Date: 20021106
Docket: IMM-5436-01
Neutral citation: 2002 FCT 1147
Vancouver, British Columbia, Wednesday, the 6th day of November, 2002
BETWEEN:
JAIME OLVERA MOYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application for judicial review pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Tribunal") dated October 25, 2001, wherein Jaime Olvera Moya (the "Applicant") was found not to be a Convention refugee.
[2] The Applicant seeks an order that the decision of the Tribunal be set aside and that the matter be referred for a rehearing by a newly constituted Tribunal.
ISSUES
1. Was there a serious breach of natural justice by the Tribunal warranting judicial review?
2. Did the Tribunal err in law or in fact with respect to the issue of state protection?
[3] For the following reasons, the application for judicial review shall be allowed.
BACKGROUND
[4] The Applicant, a labour lawyer, is a citizen of Mexico who claims a well-founded fear of persecution in Mexico due to his political opinion. The Applicant alleges that should he return to Mexico, his employer, Unit of Services for Basic Education in the State of Queretaro (USEBEQ), the Institutional Revolutionary Party (PRI), Governor Loyola Vera's administration and the office of the President of Mexico will persecute him because of his outspoken views on labour union reforms. Governor Loyola was a member of the National Action Party (PAN) and the President of the time belonged to the PRI.
[5] The Applicant was Secretary General of Union Local D-III-1 (the National Union of Workers of Education or SNTE) and an employee of USEBEQ's Legal Department. The SNTE is a large union that has for many years been aligned with the then long-term national governing party, the PRI. The Applicant was a member of the Party of the Democratic Revolution (PRD) and had aligned himself with the National Coordinator of Workers of Education (CNTE), a pro-democracy sub-group of the SNTE. His efforts at labour reform were supported both politically and financially by the PRD.
[6] In June 1999, the Applicant participated in widely-publicized national labour demonstrations, which succeeded in getting demands met and popularized the breakaway PRD-aligned groups in various states. In Queretaro, the Applicant began advocating the separation of USEBEQ support workers from SNTE.
[7] The Applicant alleges that he was warned at various times by Governor Loyola, the previous co-ordinator of USEBEQ (who was dismissed based partly on information supplied by the Applicant to the PRD), and the new co-ordinator of USEBEQ that there was no need for him to continue "stirring up the workers," and that he would regret what he had done. USEBEQ also tried to discredit the Applicant by damaging his reputation.
[8] The Applicant alleges that he began to receive threatening phone calls to his office and to his cell phone in June 1999. In January 2000, the Applicant alleges that his car was forced off the road. The Applicant went to speak to the driver about the damage to his car, but quickly left when one of the two men in the car raised a gun. The men followed the Applicant to his office, where the Applicant was advised not to make a complaint as he had no information about who was responsible.
[9] A labour mobilization was planned for February 5, 2000. Prior to that day, the Applicant was warned by a friend who worked in the Secretariat for Political Development that the Applicant appeared on a bulletin that was issued from an office attached to the President of Mexico. On February 5, 2000, the Applicant claims he was kidnapped and warned to stop making so much trouble, or the next time he would not survive to tell the story of what happened. He was released after two hours.
[10] The Applicant alleged that on March 14, 2000, someone in an approaching pick-up truck shot at him and another man. The Applicant was advised by Professor Jaime Santana, a former union leader in Queretaro who had been made a national commissioner, that the Applicant was likely the target of the Governor's office and USEBEQ. Professor Santana advised the Applicant to leave the country. The Applicant left for Canada. According to the Applicant, threatening phone calls continue to be received at his home in Mexico.
DECISION
[11] The Tribunal found that the Applicant exaggerated the events he alleged, that he had an Internal Flight Alternative (IFA), and that he did not seek protection that would have been available to him. As a result, the Tribunal concluded that the Applicant was not a Convention refugee.
[12] The Tribunal based its conclusion on the documentary evidence, which suggested that although union activists had to withstand tremendous opposition in the past, this did not appear to be the current situation in Mexico. The current President of Mexico is a PAN member, who appears to be a progressive leader in favour of change and committed to following through his promise of anti-corruption. In addition, the PRD remains in power in the local government in the Federal District, an area where the CNTE has influence. The Tribunal concluded that the Federal District was an IFA for the Applicant. The Applicant was able to obtain a Mexican passport in March of 2000 and leave Mexico from a major airport without problems, which supports the conclusion that the Applicant was not wanted nationally by the time he left Mexico.
[13] The Tribunal also found that there was not sufficient credible and trustworthy evidence that the claimant was persecuted. The Tribunal found that it was reasonable to expect that there would be reports of any persecution, harassment or intimidation of the Applicant because of the Applicant's position and the competition between the three major political parties in Mexico. In addition, the threatening telephone calls, if they did occur, did not amount to persecution. The Applicant stated in his PIF that he did not take those calls seriously, as they were just part of being a union leader.
[14] Furthermore, the Tribunal concluded that even if the allegations of threats, kidnapping and attempted shooting are true, the Applicant did not submit clear and convincing evidence that protection would not be available in Mexico. Although the Applicant is a lawyer, at no time did he approach any authority to complain of the treatment to which he alleges he was subjected.
SUBMISSIONS
Applicant
[15] The Applicant submits that the Tribunal breached natural justice by representing to the Applicant that neither his credibility nor IFA were at issue and then making a finding contrary to the Applicant on both of these issues. The Applicant also submits that the Tribunal erred in law by failing to examine the reasonableness of the Applicant's unwillingness to seek state protection. In addition, since the Tribunal stated that the Applicant's testimonial evidence was without major contradictions and inconsistencies, it was patently unreasonable for the Tribunal to find that the Applicant's assertion that he could not obtain effective state protection in Mexico was not credible.
Respondent
[16] The Respondent submits that there was no breach of natural justice because the Applicant had the opportunity to provide full testimony on all issues pertaining to his claim and he was made fully aware of the issues by the Tribunal. In addition, the onus was on the Applicant to establish by credible evidence his claim to be considered a Convention refugee. Finally, the Respondent submits that the Tribunal's determination that the Applicant did not seek protection that would have been available to him was reasonably open to it.
ANALYSIS
Issue #1: Was there a serious breach of natural justice by the Tribunal warranting judicial review?
[17] In Sivamayam v. Canada (Minister of Citizenship and Immigration), (1999), 173 F.T.R. 221 at para. 11 (T.D.) Pelletier J. (as he then was) discussed the importance of permitting the Applicant to speak to the issues before the Tribunal:
It is not necessary to cite authority for the proposition that the CCRD cannot decide a case against an applicant without giving the applicant an opportunity to speak to the questions which give rise to the CCRD's views of the case. This case is a variation upon the general theme in that the CCRD invited submissions upon particular points and then decided the case on a point on which submissions were not invited. I accept that a tribunal does not necessarily have to put every step of its reasoning process before an applicant before it can find against him. This is particularly true where an applicant is represented by counsel. It is counsel's function to be persuasive, to respond to indications given by Board as to the issues on which it requires persuasion. But where a tribunal indicates to counsel that it wishes to hear from him/her on certain issues, it is implicit that other issues will not be determinative of the claim. This does not preclude the tribunal from considering other issues, but if it wishes to decide the case on the basis of those other issues, fairness and natural justice require that the applicant be allowed to speak to those issues, given the prior indication that the tribunal did not consider those issues to be conclusive of the claim.
[Emphasis added]
Discussion of the Issues by the Tribunal
[18] At the start of the hearing, the Presiding Member, Susan French, summarized the issues before the Tribunal (Transcript at lines 1-14, TR at 330). According to this summary, the issues were credibility, the objective basis of the Applicant's claim, state protection and IFA. Shortly thereafter, at page 334 of the Tribunal Record, the Presiding Member stated that "assuming that everything else falls into place, the major issue is going to be internal flight alternative." (Transcript at lines 47-48, TR at 334.)
[19] Later in the hearing, at pages 404-405 of the Tribunal Record, the Presiding Member indicated that IFA was no longer at issue and that there were no major conflict or inconsistencies in the evidence:
MR. DIMITROV: Okay. I'll make a little submission - it might take awhile, but I'll make a submission if I could.
PRESIDING MEMBER: I think really you - I mean, you can take all the time you want, but I'm satisfied that a political opinion nexus has been established. There have been no major contradictions or inconsistencies. The agents of persecution is quite broad and I would like to be directed a little bit more closely to the objective evidence of the ongoing persecution of agents of change within unions and the determinative issue at this point, I believe, will be protection. So if you need some time to - (Transcript at lines 45-53, TR at 404 [emphasis added]
MR. DIMITROV: Well -
PRESIDING MEMBER: That's okay.
MR. DIMITROV: It will take time, but I'd also like to add the issue of sur place.
PRESIDING MEMBER: Okay. But that actually helped me resolve the IFA.
MR. DIMITROV: Oh, okay. So IFA is not an issue now?
PRESIDING MEMBER: No.
MR. DIMITROV: So, we're basically looking at state protection I guess -
PRESIDING MEMBER: Basically, yes.
MR. DIMITROV: - and relationship to change of circumstance.
PRESIDING MEMBER: Yes. State protection really as it - and the objective basis, you know, of the -
MR. DIMITROV: They're all - they're connected, yeah.
PRESIDING MEMBER: - persecution of - because if this had happened in the early nineties, I'm confident on a balance of probability, you know, that sort of allegation can be -
MR. DIMITROV: I'll certainly address that because I can't address objective - state protection or change of circumstance without looking at objective basis. They all go together.
PRESIDING MEMBER: Okay.
MR. DIMITROV: So credibility is not an issue at this point?
PRESIDING MEMBER: I'm not - I have the sworn evidence. It's consistent. There's not major conflict.
Credibility
[20] As the above excerpt from the transcript indicates, the Tribunal commented that the evidence was consistent, with no major contradictions or conflicts. In my opinion, the Tribunal did represent to the Applicant that credibility was no longer an issue and, as a result of its decision in concluding:
"I conclude that the claimant has exaggerated the events he alleges" (page 4, Tribunal's decision).
"I do not believe the claimant's specific allegations of persecution for the reasons stated. I also do not believe that threatening calls continue to be made to his home in Mexico after he came to Canada (page 8, Tribunal's decision).
"There was not sufficient credible and trustworthy evidence for me to conclude on a balance of probability that the evidence revealed on-going persistent persecution of the claimant. I do not believe his life was in danger in Mexico nor should he return there in the future that it would be because of the circumstances he alleges (page 7, Tribunal's decision).
[21] In my opinion, the Tribunal did represent to the Applicant that credibility was no longer an issue and, as a result of its decision, committed a reviewable error.
[22] Despite the Tribunal's statement that IFA was no longer an issue, the Tribunal in its decision stated: "In any event, he had an Internal Flight Alternative"... "I conclude that the claimant would have had an Internal Flight Alternative" (3rd paragraph of page 4 and 2nd paragraph of page 9 of the Tribunal's decision).
[23] Again I am of the opinion that the Tribunal made a reviewable error.
[24] I consider this as a breach of natural justice warranting judicial review.
[25] I agree with the Applicant's memorandum of argument, paragraph 24 (Application Record, Volume 2): "The Applicant therefore submits that it was a serious breach of natural justice for the Tribunal to tell counsel that neither credibility nor an IFA was an issue, and then make a finding contrary to this Applicant without giving the Applicant opportunity to rebut concerns of the Tribunal regarding these issues."
Issue #2: Did the Tribunal err in law or in fact with respect to the issue of state protection?
[26] The Applicant's testimonial evidence on this issue indicates: "Mexico is not a secure place. I do not think that there is any institution that could guarantee security or safety for me. I know that I am on this bulletin that is in the hands of the federal government. Anywhere that I would go, the information would go there very quickly in Mexico and they would locate me easily wherever I went. In summary, there is no authorization or no authority that could give me protection, for people like me" (Exhibit P-4, page 419, line 1-6).
[27] Here again, I agree with the Applicant's memorandum of argument, paragraph 34: "Given that the Tribunal stated that the Applicant's testimonial evidence was without major contradictions and inconsistencies and that credibility was not a live issue, it is patently unreasonable for the Tribunal to find that the Applicant's aforementioned assertion that he could not obtain effective state protection in Mexico non-credible."
[28] Therefore the judicial review is allowed, the decision of the Tribunal is quashed and the matter is referred to a re-hearing by a newly constituted tribunal.
[29] Counsel did not submit any question of general importance and therefore no question will be certified.
O R D E R
The application for judicial review is allowed, the decision of the Tribunal is quashed and the matter is referred to a re-hearing by a newly constituted tribunal.
(Sgd.) "Michel Beaudry"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5436-01
STYLE OF CAUSE: Jaime Olvera Moya v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 5, 2002
REASONS FOR ORDER : The Honourable Mr. Justice Beaudry
APPEARANCES:
Mr. Christopher Elgin FOR PLAINTIFF / APPLICANT
Ms. Pauline Anthoine FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon, and Associates
Vancouver, B.C. FOR PLAINTIFF/APPLICANT
Morris Rosenberg, Deputy
Attorney General of Canada FOR DEFENDANT/ RESPONDENT