Date: 20071001
Docket: IMM-4858-06
Citation: 2007 FC 993
Toronto, Ontario, October 1,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MARTIN VAZQUEZ LARA
LAURENTINO
USCANGA LARA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Martin
and Laurentino Lara are cousins who sought refugee protection in Canada, claiming to
fear persecution in Mexico on the basis of their perceived political
opinion. The Refugee Protection Division of the Immigration and Refugee Board
rejected the cousins’ claim, finding their story of persecution at the hands of
the authorities within the Pentathlon Deportivo Militarizado Universitario and
the military police not to be credible. The Board further found that, in any
event, adequate state protection was available to the cousins in Mexico.
[2]
The
applicants now seek judicial review of the Board’s decision, asserting that the
Board erred in failing to provide any reasons for its negative credibility
finding. This in turn resulted in it being impossible to determine the extent
to which the Board’s negative credibility assessment affected the Board’s state
protection analysis.
[3]
Moreover,
the applicants say, the Board’s state protection analysis was flawed, as the
Board did not take into account the fact that the agents of persecution in this
case had close ties to the Mexican military.
[4]
Finally,
the applicants submit that the Board acted in a procedurally unfair manner by
relying on extrinsic evidence with respect to conditions within Mexico, without
providing either of them with any opportunity to respond to the evidence.
Background
[5]
The
applicants are former students of the Pentathlon Deportivo Militarizado Universitario,
an educational institution that provides training to its students in military
values, discipline and physical education. According to the applicants, while
the school was a private institution, the administration of the school has very
close ties to the Mexican military.
[6]
The
applicants say that they became aware of corruption and abuse of power within
the Pentathlon’s administration, and that they became involved with a student
activist group whose goal was to bring about change in the Pentathlon’s
leadership. Both applicants claim that they were threatened and suffered
physical attacks as a result of their involvement with the group.
[7]
Martin
Vazquez Lara also asserts that he was kidnapped and beaten a few days before
the cousins fled Mexico, and that his passport was also stolen by his
assailants. He believes that his kidnapping was done at the behest of the
commandant of the Pentathlon.
[8]
Martin
says that he approached the police to complain about his kidnapping. Although
he tried to tell an officer what had happened, it was clear that the officer
was not interested in dealing with his complaint. As a consequence, he only
filed a written complaint with respect to the stolen passport. A few days
later, the cousins left Mexico and came to Canada, where they
made their refugee claims.
Standard of Review
[9]
The
applicants’ concern with respect to the Board’s negative credibility finding is
the absence of reasons supporting that finding. A question as to the
sufficiency of reasons raises an issue of procedural fairness. So too does the
Board’s alleged reliance on extrinsic evidence.
[10]
It
is unnecessary to go through a pragmatic and functional analysis in relation to
a question of procedural fairness – it is for the Court to determine whether
the procedure that was followed in a given case was fair or not, having regard
to all of the relevant circumstances: Sketchley v. Canada (Attorney General),
[2005] F.C.J. No. 2056, 2005 FCA 404, at 52-53.
[11]
Insofar
as the Board’s assessment of the availability of adequate state protection is
concerned, the applicable standard of review is that of reasonableness: see
Chaves v. Canada (Minister of Citizenship and Immigration) [2005]
F.C.J. No. 232, 2005 FC 193.
Analysis
[12]
There
is no question but that the Board’s assessment of the applicants’ credibility
was wholly inadequate. After reciting the applicants’ allegations, the sum
total of the Board’s discussion of the credibility question is “Even if the
panel had accepted the claiman[ts’] evidence as credible and trustworthy, which
it did not, the panel is of the opinion that state protection is and was
available in Mexico for these
claimants”. No reasons whatsoever were provided for the Board’s conclusion
that the applicants were not credible.
[13]
The
respondent submits that the Board’s credibility finding was clearly made in the
alternative, and that the state protection can stand on its own, regardless of
any question as to the applicants’ credibility. I do not agree.
[14]
First
of all, the Board identified both credibility and state protection as
determinative issues in this case.
[15]
Moreover,
if, as the respondent suggests, the Board conducted its state protection
analysis on the assumption that the applicants’ story was true, then its
analysis was inadequate as it failed to assess the availability of state
protection in situations where the agents of persecution are members of the
military, as is claimed by the applicants.
[16]
If,
on the other hand, the Board did not accept the applicants’ evidence as to the
connection between the senior administration of the Pentathlon and the military
and the identity of the agents of persecution, then the Board erred in failing
to provide any reasons for its negative credibility findings in this regard.
[17]
On
this basis, I would allow the application for judicial review, and set aside
the Board’s decision.
[18]
I
would also note that it appears that the Board further erred in taking into
account documentary evidence regarding country conditions within Mexico that was not
properly before it in this specific case. The applicants point to this as evidence
that the Board merely lifted a “boilerplate” state protection analysis from
another decision, inserting it into this decision, without regard to the
particular circumstances of the applicants.
[19]
I
would prefer not to speculate as to how the references to the documentary
material in question found their way into the decision in this case. While I
agree with the respondent that the documentary evidence in issue was not
materially different than the country condition information that was properly
before the Board, suffice it to say that reference to extrinsic evidence in
such circumstances is unfair, and that the Board should confine its
consideration to the evidence properly before it.
Conclusion
[20]
For
these reasons, the application for judicial review is allowed.
Certification
[21]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different visa officer for re-determination; and
2. No serious question
of general importance is certified.
“Anne Mactavish”
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