Date: 20090924
Docket: IMM-969-09
Citation: 2009 FC 962
Ottawa, Ontario, September 24,
2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
SEVERO
RICARDO SOTO GALICIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
The Applicant is a citizen of Mexico. He arrived in Canada on September 17, 2007 and shortly
thereafter made a claim as a person in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee Protection Act (the “Act”). The
principal basis for the Applicant’s claim is that he is fearful for his life in
light of his knowledge concerning weapons traffic activities carried out by his
former employer and a corrupt police official in Mexico.
[2]
A hearing to adjudicate this claim was held on
February 2, 2009 before a Panel of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the “Panel”). The claim was rejected in a decision of the Panel
dated February 6, 2009 (the “Decision”).
[3]
The Applicant submitted to this Court an
Application for leave and for judicial review of this Decision, and leave was
granted by Justice Mandamin on June 24, 2009.
[4]
A hearing on this judicial review was held before
me in Toronto on September 22,
2009.
The Decision under Review
[5]
In its Decision, the Panel reviews the claims of
the Applicant, which are that he worked as a sales manager in a company in Mexico City and eventually became aware in
June of 2007 that this company was engaged in an arms traffic operation. The
Applicant related this information to the police, only to realize later that
one of the senior officers of the police to which he complained was involved in
this operation with his employer. He also claims he was abducted and threatened
on August 15, 2007, and that he made a complaint to the police about this.
[6]
The Applicant also claims that his employer
further threatened him if he did not keep quiet. He also claims to have made an
additional complaint to the police about this. The Applicant soon after decided
to leave his employer and flee to Chihuahua to live with one of his friends. While in Chihuahua, he claims he was attacked by two men acting on behalf of his
former employer and the senior police officer involved in the arms traffic
operations. They severely beat him and he had to be hospitalized for four days
as a result. He then decided to flee to Canada.
[7]
The Panel concluded that the Applicant did not
have a well-grounded fear of persecution. The Panel concluded that the
Applicant had not been attacked in Chihuahua by men acting for his former employer, but by common criminals. The
Panel concluded that his former employer had no interest in pursuing the
Applicant and therefore did not find he had a well-founded fear of persecution
at the hands of his former employer and the employer’s accomplice in the
police.
[8]
In a lengthy review of the status of state
protection in Mexico, the Panel
also concluded that adequate state protection existed in Mexico for individuals like the Applicant.
[9]
Finally, the Panel concluded that the Applicant
had an internal flight alternative in Mexico, specifically in Chihuahua. This conclusion flowed from the
Panel’s determination of the Applicant’s credibility. Indeed the Panel did not
believe the testimony of the Applicant that the individuals who had attacked
him in Chihuahua were acting
for his former employer.
[10]
Thus the Panel concluded that the Applicant was
neither a Convention refugee nor a person in need of protection under the
meaning of the Act.
Position of the Applicant
[11]
The Applicant recognized that the Decision of
the Panel was largely based on issues of credibility; he nevertheless noted
that the Panel had made findings of fact that contradicted the evidence
presented.
[12]
In particular, the Panel found that the
Applicant had failed to submit a medical report concerning his hospitalization
in Chihuahua and referred to the
Applicant’s testimony concerning attempts by the Applicant to secure this
report through his mother. In fact, ample medical evidence had been presented
to the Panel on the hospitalization of the Applicant, and no mention of the
Applicant’s mother in regard to this matter can be found in the record.
[13]
In addition, counsel for the Applicant disputed
the Panel’s finding on the availability of state protection. Counsel noted that
various reports came to different conclusions in this regard, and the Panel
only relied on those reports that concluded that state protection was
available, and thus ignored the other contrary reports. The Panel offered no explanation
as to why it selected certain reports and ignored others.
[14]
Further, counsel for the Applicant noted that in
its Decision, the Panel relied extensively on the availability of the complaint
procedure before the Mexican Human Rights Commission. Yet the documentation
relied on by the Panel stated that this complaint procedure was not available
in regard to members of the Federal Judicial Branch to which one of the
Applicant’s persecutors belonged.
Position of the Respondent
[15]
The Respondent recognized that the Panel erred
in regard to the medical evidence, which was clearly part of the record before
it.
[16]
However, counsel for the Respondent took the
position that the Panel’s Decision did not turn exclusively on credibility or evidentiary
issues related to the Applicant’s narrative, but also extended to
determinations concerning the availability of state protection and of an
internal flight alternative for the Applicant. Consequently even if this Court
found that the Panel’s assessment of the Applicant’s evidence and credibility
was deficient, this did not affect the Panel’s finding on the availability of
both state protection and of an internal flight alternative.
[17]
Concerning the issue of state protection,
counsel for the Respondent noted that the Applicant had only made one or two
formal complaints to the police concerning the harassment from his employer and
his accomplice in the police. Other police reports made by the Applicant were
either unrelated to this or not pursued by the Applicant. Further, the
Applicant admitted in his testimony before the Panel that not all police
officers in Mexico were
corrupt, and consequently he should have sought assistance from various
agencies in Mexico rather than fleeing to Canada.
[18]
Furthermore, the Panel recognized that problems
existed in Mexico in regard to
police corruption, but also concluded that these were being addressed by the
Mexican authorities. It was not necessary in this context for the Panel to
review all reports on Mexico
and to explain why it was relying on one rather than another as suggested by
the Applicant’s counsel. The Panel noted the issues and made a conclusion on
the matter based on its assessment of the evidence. Consequently no reviewable error
existed.
Analysis
[19]
I find that the Panel made determinant errors in
its Decision. This is not a case where the weight given to the evidence is at
stake. Nor is it a case where evidence was considered but not mentioned in the
reasons for decision. Rather this is a case in which the Panel simply did not
examine the record carefully and made capricious and fanciful conclusions of
facts as a result thereof. These capricious findings of facts are such as to
bring into discredit the entire assessment by the Panel of the evidence and of
the Applicant’s credibility. Furthermore, as noted below, these capricious findings
also affect the conclusions of the Panel in regard to the internal flight
alternative.
[20]
At the outset of its Decision, the Panel
questions the Applicant’s narrative on the basis that he did not provide any
medical evidence related to his injuries following the attack in Chihuahua:
At the hearing the claimant did not provide the medical report to
establish that he was beaten and hospitalised in Chihuahua. He indicated that his mother had sent him the report but was lost
in mail. The claimant had ample time, after filing his Personal Information
Form (PIF), to obtain a copy of the medical report allegedly lost in the mail.
His mother would have been able to send him a copy since she was able to obtain
the report initially. There is no evidence to suggest that his mother made any
attempt to seek another report from the hospital he was allegedly admitted to.
In the least, he could have asked his mother to provide an affidavit to
establish that she had sent the hospital report which was lost in the mail. The
claimant has the onus to establish his claim. (Decision, pages 2-3)
[21]
This whole statement is simply absurd. Not only
was a very detailed medical report from a Dr. Ramon Gonzalez Arellano submitted
to the Panel with a certified English translation (Tribunal Record, pages
252-256), but so were drug prescriptions (Tribunal Record, pages 267-268),
blood analysis results (Tribunal Record, pages 269-270) and urine analysis
results (Tribunal Record, pages 271-272).
[22]
Moreover, nowhere in the record can any
reference be found to the Applicant’s mother seeking medical reports or of
documents lost in the mail. On the contrary the transcript of the hearing shows
that the Applicant testified that his mother was living in Mexico City and was
elderly and somewhat senile (Tribunal Record, pages 334 and 346-347).
[23]
This clearly taints the Decision. One cannot but
infer that the Panel proceeded to discredit the entire testimony on the
Applicant based on these fanciful findings.
[24]
Furthermore, since the Panel’s determination in
regard to an internal flight alternative was entirely dependent on its finding
that the Applicant was not credible when he alleged that he was being pursued
by his former employer, and since this credibility determination was itself
made taking into account a seriously flawed and fanciful analysis, I cannot
accept that the Panel’s determination in this regard is reasonable.
[25]
Though I recognize that the Panel’s credibility
determinations do not necessarily affect the analysis of the Panel on the
availability of state protection, they certainly colour this analysis. This is
particularly so in light of the Applicant’s claim that one of the agents of persecution
was an officer of the Federal Judicial Branch. The Panel took great care to
discuss a potential complaint by the Applicant to the Mexican Human Rights
Commission, yet as counsel for the Applicant has aptly noted, the documentation
in the record seems to indicate that this Branch is outside the jurisdiction of
this Commission. Consequently I do not believe the Decision can be maintained
on the sole basis of the determination of the availability of state protection,
as counsel for the Minister has invited me to do.
[26]
The determination of claims regarding refugees
and persons in need of protection literally concern matters of persecution, of
danger of torture, of risk to life or of risk of cruel and unusual treatment or
punishment. These very serious issues must be determined in a fair and
equitable manner based on the evidence presented. Serious mistakes of the
nature of those found here are simply not acceptable. Faced with such a
deficient Decision, the Court has little choice but to quash it: Peng v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 119, 19 Imm. L.R.(2d) 220; Kithome
v. Canada
(Minister of Employment and Immigration) (F.C.A.),
[1995] F.C.J. No. 122, 52 A.C.W.S. (3d) 1337; Saleem v. Canada (Minister of Citizenship and
Immigration, [1996] F.C.J. No. 1383, 66 A.C.W.S.
(3d) 944.
Conclusion
[27]
Consequently the application for judicial review
is granted.
Certification
[28]
No certified question was proposed and none is
warranted in this case.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the
application for judicial review is allowed and the matter is referred to a
different panel of the Refugee Protection Division of the Immigration and
Refugee Board of Canada for a new hearing and for redetermination.
"Robert
M. Mainville"
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