Date: 19981006
Docket: IMM-4711-97
BETWEEN:
SILVIA GEMIMA VARGAS RODRIGUEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
INTRODUCTION
[1] The applicant has challenged by way of judicial review the decision of the Immigration and Refugee Board ("Board") that she was not a Convention refugee. The applicant is a citizen of Mexico.
FACTS
[2] In her claim for Convention refugee status, the applicant alleged that she had worked on an electoral campaign for a politician who was campaigning for the position of the municipal president of her city. The applicant and the politician developed a personal relationship. In July 1994, the politician won the election, and he began to avoid the applicant. Shortly thereafter, the applicant discovered that the politician was married. In March 1995, the politician invited the applicant to a party. During the course of the evening, he and his bodyguards raped her. The next day, the applicant went to the police to report the rape. However, the police refused to do anything, since the allegations related to the municipal president. The applicant went to a doctor for treatment of internal injuries. Approximately two weeks later, the applicant telephoned the politician and threatened to reveal to his wife and the public that he had raped her. He told her to remain calm, and that "power is great."
[3] From April until November 1995, the applicant's home was under surveillance. In November 1995, the applicant was arrested by the police on a warrant accusing her of defamation of character, public damage to government authority and abuse of power. She was imprisoned for four days and tortured. Following her release from custody, the applicant signed an undertaking that she would report to the police every three months. The applicant believed that she would not be safe anywhere else in Mexico. In particular, she was afraid that the politician would find her anywhere, given his connections with the police and other politicians. The applicant's father was a teacher who had never been involved in politics. He was afraid of the politician, and did not support the idea of taking any action against him.
[4] In January 1996, the applicant came to Canada as a tourist. Three months later, she made a claim to Convention refugee status. At her hearing, she testified that the politician was campaigning to be elected as a member of the legislative assembly, and that he was still the elected municipal president. She did not know whether he had been elected as a member of the legislative assembly.
THE BOARD'S DECISION
[5] In its decision, the Board found that there was a nexus to the Convention on the ground of perceived political opinion. The Board also found that the rape may have occurred, but nevertheless questioned "the alleged facts surrounding the rape." In that regard, the Board stated as follows:
| The panel accepts the rape may have occurred but the claimant's actions following the rape raise serious doubts about the alleged facts surrounding the rape. The claimant testified she reported the rape to the police who did not believe her. She sought medical assistance yet the doctor did not report the rape. She did not take any other steps such as going to a lawyer, charging Rodrigues at a Magistrate's Court or telling her parents and brothers. Is it possible that the circumstances surrounding the rape may have been different than as described by the claimant? The panel does not question the occurrence of the rape, but assigns responsibility to the claimant for her failure to exhaust all available means of protection available to her. |
[6] Following that aspect of its analysis, the Board dealt with the applicant's evidence concerning her alleged arrest and detention, and concluded that the particulars of those incidents were vague and lacked clarity. The Board also found that the arrest and detention of the applicant "...were embellishments created in order to enhance her claim." Immediately following that finding, the Board purported to assess the applicant's credibility generally, stating as follows:
| It is not clear what the claimant wanted from her alleged abuser. She testified she sought justice but it is not quite clear what she meant by this . Did the claimant want Rodrigues charged for abusing her? If so, she failed to take the appropriate steps to lay a charge. Did the claimant want Rodrigues exposed to the public and possibly ruin him or force him to admit to abusing her? If so, again she failed to take the appropriate steps. Did she hope to force him to acknowledge the liaison with her and divorce his wife? Again there is no clear indication as to what her aims were. Did she hope to be vindicated or obtain moral satisfaction by having him acknowledge the liaison. Perhaps her statement "I wanted justice" meant she wanted to see him charged and punished. Her vagueness undermines her credibility. |
[7] The Board finally summarized its view of the claim in the following terms:
| However, the panel is not persuaded the alleged events such as the detention of the claimant by the police, the inability or unwillingness of the state to offer protection, the all pervasive power of Rodrigues who even, out of office, was able to control the police throughout Mexico, in fact occurred. If these alleged events did not occur, there is no basis to the claim. |
ISSUE
[8] The question to be determined on this application for judicial review is whether the Board erred in determining that the applicant did not have a well-founded fear of persecution in Mexico.
ANALYSIS
[9] In its analysis, the Board made an initial finding that the rape may have occurred, but indicated that the applicant's actions raised "serious doubts" about the rape. However, the "serious doubts" cited by the Board were nothing but spurious questions and unsupported conjecture. Following those musings, the Board found that the rape occurred, but held the applicant responsible "...for her failure to exhaust all available means of protection available to her." That latter finding appears to have been made by the Board directly as a result of the spurious questions which it raised, and not on the basis of the evidence in the record. In particular, there was significant documentary evidence in the record concerning the sexual abuse of women and political corruption in Mexico, as well as a psychological report corroborating the applicant's evidence of rape and torture. In making its analysis, the Board erred by either ignoring or misapprehending that evidence. As a result of the errors in that portion of its analysis, the Board downplayed or minimized the importance of the rape in assessing whether the applicant had a credible claim to Convention refugee status.
[10] At a later point in its reasons, the Board indicated that it had not been persuaded that the alleged events such as the applicant's detention by the police, the inability or the unwillingness of the state to offer protection and the power of the politician "in fact occurred". It concluded that "[i]f these alleged events did not occur, there is no basis to the claim." In arriving at that conclusion, the Board manifestly erred, in that it failed to make any reference to the rape and its obvious central importance in assessing the applicant's claim, as well as its previous finding that there was a nexus to the Convention.
[11] The Board also made an alternative finding that the applicant had an internal flight alternative in Mexico. In its analysis, the Board made no specific reference to the test to be applied in assessing the viability of an internal flight alternative. Although it appears to have generally understood the principles in the applicable test, I am not satisfied that there was sufficient evidence before the Board to support its conclusion. In particular, there was no evidence in the record to support its finding that "[a]s a teacher, she could obtain a position in another part of Mexico where she could live in safety."
DECISION
[12] Given the errors committed by the Board in its unsatisfactory analysis of the merits of the claim, I have concluded that its decision in this matter is patently unreasonable.
[13] The application for judicial review is allowed. The decision of the Board is quashed and the matter is remitted to a differently constituted Board for rehearing and redetermination. The case raises no serious question of general importance.
"D. McGillis"
Judge
TORONTO, ONTARIO
October 8, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4711-97
| STYLE OF CAUSE: SILVIA GEMIMA VARGAS RODRIGUEZ |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, OCTOBER 6, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS, J.
DATED: THURSDAY, OCTOBER 8, 1998
APPEARANCES:
Mr. Adelso Mancia Carpio
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Mancia and Mancia
| Barristers & Solicitors |
| Box 79 |
| 701-390 Bay Street |
| Toronto, Ontario |
| M5H 2Y2 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 1998
Docket: IMM-4711-97
Between:
| SILVIA GEMIMA VARGAS RODRIGUEZ |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT