Date: 20010130
Docket: IMM-3686-99
BETWEEN:
EDUARDO PITTA MARTINEZ
MARGARITA DOMINGUEZ MEDINA
ARTURO PITTA DOMINGUEZ
LUIS ANTONIO PITTA DOMINGUEZ
ESTHER AGUIRRE BAEZ
JANET FABIOLA PITTA AGUIRRE
JESUS GABRIEL PITTA DOMINGUEZ
MARICRUZ VILLARREAL PITTA
VICTORIA M. PITTA VILLARREAL
CARLOS EDUARDO PITTA DOMINGUEZ
AIDA JAIMES GUADARRAMA
ERIC EDUARDO PITTA JAIMES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] At issue in this application is the reasonableness of the determination by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") that the applicants were not Convention refugees by virtue of the availability of an internal flight alternative ("IFA") in Mexico City from members of the Zapatista National Liberation Army ("EZLN").
THE FACTS
[2] The applicants are Eduardo Pitta Martinez, his wife Margarita Dominguez Medina, their four sons and the wives and children of their three adult sons. All are citizens of Mexico. Mr. Martinez and his three adult sons alleged that they have a well-founded fear of persecution from both the EZLN and the Government of Mexico. The other applicants based their refugee claims on their membership in a particular social group, the family.
[3] The applicants lived in Chancala, Chiapas, Mexico, from approximately 1990 to 1995. In 1993, Mr. Martinez attended two meetings organized by the EZLN for the purpose of gathering support against the Mexican government. Mr. Martinez testified that he refused to assist the EZLN, but that in order to avoid any conclusion that he was an enemy of the EZLN he told organizers that he needed more time and that he might provide assistance at a later time.
[4] In January of 1994, an armed struggle began between the EZLN and Mexican authorities in Chiapas. The applicants said that fightings, killings and disappearances occurred in their town. The applicants said that they did not leave the area because they feared that the government would accuse them of being EZLN agents.
[5] In February of 1995, members of the EZLN began pressuring Mr. Martinez and his three adult sons to support their cause. By May of 1995, the applicants said that the pressure had turned into threats on the lives of their wives and children. The adult male applicants were told by Zapatista supporters that they would be found wherever they went in Mexico because the guerrillas were spread all around Mexico. Mr. Martinez testified that the guerilla organizations had extended their influence throughout the country and that he thought about that when he and his family were threatened. Around this time Mr. Martinez's brother, Francisco, and Francisco's sons disappeared after receiving similar threats. In his Personal Information Form, Mr. Martinez said that "I think that Francisco may have worked with them" referring to the EZLN. Mr. Martinez testified that members of the EZLN told him that his brother and his brother's sons are "with us already and you're the one that's missing".
[6] At the end of May, 1995, the applicants left for the United States, stopping in Colima, Mexico for three weeks to visit Mr. Martinez's father. After leaving Colima,
Mr. Martinez learned from his father that a man came to his father's house looking for them and that the man stated that he had been sent by Timoteo, a member of the EZLN who had pressured Mr. Martinez and his sons in Chancala.
[7] The applicants lived and worked illegally in the United Stated until May of 1997 when they were deported by U.S. authorities to a Mexican border town. Learning that the EZLN guerrillas were active in several Mexican states, the applicants said that they returned to the United States illegally and then made their way into Canada.
[8] The CRDD found that the applicants failed to establish a well-founded fear of persecution by the Mexican government. That finding is not at issue in this proceeding.
[9] With respect to the EZLN, in light of its conclusion that an IFA was available to the applicants in Mexico City, the CRDD expressly declined to make any finding with respect to the applicants' fear of persecution at the hands of the EZLN in Chancala, Chiapas, or Colima.
[10] With respect to the existence of an IFA, the reasons of the CRDD in material part were as follows:
| The panel notes that a number of internationally recognized human rights organizations have visited Mexico to assess the human rights situation arising from the conflict in Chiapas. Two sources in the documentary evidence, cited above, refer to the use of force on the part of the EZLN to obtain support: one source states that the EZLN has committed "sporadic" acts of violence such as summary trials and executions, that it has levied a "wartax" at roadblocks, and that it has been responsible for abuses during land occupations. While there is no specific reference to the practice of forced recruitment, or punishment for refusal to join their ranks, the panel notes the reference to the use of force to obtain support and the reference to summary trials and executions. However, nothing in the documentary evidence before the panel indicates that the EZLN pursue those who refuse to join their ranks to other areas of Mexico beyond Chiapas, or that organizations affiliated with, or sympathetic to, the EZLN in other parts of Mexico act on behalf of the EZLN to seek out those who have refused to join. |
| ... |
| We further find the alleged visit of a man, sent by Timoteo to the father's house to inquire about the claimants, not to be credible. In our view, it is not plausible, particularly in light of the absence of documentary evidence that the EZLN seek out those who refuse to join them in other parts of Mexico, that Timoteo would have asked a representative to inquire about the claimants at their relative's home hundreds of kilometres from Chancala. |
| Even if the EZLN had sent a representative to the home of the principal claimant's father in Colima in 1995, the panel finds the claimants' fear of persecution by the EZLN anywhere in Mexico today to be speculation in light of the above analysis. Further, the panel finds that, notwithstanding the existence of the EZLN and other support groups throughout Mexico, the organization would not have an interest in seeking out the claimants, four years after their departure from Chiapas, if they were to return to Mexico and relocate to Mexico City. We therefore conclude that there is not a reasonable chance that the claimants would suffer persecution from the EZLN if they were to relocate there today. |
ANALYSIS
[11] In order to determine that an IFA exists, the CRDD must be satisfied, to use the words of the Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.) at page 711, that on a balance of probabilities, there was no serious possibility of the applicants being persecuted in Mexico City.
[12] It will be seen from the portion of the reasons quoted above that in finding an IFA, the CRDD relied upon the absence of any documentary evidence to the effect that the EZLN pursues people who refuse to join it beyond Chiapas, or that in other parts of Mexico other organizations act on behalf of the EZLN to seek out those who refuse to join the EZLN.
[13] Dealing with each item in turn, with respect to whether the EZLN pursued individuals beyond Chiapas, the panel did not believe the testimony of the claimants that a representative of the EZLN looked for them out of Chiapas in Colima. The CRDD apparently accepted the testimony of the applicants in all other respects.
[14] As a matter of law, where a refugee claimant swears to the truth of certain allegations there is a presumption that those allegations are true, unless there is reason to doubt their truthfulness, Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). Here, in the absence of evidence to contradict the applicants' testimony that a representative of the EZLN was looking for them outside of Chiapas, the CRDD could not make an adverse finding of credibility upon the point based solely on the absence of corroborating evidence in the reports on country conditions. See: Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.); Ahortor v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 39 (F.C.T.D.).
[15] With respect to whether other organizations affiliated with, or sympathetic to, the EZLN in other parts of Mexico act on behalf of the EZLN to seek out individuals, missing from the analysis of the CRDD is a finding that the EZLN did not exist in Mexico City. Given the acceptance by the CRDD of evidence that EZLN was reported to use force to obtain support, and given the CRDD's ultimate conclusion that an IFA existed in Mexico City, it was incumbent upon the CRDD to consider the presence of the EZLN in Mexico City.
[16] In that regard, counsel for the applicants referred the Court to a number of references in the documentary evidence to the effect that the EZLN had forces outside of Chiapas, and in Mexico City. Included were references to the fact that:
| Leaders of the EZLN confirmed that they did have forces outside of Chiapas; |
| President Zedillo announced that the Attorney General's office had found two EZLN arsenals in Mexico City; |
| Amid fears of revenge attacks by the EZLN, security forces were reinforcing power stations, telecommunications facilities, key government buildings and other strategic facilities throughout Mexico City; and |
| The Government of Mexico issued warrants for the arrest of key members of the EZLN after the discovery and arrest of armed EZLN cells in Mexico City. |
[17] While the CRDD was not necessarily obliged to accept this evidence, where counsel for the Minister could not refer the Court to any conflicting evidence which the CRDD was entitled to prefer, and where the panel provided no reasons for ignoring this evidence, I conclude that the failure of the CRDD to deal with this evidence constituted a reviewable error.
[18] The CRDD accepted that the EZLN used force to obtain support. For the reasons above, the panel was not entitled to reject as it did the applicants' evidence that a representative of the EZLN had looked for them out of Chiapas. The panel gave no indication that it considered evidence as to the armed presence of the EZLN in Mexico
City. In that circumstance, its conclusion that an IFA existed in Mexico City was, I find, patently unreasonable.
[19] While the panel went on to find that the EZLN "would not have an interest in seeking out the claimant, four years after their departure from Chiapas" no reasons were given for this finding. I am unable to conclude that this finding, unsupported by reference to the evidence before the CRDD, is sufficient to support the conclusion that there was not a reasonable chance that the applicants would suffer persecution from the EZLN if they were to relocate to Mexico City.
[20] The application for judicial review will therefore be allowed, the decision of the CRDD dated July 5, 1999 is set aside, and the matter is to be remitted to a differently constituted panel for redetermination.
[21] The applicants submitted three questions for certification. The respondent opposed certification of any question on the ground that the errors alleged to have been made by the CRDD were essentially fact-based so that the application may be determined
on its facts. The respondent therefore submitted that the questions posed for certification are not determinative of the outcome of the case. I agree. No question will be certified.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
January 30, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3686-99 |
| STYLE OF CAUSE: EDUARDO PITTA MARTINEZ |
MARGARITA DOMINGUEZ MEDINA
ARTURO PITTA DOMINGUEZ
LUIS ANTONIO PITTA DOMINGUEZ
ESTHER AGUIRRE BAEZ
JANET FABIOLA PITTA AGUIRRE
JESUS GABRIEL PITTA DOMINGUEZ
MARICRUZ VILLARREAL PITTA
| VICTORIA M. PITTA VILLARREAL |
CARLOS EDUARDO PITTA
DOMINGUEZ
AIDA JAIMES GUADARRAMA
ERIC EDUARDO PITTA JAIMES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
| DATE OF HEARING: TUESDAY, JANUARY 16, 2001 |
| PLACE OF HEARING: WINNIPEG, MANITOBA |
| REASONS FOR JUDGMENT BY: DAWSON J. |
DATED: TUESDAY, JANUARY 30, 2001
| APPEARANCES BY: Mr. David Matas |
| For the Applicant |
| Ms. Aliyah Rahaman |
| For the Respondent |
| SOLICITORS OF RECORD: DAVID MATAS |
| (Cont'd) Barrister & Solicitor |
| Vaughan Street, Suite 602 |
Winnipeg, Manitoba
| R3C 1T7 |
Tel No.: (204) 944-1831
Fax No.: (204) 942-1494
| For the Applicant |
| Department of Justice |
| Winnipeg Regional Office |
| 310 Broadway, Suite 301 |
Winnipeg, Manitoba
R3C 0S6
Tel. No.: (204) 984-5731
Fax No.: (204) 984-6488
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20010130
Docket: IMM-3686-99
BETWEEN:
| EDUARDO PITTA MARTINEZ |
MARGARITA DOMINGUEZ MEDINA
ARTURO PITTA DOMINGUEZ
| LUIS ANTONIO PITTA DOMINGUEZ |
| ESTHER AGUIRRE BAEZ |
| JANET FABIOLA PITTA AGUIRRE |
| JESUS GABRIEL PITTA DOMINGUEZ |
| MARICRUZ VILLARREAL PITTA |
| VICTORIA M. PITTA VILLARREAL |
| CARLOS EDUARDO PITTA DOMINGUEZ |
| AIDA JAIMES GUADARRAMA |
| ERIC EDUARDO PITTA JAIMES |
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR JUDGMENT |