Date: 20080610
Docket: IMM-236-08
Citation: 2008 FC 728
Toronto, Ontario, June 10,
2008
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
NORMAN
HERNAN LOPEZ MEDINA
TERESITA DEL ROSARIO PUENTE MERCADO
(a.k.a. TERESITA DEL RO PUENTE MERCADO)
NORMAN HERNAN LOPEZ PUENTE
DIEGO ANDREE LOPEZ PUENTE
FRIDA NATALIA LOPEZ PUENTE
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants are citizens of Mexico. The family sought protection in Canada on the basis of membership in a
particular social group and on the basis of the male applicant’s political
opinion. The Refugee Protection Division (RPD) rejected the claim because: (a)
the claim is based on speculation; and (b) adequate state protection exists in Mexico City.
[2]
The applicants contend that the analysis (or
lack thereof) regarding both findings does not pass the justification,
transparency and intelligibility requirement mandated by Dunsmuir v. New Brunswick 2008 SCC 9. I agree.
Consequently, the application will be allowed.
Background
[3]
Distilled, the facts advanced by the applicants
follow. The male applicant, Mr. Medina, a successful businessman, lived in
Naucalpan (a suburb of Mexico City). He, along with several other individuals, invested money to open
a private university in the state of Veracruz (Latin America Centre of Professional Studies). He began working
several days a week in Veracruz
to attend to this project. He became involved with a civil association, “New
Times for Veracruz”, created to support the Institutional Revolutionary Party
(PRI) candidate running for governor of the state of Veracruz.
[4]
When the candidate was successful, Mr. Medina
was offered a position as the head of Veracruz’s Water Commission. Subsequently, beginning in September of 2005,
he received several personal threats warning him not to take the job because
the area of land “belongs to a local powerful landowner”. Ultimately, Mr.
Medina decided to withdraw his investment from the university project and leave
Veracruz. The major investor
objected to the withdrawal of the investment money.
[5]
Thereafter, Mr. Medina received numerous
threatening calls on his cell phone. In April of 2006, the caller stated that
he was instructed to hurt Mr. Medina if he did not cooperate and pay them
money. In July, after receiving a call during a family meal in Tepotzotland, a
car tried to run the family vehicle off the road. Further telephone calls
followed. In September, the caller stated that he knew exactly where Mr.
Medina’s family members were and what they were wearing. The caller demanded
50,000 pesos not to kidnap Mr. Medina. In October, the same caller stated that
he knew Mr. Medina’s wife was at the convenience store and that instructions
for payment of money would be forthcoming.
[6]
Mr. Medina reported the initial telephone call
to the Federal Agency of Investigations and provided the caller’s telephone
number. The family filed a complaint with the police after the car incident.
The demand for 50,000 pesos was also reported to the authorities. Regarding
the latter report, after being told to return the following day, the police
officer allegedly told Mr. Medina that “someone influential” was behind these
calls. The officer, for a fee, offered to put a patrol outside the Medina home.
[7]
The Medina family left Mexico
on October 5, 2006. During a telephone conversation with the police officer,
from the airport, the officer stated that “what he [Mr. Medina] was doing was
best”. The claims for protection were made on October 6th.
The Standard of
Review
[8]
The parties agree, and I concur, that the
applicable standard of review is that of reasonableness.
Analysis
[9]
Regarding the finding that the entire claim is
based on speculation, the RPD stated:
No member of the
family has ever been harmed. While there may have been threatening phone calls
or even an attempt to cause the principal claimant to stop his car, there was
no accident, no vehicle was damaged, and no one was injured. Other than the
phone number of a cell phone and the make of the other car involved, the
claimants have been able to offer no evidence to the authorities.
The fact the
authorities offered to provide extra patrols if paid for by the principal
claimant does not seem different than what occurs here, when Canadian citizens
hire private security firms to provide patrols. Based on the evidence the
claimant provided the authorities, it would be hard to fault those authorities
for not providing additional patrols.
[10]
This is the entirety of the analysis and, in my
view, it constitutes an elusive negative credibility finding. Credibility is a
matter which falls within the exclusive purview of the RPD. The RPD was not
obliged to accept Mr. Medina’s story. 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.). In the absence of a definitive
determination of non-credibility, an applicant’s evidence is presumed to be
true. In my opinion, the RPD’s analogy regarding private security firms and
state authorities is not an appropriate one. Similarly, the fact that “no one
was harmed” or “no one was injured” is not indicative of the absence of fear.
[11]
Notwithstanding the obvious frailties with
respect to the noted “analysis”, the crucial finding underlying the RPD’s
rejection of the Medina
family’s claim is the issue of state protection. I disagree with the
applicant’s counsel that the mere use of the words “serious efforts” indicates
that the RPD misdirected itself in its state protection analysis.
[12]
Nonetheless, I conclude that the state
protection analysis is untenable. On its face, it appears to be a template with
scant reference to the applicants’ circumstances.
[13]
The statements relied upon by the RPD, from the
United States Department of State: Mexico (USDOS) report, are not relevant to
the circumstances of the Medina
family. There were no allegations with respect to human rights abuses, police
brutality and the use of torture, or to the independence of the judiciary.
These issues are not relevant to the claims. The contents of the Issue Paper, “Mexico, Situation of Witnesses to Crime and Corruption, February 2007”, are
described in more accurate and detailed terms.
[14]
Contrary to the applicants’ submission, the RPD
should not be faulted for failing to address the Human Rights Watch document
because the circumstances of this matter do not fall within the categories
discussed in the document (justice to victims of violent crime and human rights
abuses). The same cannot be said for the IRB Response to Information Request
100642, which specifically discusses kidnapping for extortion being especially
prevalent in Mexico City, information that contradicts the RPD’s conclusions
and goes directly to the Medina
family’s circumstances. Similarly, the Mexico State Protection May 2005 document, which is not mentioned,
contains information both helpful and detrimental to the Medina family’s claim. Finally, the RPD neglects to squarely address the applicants’
efforts to access state protection in Mexico.
[15]
Unquestionably, it is open to the RPD to
conclude that state protection exists in Mexico. That said, to arrive at such a conclusion, on the basis of a
summary of country conditions (such as those that are present in this case),
without more, does not constitute a decision that falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts
and the law. It goes without saying that references relied upon from the
country conditions documents, to support a finding of state protection, should
bear some relevance to the claim. That is not the situation here.
[16]
I am well aware that the standard of
reasonableness does not invite substitution of the court’s opinion for that of
the RPD. Curial deference is owed. However, this is not a case involving the
desirability for more elaborate or informative analysis. On the contrary, the
reasons are, in my view, profoundly flawed. Mere recitation of excerpts from
documentary evidence, immaterial to the claim, followed by a conclusion (which
does not, and in the present case could not, link the contents of the country
conditions documentation to the claim) yields an unreasonable decision which
lacks justification, transparency and intelligibility.
[17]
Counsel did not suggest a question for
certification and none arises. The respondent’s counsel is to be commended for
declining to defend the indefensible.
JUDGMENT
The application for judicial review is allowed and the matter is
remitted for determination to the Refugee Protection Division of the
Immigration and Refugee Board, differently constituted.
“Carolyn Layden-Stevenson”
Email this Content