Date: 20110317
Docket: IMM-2982-10
Citation: 2011 FC 320
Ottawa, Ontario, March 17, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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FRANCISCO JAVIER LUNA
(A.K.A. FRANCISCO JAVIE
LUNA)
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Applicant
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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
I. Overview
[1]
Mr.
Francisco Javier Luna fled Mexico in 2008 and sought refugee protection in Canada on the basis
that he feared reprisals from drug cartels at home. He had called authorities
to report on drug trafficking taking place outside the bar where he worked.
After he left Mexico to visit his sister in Canada, some drug
dealers were arrested. He claims that they will harm him if he returns.
[2]
A
panel of the Immigration and Refugee Board dismissed Mr. Luna’s claim on the
basis that he had not shown that state protection was unavailable to him in
Mexico. Mr. Luna argues that the Board made factual errors and overlooked
important evidence that was relevant to the issue of state protection. He asks
me to overturn the Board’s decision and order a new hearing before a different
panel. I agree that the Board made a reviewable error in its treatment of the
issue of state protection and will, therefore, allow this application for
judicial review.
II. Factual Background
[3]
Mr.
Luna worked at a bar in Ciudad Juarez, where drug cartels and
affiliated gangs are prevalent and violent. One member of the Juarez Cartel,
Sergio Castro, suspected Mr. Luna of providing information to authorities about
the cartel’s members and activities. In fact, before leaving Mexico, Mr. Luna
made an anonymous call to authorities in which he described drug trafficking at
the bar where he worked. The army apparently acted on that information and
arrested a number of drug dealers. Later, Mr. Luna learned that Mr. Castro was
looking for him. He fears that Mr. Castro will harm him if he returns.
III. The Board’s Decision
[4]
According
to the Board, the main issue arising from Mr. Luna’s claim was state
protection. However, before analyzing that issue, the Board made two clear
factual errors. First, it stated that Mr. Luna was from Ciudad Jujuzi in the
state of Chiguaga, instead of Ciudad Juarez in the state of Chihuahua. Second, it stated
that Mr. Luna feared only the Aztecas Cartel. Mr. Luna had referred to both the
Aztecas gang and the Juarez Cartel in his evidence. The Board did not mention
the Juarez Cartel in its reasons.
[5]
The
Board went on to discuss the circumstances in Mexico generally.
It mentioned that Mexico:
·
is
a democracy (which increases the evidentiary burden on a claimant to show a
lack of state protection);
·
is
in control of its territory;
·
has
security forces and makes serious efforts to fight crime, including drug trafficking,
and corruption; and
·
has
problems with crime, corruption and inefficiency, but is attempting to address
these problems.
[6]
The
Board also noted that Mr. Luna’s anonymous phone call sparked a response by
Mexican authorities, showing that state protection is, in fact, forthcoming on
request.
IV. Did the Board Err on the Issue
of State Protection?
[7]
Mr.
Luna argues that the Board made serious factual errors and overlooked important
evidence in its analysis of state protection. As these two submissions are
related, I will deal with them together.
[8]
The
Board did not correctly identify the location where Mr. Luna lived, nor the
proper agent of persecution. The latter is not as egregious an error as the
former, given that Mr. Luna had mentioned the Aztecas gang in his testimony and
it was associated with the primary organization he feared – the Juarez Cartel.
[9]
Still,
in the circumstances of this case, the Board’s errors caused it to overlook
evidence particular to Ciudad Juarez and the capacity of
Mexican authorities to provide protection to citizens targeted by the Juarez
Cartel for reprisals. Instead, the Board relied primarily on evidence of a
general nature about state institutions in Mexico and examples of sincere
efforts on Mexico’s part to
deal with its crime and corruption difficulties. There was only one example of
state action relevant to Mr. Luna’s circumstances – the reaction to his
anonymous phone call. But that evidence was of little assistance in deciding
whether state officials could offer protection to a person suspected by a drug
cartel of being an informant.
[10]
Accordingly,
the Board’s analysis did not address Mr. Luna’s particular circumstances –
where he lived, whom he feared or what state apparatus was available to him in
that location against that particular agent of persecution. As such, the Board
failed to refer to the evidence before it that was relevant to those subjects.
As a result, the Board failed to discharge its obligation to address the
specific claim before it: Medina v Canada (Minister of Citizenship
and Immigration), 2008 FC 728; Moreno v Canada (Minister of Citizenship
and Immigration), 2010 FC 993; Velasquez v Canada (Minister of
Citizenship and Immigration), 2010 FC 1201.
[11]
In
my view, the Board’s decision was unreasonable. It did not fall within the
range of possible, defensible outcomes based on the law and the facts before
it.
V.
Conclusion
and Disposition
[12]
By
failing to analyze Mr. Luna’s particular circumstances, the Board’s analysis of
state protection was flawed, and its conclusion was unreasonable. Therefore, I
must allow this application for judicial review. Neither party proposed a
question for certification, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
This
application for judicial review is granted. The matter is referred back to the
Board for a new hearing before a different panel.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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