Date: 20080606
Docket: IMM-4391-07
Citation: 2008
FC 709
Ottawa, Ontario, June 6, 2008
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
CHRISTEL
PENA VARGAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Vargas, a 29-year old
citizen of Mexico, entered Canada in March of 2005. She
applied for refugee status in April of 2006. The Refugee Protection Division
(the board) drew a negative credibility inference and concluded that her
actions were inconsistent with her alleged fear. The board also found that
adequate state protection exists in the capital district D.F. (Mexico City). It rejected her claim.
[2] Ms.
Vargas contends that the board ignored and misapplied critical evidence in
arriving at its negative credibility finding. Moreover, its conclusion that
adequate protection exists was unreasonable and wrong in law.
[3] I
conclude, for the reasons that follow, that the application should be granted.
Background
[4] Ms.
Vargas worked for a number of years as a public relations assistant at the head
office of the powerful Institutional Revolutionary Party (PRI) National
Executive Committee. When the PRI was not successful in the 2000 presidential
elections, the President of the Executive Committee resigned and was replaced
by Mr. Roberto Madrazo. Ms. Vargas’s loyalty to the new president was scrutinized
and questioned.
[5] In
September of 2003, Ms. Vargas was informed that she was to be laid off and
would be provided with 7000 pesos ($700 U.S.), if she left voluntarily. Ms.
Vargas believed that, based on her years of service, she was entitled to 50,000
pesos ($5,000 U.S.). After consulting her
lawyer, she initiated an action for unlawful dismissal against the PRI and
Madrazo. Shortly thereafter, she received a telephone call. The caller
advised her not to continue with her lawsuit. When the time for court
appearances arrived, she (and her lawyer) received telephone calls conveying a
message that she should accept the amount offered.
[6] Ms.
Vargas relocated in an effort to find employment. She attributes her lack of
success to possible negative references from the PRI. In September of 2004,
the brakes of her vehicle inexplicably failed. Her automobile collided with a
truck; she sustained injury and was hospitalized for more than a month.
[7] Upon
discharge from hospital, Ms. Vargas moved in with her mother and sister. When
she received threatening calls, the threesome relocated. Ms. Vargas spoke to
her lawyer about leaving the country because of the situation. By written
Power of Attorney, she appointed her lawyer as her agent and authorized him to
continue her lawsuit.
[8] On
March 14, 2005, Ms. Vargas arrived in Canada
on a six-month visitor visa. She claims that she was not sure of her plans at
that time. She thought that she would return to Mexico when things settled down and her lawsuit
was resolved. She states that she did not consider making a refugee claim, in
part, because the information might make its way back to the Mexican government
and, by association, to the PRI. After the expiration of her visitor visa, Ms.
Vargas remained in Canada without status.
[9] In
January of 2006, she learned that her lawyer in Mexico was dead. This information prompted her
to consult a Canadian lawyer. After being assured of the confidentiality
associated with refugee claims, she applied for refugee status in April,
alleging a fear of persecution on the basis of political opinion. Eight days
before her hearing, Ms. Vargas learned, from her mother, that her lawyer had
died in a car accident.
[10] Ms.
Vargas claims that her mother, in May of 2006, informed her that the lawsuit
was being handled by another lawyer. In November of that year, her mother
further informed her that yet a third lawyer had carriage of the file due to
the death of the second lawyer.
[11] Ms.
Vargas maintains that Madrazo views her as having betrayed the PRI and would
not hesitate to have her killed because she is an embarrassment. She made no
attempt to approach the police before leaving Mexico.
[12] Her
Canadian counsel referred Ms. Vargas for psychological assessment. She was
diagnosed with post traumatic stress disorder (PTSD) with associated symptoms
(reliving traumatic events through nightmares and flashbacks, avoiding social
interactions, feeling frightened, being hyper-vigilant, irritable, etc.).
Decision
[13] The
board drew a negative credibility inference and concluded that Ms. Vargas’s
actions were inconsistent with her stated fear. It further held that Ms.
Vargas did not rebut the presumption of state protection. It rejected the
claim.
Standard of Review
[14] Credibility
is a factual finding and as such is reviewable on the grounds enumerated in
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7: Mugesera
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100 at
para. 38. See also: Colistro v. BMO Bank of Montreal, 2008 FCA 154. The issue of state
protection is a question of mixed fact and law. Dunsmuir v. New Brunswick,
2008 SCC 9 directs that where the standard of review can be ascertained by
reference to existing jurisprudence, there is no need to engage in a standard
of review analysis. Such is the situation here. The standard of review with
respect to a finding of state protection is that of reasonableness: Chaves
v. Canada (Minister of Citizenship and
Immigration)
(2005), 45 Imm. L.R. (3d) 58 (F.C.).
Analysis
[15] The
applicant acknowledges that she must succeed on both of her arguments in order
to have the board’s decision set aside.
Credibility
[16] Ms.
Vargas claims that the board’s conclusion regarding her “delay” in making a
refugee claim led to an overall negative credibility finding. Because the
board ignored material evidence, its credibility determination is flawed.
[17] Factual
findings must be grounded in the evidence. Otherwise, they may be regarded as
erroneous. It was entirely open to the board to conclude that Ms. Vargas is
not credible. However, the law has long required that credibility findings be
stated in clear and specific terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (C.A.).
[18] The
board specifically stated that “delay is usually not a determinant issue”.
However, its findings in support of the negative credibility conclusion revolve
exclusively around the issue of delay. In particular, the board noted that Ms.
Vargas was in Canada for approximately 13 months
before she submitted her claim for refugee status. I see no difficulty with
that observation. However, the board also concluded that “during the first
six months when she had legal status in Canada, she had more than
sufficient time to research her options of making her status in Canada
permanent and legal” (my emphasis). Further, it considered that her skill
level was sufficient to enable her to make the appropriate inquiries during
this time frame. The board, in arriving at this determination, does not
address Ms. Vargas’s evidence that it was the knowledge of her lawyer’s death
that precipitated her desire to remain in Canada.
[19] Delay
in making a claim is a relevant (and significant) factor to be taken into
consideration. It is not determinative: Huerta v. Canada (Minister of Employment and
Immigration)
(1993), 157 N.R. 225 (F.C.A.).
[20] Aside
from the “delay” factor, it is impossible to ascertain, from its reasons, the
basis of the board’s conclusion. The issues of credibility, subjective fear
and state protection are conflated. Cursory references to delay and failure to
approach the Mexican authorities are rolled into a cryptic analysis that
purports to constitute a negative credibility finding. There is no reference
to the psychological assessment or, as noted above, to the applicant’s evidence
that it was her lawyer’s death that precipitated her fear to return to Mexico.
[21] While
the weight to be assigned to the applicant’s evidence and the contents of a
psychological report are matters for the board to determine, the board must not
disregard the existence of evidence which is material to the claim. Rather, it
must deal with such evidence and state why it rejects it, or assigns it little
weight. There may well be any number of facts related by Ms. Vargas that the
board views as problematic. If that is so, the board must articulate, at a
minimum, the significant problem areas. Here, the board does not refer to any
evidence other than delay, in relation to credibility. The board’s credibility
determination in this case was made without regard to the evidence and was not
articulated in a comprehensible fashion. Consequently, it is not sustainable
on the noted standard of review.
[22] Moreover,
the analysis advanced to support the finding cannot be said to be reasonable
because it does not display the existence of justification, transparency and
intelligibility. In this respect, I agree with the respondent that the issue can
easily be characterized as the adequacy of reasons.
State Protection
[23] The
analysis in relation to state protection is similarly flawed. The board member
places much stock on the fact that Ms. Vargas filed a lawsuit in Mexico. It infers that, because she
accessed the justice system regarding her employment situation, she would (or
should) have accessed the system regarding the threats. While this observation
is not lacking justification, it nonetheless ignores the fact that the alleged
threats arose as a result of the filing of the lawsuit.
[24] Ms.
Vargas testified that she relocated several times in an effort to find
employment and be safe. She continually asked questions of her lawyer with
respect to the threats. The board concludes that the claim is exaggerated
because her “current employment letter is most positive”. In fact, the letter
is from the former employer (PRI prior to the leadership of Mr. Madrazo). It
is incumbent on the board to ensure that the evidence, and particularly that
relied upon to support a finding, is described accurately.
[25] More
importantly, while the board recognizes, in a general sense, that impunity and
corruption persist in Mexico, it does not address the
plethora of documentary evidence before it which specifically discusses the
power and influence exerted by Mr. Madrazo. This evidence was central to Ms.
Vargas’s claim.
[26] Finally,
in approaching the issue of state protection and the applicant’s failure to
approach the authorities, the board does not address (either by way of
acceptance or rejection) the evidence of Ms. Vargas that when she left Mexico, she expected to return
there.
[27] It may
well be that state protection is available to Ms. Vargas. However, the board’s
determination that state protection exists on the circumstances of this case
cannot be sustained on the basis of the reasons provided by the board. The
failure to properly analyse the issue of state protection yields an
unreasonable decision which lacks justification, transparency and
intelligibility.
[28] Ms.
Vargas has established, as she must, that the credibility and state protection
determinations are deeply flawed. Neither can be regarded as falling within a
range of possible acceptable outcomes which are defensible in respect of the
facts and the law. Consequently, her application must succeed. Counsel did
not suggest a question for certification and none arises.
JUDGMENT
The application for judicial review is granted
and the matter is remitted to the Refugee Protection Division, differently
constituted, for determination.
“Carolyn
Layden-Stevenson”
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