Date:
20121031
Docket:
IMM-1509-12
Citation:
2012 FC 1273
Ottawa, Ontario,
October 31, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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ISRAEL MORENO SANDOVAL
GABRIELA BALDERAS HERNANDEZ
ZURY YETLANEZY MORENO BALDERAS (Minor)
YITZHAK MISRAIM MORENO BALDERAS (Minor)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated January 11, 2012, wherein the applicants were determined to be
neither Convention refugees within the meaning of section 96 of the Act nor
persons in need of protection as defined in subsection 97(1) of the Act.
[2]
This
conclusion was based on a lack of nexus to the Convention grounds, the lack of
credibility of the applicants, a failure to rebut the presumption of state
protection and a lack of individualized risk.
[3]
The
applicants request that the Board’s decision be quashed and seek a declaration
that they are Convention refugees or persons in need of protection or in the
alternative, that the matter be referred back for redetermination by a
differently constituted panel.
Background
[4]
The
applicants are citizens of Mexico. They lived in Irapuato, in the state of
Guanajuato. Violence in this city rose dramatically due to drug cartels, with
violent killings in the news on a daily basis.
[5]
Israel
Moreno Sandoval, (the principal applicant) worked in dairy sales. He alleges
that he was approached by a man who invited him to join in business. At a later
time, he and his wife were attacked by two men who told him he must sell drugs
for them or they would kill him and his wife and children. They told him not to
make a police report because they would be aware of a report due to their
connections.
[6]
After
this incident, the applicants received threats of decapitation on their home
telephone. The principal applicant was again attacked and threatened on his way
home and told that if he did not agree to sell drugs, his family would be
tortured.
[7]
The
applicants fled to the city of Silao, where the principal applicant alleges he
was again attacked and threatened by a group of masked men. He complained to
the authorities, but was told since the attack occurred in the city of Irapuato, he had to complain there. He did so and made a complaint dated June 26, 2009.
The applicants did not feel adequately protected by the response to this
complaint and were told by the Human Rights Commission it was not a matter they
could address. The applicants decided they did not have protection as the lack
of activity from the authorities demonstrated a lack of interest in
investigation. They left for Canada.
[8]
The
applicants arrived in Canada on June 27, 2009. Their hearing before the Board
was held on December 22, 2011.
Board’s Decision
[9]
The
Board rendered its decision on January 11, 2012 and gave notice to the
applicants on January 20, 2012. The Board began by summarizing the applicants’
allegations based on their Personal Information Form (PIF) narrative.
[10]
The
Board first found that the applicants did not fall within section 96 of the Act
due to their lack of nexus to a Convention ground. The Board found that the
applicants’ fear of return to Mexico was not linked to race, religion,
nationality, political opinion or membership in a particular social group. Fear
of criminality has no nexus to those five grounds. The Board pointed to Federal
Court jurisprudence holding that victims of crime, corruption or vendettas
generally fail to establish a link between their fear of persecution and one of
the Convention grounds. Therefore, the applicants’ claim failed under section
96.
[11]
The
Board performed a separate analysis of the applicants’ claim under subsection
97(1)(b) of the Act. The Board held that the applicants’ risk did not become
personalized because the principal applicant failed to comply with the
criminals’ demands or because the applicants were pursued after not complying.
The Board highlighted the Federal Court’s holding that a person’s risk is not
personalized where the risk of actual or threatened violence is faced generally
by others and not specific to the claimant. The Board relied on documentation
showing that thousands of citizens of Mexico have been victims of violence at
the hands of criminals and drug cartels in Mexico.
[12]
The
Board reviewed several past Board decisions rejecting claims of those fleeing
criminal violence which were subsequently upheld by the Federal Court. The
Board found that in Mexico, extortion of business owners is a modus operandi
of the Zetas cartel. Business owners and salespersons are more exposed to this
risk but it is still a generalized risk faced by the general population in Mexico. Therefore, the Board found that the applicants had not established that they face a
risk to their lives or a risk of cruel and unusual treatment or punishment or
danger of torture and are not persons in need of protection within the meaning
of subsection 97(1)(b).
[13]
Next,
the Board turned to credibility. The Board found that the principal applicant
was not credible based on material omissions and inconsistencies between his
oral and documentary evidence that were not satisfactorily explained. The Board
was also concerned about the credibility of the principal applicant’s
allegations as to who he specifically fears.
[14]
The
Board accepted the claims about the dramatic rise in violence in Mexican cities
and queried whether the applicants had left Mexico due to these inherent
dangers in search of a better life and more productive society.
[15]
The
Board found that the police complaints produced by the principal applicant did
not corroborate his claims. He had claimed that when he went to the Irapuato police on June 26, 2009, he told them about the demands to sell drugs and threats
and the police told him to stay away from the cartel. He testified that in the
original petition he submitted, he identified La Familia Michoacana. The
documents disclosed to the Board did not support this claim and no document or
evidence was adduced to explain the inconsistency.
[16]
The
police complaint submitted by the principal applicant was a brief document that
only contains his name and address and that he made a complaint of a threat by
“QNN”. It made no mention of a demand to sell drugs and the principal applicant
could not explain what QNN stood for. In oral evidence, he failed to explain
this inconsistency. The Board found that the principal applicant did not tell
the police he was asked to sell drugs for the Michoacana and that the police
were not given sufficient information or time to make an investigation.
[17]
The
Board indicated its concern about the late addition of information about the
Michoacana to the PIF narrative. A Public Ministry declaration made by the
sister of the principal applicant’s wife dated April 27, 2011, indicated that
her uncle had been taken after a male person came looking for the principal
applicant. A lawyer’s declaration indicated that the sister-in-law told him
that this disappearance was three months after the applicants’ departure. The
applicants’ PIF narrative was not updated to reflect the 2009 disappearance
until May 2011. Neither document made mention of the Michoacana.
[18]
The
Board found that the principal applicant failed to satisfactorily explain why
he omitted this important information from his PIF narrative and in his answers
to an immigration officer. The Board noted the principal applicant’s slow
responses to the Board’s questions about what the threatening men had told him.
The Board drew an adverse inference based on these omissions and late inclusion
and suggested that this information was added later in an effort to bolster the
claim for protection.
[19]
The
Board also alternatively rejected the applicants’ claim due to their failure to
rebut the presumption of state protection. The Board reviewed the jurisprudence
on state protection and noted that Mexico is a democratic country with
functioning political and judicial systems and an official apparatus sufficient
to provide a measure of protection to its citizens. Therefore, the burden on
the applicants to seek protection is a high one. The Board recognized
inconsistencies in the documentary sources, but held that the preponderance of
the objective evidence regarding current country conditions that, although not
perfect, there is adequate state protection in Mexico for victims of crime.
[20]
The
Board noted that when a claimant swears that certain facts are true, this
creates a presumption that they are indeed true unless there is a reason to
doubt their veracity. The Board was of the opinion that due to the
inconsistencies in evidence central to the applicants’ claims, that the
principal applicant is not credible with regards to allegations against the
perpetrators of harm. The principal applicant did not identify the Michoacana
as the source of his fear in his port of entry interview, a subsequent interview
or his initial PIF. Information provided at an interview contradicted his oral
testimony and PIF narrative. The Board was of the opinion that the detail of
the Michoacana being behind the threats to the principal applicant was an
embellishment.
[21]
The
Board found the applicants have failed to rebut the presumption of state
protection because they chose never to disclose the identities of the
individuals they feared, did not provide reasonable leads to the authorities,
did not afford officials a real opportunity to protect them and did not avail
themselves of any of the recourses available to them in Mexico. The Board held it was not reasonable for the applicants to expect the police to seek out and
arrest their persecutors when they did not provide their identities to the
police. Therefore, the Board found that there was no objective basis for the
applicants’ claim under section 97 of the Act as state protection is available
in Mexico.
Issues
[22]
The
applicants submit the following point at issue:
Did the Board breach the
procedural fairness right of the applicants?
[23]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board
breach procedural fairness?
Applicants’ Written Submissions
[24]
The
applicants submit that the standard of review for procedural fairness is
correctness. The applicants argue that procedural fairness was breached by the
Board’s decision to proceed with the hearing over the objection of the
applicants to the quality of interpretation. The Board also erred by failing to
consider counsel’s written request after the hearing to investigate the
allegation of poor interpretation and to order a new hearing.
[25]
An
informed person viewing the matter realistically and practically would have
concluded that the applicants’ right to procedural fairness was breached. The
issue was raised as soon as it was discovered by the applicants so there is no
issue of waiver. The applicants have discharged their duty by raising the
issue, but the Board has not discharged its duty as the issue was brushed aside
at the hearing and ignored after the hearing.
[26]
The
remedy for the denial of the right to a fair hearing must be to render the
decision invalid, regardless of whether it would have likely resulted in a
different decision. Therefore, the Board’s decision must be quashed.
Respondent’s Written Submissions
[27]
The
respondent submits that interpretation does not have to conform to a standard
of perfection and that the errors identified by the applicants do not satisfy the
test established in case law for inadequate translation.
[28]
The
respondent further submits that any inadequacy of interpretation is immaterial,
as it would only pertain to the Board’s finding of credibility. Any translation
errors had no bearing on the Board’s determination as to lack of nexus,
generalized risk and the presumption of state protection.
[29]
The
respondent submits that decisions of the Board are reviewable on the
reasonableness standard, except where they concern pure questions of law. The
existence of contradictions of inconsistencies in the evidence of a claimant is
a well accepted basis for finding a lack of credibility. The Board is entitled
to reject even uncontradicted evidence if it is not consistent with the
probabilities affecting the case as a whole and to make an adverse finding of
credibility based upon the implausibility of the applicant’s story alone.
[30]
In
this case, the Board provided numerous reasons why it doubted the credibility
of the applicants’ evidence, including omissions from the principal applicant’s
statements to immigration authorities and his original PIF. There were
inconsistencies between the principal applicant’s evidence and the copy of the
police report he submitted to the Board. There is no reason to disturb the credibility
findings of the Board in this case since the applicants have failed to properly
link the alleged interpretation errors to the Board’s credibility findings.
[31]
There
is also no reason to disturb the finding of a lack of nexus. Neither fear of
criminals nor victims of criminal activity are Convention grounds.
[32]
The
Board also properly considered the applicants’ claim under section 97 of the
Act. The text of subsection 97(1)(b)(ii) requires that the risk must be faced
in every part of the country and must not be faced generally by other
individuals from that country. Wealth does not constitute personalized risk. An
increased risk experienced by a subcategory of the population is not
individualized where that risk is experienced by the population generally at a
reduced frequency.
[33]
Finally,
the applicants’ filing of a single complaint to police with insufficient
information to allow investigation does not rebut the presumption of state
protection, particularly given the number of agencies available in Mexico.
Analysis and Decision
[34]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[35]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798 at paragraph 13, [2008] FCJ No 995 and Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 43). No deference is owed to decision makers on these issues
(see Dunsmuir above, at paragraph 50).
[36]
Issue
2
Did the Board breach
procedural fairness?
Interpretation in Board
hearings must be “continuous, precise, competent, impartial and
contemporaneous” but should not be held to a standard of perfection (Mohammadian
v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at paragraphs
4 to 6, [2001] FCJ No 916).
[37]
When
applicants’ counsel objected to the translation, this exchange followed (pages
652 and 653 of certified tribunal record):
COUNSEL FOR THE
CLAIMANTS: I don’t know what was said. And I believe you don’t speak Spanish as
well. But Ms. McNamee speaks English and Spanish.
MEMBER: Well, I know
she does because she indicated that at the beginning and I do remember asking
her if she here [sic] in the capacity as an interpreter, which she indicated
she was not.
COUNSEL FOR THE
CLAIMANTS: Yeah.
MEMBER: That’s fine.
There’s a remedy for that, Counsel, and you can seek that remedy at the
conclusion of the hearing. You can request an audit and you can give examples,
such as what you’ve just done to me.
COUNSEL FOR THE
CLAIMANTS: Okay.
MEMBER: It’s usually
in writing.
COUNSEL FOR THE
CLAIMANTS: Okay.
. . .
MEMBER: And they have
a unit for that. You just say that you want an audit, if that’s what you’re –
COUNSEL FOR THE
CLAIMANTS: Okay.
MEMBER: -- you’re
requesting.
COUNSEL FOR THE
CLAIMANTS: That’s fine. Thank you.
[38]
The Board’s document
“Complaints Regarding Interpretation” puts the onus on individual Board members
to resolve such complaints:
Parties must raise concerns with respect to interpretation during
the course of the hearing, at the first opportunity, unless there are
exceptional circumstances for not doing so. The Member who is hearing the case
will decide on the appropriate course of action in accordance with the rules of
natural justice.
[39]
In this case, the
applicants’ counsel raised the complaint at the hearing in accordance with this
policy. The Board responded that counsel should address his complaint to the
Registrar after the hearing in writing. The applicants did so. There is nothing
in this record which indicates this complaint was considered by either the
Board or the Registrar.
[40]
The respondent is
correct that the applicants have offered paltry evidence of flawed translation.
However, this is a case where the applicants made a procedural fairness complaint
which was unaddressed by the decision maker during and after the hearing and
based on this record, remains so to date.
[41]
The question of whether
the applicants were entitled to have that complaint responded to is a question
of procedural fairness that should be addressed through the framework of Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraphs 23 to 27.
[42]
In this case, the issue
of translation is extremely important to the applicants, given the centrality
of credibility to the refugee determination process (the third factor). The
combination of the Board policy and the instructions of the Board at the
hearing created a legitimate expectation the complaint would be addressed (the
fourth factor). Those same facts suggest that taking into account the choice of
procedures of the agency itself point towards requiring a response, since the
Board itself instructed the applicants to make this complaint (the fifth
factor). There is no appeal mechanism for translation complaints in the Act
(the second factor). While the Board’s consideration of translation complaints
does not resemble a trial process and therefore points to less procedural
fairness (the first factor), given the heavy weight of the other four factors,
I do find that the applicants were entitled to a level of procedural fairness
that includes a response to the complaint. Given the lack of any evidence of a
response before me, procedural fairness was breached. Clearly, this breach
affects the Board’s credibility finding, as oral testimony is crucial to such
determination.
[43]
The respondent submits
that even if the interpretation was inadequate, this decision should stand as
the credibility finding had no material effect on the outcome (Neginskay v Canada (Citizenship and Immigration), 2009 FC 1072 at paragraph 11, [2009] FCJ No
1328). For credibility to have had no effect on the outcome, the Board would
have had to accept all of the applicants’ evidence and still reject the claim.
This cannot be true of the Board’s determination on state protection, as the
Board found as part of this analysis that the applicants had not taken all
reasonable steps to seek protection, presumably because the applicants’
evidence of complaining to the police was rejected due to the lack of
credibility.
[44]
The Board’s
determination of generalized risk does not make clear whether it is based on
accepting or rejecting the applicants’ evidence. The issue of generalized risk
is closely linked to credibility of a claimant’s testimony because determination
will depend on which facts are accepted by the Board (Henriquez de Umana v Canada (Minister of Citizenship and Immigration), 2012 FC 326 at paragraph 26, [2012]
FCJ No 371). The Board’s finding was that the applicants face a generalized
risk of violence at the hands of criminals and drug cartels, while the principal
applicant claimed he was attacked and threatened by a cartel in two different
cities and that his brother-in-law disappeared after unknown males came looking
for the principal applicant. It is difficult to understand how the Board could
have come to its conclusion on generalized risk while accepting this evidence
and the Board’s reasons are opaque on the subject.
[45]
While the Board’s
finding on nexus may have been unaffected by credibility, its relevance to the
section 97 finding alone warrants redetermination. Therefore, I would allow the
application for judicial review and set aside the decision of the Board.
[46]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is referred to a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Federal
Courts Act,
RSC 1985, c F-7
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18.1 (1) An
application for judicial review may be made by the Attorney General of Canada
or by anyone directly affected by the matter in respect of which relief is
sought.
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18.1 (1) Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la demande.
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Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance,
question ou affaire — prise dans le cadre de la présente loi est subordonné
au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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