Date: 20070207
Docket: IMM-3514-06
Citation: 2007 FC 127
Ottawa, Ontario, February 7, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
OFELIA ISAIAS GOMEZ DE LEON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mrs. Gomez de
Leon is a citizen of Venezuela. Her claim for refugee protection was joined
with that of her daughter, Marianela Del Carmen Leon De Mujica, her daughter's
husband, Carlos Eduardo Mujica Mujica, and her grandson, Eduardo José Mujica
Leon. Mrs. Gomez de Leon's son-in-law, Mr. Mujica, was the principal
claimant. Mrs. Gomez de Leon, her daughter and her grandson all claimed that
their fear of persecution resulted from their membership in the social group
composed of Mr. Mujica's family members. All four individuals had lived
together in Venezuela.
[2] The
gist of Mr. Mujica's claim was that he owned a business in Venezuela that sold
and maintained medical equipment. In the course of trying to collect an account
for equipment sold to a hospital, he was told he would have to pay a bribe to
the hospital administrator. He refused, and complained to the director general
of the hospital. When that complaint met with no success, he tried to complain
to the general director of the department of health. The general director's
office would not grant Mr. Mujica an appointment. Mr. Mujica then left,
advising that he would have no choice but to report the incident to the office
of the Prosecutor of the Republic. Later that day, Mr. Mujica received a phone
call from his wife who told him that their house had been searched by
individuals dressed in police uniforms. The officers had pushed Mr. Mujica's
wife and forced her and her mother onto the couch while they searched the
house. The officers then left, taking with them some documents. Later, Mr.
Mujica was kidnapped at gunpoint as he returned home. He was taken to a remote
location, beaten, and told that evidence had been found in his house that
linked him to anti-government activities and a coup being organized against the
government. His kidnappers threatened that if he continued his activities he
and his family would be liquidated.
[3] Mr.
Mujica and his wife testified before the Refugee Protection Division of the
Immigration and Refugee Board (Board). The Board found their evidence to be
credible. Mrs. Gomez de Leon did not testify. The Board accepted that
she suffers from Alzheimer's disease. She was represented at the hearing by
her daughter, Mr. Mujica’s wife, acting as her designated representative.
[4] In
very brief reasons, the Board accepted that Mr. Mujica, his wife and his son
were Convention refugees. However, the Board rejected the claim of Mrs. Gomez
de Leon. First, the Board noted that Mr. Mujica's two brothers, his sister and
his son remained in Venezuela, but they had not been questioned or harmed. (In
making this finding the Board acknowledged that Mr. Mujica was not questioned
about harm to his siblings, but noted that both he and his wife testified that
his son had not been harmed because he “is living on his own”). Second, the
Board found that Mr. Mujica and his wife had not been persecuted on
account of their daughter's activities. Mr. Mujica and his wife testified
that their daughter had been actively associated with the opposition to the
government in Venezuela and fled to Canada, seeking and obtaining refugee
status. Yet, while calls were made to her parents’ home after she left Venezuela
asking where she was, neither Mr. Mujica nor his wife were harmed by her
persecutors. On the basis of these considerations the Board found that Mrs.
Gomez de Leon did not face more than a mere possibility of persecution.
[5] The
parties did not address in oral argument the appropriate standard of review.
In her written submissions, the Minister argued that the standard of review to
be applied is patent unreasonableness. What essentially is at issue in this
case is the Board's assessment of the evidence and its factual conclusion that
Mrs. Gomez de Leon would not be in danger as a result of her familial
relationship with Mr. Mujica. I am prepared to apply the standard of patent
unreasonableness to the review of that fact-based conclusion.
[6] A
patently unreasonable decision is one that is “clearly irrational” or “evidently
not in accordance with reason”. See: Law Society of New Brunswick
v. Ryan, [2003] 1 S.C.R. 247, at paragraph 52.
[7] It
is settled law that one does not qualify as a Convention refugee simply because
a relative is being persecuted. There must be a nexus or connection between
the persecution levied against one family member and the persecution, or fear
of persecution, faced by other family members. Thus, Mr. Mujica and his wife
did not become Convention refugees because of the well-founded fear of
persecution their daughter faced as an opponent of the government. Family
members only belong to a social group for the purpose of refugee protection
where there is evidence of persecution (or a well-founded fear of persecution)
against the family members as a social group.
[8] In
the present case, the Board accepted that Mr. Mujica's wife and son have a
well-founded fear of persecution because of their relationship with him,
although no reasons were given for that finding. The Board gave no reason for
rejecting the evidence of Mr. Mujica's wife that she believed that her mother
would be threatened or harmed "[b]ecause she is part of our family".
The Board inferred that Mrs. Gomez de Leon was similarly situated to Mr.
Mujica's siblings and son, but apparently ignored the evidence of Mr. Mujica
and his wife that their son was safe because he lived separate and apart from
them. Mrs. Gomez de Leon, by comparison, lived with Mr. Mujica and his wife.
The Board also inferred that Mrs. Gomez de Leon was similarly situated to her
daughter and son-in-law, as parents of an opponent to the government. However,
there was no evidence that any threats made against the daughter included
threats that her family would be harmed. Nor was there evidence that Mr.
Mujica and his daughter feared the same agent of persecution.
[9] In
my view, the Board's inferences were flawed for these reasons.
[10] The
Board's ultimate conclusion may have been one open to it on the evidence.
However, the Board reached its decision on the basis of inferences that were
not properly grounded in the evidence. It failed to refer to any of the
documentary evidence before it which may have shed light upon the likelihood of
Mrs. Gomez de Leon being perceived to be a member of Mr. Mujica's family
and subject to threats as her daughter testified. As such, the decision of the
Board is, in my view, clearly irrational and not in accordance with reason. It
follows that the application for judicial review will be allowed.
[11] Counsel
posed no question for certification and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division of the Immigration Refugee Board
dated June 6, 2006 is hereby set aside.
2. The claim for refugee protection is remitted to a differently
constituted panel of the Refugee Protection Division for redetermination.
“Eleanor R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-3514-06
STYLE
OF CAUSE: OFELIA ISAIAS GOMEZ DE LEON
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 9, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: FEBRUARY 7, 2007
APPEARANCES:
JACQUES DESPATIS FOR
THE APPLICANT
ALEXANDER KAUFMAN FOR
THE RESPONDENT
SOLICITORS OF RECORD:
JACQUES DESPATIS LAW
OFFICE FOR
THE APPLICANT
OTTAWA, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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