Hernandez v. Canada (Citizenship and Immigration), 2011 FC 795

Date: 20110629

Docket: IMM-4051-10

Citation: 2011 FC 795

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

Ottawa, Ontario, June 29, 2011

PRESENT:     The Honourable Mr. Justice Lemieux

BETWEEN:

Maynor Rene Jua HERNANDEZ

Dora Noemi Arev PRADO

Gabriel Alejand PRADO

 

Applicants

 

and

THE MINISTER OF CITIZENSHIP

 AND IMMIGRATION

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]          This is an application for judicial review of a decision by a member of the Refugee Protection Division of the Immigration and Refugee Board (panel) submitted in accordance with subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).

 

[2]          The applicants are members of the same family. The father, Maynor Rene Jua Hernandez, and the mother, Dora Noemi Arev Prado, are citizens of Guatemala and their son, Gabriel Alejand Prado, is also a citizen of the United States. They fear the Mara Salvatrucha, a criminal gang that stole and extorted from their family knowing that it was rich and able to pay. The applicants received death threats and the female applicant was seriously hurt by members of this gang before they left their home country on June 17, 2007, to claim protection in Canada. Their claim was rejected on June 17, 2010.

 

[3]          The panel found that section 96 of the Act did not apply on the ground that the principal applicant did not belong to a particular social group within the meaning of the Convention.

 

[4]          The panel also found that the family members were not persons in need of protection under paragraph 97(1)(b) of the Act on the ground that the risk they face is “a generalized risk also faced by other Guatemalan citizens, and consequently, the claimant did not show that he would be subjected to a risk different from that faced by other citizens of Guatemala.”

 

[5]          Section 97 of the Act requires the State of Guatemala to be able to protect them. The applicants filed complaints after their clothing store was robbed in December 2007 and after they were victims of extortion starting in January 2007.

 

[6]          On this determinative issue, the panel wrote the following:

. . . In this case, the police authorities asked the claimant to help identify his attackers, which he apparently refused to do. Therefore, the panel is of the opinion that the claimant did not take advantage of all the opportunities for protection offered by the authorities in his country before claiming protection in Canada.

 

 

 

[7]          The panel’s entire analysis on the protection available in Guatemala with respect to the Maras is based on this supposed refusal. Under this circumstance, the provisions of paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, apply. This paragraph provides that the Court may set aside a decision if the panel “based its decision or order on an erroneous finding of fact”, which is the situation in this case.

 

[8]          I have read the hearing transcript several times. I believe that the principal applicant never stated that he refused to identify his attackers. The documentary evidence is the opposite of that statement. Exhibit P-14 is a statement by Mr. Hernandez before counsel for Guatemala City that he examined the photo albums but was unable to identify anyone. Exhibit P-15 is counsel’s decision to close the matter in the absence of identification.

 

[9]          The application for judicial review will therefore be allowed. No question of importance was raised.

 

 

 

 

 

 

 

JUDGMENT

 

            The application for judicial review is allowed. The decision dated June 17, 2010, by a member of the Refugee Protection Division of the Immigration and Refugee Board is set aside and the matter is referred back to a differently constituted panel of the Board for redetermination.

 

 

“François Lemieux”

 

 

 

Certified true translation

Janine Anderson, Translator

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-4051-10

 

STYLE OF CAUSE:                          Maynor Rene Jua HERNANDEZ, Dora Noemi Arev PRADO, Gabriel Alejand PRADO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      March 15, 2011

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Lemieux J.

 

DATED:                                             June 29, 2011

 

 

 

APPEARANCES:

 

Manuel Centurion                                                                      FOR THE APPLICANTS

 

Catherine Brisebois                                                                   FOR THE RESPONDENT

 

 

 

SOLICITORS OF RECORD:

 

Manuel Antonio Centurion                                                        FOR THE APPLICANTS

Montréal, Quebec

 

Myles J. Kirvan                                                                        FOR THE RESPONDENT

Deputy Attorney General of Canada