Date: 20030217
Docket: IMM-2148-02
Neutral citation: 2003 FCT 182
BETWEEN:
NOE HERRERA HERNANDEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Background
[1] Noe Herrera Hernandez (the "applicant") is a 22-year-old citizen of Mexico whose refugee claim was denied by the Convention Refugee Determination Division of the Immigartion and Refugee Board (the "tribunal") on March 26, 2002. He is a homosexual transvestite, a fact accepted by the tribunal. Also, the tribunal found him credible. He is an outspoken activist on human rights issues for gays, lesbians, transvestites and trans-gendered people, both in Mexico and Vancouver where he fled to.
[2] The tribunal accepted he had spoken out at a conference on August 21, 2000, in Xalapa, Veracruz, a meeting organized by the Partido de Avanzada Nacional ("PAN"), a political party.
[3] In his PIF, he wrote:
At the congress I was outspoken, seizing the opportunity to speak out about police mistreatment and targeting of homosexuals and transvestites. I criticized police behaviour and treatment of homosexuals, telling of my experiences and the experiences of other homosexuals and transvestites I knew. I was the only speaker at the congress to specifically speak out against the police.
[4] The tribunal also found the police had put his name on a list and two days after the conference he was stopped by them and, in the tribunal's words, "harassed".
[5] The applicant testified, at page 252 of the tribunal record:
When they checked my identification document, they compared it with the list ×× a list of wanted people that they had and they said, "That is the faggot who got the boss upset because he talked against the police".They said that in a low voice. When they detained me, they handcuffed me and they said, "Watch out, because many faggots have disappeared". They have - because they have been killed.
[6] He was asked by his counsel (certified record, page 253):
Now after ... after the police threatened you and struck you in the testicles, did you think about trying to get assistance from the police?"
And the applicant answered:
Of course I did not, because they would deny any assistance to me the same way they had done before and what I thought was how could I file a complaint against the same police asking them to protect me.
[7] In his PIF, he wrote: "I took this threat very seriously as I was aware of disappearances and attacks by the police against gay men, especially feminine gay men and transvestites."
[8] The applicant testified this threat caused him to come to Canada. He had been told by his brother, who was a low ranking police officer, on the list "they have in fact disappeared people" (certified record, page 253). Another police officer, a friend of his brother, had told his brother how upset the director of police had been about the applicant's remarks and this was passed on to the applicant.
[9] The applicant's counsel at the tribunal hearing further explored (certified record, page 253) whether he could get meaningful assistance from his brother and uncles, who had been police officers. The applicant testified they could not help because either they were retired or were of low rank.
[10] In his PIF he tells of an assault on him in 1998, but it stopped because the police happened to drive by. He recites the police officers were hostile towards him. The next day he went to the public ministry office in his area, filling out a report denouncing the men who had attacked him and he "tried to complain about the police officers' failure to assist me. The public ministry took a report about the assault, but they were not interested in my complaint against the police officers."
[11] In 1999, he tells of being assaulted by two men and being left on the street injured. The police came to his home after he reported the assault, but quickly told him they did not have any time to worry about him and he got what he deserved. The applicant wrote in his PIF:
I did not make any further complaint against the police. From my past experience, I knew that the police would do nothing for me.
[12] He wrote in his PIF that he could not live safely anywhere in Mexico "because he will always be easily identifiable as a gay man as a result of his appearance and manner, especially as a transvestite. As a result, I believe I will be targeted and persecuted by the police throughout Mexico."
Analysis and Conclusions
[13] After reviewing the transcript and both records filed in this proceeding, I have come to the conclusion the tribunal's decision must be set aside because it misconstrued the true nature of the applicant's fear.
[14] While I agree with counsel for the Minister state protection was what this case turned on, the application of that concept as mandated by the Supreme Court of Canada in Ward v. The Attorney General for Canada, [1993] 2 S.C.R. 689 (particularly on the concepts of the state's inability to provide protection or a person's unwillingness to seek it) is influenced by a number of factors, one of which is whether the agent of persecution is the State or whether that agent is a non-state actor.
[15] Whether by misreading the evidence or by omitting to consider relevant evidence, the evidence taken in its totality reveals the basis of the applicant's fear, and what precipitated his flight from Mexico was his fear of being assaulted or killed by the police because he was a high profile gay rights activist who criticized publically their behaviour; his fear was not simply of being harassed by them - as an ordinary homosexual would - a fact which seems well established by the documentary evidence. Neither was his fear that of persecution by non-state actors and being denied protection.
[16] The documentary evidence establishes the overriding risk factor prompting police in Mexico to abuse groups is the extent to which individuals within politically sensitive groups exercise their right to dissent and criticize the government or government officials. (See page 186 of tribunal certified record, Research Directorate, Immigration and Refugee Board, October 1997). This was the applicant's profile.
[17] When he filed his PIF, the applicant invoked two Convention grounds:
(1) membership in a particular social group, namely, "homosexual Mexican males", transvestite Mexican males"; and (2) political opinion.
[18] As noted, the tribunal based its decision on the availability of state protection in the context of the fabric of homosexuality in Mexico. It did not specifically deal with the applicant as an activist and did not deal with his fear of persecution because of his political opinion.
[19] During the hearing, a question arose whether the tribunal's decision should be set aside because the tribunal did not deal with all of the Convention grounds advanced by the applicant for his well-founded fear of persecution. I note that the ground of political opinion is mentioned obliquely at paragraph 2 of the applicant's memorandum of law, which counsel for the applicant states is the foundation for his argument concerning the police being the agents of persecution.
[20] In my view, the fundamental error made by the tribunal is that it missed the mark by failing to consider why the applicant feared being in Mexico - it was because of the police and how they dealt with activists such as him and not homosexuals in general. This is true whether his claim is considered under the rubric of political opinion or membership in a social group.
[21] I need only refer to a number of instances where the tribunal showed how it failed to grasp the applicant's case.
[22] First, the tribunal concluded, at page 12 of the certified record, the applicant would [face] "further discrimination and possible physical attacks from individuals in their community [emphasis mine].
[23] Second, the tribunal was of the view the police only "harassed" the applicant after he publically spoke out against the police at the PAN conference where the director of police was a panel member.
[24] Third, the tribunal found the applicant had referred to the list simply as "troublemakers within the gay and transvestite community". The applicant's testimony went much further. People on that list had disappeared and were killed - the source of the information being his brother, a police officer.
[25] Fourth, while the applicant did testify about a conversation he had with the director of police during the break at the conference, nowhere in the record could I find a reference that this senior police officer had told him, if the applicant had approached him directly, he would have dealt with his case of police abuse. All the applicant's testimony indicates is that the director of police was critical of him for having criticized the police in an open forum. In any event, that conversation, for what it is worth, occurred before his name was on the list and before he was threatened, and could not form any inference by the tribunal that higher police authorities would assuage his fear.
[26] For these reasons, this judicial review application is allowed, the tribunal's decision is set aside and the applicant's claim is to be reconsidered by a differently constituted panel. Since this decision is based on the tribunal's handling of the evidence in this particular case, no certified question arises.
(Sgd.) "F. Lemieux"
Judge
Vancouver, B.C.
February 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2148-02
STYLE OF CAUSE: Noe Herrera Hernandez v. The Minister of Citizenship & Immigration
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 13, 2003
REASONS FOR Order : Lemieux, J.
DATED: February 17, 2003
APPEARANCES:
Mr. Robert J. Kincaid FOR APPLICANT
Ms. Sandra E. Weafer FOR RESPONDENT
SOLICITORS OF RECORD:
Robert J. Kincaid Law Corporation FOR APPLICANT
Vancouver, B.C.
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada