Date: 20051018
Docket: IMM-417-05
Citation: 2005 FC 1423
Winnipeg, Manitoba, October 18, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ITALO JESUS ORTIZ ROMERO
VERONICE DE LOS TELEDO
ANGIE ANABEL ORTIZ TOLEDO
ALLISON VERONIC ORTIZ TOLEDO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
KELEN J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and refugee Protection Board ("the Board") dated January 6, 2005 in which the applicants were found not to be Convention refugees or persons in need of protection, because there is adequate state protection for them in Ecuador, and if the applicant had reported the shooting, state protection would have been forthcoming.
FACTS
[2] The applicants, a husband, wife and two minor children, are citizens of Ecuador. The principal applicant, Mr. Italo Ortiz (the "applicant") claims a well-founded fear of persecution at the hands of criminal elements in Ecuador who would kill or otherwise harm him and his family. The claims of the other applicants are based on Mr. Italo Ortiz's claim for refugee protection.
[3] The applicant was employed in a travel agency in the city of Quito, Ecuador. In February 2003 the applicant and his former employer reported a credit card fraud involving one of the agency's clients to the Department of Investigations. The ensuing investigation centred on one Marta Hurtado Borbua, a relative of then President of Ecuador, Lucio Gutierrez Borbua.
[4] Before the Board, the applicant testified that he and his family started receiving threatening phone calls in May, 2003, and that he and his family were seriously attacked on two occasions by assailants associated with Marta Hurtado. Specifically:
(i) On November 14, 2003 he was attacked with his wife, two daughters, and father at a gas station by two men who tried to stab him with a knife and who beat him up. The applicant's father came to his rescue, was stabbed and required hospitalization. The applicant's two daughters were terrorized by this incident. After this incident, the applicant changed residences and moved to a place where they would not be found. However, on November 18, 2003, the applicant started receiving threatening phone calls at the new residence. One of these threatening phone calls told the daughter answering the phone that her father was dead.
(ii) The second incident of a physical attack took place on December 10, 2003. The applicant was driving to his residence with his daughters. He was driving his father-in-law's car so as to avoid detection. At approximately 10:00 p.m., a motorcycle with a driver and a passenger stopped in front of the car and the passenger pulled a gun and started shooting. The applicant and his wife crouched down in the car to avoid being hit. The windshield cracked with the first bullet and shattered with the second.
[5] On reporting the first attack to the police, the applicant obtained a protection order effective for 30 days against Marta Hurtado and her son-in-law, which he understood to be a guarantee that the police would act against those persons should they "offend in word or deed".
[6] The applicant's wife reported the second attack to the National Police of Ecuador. A copy of the police report is in the certified tribunal record and reports the shooting incident which took place on December 10, 2003.
[7] On December 14, 2003, four days after the alleged shooting, the applicant left Ecuador. In January 2004 the applicant arrived in Canada and sought refugee protection.
ISSUES
[8] The two issues raised in this application are as follows:
(1) Did the Board make and rely on a patently unreasonable finding of fact in concluding that the applicant did not report the alleged shooting of December 10, 2003?
(2) Did the Board err in finding that adequate state protection is available to the applicant in Ecuador?
ANALYSIS
Issue No. 1 - Whether the Board made a patently unreasonable finding of fact by overlooking or misapprehending evidence
[9] In the Board's decision, the Board found that the applicant did not report the second alleged shooting of December 10, 2003. The Board stated at page 3 of its decision:
"The claimant testified that he reported the attack on him at the gas station that took place on the November 14, 2003 after about one week. He, however, did not report the incident of the alleged shooting of December 19 [sic], 2003 . . . I find that the claimant did not take all the reasonable steps to seek protection where it would have been, in my view, reasonably forthcoming."
This finding misstates the evidence and is made without regard to the material before the Board. The applicant's wife did file a police report in respect of the December10, 2003 shooting. The Board's finding that the applicant did not report the alleged shooting is clearly wrong and patently unreasonable.
[10] The respondent submits that the Board's error is immaterial to its eventual finding of available state protection. I cannot agree. In my view the mistaken finding could and did contribute, in part, to the overall decision and is therefore material within the meaning articulated by the Federal Court of Appeal in Schaaf v. Canada (M.E.I.), [ 1984] 2 F.C. 334.
[11] The Board found that the documentary evidence indicates that Ecuador has a judiciary, a national police force, and a municipal police force in Quito which would have provided the applicant with adequate state protection. The Board held at page 3 of its decision:
" . . . I find that the plaintiff did not take all the reasonable steps to seek protection where it would have been, in my view, reasonably forthcoming."
The Court is satisfied that the Board relied upon this patently unreasonable erroneous finding of fact in coming to the conclusion that:
1. the applicant did not take all reasonable steps to seek protection from the state; and
2. if the applicant had sought protection, it would have been reasonably forthcoming.
In fact, the evidence is that the applicant phoned the police twice immediately after the December 10th shooting and the police did not respond notwithstanding that there was a protection order issued in respect of the applicant following the attack on November 14, 2003. In the Court's view, there is a reasonable possibility that the Board would not have found that there was adequate state protection available to the applicant in Ecuador if the Board had understood that the applicant had reported the December 10th shooting and that the police had taken no action in response.
CONCLUSION
[12] Since the Court is satisfied that the erroneous finding of fact is material to the Board's decision, there is no need to consider the second issue, namely whether the Board erred in finding that there was adequate state protection available to the applicant in Ecuador. For these reasons, this application for judicial review will be allowed.
[13] Both parties advised the court that this application does not raise a serious question of general importance which should be certified for an appeal. The Court agrees so that no question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review of the Board's decision dated January 6, 2005 is allowed, the decision is set aside, and the matter is remitted to another panel of the Board for redetermination.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: ITALO JESUS ORTIZ ROMERO
VERONICE DE LOS TELEDO
ANGIE ANABEL ORTIZ TOLEDO
ALLISON VERONIC ORTIZ TOLEDO
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 17, 2005
APPEARANCES:
David Matas
Winnipeg, Manitoba FOR APPLICANTS
Omar Siddiqui
Department of Justice
Winnipeg, Manitoba FOR RESPONDENT
SOLICITORS OF RECORD:
David Matas
Barrister & Solicitor
Winnipeg, Manitoba FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT