Date: 20070831
Docket: IMM-510-07
Citation: 2007 FC 863
Ottawa, Ontario, August 31, 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
MIGUEL CARLOS GONZALEZ MORALES
and
MARIA DOLORES GOMEZ BASANTA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review filed pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act),
against a decision dated January 12, 2007, by Sylvie Lévesque of the
Immigration and Refugee Board, Refugee Protection Division (the panel),
dismissing the refugee claim of the applicant and his wife, both citizens of
Mexico.
I. Issues
[2]
Is the
panel’s decision patently unreasonable?
[3]
The answer
to this question is positive. The application for judicial review will
therefore be allowed.
II. Factual background
[4]
Engineer
by profession, the primary applicant is claiming refugee status in Canada
following death threats and assaults against him and his wife because he led an
environmental project to help a group of Mexican peasants keep their land. This
project was led by the environmental agency OLLIN CABAN.
[5]
The
applicant alleges that Commandant Orozco Mejia asked agents of the
Federal Investigation Agency (AFI) to assassinate him as well as his wife in
order to protect the economic interests of Deputy Emilio Chuayffet Chemor who
wanted to confiscate the peasants’ land. Some of these peasants told the
applicant that AFI agents had asked them for information about him.
[6]
In October
2005, the applicant received three telephone calls threatening to kill him if
he did not give up the activities with OLLIN CABAN in regard to Deputy
Chuayffet Chemor’s purchase of lands belonging to peasants. In November 2005,
he received another similar call.
[7]
The next
day, the applicant filed a complaint with the police. There was no follow-up.
He also sent an article to several newspapers for publication in order to
explain the problem with the sale of the Mexican peasants’ land as well as the
death threats he had received.
[8]
He
reported that on two occasions he had been beaten by AFI members and that he
had to be treated for his injuries. On November 18, 2005, two individuals in
AFI uniforms arrested him and assaulted him with blows, forbidding him to
continue his activities because they displeased Commandant Mejia.
[9]
On
December 7, 2005, his wife narrowly escaped two individuals who tried to abduct
her. Following this last incident, the couple left Mexico and claimed refugee
protection upon their arrival in Canada on December 12. The applicants are now
parents of a child born in Montréal on December 2, 2006.
III. Impugned decision
[10]
The panel
refused the refugee claim, finding that the applicants lacked credibility. It
said that they invented the story in order to obtain refugee status in Canada.
The panel did not believe that Mr. Morales had ties with OLLIN CABAN since
there was nothing written on his membership card and because he did not know
the address of the environmental group. As a result, it rejected all of the
documents filed by Mr. Morales.
IV. Preliminary objections
[11]
The
respondent submits that the affidavit filed by the applicants is irregular and
does not comply with paragraph 10(2)(d) of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22, (the Rules), which
provide as follows:
|
PERFECTING APPLICATION FOR LEAVE
10.
(1) The applicant shall perfect an application for leave by complying with
subrule (2)
.
. .
(2)
The applicant shall serve on every respondent who has filed and served a
notice of appearance, a record containing the following, on consecutively
numbered pages, and in the following order
.
. .
(d)
one or more supporting affidavits verifying the facts relied on by the applicant
in support of the application, and
.
. .
|
MISE EN ÉTAT DE LA DEMANDE D’AUTORISATION
10.
(1) Le demandeur met sa demande d’autorisation en état en se conformant au
paragraphe (2):
[.
. .]
(2)
Le demandeur signifie à chacun des défendeurs qui a déposé et signifié un
avis de comparution un dossier composé des pièces suivantes, disposées dans
l’ordre suivant sur des pages numérotées consécutivement:
[.
. .]
d)
un ou plusieurs affidavits établissant les faits invoqués à l’appui de sa
demande,
[.
. .]
|
[12]
The
respondent alleges that paragraphs 4 and 5 do not establish facts but rather
present an argument against the impugned decision. According to the case law
established by this Court, the parties’ arguments are inserted in the
memorandum. The affidavits must be limited to the facts to support the
allegations raised (see Bakary v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1418, 2006 FC 1111, at
paragraph 5; Ray v. Canada, [2003] F.C.J. No. 1226,
2003 FCA 317, at paragraph 14; Fabiano v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1510, 2005 FC
1260, at paragraph 25).
[13]
Relying on
the decision by the Federal Court of Appeal in Metodieva v. Canada
(Minister of Employment and Immigration), [1991]
F.C.J. No. 629 (F.C.A.) (QL), the respondent argues that this irregularity is
equivalent to the absence of an affidavit. Accordingly, the Court should strike
it.
[14]
I observe
in fact that paragraphs 4 and 5 contain arguments but also state facts
regarding the applicant’s association with OLLIN CABAN (paragraph 4), and
also mention a number of documents filed by the applicant which were rejected
in their entirety by the panel (paragraph 5). After analysis, I am
satisfied that the affidavit is not irregular and that the circumstances do not
warrant the striking of the affidavit as recommended by the Federal Court of
Appeal in Metodieva, supra.
V. Analysis
Standard of review
[15]
I agree
with the parties that the panel’s decision is based on the applicants’ lack of
credibility. In Dr Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, the Supreme Court of
Canada stated the following on this subject:
38 Finally, however, the need
for deference is greatly heightened by the nature of the problem — a finding of
credibility. Assessments of credibility are quintessentially questions of fact.
The relative advantage enjoyed by the Committee, who heard the viva voce
evidence, must be respected.
[16]
When it is
a matter of credibility, the panel is called to assess the facts and the
appropriate standard of review is that of patent unreasonableness. In Aguebor
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 732, Mr. Justice Robert Décary wrote this at
paragraph 4:
4 There is no longer any
doubt that the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As long as the inferences drawn by the
tribunal are not so unreasonable as to warrant our intervention, its findings
are not open to judicial review. In Giron, the Court merely observed
that in the area of plausibility, the unreasonableness of a decision may be
more palpable, and so more easily identifiable, since the account appears on
the face of the record. In our opinion, Giron in no way reduces the
burden that rests on an appellant, of showing that the inferences drawn by the
Refugee Division could not reasonably have been drawn. In this case, the
appellant has not discharged this burden.
[17]
This same
principle was adopted in Aslam v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 264, 2006 FC 189, at
paragraph 18, referring to Aguebor, supra, and Grewal v. Canada
(Minister of Employment and Immigration)(FCA), [1983] F.C.J.
No. 129 (Q.L.)).
Is the panel’s decision patently
unreasonable?
[18]
In my
opinion, the applicants established that there are significant errors of fact
in the impugned decision. A careful review of the transcripts indicates that
the applicant gave unequivocal explanations with many details regarding his
responsibilities as leader of the project of the environmental movement
intended to protect the land of the Mexican peasants.
[19]
The panel
erred when it wrote the following at page 2 of its decision:
Analysis
. . .
The panel finds that the
claimants are not credible. First, the claimant was unable to give the panel
the address of the group OLLIN CABAN. He said that he did not have a good
memory and that the address was on the card (referring to Exhibit 6). He could
not even provide the name of the street, saying that he did not have a good
sense of direction and that it was near the airport road but that he could not
remember; he often went there but never paid much attention to street names.
[translation]
BY THE MEMBER (addressing
the claimant)
Q.
And
what was the address of this group?
A.
We
had the meetings at Fabian’s house, okay, the address is on the card, I don’t
have a very good memory for . . . addresses. I know how to get there, but . . .
BY COUNSEL (addressing
the claimant)
Q.
The
number of hours?
A.
I
repeat, I do not have a very good memory for addresses. I know how to get
there, I have a good sense of direction, but I have trouble with names.
[22]
No
question was submitted for certification and this matter does not involve any.
JUDGMENT
THE COURT ORDERS that this application for judicial
review be allowed and that the matter be referred back for redetermination by a
differently constituted panel. No question is certified.
“Michel Beaudry”
Judge
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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