Date: 20000406
Docket: IMM-3291-99
BETWEEN:
EFREN ALEJANDRO MARTINEZ GUTIERREZ
and RAQUEL IMELDA ALBA SOLIS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] In the present case, the male applicant claims refugee status on the basis of his persecution in Mexico for political opinion because of his membership in the political party PRD. His wife claims refugee status as a member of a particular social group, that is, family.
[2] In my opinion, a reviewable error exists in the Convention Refugee Division"s (the "CRDD") decision concerning objective fear of persecution. On this issue, in its decision the CRDD states as follows:
| The claimant testified that he was persecuted by the Municipal Government officials in the city of Irapuato in the Guanajuato State and the Federal Judicial Police, because he belonged to the opposition party of PRD. He said that his persecution was intensified before the July 6, 1997 elections, when he was abducted by the Judicial Police one day before the elections, in order to be kept away from the polling stations. The documentary evidence [Exhibit R-4, Response to Information Request, No. MEX30032.E, dated September 16, 1998.] states the following: |
| "Information on the activities of the Partido de la Revolucion Democratica (PRD) in the State of Guanajuato since 1994, including the election of candidates and significant events that occurred in the state, is scarce amount the sources Consulted by the Research Directorate. |
| Please note that the PRD has no significant electoral support in the State of Guanajuato. |
| No reports of adverse actions against PRD members in the State of Guanajuato could be found among the sources consulted by the Research Directorate. |
| The claimant was asked to comment. He said that he could only speak for himself but not the others. The panel does not accept the claimant"s explanation and finds that according to the documentary evidence , an insignificant party like PRD, or the claimant being a member of it, could not have been a threat to PRI, in the State of Guanajuato. [Emphasis added] |
[3] The documentary evidence referred to by the CRDD in making its finding is, in fact, no documentary evidence at all. That is, reliance has been placed on the absence of evidence able to be found by the person who produced the response. The respondent argues that no reports could be found either because none exist, if adverse action against the PRD occurred, or because, indeed, no adverse action occurred. Therefore, it is argued that the CRDD was entitled to make the finding it did.
[4] I disagree with this analysis. An equally plausible way to view the request for information response is that no reports is no evidence of anything. That is, without positive evidence, the CRDD could not have made the finding it did, and given no positive evidence, the finding is mere speculation.
[5] There is evidence on the record, which was not quoted by the CRDD, to support the conclusion that the CRDD"s finding is speculation at best, and probably erroneous.
[6] Before the CRDD was the following evidence produced in a letter, dated March 16, 1999, from the Advisor to the Municipal Committee of the PRD as follows1:
| TO WHOM IT MAY CONCERN: |
| BY MEANS OF THIS LETTER ALLOW ME TO INFORM YOU THAT IN THE 1988 ELECTIONS THE NATIONAL DEMOCRATIC FRONT WAS FORMED, REPRESENTED BY THE CANDIDATE ING. [Engineer] CUAUHTEMOC CARDENAS, WHO TRIUMPHED, BUT, UNFORTUNATELY, THERE WAS GREAT ELECTORAL FRAUD BY THE GOVERNMENT TO HAND THE VICTORY TO CARLOS SALINAS DE GORTARI. |
| AFTERWARDS (May 5, 1999), THE DEMOCRATIC REVOLUTIONARY PARTY (PRD) WAS BORN, WORKING TOWARDS FORMING STATE AND MUNICIPAL COMMITTEES THROUGHOUT THE COUNTRY, AND DUE TO THE GREAT SYMPATHY FOR THE PARTY AND ITS NATIONAL REPRESENTATIVE (ING. CUAUHTEMOC CARDENAS), THERE WERE DIFFERENT TYPES OF ATTACKS ON SEVERAL MILITANTS AND REPRESENTATIVES IN DIFFERENT PARTS OF THE COUNTRY FROM ILLEGAL DETENTIONS TO ASSASSINATIONS IN THE TERM (1986-1994) OF PRESIDENT CARLOS SALINAS DE GORTARI THAT WERE NEVER SOLVED. IT SHOULD BE CLEARLY STATED THAT THE ILLEGAL DETENTIONS, POLICE HARASSMENT AND ATTACK[S] AGAINST MEMBERS OF THE PRD HAVE CONTINUED, ESPECIALLY NOTICEABLE DURING ELECTION PERIODS, INCLUDING IN THE STATE OF GUANAJUATO AND THE CITY OF IRAPUATO, WHERE DAILY WE ARE TRYING TO GAIN GREATER POLITICAL PRESENCE. [Emphasis added] |
[7] Of course, in addition, there is the evidence of the applicant which was apparently disbelieved by the CRDD with no precise statement given as to why.
[8] Therefore, I find that pursuant to s. 18.1(4)(d) of the Federal Court Act that the CRDD"s finding which respect to objective fear of persecution was made without regard to the evidence before it.
ORDER
[9] Accordingly, I set aside the CRDD"s decision and refer this matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
April 6, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3291-99 |
| STYLE OF CAUSE: EFREN ALEJANDRO MARTINEZ GUTIERREZ and RAQUEL IMELDA ALBA SOLIS |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: THURSDAY, APRIL 6, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
| DATED: THURSDAY, APRIL 6, 2000 |
| APPEARANCES: Mr. Neil Cohen |
| For the Applicants |
| Ms. Andrea M. Horton |
| For the Respondent |
| SOLICITORS OF RECORD: Neil Cohen |
Barrister & Solicitor
2 College Street, Suite 115
Toronto, Ontario
M5G 1K3
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000406
Docket: IMM-3291-99
Between:
| EFREN ALEJANDRO MARTINEZ GUTIERREZand RAQUEL IMELDA ALBA SOLIS |
Applicants
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
__________________