Date: 20080908
Docket: IMM-5324-07
Citation: 2008 FC 995
Ottawa, Ontario, September 8,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
EUSEBIO FRIAS MUNOZ
CLAUDIA FLORES SOTO
VIVIAN AUDREY FRIAS FLORES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
application for judicial review is allowed because the Refugee Protection
Division of the Immigration and Refugee Board (Board) erred in law by imposing
on the applicants the wrong standard of proof.
[2] The
applicants are citizens of Mexico who sought refugee protection. While the
Board expressed some credibility concerns related to the identity of the agents
of persecution, it made no clear credibility findings. Instead, the Board
found the determinative issue to be whether the applicants had rebutted the
presumption of state protection.
[3] After
a cursory review of "efforts by the government to combat corruption and
provide protection" in the Federal District of Mexico City, the Board
concluded that:
I am not satisfied
within the preponderance of probability category, as I must be, that the
authorities in the FDMC [Federal District of Mexico City] would not be
reasonably forthcoming with serious efforts to protect the claimants if they
were to return and approach the state for protection.
[4] As
authority for this statement, the Board cited the decision of this Court in Xue
v. Canada (Minister of Citizenship and Immigration) (2000),
195 F.T.R. 229. There, the Court wrote at paragraph 12:
Having
regard to the approach expressed by Dickson C.J.C. in Oakes, i.e. that in some
circumstances a higher degree of probability is required, and the requirement
in Ward that evidence of a state's inability to protect must be clear and
convincing, I do not think that it can be said that the Board erred in its
appreciation of the standard of proof in this case. If the Board approached the
matter by requiring that it be convinced beyond any doubt (absolutely), or even
beyond any reasonable doubt (the criminal standard), it would have erred.
However, the Board's words must be read in the context of the passage in Ward
to which it was referring. Although, of course, the Board does not make
reference to Oakes or Bater, and while it would have been more precise for
the Board to say that it must be convinced within the preponderance of
probability category, it seems clear that what the Board was doing was imposing
on the applicant, for purposes of rebutting the presumption of state protection,
the burden of a higher degree of probability commensurate with the clear and
convincing requirement of Ward. In doing so, I cannot say that the Board erred.
[Emphasis added.]
[5] However,
the Federal Court of Appeal has now clarified in Carillo v. Canada
(Minister of Citizenship and Immigration), [2008] F.C.J. No. 399 that an
applicant must only meet the balance of probabilities standard when rebutting
the presumption of state protection. At paragraph 21 of its reasons the Court
confirmed that it is an error of law to rely upon the Xue case for the
proposition that a higher degree of probability is required when rebutting the
presumption of state protection.
[6] Given
the cursory nature of the Board's consideration of the country condition
documentation, and its failure to mention elsewhere in its reasons the balance
of probabilities standard, I am unable to conclude that the Board's error of
law was not material to its decision.
[7] For
that reason, the application for judicial review will be allowed. 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 and Refugee
Board of Canada dated November 27, 2007 is hereby set aside.
2. The matter is remitted for redetermination by a differently
constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5324-07
STYLE
OF CAUSE: EUSEBIO
FRIAS MUNOZ ET AL., Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: SEPTEMBER 3, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: SEPTEMBER 8, 2008
APPEARANCES:
ALYSSA MANNING FOR
THE APPLICANTS
ADA MOK FOR
THE RESPONDENT
SOLICITORS OF RECORD:
VANDERVENNEN LEHRER FOR
THE APPLICANTS
BARRISTERS
& SOLICITORS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA