Date: 20050603
Docket: IMM-5288-04
Citation: 2005 FC 807
Toronto, Ontario, June 3rd, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
CLEMENTE CARRILLO GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Clemente Carrillo Garcia is a citizen of Mexico. The Refugee Protection Division of the Immigration and Refugee Board accepted that Mr. Garcia had been subjected to acts of verbal abuse and sexual violence at the hands of the police in his home town of Ruiz, because of his sexual orientation. The Board also accepted that while he was living in Puerto Vallarta, two police officers regularly extorted money from him, because he is gay. The Board nevertheless rejected Mr. Garcia's refugee claim, finding that he had an internal flight alternative (or "IFA") in Mexico City.
[2] Mr. Garcia offers several arguments in support of his contention that the Board erred in its treatment of the IFA issue. It is unnecessary to address each of these arguments, however, as I am satisfied that the Board erred in failing to address relevant evidence relating to the availability of an IFA in Mexico City for openly gay men.
The Board's Decision
[3] The focus of the Board's decision was the availability of an IFA for Mr. Garcia in Mexico City. In this regard, the Board acknowledged that the country condition information before it clearly indicated that there is a generalized intolerance for homosexuals in Mexico. However, the presiding member went on to observe that the most recent reports indicate that Mexico City seemed to be increasingly accepting of gays and lesbians.
[4] By way of example, the Board noted that the Mexican President signed a law in 2003 banning all forms of discrimination, including discrimination based on sexual orientation. Several Gay Pride parades and other similar events have taken place in Mexico City and have drawn large crowds, without incident.
[5] From this, the Board went on to conclude that Mexico City was a viable IFA for Mr. Garcia. Accordingly, his refugee claim was rejected.
The Report of the Citizen's Commission Against Homophobic Hate Crimes
[6] Although not mentioned in the Board's decision, Mr. Garcia produced a 1998 report prepared by the Citizen's Commission Against Homophobic Hate Crimes. Based upon reports in the media, the Report examined the frequency of "assassinations committed because of homophobic hate" between 1995 and 1998.
[7] The study articulates clearly defined criteria for the identification of killings motivated by homophobia. Using these criteria, the authors of the study concluded that there were 125 killings in Mexico during the time in question, all but five of whom were gay men. Sixty-five of the murders took place in Mexico City.
[8] The Report goes on to observe that the great majority of the victims were killed with "cruel and extreme violence", leading to an inference that the perpetrators did not merely want to kill their victims, but also wanted to inflict damage and punishment on them, because of their sexual orientation.
[9] The Report also observed that the press coverage of these incidents tended to minimize the importance of the killings, and was often derogatory in tone. By way of example, the authors referred to newspaper headlines such as "Murder of Faggots" or "Faggot Turned into a Patchwork of Knife-wounds".
[10] Mr. Garcia also provided the Board with two other articles from Mexican papers dealing with the treatment of homosexuals in Mexico City. An article from 2001 refers to the fact that the police had closed numerous gay bars in Mexico City, based upon alleged 'irregularities" in their operating permits. A 2003 article states that subway security forces in Mexico City have been ordered to keep gays out of the subway system, on the basis that they have allegedly been "misusing the installations". Neither of these articles was mentioned in the Board's decision.
Analysis
[11] It is well established that the Board will be presumed to have considered all of the evidence before it: Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102. Nor is the Board required to review all of the evidence that is contrary to the conclusions reached by the Board: Cepeda-Gutierrez v. Canada (MCI) (1998), 157 F.T.R. 35.
[12] However, when there is important evidence that runs directly contrary to the Board's finding on a central issue, there is an obligation on the Board to analyse that evidence, and to explain why it prefers other evidence on the point in question.
[13] As Justice Evans said in Cepeda-Guiterrez:
... [T]he more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[14] In this case, the respondent submits that there was no obligation on the Board to refer to the Report of the Citizen's Commission Against Homophobic Hate Crimes, given that the report covers the period between 1995 and 1998. According to the respondent, given that the refugee analysis is forward-looking, it was reasonable for the Board to confine its analysis to more current documentation demonstrating an evolution in social values in Mexico generally.
[15] I do not agree.
[16] The evidence referred to by the Board does not squarely address the incidence of violent crime directed at gays and lesbians in Mexico City because of their sexual orientation. The central issue in this case is whether, given the fact that he is an openly gay man, Mr. Garcia would be able to live safely in Mexico City. As such, evidence relating to homophobic crimes directed against gay men in that city should have been of critical concern to the Board.
[17] While it might have been open to the Board to choose not to ascribe much weight to the Report, given that it was prepared six years before Mr. Garcia's refugee hearing, in all of the circumstances, it was not open to the Board to simply ignore it.
Conclusion
[18] For these reasons, the application for judicial review is allowed.
Certification
[19] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5288-04
STYLE OF CAUSE: CLEMENTE CARRILLO GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: JUNE 2, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: JUNE 3, 2005
APPEARANCES BY:
Ameena Sultan FOR THE APPLICANT
Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ameena Sultan
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT