Date: 19990128
Docket: IMM-1829-98
OTTAWA, Ontario, the 28th day of January, 1999
| PRESENT: The Honourable Mr. Justice Rouleau |
Between:
MARIO ENRIQUE SANCHEZ MARTIN
ISELA SANCHEZ MARTINEZ
ISABEL MARTINEZ DE SANCHEZ
Applicants
And:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| Respondent |
ORDER
[1] The application for judicial review is allowed and the matter is sent back for redetermination by a differently constituted panel.
| P. ROULEAU |
| J. |
Certified true translation
Bernard Olivier
Date: 19990128
Docket: IMM-1829-98
Between:
MARIO ENRIQUE SANCHEZ MARTIN
ISELA SANCHEZ MARTINEZ
ISABEL MARTINEZ DE SANCHEZ
Applicants
And:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board (the panel), rendered on April 1, 1998, that the applicants are not Convention refugees.
[2] The main applicant, Mario Enriquez Sanchez Martin, is a doctor with a specialization in radiology. He came to Canada with his wife, Isabel Martinez De Sanchez and their daughter of full age, Isela Sanchez Martinez. All are citizens of Mexico. The applicants state that they have a well-founded fear of persecution for reasons of their political opinion and their membership in a particular social group.
[3] Before leaving his country, the main applicant was engaged in the practice of medicine in the state of Vera Cruz. He became a member of the National Action Party (PAN) in 1988. As a member of the PAN, he participated in some social activities, engaged in propaganda, gave lectures and made home visits free of charge in the neighbouring rural communities of Coatzacoalacos and Minatitlan. He became the assistant to the party"s secretary of propaganda and social action.
[4] On June 23, 1997, the applicant came out publicly against the ruling party, the Party of the Institutionalized Revolution (PRI). He stated that the country"s leaders were responsible for corruption and should be investigated. Reprisals against him and his family began at that point. After hearing the applicant"s statements, the bodyguards of a PRI federal deputy followed him into a parking lot and threatened him with death. On July 1, 1997, the applicant observed a military police van circling his house. The next day, some Mexican police officers attempted to gain entry to his house by force.
[5] On July 6, 1997, an election day, the applicant was responsible for monitoring a voting station on behalf of the PAN. At about 4:00 p.m., two individuals arrived. They claimed to be members of the Federal Electoral Institute, and asked that the members of the parties who were present show them their accreditations. While the applicant was busy showing his accreditations, someone shouted that a person had just made an illegal deposit of votes in the ballot boxes. The applicant and the other delegates attempted to arrest the individual who had made the deposit, but he escaped. When they sought to retain the individual who had distracted them, the police arrived. The police officers threatened the delegates with their weapons, enabling the suspect to escape. The police remained until the votes were counted. The PRI representative won.
[6] The applicant reported the fraud to his party, which filed a complaint. Soon afterward, the applicant noticed that police vehicles were continually circling his house. He received threats by telephone. Someone threatened to rape and kill his daughter. On July 9, the applicant received a confidential call from a deputy informing him that his name was going to be entered in a computer system controlled by the government, which would cause him some difficulties in leaving the country. Fearing for their safety, the applicants left Mexico and came to Canada.
[7] The panel summarily rejected their claim. It was thought to contain a major improbability, namely, that the applicant had not complained to the police or his party when he received threats after the elections. It was also thought unlikely that the PAN, a well organized political party, was unable to protect the applicant. The panel held that the applicant had failed to prove that he could not rely on the protection of the Mexican authorities.
[8] The claim of the main claimant is based on a fear of persecution by the members of the PRI and the police forces. The PRI has been in power in Mexico for about 70 years. It is not unlikely that someone who alleges he is being directly or indirectly persecuted by the government of his country of origin would not seek the protection of the authorities. In this case, the panel had to consider whether the applicant"s fear of being persecuted by his own government had some foundation. There is no indication that the panel reviewed the documentary evidence that was submitted concerning the human rights situation in Mexico and, more specifically, the possibility of persecution of political opponents by the Mexican authorities. An article published in the newspaper Libéral in Mexico on October 21, 1997 concerning the applicant was dismissed without comment by the panel. The article, as translated from Spanish into French, reads as follows:
[Translation from French] Owing to unrest among the citizens, the prestigious physician suddenly left the city in early July. This doctor had his radiology office between Gerrero street and Llave street in this city. The major cause of his disappearance was probably political.
For it was widely known that the doctor in question was a PANista, and lost no opportunity to manifest his disagreement with and disavowal of the government"s repression during the recent elections in July, since the doctor was a table secretary and on repeated occasions had been threatened with death by uniformed elements.
Is this what awaits any citizen who defends his rights? Where is this doctor?
[Sic]
[9] The respondent argued that the applicant left Mexico shortly after the elections. The PAN had some success in the 1997 elections, electing many deputies. Some PANistas have been elected governors in some Mexican states. The respondent suggests that the situation changed after the elections and that the PAN could now protect the applicant against the attacks of their opponents. I am of the opinion that such an about-turn is impossible in so little time. Only a short time ago, on July 2, 1997, the Mexican police forces were attempting to gain entry to the applicants" home. The PRI is still in power. The PAN"s ability to grant internal refuge to the applicant is not so evident in the documentary evidence as to support the panel"s conclusion. On the contrary, an article published in the newspaper [El] Universal in September 1997 reports the following [in translation]:
| Over the last three years, the human rights situation here has deteriorated so much that today "there is a human rights crisis in Mexico", the Executive Director of the International Human Rights Organization, Amnesty International, Pierre Santé, said yesterday in Mexico City.... |
[10] The application for judicial review is allowed and the matter is sent back for redetermination by a differently constituted panel.
| P. ROULEAU |
| J. |
OTTAWA, Ontario
January 28, 1999
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: IMM-1829-98 |
| STYLE: MARIO ENRIQUE SANCHEZ MARTIN, ISELA SANCHEZ MARTINEZ, ISABEL MARTINEZ DE SANCHEZ V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JANUARY 21, 1999 |
REASONS FOR ORDER OF ROULEAU J.
| DATED: JANUARY 28, 1999 |
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANTS
LISA MAZIADE FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA