Date: 20020604
Docket: IMM-2992-01
Neutral citation: 2002 FCT 636
Ottawa, Ontario, Tuesday the 4th day of June 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
OSCAR CESSA BULBARELA,
LUCILA PADILLA NARVAEZ,
OSCAR DE JESUS CESSA PADILLA
and JAQUELINE CESSA PADILLA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Oscar Cessa Bulbarela, his wife Lucila Padilla Narvaez, their son Oscar De Jesus Cessa Padilla, and their daughter Jacqueline Cessa Padilla, bring this application for judicial review from the May 15, 2001 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which determined that they are not Convention refugees.
BACKGROUND
[2] In each Personal Information Form ("PIF") and in their testimony before the CRDD, the adult applicants alleged the following facts.
[3] The applicants are all citizens of Mexico. On April 28, 1999 while walking home from work, Mr. Cessa witnessed the abduction of a businessman near Mr. Cessa's home. When the police arrived, they interviewed Mr. Cessa as to what he had seen. The next day, Mr. Cessa received a telephone call at home threatening his family because he had "talked". A further similar call was made. The adult applicants say that these calls were made by the police, because they were the only people that Mr. Cessa had spoken to with respect to the abduction. Later, the applicants learned through the media that the abductee had been involved with the police in arms smuggling and drug trafficking, and was found dead.
[4] Mr. Cessa then decided to accompany his brother on a vacation to Canada. They arrived in Canada on May 5, 1999 and Mr. Cessa remained in Canada as a visitor until July 27, 1999. He says that the purpose of the trip was to see if the threatening phone calls would stop during his absence.
[5] While Mr. Cessa was in Canada, his wife received two or three more threatening calls. Then, on May 20, 1999, two men broke into their home and raped Ms. Padilla at gunpoint, stating that this was in consequence of her husband having "talked". Ms. Padilla then went to stay with her mother and sister in another city and did not report these incidents to her husband until after his return to Mexico.
[6] After Mr. Cessa returned from Canada to Mexico, the threats continued and Mr. Cessa was chased in his car. The applicants went into hiding in mid-August 1999 at Mr. Cessa's parents home. The applicants then came to Canada on September 17, 1999.
THE CRDD'S DECISION
[7] The CRDD accepted that Ms. Padilla was raped, but did not find credible the applicants' evidence about the circumstances of, and the motivation behind, the rape.
[8] In rejecting the adult applicants' evidence with respect to the rape, the CRDD relied upon three findings of implausibility, one inconsistency, the failure of Mr. Cessa to mention in his PIF a second threatening phone call made before his first trip to Canada, and the lack of mention of the applicants' fear of the police in a psychologist's report.
[9] The CRDD went on to conclude in the alternative, that even if it had accepted the applicants' evidence as to why Ms. Padilla was raped, their claims nonetheless failed because their fears could not be related to any of the grounds contained in the definition of Convention refugee.
[10] To reach this alternate conclusion, the CRDD noted that the applicants alleged that the police were behind the businessman's abduction and were their agents of persecution. The applicants reached this conclusion on the basis that only the police knew that Mr. Cessa had been interviewed by the police, his name, address and phone number, and that his son went to school. However, the CRDD noted that on the applicants' own evidence, four persons saw Mr. Cessa witness the abduction. The CRDD concluded on the basis of Mr. Cessa's testimony that he lived in a small town where everybody knew everybody's business, that persons other than the police could know Mr. Cessa's name, address and phone number, that his son went to school, and that Mr. Cessa had been interviewed by the police.
[11] The CRDD therefore concluded that the allegation of police involvement in the alleged persecution was speculative. Absent police involvement in the kidnapping, there was no evidence to support the contention that Mr. Cessa was in a position to expose police wrongdoing so as to be perceived by the agents of persecution to hold an opinion on a matter in which the machinery of state might be engaged.
THE ISSUES
[12] The applicants raised two issues with respect to the CRDD's decision:
1. Did the CRDD err in rejecting their credibility?
2. Did the CRDD err in failing to find a nexus between the applicants and their civil or political status so as to fall within the definition of Convention refugee?
ANALYSIS
[13] While some of the CRDD's conclusions of implausibility and its finding of an inconsistency were not supported by the evidence before it, in my view, the issue of nexus is determinative. Because the CRDD's conclusion on nexus was not premised on its findings of credibility, it is not necessary to consider the effect of any errors in the credibility finding.
[14] With respect to nexus, on the applicants' behalf it was argued that nexus is a question of fact, and the CRDD misapprehended the evidence before it because, contrary to the CRDD's reasons, no one saw Mr. Cessa witness the abduction. Therefore, the CRDD was said to have erred in rejecting the police as the agent of persecution. Because Mr. Cessa was in a position to expose police wrongdoing, he was perceived by the police to hold an opinion on a matter in which the machinery of state might be engaged. Thus, the basis of the applicants' fear was their perceived political opinion.
[15] In response, on the Minister's behalf it was argued that whether there is a nexus to the definition of Convention refugee is a question of fact well within the expertise of the CRDD. Such finding should not be interfered with unless the panel's decision could be characterized as being patently unreasonable.
[16] With respect, the jurisprudence of the Federal Court Trial Division is not universally to the effect urged by counsel.
[17] In Jayesekara v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. 1393 (T.D.) Justice Gibson reviewed the jurisprudence concerning the legal nature of the question of nexus. He wrote as follows at paragraphs 18 through 23:
As earlier noted, counsel for the respondent urged that the issue of nexus is a question of fact and, as such, the standard of review is patent unreasonableness. For this position, counsel cited Mia v. Canada(Minister of Citizenship and Immigration) [See Note 2 below], where Madame Justice Tremblay-Lamer wrote at paragraph 16:
In addition, as stated in recent case-law such as Leon v. MCI ... and Lara v. MCI ... , the existence of a nexus between persecutory conduct and a Convention ground is a question of fact, which is clearly within the panel's expertise, and as a result, this Court may only intervene if a decision was made in a perverse or capricious manner or without regard to the material before the panel.
[citations omitted]
In Leon v. Canada (Minister of Citizenship and Immigration) [See Note 3 below], as cited by Madame Justice Tremblay-Lamer, then Associate Chief Justice Jerome wrote at paragraph 13:
... A determination with respect to "nexus" is largely a question of fact and therefore entirely within the tribunal's expertise to make.
[emphasis added]
In Lara v. Canada (Minister of Citizenship and Immigration) [See Note 4 below], Mr. Justice Evans, then of the Trial Division of this Court, wrote at paragraph 14:
The difficulty with the applicant's submission on this point is that the existence of a nexus between persecutory conduct and a Convention ground is a question of fact, with which the Court may not interfere unless it was made in a perverse or capricious manner or without regard to the material before the Refugee Division: ...
[a citation to Leon, supra, omitted]
With great respect to my colleague and former colleagues on the Trial Division, I reach a different conclusion.
In Canada (Director of Investigation and Research) v. Southam Inc. [See Note 5 below], Mr. Justice Iacobucci, for the Court, provided very helpful guidance as to the distinctions among questions of fact, questions of law and questions of mixed law and fact. He wrote at paragraphs 34 and 35:
The parties vigorously dispute the nature of the problem before the Tribunal. The appellants say that the problem is one of fact. The respondent insists that the problem is one of law. In my view, the problem is one of mixed law and fact.
... Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. ...
The issue of whether a particular set of facts, such as those alleged by the applicant here, constitute "political opinion", or perceived political opinion, on his part, involves an interpretation of the words "political opinion" as they appear in the definition "Convention refugee" in subsection 2(1) of the Immigration Act. Interpretation of the words "political opinion" in the context of the definition "Convention refugee" has not been without difficulty. [See Note 6 below] Against the guidance provided by Mr. Justice Iacobucci in Southam, quoted above, I am satisfied that the interpretation of the expression "political opinion" in the context of the definition "Convention refugee" is a question of law. The application of the facts of any particular case to that question, as here, is, I am satisfied, a question of mixed law and fact.
______________________________
Note 2: [2000] F.C.J. No. 120, (F.C.T.D.) online: QL, (FCC).
Note 3: [1995] F.C.J. No. 1253, (F.C.T.D.) online: QL, (FCC).
Note 4: [1999] F.C.J. No. 264, (F.C.T.D.) online: QL, (FCC).
Note 5: [1997] 1 S.C.R. 748.
Note 6: See, for example: Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 at 745 to 750.
[18] I agree with, and respectfully adopt as my own, Justice Gibson's analysis and conclusion that determination of the question as to the existence of a nexus to the definition of Convention refugee is a question of mixed fact and law.
[19] As for the applicable standard of review, counsel for the applicants urged the standard to be reasonableness simpliciter, while counsel for the Minister argued the standard to be patent unreasonableness.
[20] I do not have to reach the conclusion in this respect since, even on the standard of reasonableness simpliciter, I find the CRDD's decision was reasonable and not clearly wrong.
[21] The CRDD did mis-characterize the evidence when it referred to four witnesses who saw Mr. Cessa witness the abduction. Rather, the four witnesses saw him, after the abduction, being interviewed by the police. This mis-statement is not, however, material because it does not detract from the central premise of the CRDD that there was no secret within the community as to who the police interviewed about the abduction. This was a conclusion reasonably open to the CRDD on the evidence.
[22] There was also evidence to support the CRDD's subsequent conclusions that once it was known who the police spoke to, information as to Mr. Cessa's name, phone number, address and school aged son could easily be obtained. On that evidence, it was not unreasonable for the CRDD to conclude that the claimants had not established on a balance of probabilities that the police were the agents of persecution. Put another way, the evidence before the CRDD did not lead so inexorably to the inference that the police were the agents of persecution for the CRDD's conclusion to the contrary to be either patently unreasonable, or clearly wrong.
[23] On Ms. Padilla's behalf, it was also argued that the CRDD ignored an additional ground of nexus, being her gender. However, as argued on the Minister's behalf, the evidence of the applicants which was not rejected for the purpose of considering nexus was that Ms. Padilla was not raped because of her gender. Rather, she was raped because her husband had witnessed a crime.
[24] On that evidence, the CRDD's conclusion that in consequence what the applicants feared was vengeance from the criminal element whose crime Mr. Cessa had witnessed was one reasonably open to it. The law is, I believe, settled that neither fear of reprisals constituting revenge or a personal vendetta, nor fear of criminal acts, constitutes a fear of persecution linked to a Convention ground.
[25] For these reasons, the application for judicial review will be dismissed.
[26] Given that I did not find it necessary to determine whether the applicable standard of review was reasonableness simpliciter, counsel posed no question for certification and no question is certified.
ORDER
[27] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2992-01
STYLE OF CAUSE: OSCAR CESSA BULBARELA ET AL v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 10, 2002
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MADAM JUSTICE DAWSON
DATED: June 4, 2002
APPEARANCES:
Mr. Neil Cohen FOR THE APPLICANT
Mr. Greg George FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Neil Cohen FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada