Date: 19990526
Docket: IMM-4475-98
BETWEEN:
MIGUEL ARTURO AGUIRRE LOPEZ
Applicant
AND
THE MINISTER
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board), dated August 5, 1998, in which the Board determined that the applicant is not a Convention refugee.
FACTS
[2] This concerns a 34 year-old applicant from Mexico. He obtained a degree in architecture from the Metropolitan Autonomous University in Mexico City in 1992. He started to work in an architectural firm.
[3] The applicant also started to become involved in politics in 1990 and became an active member of the Democratic Revolutionary Party (PRD) by participating in information sessions with groups of people from underprivileged neighbourhoods.
[4] The claimant"s problems began when he participated in the occupation of a piece of land with a group of citizens who wanted to take over land belonging to the municipality to divide it between groups of underprivileged people and plan an organized housing development.
[5] The applicant claims he was picked up by the judicial police, tortured and interrogated. After he was released, he participated in a second occupation of another piece of land. When he learned the police were looking for him, he left first his job and then Mexico on May 16, 1995, and arrived in Canada the next day after travelling through the United States. He claimed refugee status on October 7, 1995.
[6] He says that he is afraid of returning to his country and fears the judicial police and the government in particular.
ANALYSIS
[7] A detailed review of the evidence on the record and the transcript of the hearing reveals significant evidence which corroborates the applicant"s claims with respect to his activities in Mexico, for which he was apparently arrested and tortured.
[8] By itself, the fact that the applicant failed to speak of the rape is not determinative of a lack of credibility on his part. His explanation that he was not comfortable talking about is entirely plausible and, in my view, the Board"s conclusion on this issue is unreasonable.
[9] The doubt expressed by the Board because there was no reference to the architectural firm on the drawings, plans and photographs presented in a portfolio as proof of the applicant"s profession also seems to go too far, as the lack of reference to an architectural firm does not reduce the probative value of the documents and there is no reason to doubt the letter from the employer confirming the applicant"s employment.
[10] The Board also described the applicant"s explanations concerning the occupation of the land and the removal of the occupiers from the land by the police as implausible.
[11] A reading of the transcript of the hearing before the Board as well as the information contained in the Personal Information Form provide further details about the circumstances of the events which remove any implausibility.
[12] On the contrary, the Court finds that these explanations indicate that the families claimed the land under their right of occupation and were forced to occupy it without permission as their right was not respected by the government. Moreover, the land was part of the municipality"s land holdings.
[13] It appears that the applicant"s role was to verify on the public registry that the land involved was in fact intended for housing and to provide his expertise as an architect to design housing to meet the needs of the families.
[14] Once this was done, the citizens were in a position to claim they legally occupied the land and to require that the municipality perform work on the infrastructure. It appears that these activities were part of broader objective of getting into power by gaining the favour and the vote of the inhabitants. Although this method may seem unwise or inappropriate, there seems no doubt that the group of individuals involved was organized and sincere in its cause and that the forcible intervention of the police was required to end it.
[15] In my view, there is nothing exaggerated about these explanations and I find it difficult to understand how the Board could conclude that the applicant"s answers on this issue were implausible and lacked credibility.
[16] The torture the applicant allegedly suffered as a result of his involvement in this organization is supported by sufficiently detailed medical notes which confirm the mistreatment he received and should not be taken lightly.
[17] The fact that no action was taken on the applicant"s complaint because of a lack of evidence does not mean that the events did not take place, especially because there is a note on the document that the file was misplaced. Furthermore, it is understandable that the complaint was put on hold for lack of evidence because it had already been over a year since the claimant left the country after signing the document.
[18] With respect to the Human Rights Commission document, it seems clear that there is an error in the date on this document.
[19] In fact, the date which appears at the top of the document is July 22, 1993, while the assault allegedly occurred in March, 1995; however, the investigation number in the complaint laid as a result of the assault, which appears in the document from the Attorney General of the federal district, is the same as the one that appears on the document from the federal district"s Human Rights Commission. This seems to indicate that a complaint was in fact filed with both organizations.
[20] The applicant testified that following the events of March 23, 1995, he fell into a deep depression and that his work suffered because he reduced his hours of work to a minimum. Despite this depressive state, the applicant accepted the organization"s request to participate in a second occupation of land. This may seem implausible, but the applicant explained that he did so without participating physically, but by merely providing plans. Once again, this explanation seems quite believable.
[21] The Court is generally very hesitant to intervene in issues of credibility, in light of the well-established principle that the Board is in the best position to assess the evidence adduced by the claimant.
[22] However, in the case at bar, a thorough examination of the file indicates that during the hearing, the Board asked the same questions over and over again and the applicant"s recorded responses display a consistency which runs directly counter to the findings of the Board, which determined that the applicant had contradicted himself. In fact, I found no contradiction worthy of note in the applicant"s testimony and must therefore conclude that the Board"s finding on this issue was clearly unreasonable.
[23] For the above reasons, the application for judicial review is allowed, the Board"s decision is set aside and the Court refers the matter back to the Board for rehearing before a differently constituted panel.
[24] As neither counsel submitted any question, no question will be certified.
Pierre Blais Judge
OTTAWA, ONTARIO
May 26, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4475-98
| STYLE OF CAUSE: MIGUEL ARTURO AGUIRRE LOPEZ |
AND
THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 20, 1999
REASONS FOR ORDER OF BLAIS J.
DATED: MAY 26, 1999
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Sylviane Roy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General Of Canada