Date: 20110310
Docket: IMM-4267-10
Citation: 2011 FC 274
Ottawa, Ontario, March 10, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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LUIS ALFREDO RAMIREZ MEZA
MARIA IRMA VIZCAINO OROZCO
VICTOR ROMAN RAMIREZ
VIZCAINO CESAR ALEJANDRO RAMIREZ VIZCAINO MARIA GUADALUPE PEREZ SILVA
KASANDRA RAMIREZ-PEREZ
CESAR EDUCARDO RAMIREZ PEREZ
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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]
The
Applicants brought an application seeking judicial review of a decision dated
July 9, 2010, wherein the Immigration and Refugee Board (IRB) decided that the
Applicants were neither Convention refugees nor persons in need of protection
under the regime of sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA). Leave was granted by Justice
Martineau on December 1, 2010.
[2]
The
Applicants are citizens of Mexico and represent three (3) generations of the
same family. Luis Alfredo is a mason by trade, but operated two (2) businesses.
He was allegedly approached by members of a criminal organization, the Zetas,
for him to sell drugs through his establishments or pay a monthly fee instead.
He refused and was threatened. One of his vans was stolen by men recognized as
being part of the Zetas. The family moved to Aguascalientes for seven
(7) months, but returned to Tabasco, where the threats
resumed. Luis Alfredo’s son, Cesar, was followed by a car, but managed to
escape unharmed. Calls and threats were allegedly received again. The family
moved to Guadalajara, but the
Zetas organization apparently managed to track them and persist in their
threats. While in Canada, threatening phone calls were allegedly
received by the family.
I. The IRB’s
decision
[3]
After
stating the applicable law to refugee protection, the IRB focused on the
sufficiency of state protection in Mexico. Through broad analysis
of country conditions in Mexico, the IRB concluded that it was “not
persuaded that the police would not investigate the claimants’ allegations if
they were reported to them”. Curiously enough, the IRB related a few paragraphs
earlier that the Applicants had denounced to the police and Public Ministry the
theft of the van. The IRB concluded that “Luis’ responses regarding the
effectiveness of state protection were not persuasive, since they were not
credible, largely unsubstantiated and not consistent with the documentary
evidence”.
[4]
The
IRB did state that it “would be remiss” if it did not acknowledge the issues
regarding state protection in Mexico, namely impunity, corruption and the like.
However, acknowledging Mexico’s efforts and legislative framework, the IRB
preferred the view that Mexico’s efforts were sufficient and indicative
of sufficient state protection.
[5]
Consequently,
the IRB was of the view that the Applicants had failed to rebut the presumption
of state protection and did not take all reasonable steps to avail themselves
of the state protection offered in Mexico.
II. Standard
of Review
[6]
The
Applicants raise two (2) questions. Firstly, did the Board Member fail to
discharge its duty in not addressing the applicability of sections 96 and 97 of
the IRPA? And secondly, did the Board Member fail to consider relevant
testimony and evidence?
[7]
The
Court finds that the determinative issue in this case is the IRB’s evaluation
of the evidence before it, particularly in regards to the sufficiency of state
protection. This is a mixed question of fact and law that is to be reviewed on
the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9;
Sanchez Rovirosa v Canada (Citizenship and
Immigration), 2011 FC 48).
III. Analysis
A. Application of the Evidence
[8]
The
IRB’s decision is unreasonable, as it preferred generic analysis of country
conditions in Mexico, thereby
failing to consider key elements of the evidence. At the very least, the IRB
should have indicated why it discounted key elements of the evidence (Zepeda
v Canada (Minister of
Citizenship and Immigration), 2008 FC 491). It was not sufficient for
the IRB to simply state that it had considered all the evidence before it, when
its reasons do not meaningfully reflect such an analysis (Vigueras Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359).
[9]
There
is evidence to suggest that the IRB rendered what Madam Justice Snider has
called “cookie-cutter analysis” in Alvandi v Canada (Citizenship
and Immigration), 2009 FC 790. For example, the IRB’s statement to the
effect that it was “not persuaded that the police would not investigate the
claimants’ allegations if they were reported to them”. It was presented with
evidence, sworn statements, to the effect that the theft of the van and the
Zetas’ involvement was reported to the police, who referred the Applicants to
the Public Ministry. Officials at the Public Ministry allegedly threatened to
put Luis Alfredo in jail if he did not withdraw his complaint. This statement
is hard to reconcile with the IRB’s decision, wherein it is said that “it is
not known why the official reacted this way and Luis was not able to offer an
adequate explanation except that the Zetas had influence over the police. I
reject this explanation and find that Luis is merely speculating that the
police would not investigate his allegations because the police were corrupted
by the Zetas”. Moreover, the IRB noted that it found that “the police took
steps to deal with Luis’ matter but were unable to resolve it due to some
unknown factor”. Without further analysis by the IRB, this unknown factor still
remains “unknown”. The valid determination of the Applicants’ claim requires
more than simply relying on an “unknown factor”. It could have been that this
so called “unknown factor” could have supported the conclusion to the effect
that police were infiltrated by the Zetas.
[10]
As
such, this finding is clearly unreasonable. Through this plausibility finding,
it seems as though the IRB was zealous in drawing inferences from the evidence,
despite the Applicants’ statements and considerable portions of the documentary
evidence that could arguably substantiate the finding that the police did not
meaningfully investigate the crime because it was corrupt.
[11]
The
IRB’s dismissal of the Applicants’ endeavours with authorities could have been
found to be reasonable. However, in this case, it is unreasonable as it
overlooks documentary evidence supporting the allegations and situations not
deemed to be credible. It was therefore unreasonable for the IRB to conclude
that the claims were “largely unsubstantiated and not consistent with the
documentary evidence”.
[12]
Furthermore,
the decision clearly ignores portions of the evidence that could be important
to the case. While it is true that the Court must presume that the IRB analyzed
all the evidence before it, there are cases where it is clear such deference is
not owed when important elements of the evidence were not addressed (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), (1998) 157 FTR 35; Vigueras
Avila, above).
[13]
Suffice
it to say that the alleged persistence of the threats while in Canada and adequate
analysis of the Zetas’ influence were not considered. Such analysis may have
prevented the IRB from condemning the Applicants’ story and arguments as “mere
speculation”. There are elements of the documentary evidence about the Zetas,
none of which were mentioned, or apparently considered by the IRB (see, for
example, pages 454, 458, 469, 473-475 of the Certified Tribunal Record).
[14]
Serious
analysis of the documentary evidence was required, and the Court cites Justice
Martineau in noting in Vigueras Avila, above, at para 32, that:
the main flaw of the impugned decision
results from a complete lack of analysis of the applicant’s personal
situation. It is not sufficient for the Board to indicate in its decision that
it considered all the documentary evidence. A mere reference in the decision
to the National Document Package on Mexico,
which contains an impressive number of documents, is not sufficient in the
circumstances. The Board’s hasty findings and its many omissions in terms of
evidence make its decision unreasonable in the circumstances. Further, because
of the laconic nature of the reasons for dismissal contained in the decision,
it cannot stand up to somewhat probing examination
[15]
Another
example of documentary evidence that was either not considered or whose
exclusion was not properly reflected in the reasons is the newspaper article to
the effect that two people residing at the Applicants’ last home in Tabasco,
who also had the same last name as the Applicants, were murdered.
[16]
Further,
it is also clear that the IRB should have considered, or adequately justify why
it did not consider the documentary evidence concerning the Zetas. The only
information provided in the reasons is anecdotal evidence that police had
“unknowingly” arrested a leader of the Zetas in 2006. This can hardly support
the conclusion that the IRB “had considered all the evidence before it”. It
just may well be that the Applicants did not take sufficient steps to avail
themselves of state protection. However, in this case, it cannot be said that
the IRB’s analysis of the sufficiency of state protection and the role of the
Zetas is sufficient.
IV. Analysis of
Section 96
[17]
The
IRB mentioned in general terms that it had considered the claim under sections
96 and 97 of the IRPA. However, no analysis was presented in this respect. The
Board Member had noted, after submissions from counsel, that the section 96
nexus grounds were to be analyzed in regards to the Zetas organization. The decision
is silent on this issue.
[18]
As
noted in Anthonimuthu v Canada (Minister of Citizenship and Immigration),
2005 FC 141, sections 96 and 97 are distinct grounds for protection and thus
must be considered distinctly, even if the factual matrix may well be the same.
In this case, even after the Board’s Member’s claim that the nexus ground would
be considered, the reasons do not speak to the Convention nexus at any given
point.
[19]
Again,
the analysis possible Convention nexus is absent, as is the analysis of the
Zetas’ capacities, influence and like information reflected in the
documentation. The omissions are fatal, and the application must be granted.
V. Other
Issues
[20]
The
Court does not take issue with the Luis Alfredo’s late mention of his
brother-in-law’s involvement with the Zetas. This finding could be seen as
reasonable, as it indeed was omitted in the Applicants’ PIF. In any event, for
the reasons above, this question is not determinative, as counsel for the
Respondent has conceded in the written representations. Also, the Court does
not take issue with the alleged insufficiency of the Applicants’ steps to avail
themselves of state protection: these are matters to be considered by a newly
constituted panel of the IRB.
[21]
The
application is allowed and the matter is to be sent for redetermination by a
newly constituted panel. No question for certification was suggested and none
arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is granted and
the matter is to be sent back for redetermination by a newly constituted panel.
No question is certified.
“Simon
Noël”
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