the acronym for the group, such an error is not
only minor but inconsequential to his claim.
[6]
As noted by the Respondent,
the Board made it clear, at the commencement of the hearing, that “the
testimony of one may affect the outcome of the others”. While this was a
correct statement of principle, the Board was nonetheless obliged to decide
each of the claims on its own merits. In other words, it was not open to the
Board to reject Manuel’s evidence simply because it did not believe his
brother. And yet, this is what the Board appears to have done. In my view, the
decision does not reflect that a separate assessment of Manuel’s claim was
made. The Board rejected Manuel’s claim solely on the basis of the problems
with Daniel’s lack of credibility. Beyond one small, inconsequential error,
nothing in the decision either highlights problems with Manuel’s story or
explains how Daniel’s testimony could be linked to that of his brother such
that Manuel’s story could be discredited.
[7]
I conclude that the
Board’s decision with respect to Manuel is not reasonable; it does not fall
“within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at
para. 47).
[8]
The claims of
Manuel’s wife and daughter rest on those of Manuel. Thus, the judicial review
application for Manuel, his wife and daughter will be allowed.
[9]
Neither party
proposed a question for certification. None will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the application for
judicial review with respect to Daniel Fernandez Ortega is dismissed:
2.
the application for
judicial review with respect to Manuel Fernandez Ortega, Antonia Hernandez
Rivera and Flor Andrea Fernandez Hernandez is allowed, the decision with
respect to these three persons is quashed and the matter remitted to a
different panel of the Board for re-determination; and
3.
No question of
general importance is certified.
“Judith A. Snider”
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