Ottawa, Ontario, September 20, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The decision of a specialized tribunal is its alone to make. That is on the basis of both the subjective and objective evidence as well as knowledge, expertise and institutional memory of which the specialized tribunal is the repository. The decision must, nevertheless, demonstrate an articulated inherent reasonableness or logic, even if it is, other than the Court might have reached.
…the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
(Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph 17.)
JUDICIAL PROCEDURE
[2] This is an application for judicial review under subsection 72 (1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision of a panel of the Immigration and Refugee Board, Refugee Protection Division (Panel) which, on November 25, 2005, dismissed the Applicant’s claim for “Convention refugee” status under section 96 of IRPA and also that of “a person in need of protection” within the meaning of subsection 97 (1) of IRPA.
BACKGROUND
[3] The Applicant, Mr. Carlos Martinez Reynoso, a 39 year-old native of Mexico, alleges a well-founded fear of persecution perpetrated by a corrupt political figure, a deputy member, named Mr. Alejandro Gamino, belonging to the National Action Party (PAN). Alleging that the official authorities and its agents are corrupt, Mr. Reynoso claims he would not receive state protection.
[4] Mr. Reynoso’s troubles began on December 13, 2001, when two men approached him at his “Car Repair Garage” business to request that he produces false invoices for repairs of “official vehicles”. The men had introduced themselves as Vicente and Marcos, the private bodyguards of Mr. Gamino.
[5] At first, Mr. Reynoso refused to comply; however, after being threatened and physically assaulted by both men, he acquiesced, albeit under duress, and produced the false invoices.
[6] On December 21, 2001, the same two individuals returned to the “Car Repair Garage” to request additional invoices. Mr. Reynoso was, once again, threatened, but this time, he refused to provide the invoices. He then denounced the incident to the Public Ministry, Office of the County Attorney General of Justice.
[7] On January 23, 2002, Mr. Gamino’s bodyguards followed Mr. Reynoso to his car and apprehended him at gunpoint. According to Mr. Reynoso, the two men, physically and verbally, abused him for having refused to comply with Mr. Gamino’s request to stop his denunciations. Mr. Reynoso lodged a complaint of the incident to the Public Ministry on January 25, 2002.
[8] After the incidents, Mr. Reynoso claims that his business was under close scrutiny by different government agencies. As a result of this, he was forced to close down his “Car Repair Garage” business.
[9] On February 20, 2002, Mr. Reynoso alleges that two individuals in a black truck opened fire, shooting at the hood and tires of his vehicle. He claims he was also threatened that the “next bullets will hit him.” The police arrived, searched the area but found nothing.
[10] Although Mr. Reynoso went to the Public Ministry to denounce the incident, he alleges that he did not proceed in reporting the incident any further due to warnings which he received from the secretary who he had met in the Public Ministry. She had clearly alerted him that he was messing with “Big Shots”.
[11] On March 14, 2002, Mr. Reynoso claims he heard from an informer of an attempt by the Institutional Revolutionary Party (PRI), to damage Mr. Gamino’s image and, thereby, to discredit his candidacy for a seat in the Senate at the Federal Elections held in 2006.
[12] In light of Mr. Reynoso’s alleged fear of persecution and harassment, he decided to flee Mexico.
[13] On April 4, 2002, Mr. Reynoso received his passport and requested a visa to the United States. He left Mexico and entered Canada on June 26, 2002. He submitted a refugee claim on November 26, 2002 which was denied by the Panel on January 20, 2004.
[14] Mr. Reynoso filed an Application for Leave and for Judicial Review of the failed refugee claim which was granted on February 1, 2005. His refugee claim was remitted for reconsideration before a newly constituted Panel pursuant to an order of the Federal Court of Canada.
[15] On November 25, 2005, Mr. Reynoso’s refugee claim was refused. The hearing Panel rendered an oral decision finding the claimant not to be a “Convention refugee” or a “person in need of protection” within the meaning of section 96 and subsection 97(1) of IRPA. This is the decision under review before the Court.
DECISION UNDER REVIEW
[16] In the written reasons, dated November 30, 2005, the Panel found that there was no credible or trustworthy evidence on which to grant a favorable decision nor did it find a credible basis for the claim pursuant to s. 107(2) of IRPA.
ISSUES
[17] The issues in the present case are as follows:
1. Are the Panel’s findings unsupported by either law or evidence?
2. Did the Panel err in finding that Mr. Reynoso did not rebut the presumption of state protection?
STANDARD OF REVIEW
[18] In matters of credibility and/or state protection, it is settled law that the standard of review is patent unreasonableness. Decisions of the Panel which are based on credibility findings are to be accorded a high level of deference given the Panel has the benefit of hearing the testimony of the witnesses and also possesses a high level of expertise. Credibility determinations lie within “the heartland of the discretion of triers of fact” and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts. Where the Panel’s inferences and conclusions are reasonably open to it on the record, this Court should not interfere, whether or not the Court agrees with the inferences or conclusions drawn. (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL), at paragraph 4; Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (QL); Correira v. Canada (Minister of Citizenship and Immigration), 2005 FC 1060, [2005] F.C.J. No. 1310 (QL), at paragraph 21.)
1. Are the Panel’s findings unsupported by either law or evidence?
[19] The Panel did find key elements of past persecution, in respect of the attack, targeting Mr. Reynoso and his having reported, at the very least, the incident to the Public Ministry as credible. Mr. Reynoso did, in fact, have supporting documents for both refugee hearings. He acquired objective evidence since the date of the first hearing to give to the Panel at his second hearing.
[20] The Panel states:
I am well aware that corroborative evidence is not necessary to establish a claim for refugee protection, however, when credibility is in issue, the onus is on the claimant to establish his claim.
[21] Firstly, the Panel did find key elements of the claim to be credible.
[22] Secondly, the Panel’s rejection of Mr. Reynoso’s overall credibility is unreasonable due to the fact that it had accepted key elements of his claim as credible; in this regard, Mr. Reynoso’s claim and, in this regard, the Panel neglected the objective documentary evidence supportive of his claim.
[23] Mr. Reynoso did, in fact, submit new articles and they are written in English. They appear to fully support the reasons for Mr. Reynoso’s fear. It does not appear that the Panel read this evidence; if it would have, it would not have described the evidence as unintelligible. Furthermore, as noted, the Panel rendered a bench negative decision, that may not have occurred, had the Panel taken more time to ensure that the material had been read and digested.
[24] Given that the Panel accepted as credible the past attacks of Mr. Gamino and his men against Mr. Reynoso, which it did not have to do, but did, it should then have considered the objective evidence in regard to Mr. Gamino.
[25] On the one hand, the Panel states that it requested a copy of the report in respect of the complaint which Mr. Reynoso had made, subsequent to his having been attacked; yet, on the other, the Panel had accepted, prior to such corroboration, that Mr. Reynoso had, in fact, been attacked, without having had received such a report. This had been already ascertained from both his testimony and the report in regard of the Public Ministry which the Panel did take into account as is evident from its decision.
[26] Therefore, in regard to this issue, the Panel’s findings are patently unreasonable.
2. Did the panel err in finding that Mr. Reynoso did not rebut the presumption of state protection?
[27] The Court shows significant deference to findings of fact made by the decision-maker; nevertheless, it is trite law that with regard to critical findings, the decision-maker has a strict duty to provide a clear evidentiary basis in support of each. Failure to support a finding on credibility, when such is available, is speculation. (K.I.N. v. Canada (Minister of Citizenship and Immigration), 2005 FC 282, [2005] F.C.J. No. 342 (QL).)
[28] As stated in Cepeda-Gutierrez, above, at paragraph 17 (a case involving the refusal of an appeal by the Immigration Appeal Division of a Visa Officer’s refusal to issue a permanent resident visa):
…the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[29] Further, in Townsend v. Canada (Minister of Citizenship and Immigration), 2003 FCT 371, [2003] F.C.J. No. 516 (QL) , at paragraph 22, the Court, held, in part, as follows:
The purpose of reasons is to tell the person concerned why a particular result was reached. Reasons allow the parties to see that the applicable issues have been carefully considered and to effectuate any right of appeal or judicial review (Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817; VIA Rail, supra). What constitutes adequate reasons will depend on the circumstances of each case (VIA Rail, supra).
[30] In Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75 (QL), the Supreme Court of Canada stated, in part, as follows :
Reasons, it has been argued, foster better decision-making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision itself may be a guarantee of a better decision. Reasons allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned or considered on judicial review.
[31] In this claim, the Panel delivered a “bench negative” oral decision and reasons at the end of the hearing. Save some individual news articles, no other references are made to more recent, credible reports in respect to the police and state protection.
[32] Numerous critical findings were made in error with regard to both the subjective and objective components. It must be noted, as well, that at page 2 of the reasons, the Panel clearly accepts key evidentiary aspects of Mr. Reynoso’s claim. This includes past persecution he experienced as a victim of Mr. Gamino’s bodyguards.
[33] In the face of this finding, the Panel had strayed from the evidence and simply speculated without substantiation.
[34] Numerous Responses to Information Requests, within the Panel’s own documentary package, clearly state that government agencies, including the Public Ministry and Procuraduria General de la Republica (PGR), suffer from corruption and are ineffective in assisting individuals, in situations similar to that of Mr. Reynoso. (Exhibit « F », Items 9.2, 9.5, 10.2 and 10.3.)
[35] Mr. Reynoso’s delay in claiming refugee status, subsequent to his having fled, is explained by his wanting to wait out the situation, in the hope that circumstances in his country will improve so as to enable him to return. With a daughter in Mexico, he made it known that he felt torn; nevertheless, having learnt that his situation had not improved, he initiated an inland refugee claim. Delay in claiming is not automatically determinative of a lack of subjective fear. In this case, Mr. Reynoso’s explanation remained consistent from the time of his entry into Canada until his first refugee hearing. (Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271 (QL); Sinnathurai v. Canada (Minister of Citizenship and Immigration), 2005 FC 515, [2005] F.C.J. No. 653 (QL).)
[36] As stated in Cepeda-Gutierrez, above, this Court held that the Refugee Division has a duty to assess the evidence and to articulate its determination. Its failure to do so constitutes a reviewable error. In the present case, the Panel failed to assess all the evidence, clearly not articulating its view on key evidence which in fact contradict the rational of the Panel.
[37] The fact that Mr. Gamino was arrested and detained by the Capitol Police does not serve as evidence that he will remain in prison and even be tried. Mr. Reynoso can take little solace in this police detention and consider it as adequate state protection. Articles reveal that Mr. Gamino had, in fact, obtained a quick release, only to continue his previous activities, targeting his victims.
[38] Since the Panel did accept as credible, key incidents of persecution described by Mr. Reynoso, it had a duty to conduct a full and fair objective risk assessment of the claim pursuant to subsection 97 (1) (b) of IRPA. The subject of government corruption, including police corruption and thereby, the possibility of state protection for Mr. Reynoso, would have required an analysis by which to reach a conclusion on state protection. That, in order, to rebut his evidence that state protection was not available for him.
CONCLUSION
[39] For all above reasons, the Court finds that the Panel was patently unreasonable in its disposition of Mr. Reynoso’s case. Consequently, the application for judicial review is granted and the decision is returned to the Refugee Division for redetermination by a differently constituted Panel.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be granted and that the decision be returned to the Immigration Refugee Board for redetermination by a differently constituted Panel.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7395-05
STYLE OF CAUSE: CARLOS MARTINEZ REYNOSO
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2006
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Mr. Robert Blanshay
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Mr. Bernard Assan
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SOLICITORS OF RECORD:
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ROBERT I. BLANSHAY Barrister and Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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