Date: 20041216
Docket: IMM-1040-04
Citation: 2004 FC 1749
Toronto, Ontario, December 16th, 2004
Present : The Honourable Mr. Justice Luc Martineau
BETWEEN :
LAURA MENA MACIAS,
KAREN ILIE ROMO MENA,
GRACE MONTSERRA ROMO MENA,
DENISSE DANAE ROMO MENA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDERAND ORDER
[1] This is an application for judicial review under section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") of a decision dated January 7, 2004 of the Immigration and Refugee Board (the "Board") composed of H. Aulach which concluded that the applicants were not Convention refugees pursuant to sections 96 nor persons in need of protection pursuant to section 97 of the Act.
[2] The applicant, Mrs. Laura Mena Macias, is the mother of the three other applicants, Karen Ilie Romo Mena (now 5 years of age), Grace Montserra Romo Mena (now 11 years of age) and Denisse Danae Romo Mena (now 7 years of age). The applicants are citizens of Mexico and used to live in the state of Aguascalientes with their father/husband, Mr. Juan Manuel Romo De Anda.
[3] In 1994, Mr. Juan Manuel Romo De Anda became the treasurer of a support group for the Zapatista (called "Martin Cambio"). This group collected food, clothing and money for the Zapatista movement. On April 10, 1999, Mr. Juan Manuel Romo De Anda was arrested and beaten by the police after he ignored their order to halt his van while on a group-related task. On December 12, 1999, Mr. Juan Manuel Romo De Anda was arrested by three men and brought to the Procuradduria General building in Aguascalientes. He was questioned, tortured, brutally beaten and left lying on a rural road by the same three men. Following this event, Mr. Juan Manuel Romo De Anda learned that some members of his group were missing and others found dead. He decided to leave Mexico and landed in Canada on March 23, 2000.
[4] Mr. Juan Manuel Romo De Anda's father was detained by the police for a period of nine months on trumped-up criminal charges to force his son to return to Mexico. His father was released on order of the Court because there was insufficient evidence against him.
[5] On June 15, 2000, Mr. Juan Manuel Romo De Anda received a message to call his in-laws in Mexico. He spoke with his wife, Mrs. Laura Mena Macias, which told him that his youngest daughter was in the hospital. Moreover, she told him that on June 14, 2000, two policemen came to her parents' house to arrest her for questioning. Mrs. Laura Mena Macias said she resisted them since they did not have any warrant and she thought they wanted information regarding her husband. While she had their youngest daughter (who was nine months old at the time) in her arms, the two policemen pushed her. In the struggle, Karen Ilie Romo Mena fell on the floor and injured her head. The two police officers left since they were feeling overwhelmed as many neighbours and family members came out to see what was happening. Grace Montserra Romo Mena and Denisse Danae Romo Mena were taken by their uncle in La Esparanza. Meanwhile, Mrs. Laura Mena Macias stayed with her daughter, Karen Ilie Romo Mena, who was hospitalised for three days. They left for La Esparanza immediately after Karen Ilie Romo Mena was released from the hospital. The applicants left Mexico and came to Canada to join Mr. Juan Manuel Romo De Anda on August 2, 2000.
[6] Mr. Juan Manuel Romo De Anda and the applicants kept in touch with their family in Mexico. Their family said that police cars were seen passing their parent's house often.
[7] Mr. Juan Manuel Romo De Anda along with the applicants claimed refugee status. Following the impugned decision, Mr. Juan Manuel Romo De Anda's claim was accepted; however, the applicants' claims were rejected on the basis that there was insufficient evidence to prove that they have been deliberately targeted for mistreatment and that documentary evidence does not establish hostage taking practice to be prevalent in Mexico.
[8] The applicants based their claims on their fear of persecution for reasons of their political opinions and membership in a particular social group. The particular social group is their own immediate family. They argue before this Court that the Board erred in law and based its decision on erroneous findings of fact that it made in a perverse or capricious manner or made without regard to the material before it.
[9] The present application must be allowed.
[10] I am satisfied that in the circumstances found in the case at bar, the applicants' immediate family can be considered a particular social group (Al-Busaidy v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 26 (F.C.A.) (QL)). I also conclude that there is a clear nexus between the persecution that is being levelled against Mr. Juan Manuel Romo De Anda and that which is taking place against the applicants (Al-Busaidy, supra;Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190; Addullahi v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 150;Lakatos v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 657 (F.C.T.D.) (QL)).
[11] The Board accepted that Mr. Juan Manuel Romo De Anda's father was wrongly detained for nine months after Mr. Juan Manuel Romo De Anda left for Canada (even though the release certificate does not specifically state that he was wrongly detained), that the police attempted to arrest Mrs. Laura Mena Macias in order to get information on her husband, that the police injured Karen Ilie Romo Mena while trying to arrest her mother without a warrant, that police cars were often sighted near Mrs. Laura Mena Macias' parents' house, and that the applicants had to hide at La Esparanza and that Mr. Juan Manuel Romo De Anda was tortured by the police because of his involvement with the group Martin Cambio. This constituted sufficient evidence that the required nexus was present (Germain v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1577 (F.C.T.D.) (QL); Montoya v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 701 (F.C.T.D.) (QL); Devrishashvili v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1528 (F.C.T.D.) (QL)).
[12] It is unquestionable that the applicants have established a clear link between themselves and their fear of persecution for a Convention reason. Such persecution does not have to be as extreme as the one cited in Casetellanos, supra (the son of a revolutionary is consistently detained and harassed by the authority simply because of the political leanings of his father). For example, in Germain, supra, the applicant was the mother of a small political activist and was questioned about her son and beaten on one occasion but was able to escape and flee to Canada; her claim was initially denied but judicial review was afterwards allowed by this Court.
[13] The Board was clearly wrong when it said that there is insufficient evidence to prove that they have been deliberately targeted for mistreatment. On this matter, I find that the Board erred in applying such a test. It has already been established that in order to consider immediate family as a particular social group, the applicant must only prove that there is a clear nexus between the persecution that is being levelled against one member and that which is taking place against him or her. Therefore, the applicants did not have to prove that they were "deliberately targeted for mistreatment". Accordingly, the Board has committed a reviewable error in not giving due effect to the applicants' uncontradicted evidence with respect to their membership in a particular social group, their immediate family.
[14] No question of general importance has been proposed for certification.
ORDER
THIS COURT ORDERS that the decision of the Immigration and Refugee Board dated January 7, 2004 be quashed and the matter returned for a new hearing before a newly constituted panel.
"Luc Martineau"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1040-04
STYLE OF CAUSE: LAURA MENA MACIAS, KAREN ILIE ROMO MENA, GRACE MONTSERRA ROMO MENA, DENISSE DANAE ROMO MENA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 15, 2004
REASONS FOR ORDER
AND ORDER BY: MARTINEAU J.
DATED: DECEMBER 16, 2004
APPEARANCES:
Neil Cohen FOR THE APPLICANTS
Negar Hashemi FOR THE RESPONDENT
SOLICITORS OF RECORD:
Neil Cohen FOR THE APPLICANTS
Toronto, Ontario
Negar Hashemi
Deputy Attorney General of Canada FOR THE RESPONDENT
FEDERAL COURT
Date: 20041216
Docket: IMM-1040-04
BETWEEN:
LAURA MENA MACIAS, KAREN ILIE ROMO MENA, GRACE MONTSERRA ROMO MENA, DENISSE DANAE ROMO MENA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER