Date: 20050522
Docket: IMM-4775-07
Citation: 2008 FC 651
Toronto, Ontario, May 22,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SAID ALFONSECA ANDRADE,
XOCHITL TECALCO OLAGUEZ,
ELENA ALFONSECA TECALCO,
LUDWIG
ALFONSECA TECALCO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Refugee Protection Division of the Immigration and Refugee Board dismissed the
applicants’ claim for refugee protection on the basis that adequate state
protection was available to them in Mexico.
[2]
For
the reasons that follow, I find that the Board erred in its state protection
analysis, and that its two negative credibility findings were not reasonable.
As a consequence, the application for judicial review will be allowed.
I. Background
[3]
Said
Alfonseca Andrade worked as a financial officer in the administration of the
Municipal President of San Juan de Rio, a Ms. Lopez. He alleges that in the
course of his employment, he discovered that money earmarked for a road
construction project was being diverted to Ms. Lopez’ relatives.
[4]
The
principal applicant feared Ms. Lopez, who was evidently a very influential
individual. Not only was she a powerful politician, but her husband had been a
senior officer with the federal police.
[5]
In
order to protect himself in case of an audit or investigation, the principal
applicant says that he photocopied documents relating to the diversion of funds
from the project. He says that he then tried to resign from his position, but
that Ms. Lopez refused to accept his resignation. Shortly thereafter, the
principal applicant simply stopped showing up for work.
[6]
It
is alleged that a few days later, the principal applicant and his wife were
involved in a serious car accident, which was allegedly orchestrated by Ms.
Lopez. He reported the accident to the police, who took a report. Although
the report does record the applicant’s suspicion that the “accident” was
related to problems at work, it does not mention Ms. Lopez by name. The
applicant says that the police refused to write down his suspicion that Ms.
Lopez was behind it.
[7]
Approximately
one week later, the applicant says that the family’s home was broken into, and
the documents relating to the road construction project were taken. The
applicant again went to the state police to report the theft, and the police
report makes reference to documents relating to the construction project having
been stolen, although once again there is no reference to the applicant’s
belief that Ms. Lopez was behind the break-in.
[8]
The
police evidently carried out an investigation into both events. They concluded
that the car ‘accident’ was not an accident at all, and that the car had been
deliberately run off the road. No one was ever arrested or charged, however,
with respect to either crime, as the police found that there was insufficient
evidence available to hold anyone responsible.
[9]
The
applicants further allege that after the break-in at their home, they moved on
several occasions to other cities, but were always found by associates of Ms.
Lopez.
[10]
The
principal applicant claims that corrupt state police officers were covering for
Ms. Lopez, and that in light of her continuing influence in Mexico, the family continues
to be at risk.
[11]
Amongst
other things, the Board found that Ms. Lopez was no longer in a position of
influence, and that, in any event, adequate state protection was available to
the applicants in Mexico.
II. Standard of Review
[12]
At
issue in this case are the Board’s credibility findings and its state
protection analysis. Both of these are to be reviewed against the standard of
reasonableness: see Khokhar v. Canada
(Minister of Citizenship and Immigration),
2008 FC 449,
and Valdez
Mendoza v. Canada
(Citizenship and Immigration), 2008 FC 387.
[13]
As
the Supreme Court of Canada recently stated in Dunsmuir v. New
Brunswick,
[2008] S.C.J. No. 9, in reviewing a decision against the reasonableness standard,
a reviewing court must consider the justification, transparency and
intelligibility of the decision-making process. The court must also consider
whether the decision falls within the range of possible acceptable outcomes
which are defensible in respect of the facts and law: see Dunsmuir at
paragraph 47.
III. Analysis
[14]
The
Board seemingly accepted most of the applicants’ story as true, making only two
negative credibility findings. The Board did not accept that the principal
applicant told the police that he believed that Ms. Lopez was behind the car
accident, as her name did not appear in the police report. The Board also did
not accept that Ms. Lopez was no longer in a position of influence, and would
still pose a risk to the applicants.
[15]
With
respect to the first negative credibility finding, the principal applicant
testified that he told the police that he thought that Ms. Lopez was behind the
car accident, but that the police officer refused to write her name down,
ostensibly because she was a public official and had not been seen at the
accident scene. The Board found that this explanation was not satisfactory.
[16]
Given
that the Board accepted that the principal applicant sought the assistance of
the police with respect to the car accident, and that he went as far as telling
the police of his belief that the accident related to something going on at his
workplace, it does not make sense that he would not have given the police the
name of Ms. Lopez, given his belief that she had arranged the incident.
[17]
Moreover,
in rejecting the principal applicant’s explanation as to why her name did not
appear on the police report as “not satisfactory”, the Board did not appear to
have understood that central to the claim was the applicants’ belief that
corrupt state police officers were conspiring to protect Ms. Lopez.
[18]
Also
problematic is the Board’s finding that Ms. Lopez would no longer have any
influence in Mexico, as her husband was no
longer a senior police officer, she was no longer the municipal president, and
she had been charged with theft.
[19]
In
this regard, the Board failed to address the evidence that Ms. Lopez continued
to be very well connected within her party, that she had a number of relatives
who were politicians, and that she continued to wield considerable influence.
Moreover, the Board did not address the principal applicant’s testimony that
Ms. Lopez’ husband’s retirement from the police had not severed all of his
police contacts, and eliminated his influence.
[20]
The
Board’s state protection analysis is similarly flawed. In particular, the vast
majority of the Board’s analysis is devoted to a consideration of the efforts
that have been made to combat corruption within the federal police, and
the avenues available to those seeking to complain about the activities of the
police at the federal level.
[21]
This
is problematic, in that it is the state police who, the applicants say,
are working with Ms. Lopez, and who had had denied him protection.
[22]
Finally,
the Board found that it was possible to complain to federal authorities about
public officials, based upon a newspaper report about the federal criminal
charges that had been laid against Ms. Lopez. However, this finding appears to
have been made without regard to the principal applicant’s explanation that Ms.
Lopez had been charged with the theft of federal funds, which brought
the matter within federal jurisdiction, whereas the incidents involving the
principal claimant were state matters, and thus involved only the state
police.
IV. Conclusion
[23]
For
these reasons, the application for judicial review is allowed.
V. Certification
[24]
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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