Ottawa, Ontario, December 13, 2005
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] On April 14, 2005, the Refugee Protection Division (tribunal) rejected the refugee claim of Anell Fabiola Avila Lezama (applicant), a citizen of Mexico. The tribunal did not believe her story that she had been abused by a police officer who was a member of the Federal Judicial Police in Acapulco.
[2] It is trite law that credibility findings are ones of fact which, if they are central to the decision, can only be set aside on the basis provided for in paragraph 18.1(4)(d) of the Federal Courts Act, that is, the decision can only be set aside if this Court is satisfied that the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, a standard of review equivalent to a patently unreasonable decision.
[3] It is also trite law that findings of fact must be based on the evidence adduced before the tribunal who must assess it properly by neither misapprehending it nor misinterpreting that evidence. However, reviewing courts have been cautioned many times not to re-weigh evidence properly assessed by a tribunal.
[4] After examining the transcript of the proceedings before the tribunal, I am of the opinion the tribunal's decision must be set aside because the tribunal's credibility findings were based without regard to the material before it. In addition, some key inferences were drawn unreasonably in that they cannot be supported by the evidence. I cite the following examples.
[5] First, the tribunal misapprehended the evidence concerning why the applicant could not file with it a copy of the hospital report on her condition after she had allegedly been abused. The applicant had clearly testified that when the post office delivered the mail containing the hospital report, she was not at home but nevertheless, someone in the house where she lived, and there were many people who lived there, some of whom were transients, signed for it and the post office had the receipt. There was no evidence concerning a notice and no evidence of someone else picking up the mail at the post office which is what the tribunal relied on to state the applicant's testimony made no sense.
[6] Second, the tribunal picked up the language she had used in her Personal Information Form (PIF) that she was "shocked and frightened that her assailant obtained her telephone number because it was listed in another name" in the context of her having fled Acapulco to stay with her aunt in Mexico City and having previously told her ex-boyfriend of her aunt's name and address. The tribunal said: "If he knew the aunt's name, he probably only had to look in the telephone book". This statement is pure speculation on the tribunal's part. The issue was not explored in evidence during the hearing and the evidence does not reveal whether the aunt's name was listed in a telephone book. No question was asked of the applicant whether the telephone number was hers (not her aunt's, see page 2 of the tribunal's decision) and not listed under her name. There is no evidentiary basis for the tribunal's conclusion.
[7] Third, the tribunal wrote that it "does not believe that any police in Mexico, regardless of a PGR badge, would walk away if someone shot up a house. There may be corruption in Mexico but to believe the claimant's statement is not possible". The tribunal does not come to grips with the applicant's PIF which stated her assailant showed his badge to the Mexico City police who came to her aunt's house and her testimony that he told them that the dispute was a personal one.
[8] Fourth, the tribunal minimized her testimony about her ex-boyfriend's police badge. It stated she never saw his badge up close and did not know what it says. The tribunal ignored her evidence the badge was made of metal, it was gold in colour and was of a size which fitted his hand. The tribunal also ignored evidence that while she did not see him in uniform, the people he worked with all wore uniforms which were black in colour and had the acronym of the Judicial Police which was gold coloured on the uniform.
[9] Fifth, the applicant wrote in her PIF that her ex-boyfriend had told her "he was a civilian clerk at the Procuraduria General de la Républica (PGR). However, I discovered that he was actually a PGR agent". The tribunal commented as follows:
Although she said in her Personal Information Form (PIF) that she discovered that he was an agent of the PGR, she was not really sure what he did. She knew that he had a weapon and that he had a badge and that he was never in uniform. But she also said in her PIF that he worked in the office of the PGR as a civilian clerk. She never saw his badge up close, does not know what it says and the panel finds it implausible than an office clerk can act with the impunity she contends he does. Him having a weapon is normal in Mexico, according to her testimony, all men do. The panel is of the opinion that the claimant embellished his impunity. The fact that he said, according to her oral testimony, not to say anything, further weakens her assertion of his impunity.
[10] The tribunal's statement just quoted does not take into account her testimony it was her ex-boyfriend who told her he was a civilian clerk, that he would not tell her what kind of work he did with the security forces, that he was very secretive about his job, he always carried a weapon, used his badge for everything and most of his friends were police officers. She did say that she thought he was a PGR agent because he carried a weapon. She did not say all men in Mexico carried a weapon. At page 150 of the certified tribunal record, she did say that, at least where she lived, i.e. Acapulco, it was normal for people to have guns (not carry them all the time) and she gave the example of them shooting in the air during a celebration. Moreover, I do not see why his telling her to say anything weakens her assertion of his impunity. It is just as logical to interpret his caution to her not to tell about his brutalizing her would cause him problems with his employer.
[11] Sixth, the tribunal found that the applicant's parents had no trouble with her ex-boyfriend since they had moved to the Yucatan but had been bothering her friends and aunt. This statement ignores her evidence her ex-boyfriend was not aware of her parents' whereabouts.
[12] For these reasons, the credibility findings of the tribunal made against the applicant cannot stand. Not believing her story was central to its findings as to state protection and the IFA.
O R D E R
This judicial review application is allowed, the tribunal's April 14, 2005 decision is set aside, and the applicant's refugee claim is remitted to the Refugee Protection Division for re-examination by a differently constituted tribunal. No certified question was proposed.
"François Lemieux"
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2572-05
STYLE OF CAUSE: ANELL FABIOLA AVILA LEZAMA v. MCI
DATE OF HEARING: Tuesday December 6, 2005
REASONS FOR ORDER
and ORDER: Lemieux J.
DATED: December 13, 2005
APPEARANCES:
Mr. Byron Thomas FOR PLAINTIFF / APPLICANT
Ms. Margherita Braccio FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Byron Thomas
Toronto, Ontario FOR PLAINTIFF/APPLICANT
Mr. John H. Sims, Q.C.
Department of Justice
Toronto, Ontario FOR DEFENDANT/ RESPONDENT