Ottawa, Ontario, February 16, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
LIZETTER MARTINEX PRIEGO
JONATHAN JAIR RAMOS
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicants, citizens of Mexico, seek judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated April 7, 2006 which determined that they were not Convention refugees or persons in need of protection. At the conclusion of the hearing in Toronto on February 13, 2007 I advised the parties that the application would be dismissed. These are my reasons for arriving at that decision.
[2] The applicants alleged that while in Mexico, the principal applicant was victimized by fellow members of the Mexican army because he was perceived to be a traitor who gave information to the Zapatista National Liberation Army. Mr. Ramos Meneses, the principal applicant, served as an aviation mechanic and member of a helicopter crew in operations in the state of Chiapas. He says that he was sympathetic to the people who were adversely affected by the uprising in that state after 1995 and attempted to assist them by distributing additional supplies of clothing, food and medicine in isolated communities. He received a letter of commendation from President Vincente Fox for his efforts. This together with his sympathy for the persons in need as a result of the conflict caused him to have enemies among his army colleagues.
[3] Mr. Ramos Meneses says that in February 2001, he was assaulted and threatened with death by persons who called him an Indian and Zapatista lover and a traitor. He was hospitalized and a report of the incident was taken by agents of the Public Ministry. The applicant did not disclose his belief that his assailants were from the military out of fear of reprisal. He was told that an investigation would be conducted. Mr. Ramos Meneses says he resigned from the Army in March 2001 and relocated to Merida, Yucatán where he lived without incident until January 2004.
[4] On January 27, 2004 two men whom he believed to be members of the military forced
Mr. Ramos Meneses from his house and drove him to an isolated area where he was again beaten and threatened while being asked what information he had provided to the Zapatistas. He was again hospitalized. A report was taken by the police and he was told that an investigation would be conducted. Upon release from the hospital, Mr. Ramos Meneses packed his things and moved to Cancun. He then obtained a passport and left for Canada on February 28, 2004. The other applicants, his wife and son, followed later. They made a refugee claim together upon being reunited in Canada.
[5] In its decision the Board concluded that the applicants were neither Convention refugees nor persons in need of protection, on the basis that their fear had no objective foundation. While credibility was raised as a concern, the Board stated that the claim turned on the issue of state protection.
[6] With respect to the principal applicant's credibility, the Board concluded that his testimony, overall, was not reliable because of discrepancies between the notes taken at the Port of Entry and the narrative contained in his Personal Information Form (PIF). The explanation provided by the principal applicant for these discrepancies was that he'd given his original statement to his former counsel in Spanish and had not seen nor been informed of the content placed in the narrative. The Board did not accept this explanation.
[7] The Board went on to note however that it had "consider the totality of the evidence " and had concluded that the determinative issue in these claims [was] state protection". The Board concluded that the claims failed on this basis, as the claimants and not rebutted the presumption that state protection was available to them in Mexico. The Board found that the claimants had not made reasonable efforts to seek national protection in Mexico, that there was no evidence that they'd been refused state protection, nor that the protection they were given was inadequate. The Board member highlighted that the principal claimant had not been straightforward in giving his first report and that he had then relocated and not had further contact with the officials investigating the incident. Similarly after the second incident, despite assurances that there would be an investigation, he moved to Cancun and had no further contact with the police. He then left for Canada. The Board member recognized that the claimant believed that the police in Mexico were corrupt and that state protection would not be forthcoming from them.
[8] With respect to the argument that the agent of persecution was the Mexican military, the Board found that the claimants had been "victims of a small group of military personnel and their accomplices, who have acted outside of the law, and do not represent the government and military of Mexico".
[9] The Board made reference to the documentary evidence that had been filed relating to relations between the Zapatista movement and the Government of Mexico. The Member referenced a particular piece of documentary evidence which indicated that there had been a significant improvement in that relationship. The Board also referred to the fact that there was other evidence indicating that the issues of territorial autonomy between the Government of Mexico and the Zapatista movement was not yet well settled. The Board concluded that the documentary evidence did not support a claim that there existed a well-founded reason for the applicant to be unwilling to seek protection from the Government of Mexico or to say that protection is not available.
ISSUES
[10] The issues as the Court has identified them are as follows:
1. Did the tribunal err in law by making negative credibility findings unsupported by the evidence and for which inadequate reasons were provided?
2. Did the tribunal error in law in its finding that state protection was available to the applicants’ by misunderstanding and/or ignoring the evidence before it?
ANALYSIS
Standard of Review
[11] The parties did not address the standard of review in their written representations or oral submissions. However, it is well established that the standard of review for credibility findings is patent unreasonableness: Chowdhury v. Canada (Minister of Citizenship and Immigration), 2006 FC 139, 145 A.C.W.S. (3d) 1124 at para. 12; Martinez v. Canada (Minister of Citizenship and Immigration), 2006 FC 403, 54 Imm. L.R. (3d) 263 at para. 13; Garcia v. Canada (Minister of Citizenship and Immigration), 2006 FC 611, 148 A.C.W.S. (3d) 973 at para. 8.
[12] Where however it is the reasons that are called into question on the basis of adequacy, and not the credibility findings themselves, the issue is one of procedural fairness: Jang v. Canada (Minister of Citizenship and Immigration), 2004 FC 486, 250 F.T.R. 303 at para. 9 [Jang]; Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565, 139 A.C.W.S. (3d) 164 at para. 9 [Adu]. As was clarified by the Supreme Court of Canada in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 the pragmatic and functional approach need not be applied to questions of procedural fairness. The standard that applies in such a case is that of correctness: Jang, above at para. 9, Adu, above at para. 9.
[13] With respect to the issue of the availability of state protection, the standard of review has been held in the past to be patent unreasonableness: Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449, 134 A.C.W.S. (3d) 878 at para. 8. More recently however the standard of review has been held to be reasonableness: Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58 at para. 11. This approach has since been endorsed by this Court on a number of occasions and I adopt and will apply it here.
Did the Board err in making negative credibility findings?
[14] The applicants submit that the Board erred in law by failing to provide adequate reasons to support its finding of a lack of credibility. Further that no analysis was provided to support the assertion that the Board had found "many" discrepancies between the immigration notes and the PIF. The respondent submits that the findings of the tribunal were open to it because of the discrepancies which the applicant had acknowledged and had tried to explain away.
[15] I agree with the respondent that it was open to the Board to find that the principal applicant's overall testimony was not credible based on discrepancies between the immigration notes and the PIF narrative. It was also open to the Board to find that the principal applicant’s explanation for the discrepancies was not believable. The Board has “complete jurisdiction to determine the applicant's credibility, the plausibility of testimony and the weight of evidence”: Oyebade v. Canada (Minister of Citizenship and Immigration), 2001 FCT 773, 107 A.C.W.S. (3d) 109 at para. 13. However, it must provide adequate reasons for its credibility findings and had the decision in this case rested on that basis, the reasons may well have been found to be insufficient as they are not entirely clear as to what discrepancies the Board member found to be significant.
[16] However, when the Board's reasons are closely examined it is clear that the Member’s decision did not turn on credibility but rather on the issue of state protection and that the Member had considered the "totality of the evidence" in reaching this conclusion. While the Board had concerns about the reliability of the principal applicant's evidence, it did not decide the claim on that basis.
[17] When seen in this light, it is clear that the reasons adequately set out the underlying rational for the decision, and give consideration to the substantial points of argument raised: Syed v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 283 at para. 8 (T.D.); Liang v. Canada (Minister of Citizenship and Immigration), 2003 FC 1501, at para. 42. The tribunal did not breach procedural fairness by choosing to indicate that the case turned on the issue of state protection, and by proceeding to focus on and analyze that particular issue in its decision.
Did the Board err in its State Protection Finding?
[18] The applicant submits that the Board erred in law in its finding that state protection was available to them by ignoring and/or misinterpreting the evidence. The applicant had provided an explanation for his failure to obtain state protection, or his inability to obtain it, namely that he was a military person who was accused of supporting the Zapatistas. The military forms part of the State apparatus and, therefore, the applicant was being persecuted by the State. In finding that the applicants have an obligation to approach the State for protection and that they had not done so, the applicants submit that the Board Member had not set out why he did not find Mr. Ramos Meneses’ explanation convincing.
[19] Further the applicants submit that the Board Member had ignored documentary evidence that was inconsistent with his finding that there had been a significant improved change in the relationship between the Government of Mexico and the Zapatistas. It relied primarily on excerpts from one document dealing with the year 2001. There was more recent documentary evidence before the tribunal from 2004 and 2005 that indicated that the relationship between the Government and the Zapatistas had in fact deteriorated since 2001. The applicants assert that by ignoring this evidence, the tribunal erred in law: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35; Polgari v. Canada (Minister of Citizenship and Immigration), 2001 FCT 626, 15 Imm. L.R. (3d) 263.
[20] The respondent's position is that the applicants have not discharged their burden to demonstrate that the State was unable or unwilling to protect them, in view of the Board's finding that the applicants had been the victims of a small group of military personnel and could access protection from other state agencies: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 [Ward]. Further, the respondent submits that there was no persuasive evidence that merely being a supporter of or sympathetic to the Zapatista cause in Mexico demonstrated a reasonable basis to fear persecution or a serious risk of harm. With respect to the documentary evidence, this was a matter of weight for the Board to determine. It is presumed to have considered all of the evidence and need not mention each and every piece.
[21] In my view, there is no basis to interfere with the Board’s finding with respect to state protection in this case. The Board met its obligation to address Mr. Ramos Meneses explanation for why he did not pursue the avenues for state protection available to him in Mexico. The Board member noted in his reasons that "counsel has argued that the agent of persecution is the Mexican military, and that, therefore, the claims are valid...". The reasons go on to state that the lack of reasonable efforts to secure protection was not justifiable because "[f]rom all of the evidence... it is clear that the claimants have been victims of a small group of military personnel and their accomplices...". It is clear from the reasons that the Board member considered but rejected the explanation.
[22] The failure to address documentary evidence which contradicts the Board's findings may constitute a reviewable error if the evidence is of sufficient probative weight and relevance. In this case, the evidence referred to by the applicant does not refute the findings of the Board with respect to the availability of state protection. At most it indicates, as asserted by the applicants, that relations between the government and the Zapatistas had deteriorated since 2001, and that there had been violence in the indigenous communities in the states of Chiapas, Guerrero, and Oaxaca. It doesn't demonstrate that persons similarly situated to the applicants have been denied state protection. For that reason, the evidence was of minimal relevance to the issue which the Board had to determine. In any event, the member did note that there was "documentary evidence, including that presented by the claimants, that the issue of territorial autonomy between the government of Mexico and the [Zapatistas] is still not well settled". This was not, therefore a case in which the Board failed to mention an important piece of evidence which contradicted its findings.
[23] When the reasons of the Board are taken as a whole, it was reasonable for the Board to conclude that the applicants had not discharged their onus to demonstrate that state protection was not available. While one may easily sympathize with the situation of the Ramos Meneses family, the evidentiary burden to demonstrate that state protection is not available is a high one and it must be based on more than honestly held subjective fears.
[24] No serious questions of general importance were proposed and none are certified.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. No questions are certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2231-06
STYLE OF CAUSE: JOSE FRANCISCO RAMOS MENESES
LIZETTER MARTINEX PRIEGO
JONATHAN JAIR RAMOS
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 13, 2007
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
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Krassina Kostadinov
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Leanne Briscoe
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SOLICITORS OF RECORD:
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KRASSINA KOSTADINOV Waldman & Associates Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |