Date: 20080522
Docket: IMM-4307-07
Citation: 2008 FC 652
Toronto, Ontario, May 22,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
OSIRIS
LETICIA PADILLA PEREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Osiris
Padilla Perez is a citizen of Mexico, who seeks judicial review of the decision of the Refugee
Protection Division of the Immigration and Refugee Board rejecting her claim
for refugee protection.
[2]
At
the conclusion of the hearing, I advised counsel that I would be allowing the
application. These are my reasons for doing so.
I. Background
[3]
Ms.
Padilla is a young woman from Tabasco, Mexico. She says that in June
of 2006, when she was 17 years old, an individual identifying himself as a
member of the Los Zetas gang contacted her father, demanding that he pay
500,000 pesos to the gang within 48 hours, in order to ensure the family’s
safety. While Ms. Padilla’s father initially thought that the call might have
been a joke, he did tell his wife and daughters to be very careful. He did not
pay the money demanded by the gang.
[4]
A
couple of weeks later, while she was on her way home from work, Ms. Padilla
states that she was forcibly abducted by a group of men in vans. She says that
she was then drugged, beaten and raped.
[5]
After
she was released by her captors, Ms. Padilla sought medical attention from a
family friend, who was a medical doctor. She then fled to a relative’s house
in Colima.
[6]
Her
father then received a second call from a member of the Los Zetas gang, once
again demanding money. This time, her father paid up, but was unable to raise
the full amount sought by the gang.
[7]
Ms.
Padilla says that she then began getting threatening phone calls on her cell
phone from gang members, and that these calls continued even after she changed
her phone number. The callers asked her if she had liked what the gang had
done to her, as they could not understand why her father had not paid all the
money that had been demanded of him. Ms. Padilla was also told by callers
that the gang knew where she was, and that “nobody plays with the Zetas”.
[8]
Ms.
Padilla says that although her family was reluctant to allow her to travel
alone, she began making arrangements to leave the country. A week after she
turned 18 and no longer required parental consent to travel abroad, she left
Mexico and came to Canada, whereupon she
immediately made her refugee claim.
II. Ms.
Padilla’s Refugee Hearing
[9]
At
the commencement of Ms. Padilla’s refugee hearing, the presiding member advised
Ms. Padilla and her counsel that the member “did not want to get into the
details of what occurred with Ms. Padilla Perez”. The member then went on to
say that “Although credibility will of course remain in issue, I don’t want to
go into the PIF narrative in terms of getting the details of the incident. If
I find it necessary to do so as the hearing progresses I will let you know”.
[10]
A
few minutes later, the Refugee Protection Officer sought to clarify the
member’s position with respect to the credibility issue. In this regard, the
presiding member confirmed that credibility was only an issue “as it relates to
state protection”.
[11]
With
this understanding to what issues were “on the table”, the hearing proceeded.
Over the course of the hearing, Ms. Padilla was not asked any questions
whatsoever about the actual attack.
III. The Board’s Decision
[12]
At
the conclusion of the hearing, the presiding member took a brief recess,
returning about 20 minutes later to deliver an oral decision. The member’s
reasons were subsequently reduced to writing.
[13]
After
briefly summarizing the basis for Ms. Padilla’s claim, the member stated that
the determinative issues in the claim were state protection and the
availability of an internal flight alternative in Mexico City.
[14]
The
reasons go on to state that “The Board had concerns with respect to the
claimant’s credibility and the lack of documentation”. The member then says
that “…the Board is left with the claimant’s onus to demonstrate that the events
occurred and that the Los Zetas gang were the perpetrators. In this regard,
the Board is not satisfied the standard of proof has been met”. The reasons
then assert that the member did not find credibility to be a determinative
factor.
[15]
The
member next addressed Ms. Padilla’s argument that the sexual violence that she
experienced in Mexico was sufficiently severe as to bring her within the
“compelling reasons” exception set out in subsection 108(4) of the Immigration
and Refugee Act. In this regard, the member held that “the act alleged did
not meet the standard of ‘appalling and atrocious’ although if what was alleged
did […] occur, the Board is persuaded that this was a horrific event for a
young woman”. The reasons then state that “The case law, on which the Board
relied with respect to appalling and atrocious, guides the Board in its
conclusion that in this case, the test was not met”.
[16]
The
presiding member then turned to the issue of state protection, commencing her
analysis with the observation that she “did not accept the testimony that the
claimant has given and finds material aspects of the claim to be lacking”.
[17]
The
member then says that even if she were to accept Ms. Padilla’s story as true,
which she did not, she would still have to address the issue of state
protection. This is, of course, incorrect: if the member did not believe Ms.
Padilla’s story, there was no need to go on to address the question of state
protection.
[18]
What
then follows is a lengthy recitation of the relevant legal principles with
respect to the question of state protection, as well as a summary of selected
portions of the country condition information.
[19]
The
member then considered the evidence with respect to “kidnappings and drug
cartels”, noting that the country condition information confirmed that such
kidnappings were indeed taking place in Mexico, but that the state was making
serious efforts to combat these crimes, and that these efforts were paying off.
[20]
The
member did not fault Ms. Padilla for not reporting her assault to the police,
given that she was a minor when the attack took place.
[21]
While
accepting that Ms. Padilla had a genuine subjective fear of returning to
Mexico, the member concluded that on a forward-looking analysis, state
protection would be forthcoming, in the event that she were to return to
Mexico.
[22]
Insofar
as the internal flight alternative finding was concerned, the member considered
the jurisprudence relating to this issue, also noting that this Court has
confirmed findings in other cases that those fearing criminality have been
found to have an internal flight alternative in Mexico City.
[23]
After
examining Ms. Padilla’s personal situation, the member then found that Ms.
Padilla too had an internal flight alternative in Mexico City.
IV. Analysis
[24]
There
are a number of problems with the member’s decision, as well as real concerns
with respect to the fairness of the process that was followed at the hearing.
[25]
Dealing
first with the fairness issue, questions as to the fairness of the process
followed in a given case are to be determined by the reviewing Court, and no
deference is owed to the Board in this regard: see, for example, Sketchley
v. Canada (Attorney General), 2005 FCA 404, at paragraphs 52 and 53.
[26]
I do
not understand this to have changed as a consequence of the recent
decision of the Supreme Court of Canada in Dunsmuir
v. New Brunswick,
[2008] S.C.J. No. 9: see Justice Binnie’s concurring decision in Dunsmuir, at paragraph
129, where he confirmed a reviewing court has the final say in relation to
questions of procedural fairness. See also Dunsmuir, at paragraph 151,
and Halifax
Employers’ Association v. Tucker, 2008 FC 516.
[27]
It
appears that, perhaps in an effort to be sensitive to the trauma that she had
experienced in Mexico, the member did not
wish to put Ms. Padilla through the ordeal of having to relive the details of
her assault in her testimony.
[28]
While
the member is to be commended for her sensitivity, it was unfair to tell Ms.
Padilla and her counsel at the outset of the hearing that the member “did not
want to get into the details of what occurred”, leaving her with the impression
that the member accepted that the kidnapping and assault had taken place as
alleged, and to then express concerns with respect to the credibility of this
aspect of Ms. Padilla’s story in the decision.
[29]
Particularly
problematic from a fairness perspective is the Board’s finding that Ms. Padilla
had not established that the events in issue actually occurred, and that the
Los Zetas gang were the perpetrators.
[30]
An
additional fairness concern with respect to this finding is the complete
absence of any reasons being provided for finding the central aspect of
Ms. Padilla’s story not to be credible.
[31]
Particularly
puzzling is the member’s statement that while she did not accept that the
events described by Ms. Padilla in her PIF had occurred, she did accept that
Ms. Padilla “experienced some negative incident during the time before she left
Mexico”, but that she “was not persuaded about the details of the agents of
persecution as alleged”.
[32]
The
reasons provide absolutely no explanation as to why the member rejected Ms.
Padilla’s story, what the member thought the unidentified ‘negative incident’
really was, or who it was that the member thought was responsible for the
incident in question.
[33]
Moreover,
given the statement by the member at the commencement of the hearing that she
viewed the issue of credibility as being in issue “as it related to state
protection”, it is difficult to ascertain the extent to which the negative
credibility findings then tainted the Board’s state protection analysis. It is
also impossible to know what effect they may have had on the internal flight
alternative analysis.
[34]
In
addition, there is no evidentiary foundation for some of the Board’s findings relating
to the internal flight alternative issue, such as the finding that Ms.
Padilla’s English language skills “are quite comprehensive” and would assist
her in finding work in Mexico
City. As
counsel pointed out, Ms. Padilla testified at her hearing through an
interpreter, and no evidence was been cited to support the Board’s finding with
respect to Ms. Padilla’s language skills.
[35]
Finally,
the Board’s reasoning with respect to the “compelling reasons” issue is both
flawed and confusing. First of all, it is clear from the member’s analysis of
this issue that she did not believe that the events described by Ms. Padilla
actually took place. The problems with that finding have already been
discussed.
[36]
The
member also finds, seemingly in the alternative, that the matters described in
Ms. Padilla’s PIF would have been “a horrific event for a young woman”, had
they occurred. At the same time, the member finds that the kidnapping,
drugging and rape of a very young woman by one or more men did not meet the
standard of “appalling and atrocious”. No reasons have been provided by the
member for this conclusion, nor has any explanation been offered as to the
member’s understanding of the differences between “horrific”, “atrocious” and
“appalling”.
V. Conclusion
[37]
For
all of the reasons, the Court finds that the process followed in this case was
unfair, and that the Board’s decision lacks the justification,
transparency and intelligibility required of the decision-making process. As a
consequence, the
application for judicial review is allowed.
VI. Certification
[38]
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
differently constituted panel for re-determination; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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