Date: 19980623
Docket: IMM-3785-97
OTTAWA, ONTARIO, THE 23rd DAY OF JUNE 1998
PRESENT: THE HONOURABLE MR. JUSTICE RICHARD
BETWEEN:
MARIO ALONSO MARTINEZ GOMEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON an application for judicial review of a decision of the Refugee Division dated August 5, 1997, wherein it was determined that the applicant was not a Convention refugee;
THIS COURT ORDERS THAT:
1. The decision of the Refugee Division is set aside and it is directed that the applicant's claim, based on the present record as supplemented by the claimant and the Refugee Claim Officer, be heard and determined by a differently constituted panel.
2. No question will be certified.
__________________________
Judge
Date: 19980623
Docket: IMM-3785-97
BETWEEN:
MARIO ALONSO MARTINEZ GOMEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application for judicial review of a decision of the Refugee Division dated August 5, 1997, wherein it was determined that the applicant was not a Convention refugee.
[2] The tribunal found the applicant's evidence to be consistent and credible.
[3] The tribunal found that the applicant had a well-founded fear of persecution in Puerto Vallarta, Mexico. The tribunal's finding was not based on the fact that the applicant is a practising homosexual per se, but rather because he was taken by the police and brutalized. The tribunal noted that the conduct of the police was illegal and that there is ample documentary evidence that the police may operate with impunity.
[4] The tribunal concluded: "The evidence leads to the conclusion that there is more than a mere possibility that the claimant would be persecuted by the police in Puerto Vallarta".
[5] However, the tribunal went on to find that the applicant had an internal flight alternative (IFA) in Oaxaca or a major city such as Mexico City, Tijuana or Acapulco.
[6] Although the tribunal accepted that the applicant was a practising homosexual, it did not base its finding of well-founded fear of persecution on this ground but "rather because he was taken by the police and brutalized"
[7] A finding of persecution must be based on one of the enumerated grounds in the definition of a Convention refugee.
[8] Further, in determining the availability of an IFA, the tribunal must consider the particular circumstances of the claimant as well as country conditions.
[9] The tribunal failed to link the applicant's claim to one of the enumerated grounds in the definition of a Convention refugee. It would appear that it is membership in a particular social group. However, that is a finding that the tribunal should make.
[10] It is also a finding that will be relevant to the assessment of an IFA.
[11] I find that the tribunal erred in law in reaching its finding.
[12] The decision of the Refugee Division is set aside and it is directed that the applicant's claim, based on the present record as supplemented by the claimant and the Refugee Claim Officer, be heard and determined by a differently constituted panel.
[13] No question will be certified.
__________________________
Judge
Ottawa, Ontario
June 23, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3785-97
STYLE OF CAUSE:MARIO ALONSO MARTINEZ GOMEZ v MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 16, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE RICHARD
DATED: June 23, 1998
APPEARANCES
Mr. Kirk J. Cooper FOR THE APPLICANT
Ms. Geraldine MacDonald FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Kirk J. Cooper FOR THE APPLICANT Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada