Date: 20071211
Docket: IMM-5263-06
Citation: 2007 FC 1295
Ottawa, Ontario, December
11, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MAURICIO
ISAAC MARTINEZ AGUILAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated September 6, 2006, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested the following relief:
a)
An
order for a writ of certiorari quashing the decision of C. Mutuma
dismissing the applicant’s claim for refugee protection in Canada;
b)
An
order of a writ of mandamus directing the respondent to have the applicant’s
status heard before a differently constituted panel within 90 days of this
Honourable Court’s Order; and
c)
Costs.
Background
[3]
Mauricio
Isaac Martinez Aguilar, the applicant, is a citizen of Mexico. The
circumstances which led to his claim for refugee status were set out in the
narrative portion of his Personal Information Form (PIF).
[4]
In
1998, the applicant witnessed a well known Mexican car thief stealing a car.
The two locked eyes for a brief moment before the applicant fled the situation.
The next day, the car thief appeared at the applicant’s home and threatened to
murder him if the applicant went to the police. At first the applicant did not
report the car theft. However, upon later being threatened on the phone by the
car thief, the applicant felt that the right thing to do was to report the
incident to the motor vehicles department of the police. Upon doing so, the
applicant was warned by the police commander that whistleblowers lived short
lives and had bad luck and that it would be better for the applicant not to say
anything and to mind his business. The applicant later found out that the car
thief had connections with judicial and state police, including the police
commander the applicant had approached. The same day that he approached the
police commander, the applicant also approached the Attorney General’s office
where representatives refused to take his report and referred him to the
police.
[5]
After
the visit to the police station, the applicant received phone calls wherein the
car thief threatened the applicant’s life. The applicant approached a lawyer,
who advised him to write a declaration that he had witnessed a car theft and
that he had denounced the crime to police, but the police had not responded and
as such, if anything happened to the applicant or his family, the police
commander would be responsible.
[6]
The
death threats subsided in 2000 when the car thief was arrested. Two months
after the arrest, the applicant was struck by a car while on his motorbike. As
a result of the accident, the applicant underwent surgery for his severely
injured leg. He was unable to walk for two and a half years. In late 2003, a
friend informed the applicant that the accident was an act of revenge by the
car thief, who felt the applicant had reported the theft to the police resulting
in his arrest and incarceration.
[7]
On
October 15, 2005, the applicant was on his bike when he was approached by a
motorist who asked him if he remembered the car thief. The applicant crashed
his bike as a result of the incident. The applicant did not report the incident
to the police.
[8]
On
October 23, 2005, the applicant left Mexico for Canada. Once in Canada, the
applicant filed his application for refugee status.
[9]
In
a letter dated September 11, 2006, the applicant was informed that in a
decision dated September 6, 2006, the Refugee Protection Division had rejected
the application on the basis that the applicant was not a Convention refugee
and not a person in need of protection. This is the judicial review of that
decision.
Board’s Reasons for
Decision
[10]
The
Board found that the applicant was neither a Convention refugee nor a person in
need of protection. The Board found on a balance of probabilities, that the applicant
was never targeted by the car thief as he alleged. The Board found that even if
the car thief had been a friend of the local police commander, the applicant
would still have gone to other branches of the police to report the attempt on
his life, but the applicant did not. The Board also found that there was no
credible corroborating evidence proving that the car thief had caused the
accident. The Board found it contradictory that the car thief would be sent to
prison when he had a friend who was the local police commander to protect him.
The Board also found that the applicant’s explanation as to the absence of the
accident report not reasonable given that, according to the applicant, an
ambulance had attended to the incident and the police had ruled out the
incident as an accident.
[11]
The
Board found that the applicant was never discriminated against or denied
employment on the basis of his disability. The Board found that even if he was
discriminated against, because of his disability, given that the applicant was
working and left his job on his own accord in order to come to Canada, the alleged
discrimination did not reach the level of persecution.
[12]
The
Board found that the applicant contradicted himself in that he claimed to have
made a declaration to his lawyer in 1999 so that if anything happened to him it
would be presented to the police, and yet, after the alleged attempt on his
life in 2000, he did not present the declaration to the police. As such, the
Board drew an adverse inference as to the applicant’s credibility, as a
witness, with reference to the motive for the declaration.
[13]
Before
the Board, the applicant alleged that while the car thief was incarcerated, the
threats diminished. The applicant also submitted that he was not responsible
for sending the car thief to jail. The Board found it contradictory that the
applicant would make these submissions, but then also submit that while in
jail, the car thief engineered the accident which was alleged to be an attempt
on the applicant’s life. The Board drew an adverse inference as to the
applicant’s credibility, as a witness, with respect to this contradiction.
[14]
The
Board accepted that the applicant had injuries to his lower leg as stated by
the doctor, but given its earlier finding of lack of credibility with respect
to the cause of the incident, the Board did not put weight on the allegations
that the accident was an attempted murder. The Board put no weight on the
counsellor’s report, given that it was based on what the applicant had told the
counsellor; allegations which the Board found to be not credible. The Board
also found that the applicant’s explanation for failing to obtain a counselling
report from his aunt was unreasonable as she was a professional psychologist, a
member of the family, and the person alleged to have counselled the applicant.
Based on the absence of corroborative evidence as to counselling in Mexico, the
Board then drew an adverse inference as to the applicant’s credibility, as a
witness, with respect to his allegations that he received counselling for his
fear of the car thief in Mexico.
[15]
Before
the Board, the applicant stated that the car thief had issued threats both via
phone and in person at the applicant’s home. The Board noted that during the
seven years between the alleged car theft and the applicant’s departure from Mexico, no attempt
was made by the car thief or his accomplices to attack the applicant personally
on the street or at his home. The Board found it implausible that the car thief
would only want to harm the applicant by vehicles; despite knowing where the applicant
lived. The Board also found it implausible that if the car thief wanted to harm
the applicant, he would not attack the applicant on his way to work, at his
home, or on the street, but chose to harm the applicant only while riding a
bicycle or a motorbike. Furthermore, the Board found the applicant’s behaviour
of staying in the country for seven years with alleged threats by the car thief
on his life not consistent with that of someone fearing for his life.
[16]
With
regards to state protection, the Board recognized that there is corruption
among the police in Mexico, but noted that documentary evidence showed
that Mexico was making
serious efforts to address these problems. The Board found that state
protection was available, but the applicant had not made sufficient efforts to
test it, instead opting to come to Canada. The Board found that
the applicant had failed to rebut the presumption of state protection.
Issues
[17]
The
applicant submitted the following issue for consideration in his written
submissions:
1. Whether the panel
member unduly disregarded documentary evidence submitted before her?
[18]
In
addition, the applicant stated the following issues at the oral hearing:
2. Did the Board err in
the assessment of the applicant’s credibility?
3. Did the Board err
with respect to its finding of state protection?
4. Did the Board err in
finding there was no serious possibility of persecution?
Applicant’s Submissions
[19]
The
applicant’s written submissions were that the Board failed to consider certain
pieces of documentary evidence provided by the applicant in his application.
The applicant takes issue with three documents in particular: (1) the medical
report from Dr. Edgardo Arredondo Gomez, (2) the Mexican lawyer’s affidavit
sworn May 2006, and (3) a declaration made by the applicant under oath in 1999.
Moreover, the applicant submitted that although the Board specifically
mentioned the US Department of State Report for Mexico, it failed
to consider a particular part of the documents. More specifically, the Board
faulted the applicant for not reporting the accident to police, but yet the US
Department of State Report of Mexico states that the corruption is such a
pervasive problem in Mexico that “victims often refuse to file
complaints.”
[20]
During
oral submissions, the applicant also submitted that the Board erred in its
assessment of the applicant’s credibility. The applicant took issue with the
Board’s handling of the applicant’s testimony concerning the police report and
the resulting credibility findings. The applicant also took issue with the
Board’s finding of state protection and the finding that there was no serious
possibility of persecution.
Respondent’s Submissions
[21]
The
respondent submitted that the appropriate standard of review is patently
unreasonable (see De (Da) Li Chen v. Canada (Minister of
Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.) at
paragraph 5). The respondent submitted that with regards to credibility, so
long as inferences drawn by the tribunal are not so unreasonable as to warrant
intervention, its findings are not open to judicial review (see Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.)). The respondent submitted that the Board was justified in drawing a
negative inference from contradictions and implausibilities in the applicant’s
testimony.
[22]
The
respondent submitted that a state’s ability to protect is the crucial element
in determining the objective reasonableness of the claimant’s unwillingness to
seek protection (see Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689). Absent a situation of complete breakdown of state
apparatus, it is generally presumed that a state is able to protect a claimant
(see Ward, above). The more democratic the state’s institutions,
the more the applicant must have done to exhaust all the courses of action
available to him (see Canada (Minister of
Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310
(F.C.T.D.)). Where the country in question is a democracy with effective
political and judicial systems, the failure of particular members of the police
to furnish protection is insufficient to demonstrate a want of state protection
(see Kadenko v. Canada (Minister of
Citizenship and Immigration.) (1996), 143 D.L.R. (4th) 532, 206 N.R. 272
(F.C.A.); leave to appeal dismissed May 8, 1997, S.C.C. file no. 25689). Based
on these cases, the respondent submitted that the applicant has failed to rebut
the presumption of state protection. Thus, the respondent submitted that the
Board was justified in rendering the decision it did.
[23]
The
respondent submitted that it was reasonable for the Board to give no weight to
the information contained in the medical and psychological reports submitted by
the applicant because conclusions in the reports were based on the applicant’s
self-reported allegations about the cause of his accident, which the Board had
already found not to be credible.
[24]
The
respondent submitted that the fact that the written reasons do not summarize
all of the evidence introduced does not constitute a reviewable error of law.
The fact that some of the documentary evidence is not mentioned in the Board’s
reasons is not fatal to its decision unless its conclusions of fact from the
evidence can be said to be capricious or perverse (see Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317 at 318 (F.C.A.)).
Analysis and Decision
Standard of Review
[25]
The
Board may evaluate the probative value of evidence, including documentary
evidence, and the standard of review applicable to such findings is patent
unreasonableness (see Akhter v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1165, 2006 FC 914). The
Board’s credibility findings are reviewed on a standard of patent
unreasonableness and are therefore accorded a high level of deference (see Juan
v. Canada (Minister
of Citizenship and Immigration), 2006 FC 809 at paragraph 2).
[26]
I
will address the issues as presented at the hearing by the applicant.
[27]
Issue
2
1. Did the Board err
in the assessment of the applicant’s credibility?
The Board stated as follows in
its decision:
Credibility
The claimant alleges that the accident in
which he was involved which fractured his leg was an attempted murder by Solis
who accused the claimant of blowing the whistle on him for stealing a car. The
claimant was asked if he had a police accident report and he said he did not
have one because when he was hit on his motorcycle he became unconscious and
did not know what happened until he was taken to the hospital for treatment.
The claimant was asked if his parents, including his aunt, whom he alleges is a
psychologist, ever went to find out from the police what happened. In his
response, the claimant stated that it was ruled out as an accident because the
car that hit him did not stop; it was a hit and run. The claimant was asked why
his parents would not try and find out the cause of the accident, given the
severity of the injuries, as stated in the medical report as having suffered an
exposed fracture of shinbone. The claimant said that the police would not give
them the report, and he did not know if the police came; all he knows is that
an ambulance was called and took him to the hospital. When asked how he knew
that it was an attempted murder, given the absence of a police accident report
an that no one was arrested; the claimant said that he was told by friends that
it was Solis who caused the accident. He was then given the opportunity to
explain why, given that he had people who told him that it was attempted
murder, he did not go to report to the police; he said he did not because Solis
was connected to the commander of the local police. I find that even if Solis
would have been a friend of the commander of the local police, the claimant
would have still gone to other branches of the police to report which he did
not do. However, according to the claimant, when the alleged accident occurred,
Solis was in prison. Given that Solis was in prison and that there is no police
report to state the cause of the accident, I find that there is no credible
corroborating evidence to show that Solis caused the accident. Furthermore, I
find it contradicting that Solis would go to prison when he had a friend who
was the commander of the local police, whom the claimant alleges protected
Solis. I find the claimant’s explanation about the absence of the accident
report not reasonable, given that an ambulance, according to him, was called
and, according to the claimant’s testimony, the police ruled out the incident
as an accident.
(Tribunal record pages 7 and 8)
[28]
When
asked at the hearing about the accident report, the applicant testified as
follows:
PRESIDING MEMBER: Now I have a couple of
questions to ask you. Now, when you were run over by a car on your motorcycle
was there, did you report to the police about the accident itself?
CLAIMANT: The police
arrived and made a report, said it was an accident, but that file they lost it
because a person went to look for that report and that report does not exist.
PRESIDING MEMBER: When did you ask –
well at the time when the police made the report, given this injury here, who
spoke to the police.
CLAIMANT: At that
time nobody.
PRESIDING MEMBER: And when they made a
report, who was there to give statement on your behalf. Was it you?
CLAIMANT: They only
made me, asked me some questions simply.
PRESIDING MEMBER: Where were the questions
asked, at the scene of the accident or where?
INTERPRETER: Allow me to
ask claimant to wait for the end of the interpretations, Mr. Member. Thank you,
Mr. Member.
COUNSEL: We’re
waiting for a reply from the claimant. Do you remember the question?
CLAIMANT: Please once
again.
COUNSEL: Okay.
PRESIDING MEMBER: My question was when
the accident occurred the police arrived and were you still at the scene of the
accident?
INTERPRETER: For the
record the gentleman is making a gesture and now he’s saying yes.
PRESIDING MEMBER: I would advise you
to say yes or no so that it can be recorded.
CLAIMANT: Yes.
INTERPRETER: Yes, said the
gentleman in English.
PRESIDING MEMBER: So you can say yes
in Spanish.
CLAIMANT: Yes.
PRESIDING MEMBER: Okay. So did the
police speak to you at that moment?
CLAIMANT: Yes.
PRESIDING MEMBER: So what did they ask
you?
CLAIMANT: That how
had the problem be and I in the mid of my desperation explained it to them. But
I was bleeding and the ambulance did not allow that anymore.
PRESIDING MEMBER: So who arrived
first, the ambulance or the police, do you remember? Now let me just
(inaudible).
CLAIMANT: Yes I
remember.
PRESIDING MEMBER: Okay. You don’t have
to bend to the microphone because you might strain your leg. Just sit the way
you are. Microphones have got a very high (inaudible) control. So you can just
sit in your, sit there, relax and just talk. Okay?
CLAIMANT: Okay.
PRESIDING MEMBER: So I will ask you
the question again. So who arrived first, the ambulance or the police?
CLAIMANT: The police,
but I’m not sure whether they arrived at the same time. I was more worried
about my leg that was to the side.
(Tribunal record pages 161 to
163)
[29]
From
a review of the Board’s decision, it appears that the Board gave considerable
weight to the absence of the police report and the applicant’s alleged lack of
knowledge about the existence of a police report when assessing the applicant’s
credibility. I do not know what the Board’s conclusion on the credibility of
the applicant would have been had it considered the actual testimony of the
applicant concerning the police report. I am of the view that the Board made a
reviewable error by stating the evidence about the police report in the manner
it did.
[30]
Because
of my finding on this issue, I need not deal with the other issues.
[31]
The
application for judicial review is therefore allowed, the decision of the Board
is set aside and the matter is referred to a different panel of the Board for
redetermination.
[32]
The
applicant proposed a serious question for my consideration for certification. I
am not prepared to certify a question on the facts of this case.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the Board is set aside and the matter is referred to a different panel of
the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
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.
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.
(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.
|
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.
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.
(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.
|
Email this Content