Date: 20030528
Docket: IMM-2905-02
Citation: 2003 FCT 674
Toronto, Ontario, May 28, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
JUAN MANUEL MUNIVE RODRIGUEZ
ROSA JULIA LOPEZ RIVERA
DANIEL MUNIVE LOPEZ
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated May 16, 2002, wherein the CRDD determined that the Applicants are not Convention Refugees.
[2] The Applicants are citizens of Mexico. The principal applicant (the "Applicant") claimed a well-founded fear of persecution on the basis of his perceived political opinion. His wife and daughter, the remaining applicants, claimed a fear of persecution on the basis of particular social group, as members of the Applicant's family.
[3] The Applicant claimed that he was understood by the military to be a supporter of the Zapatistas and a sympathizer with the organization. He owned a printing shop, and received an order from a lawyer, Mr. Flores, for the printing of 500 pamphlets to promote the Movimento Juvenil Independiente, a political group. The Applicant was interested in the ideas promoted by the organization, and agreed to have his shop listed on the flyers as the venue for an upcoming meeting.
[4] The heart of the Applicant's claim for refugee protection arises from the incidents which followed the delivery of the pamphlet to Mr. Flores. The evidence of persecution is found both in the Applicant's Personal Information Form ("PIF") and in that of his wife. In his PIF, the Applicant states as follows:
On the 16th May 2000 I received a threatening telephone call at my shop from a man warning me that I was going to suffer because of the political propaganda that I was publishing. I was obviously scared from this call and spoke no further about the movement to anyone who asked about it. I realized that having included my address and telephone number on the flyers had been a mistake.
I saw Mr. Flores later that day on the 16th May 2000. At that time I told him about the threat I had received. He told me not to worry and that that was to be expected. Mr. Flores ordered another 5000 flyers and paid me 1500 pesos. This time I omitted my address and number from the flyers. I prepared the next set of flyers and Mr. Flores came and picked them up the next day. I never saw Mr. Flores again.
On the 19th May 2000 I received another death threat by telephone. This time the threat included specific reference by name to my wife and son. I told the caller that I had nothing to do with the movement and that I had only included my address and number as a favour to Mr. Flores.
On 06th June 2000, at approximately 8:30 p.m., three young men who had the definite appearance of military officers, entered my shop and began to beat me. They said nothing and left after a few minutes. After they left, I called my brother David who took me for medical attention at the Seguro Social Clinica No. 2 in Puebla. I remained in hospital until 09 June 2000.
My wife, son and I did our best to keep a low profile until after the General election on 02nd July 2000. In that election the opposition party, Partido Accion Nacional (PAN) won the presidency under Mr. Vicente Fox. However, PRI retained considerable power in the congress. Nevertheless, I had hoped as a result of PRI having lost the presidential election that I would have no further problems. However, that was not to be the case.
On 07th July 2000, while I was in Mexico City on business, as I was walking on the street I heard someone from behind call my surname. As I turned to look, I saw a slow moving dark car with a man leaning out of the passenger window pointing a gun at me. I started to run and I heard two shots fired. I managed to escape into a Catholic Church where I hid for thirty minutes. I returned to Cholula later that day. The following day I received a call at home from a man warning me that next time I would not get away. He also told me that my wife and son would also be killed. (Applicant's Application Record, pp. 31-32)
As a result of these events, the Applicant left Mexico and arrived in Canada on August 25, 2000.
[5] In her PIF, the Applicant's wife states as follows:
In September 2001 I went for a four-day visit to my sister, Patricia Lopez, who lives in Cholula in Puebla. I then returned to Los Reyes. On 11th September 2001 I received a telephone call from a man identifying himself as Arturo Flores. He wanted to speak with Juan. I told him that I did not know where Juan was and I hung up. On 16th October 2001 the man called again and I told him that Juan was not even in Mexico. At that point his voice became very angry. He told me that he knew where I was and that he was going to get my child and me and kill us. He also said that he was going to get Juan and Arturo. The fact that he was threatening to get Arturo suggested to me that it was not Arturo making the call. I was very fearful. I did not go to the police because I did not trust them. Moreover, they did nothing to help Juan when he turned to them for assistance. I spoke to my brother Alfredo about this situation. Alfredo was a lieutenant in the Mexican Air Force. He told me that he would try to help me but that he had no power to do anything.
We received a number of other threatening telephone calls which made reference to Juan being a subversive. I was also accused of being a subversive. I knew that we could not stay in Mexico and we started to make plans to leave. My mother, Daniel and I left Mexico on 04th November 2001 and came to Canada. My mother returned to Mexico and moved to Puebla. I needed my mother's assistance in helping me travel because I am visually impaired. (Applicant's Application Record, pp. 43-44)
[6] It is important to note that in its decision the CRDD did not make a negative credibility finding with respect to either the Applicant or his wife. On this basis, the CRDD must be taken to have accepted their evidence (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.)). Regardless of the cogent and detailed evidence the Applicant and his wife delivered before the CRDD respecting their subjective and objective fear of persecution, the focus in the CRDD's decision is on outdated documentary evidence. In this respect, the CRDD says as follows:
The panel does not find it plausible for an individual with the political and professional profile of the principal claimant to be sought after, to this date, by the Mexican authorities. The principal claimant stated in his testimony that because the Mexican authorities may feel that he may be connected to the Zapatistas, he is still wanted by the Mexican authorities.
...
The principal claimant is, first and foremost, a businessman. As the owner of a small business, a printing shop, which he inherited from his father, he agreed to print the pamphlets. By doing so, he entered into a business agreement to provide a service to his client, Mr. Flores, in exchange for the payment of a sum of money. Accessorily, as a favour to his client and as a way to express his discontent at the present political situation, he offered to put the name of his business and its address on the first pamphlets. On the one hand, the regime of corruption and impunity within the police and the army has resulted in the commission of numerous human rights violations committed against individuals who had expressed anti-government views. On the other hand, the Mexican judicial system is plagued by serious problems that undermine its independence and its ability to protect the victims. These facts are well documented. However, it would appear that the authorities target only individuals fitting a certain profile. In the document entitled Questions and Answer Series-Mexico: Internal Flight Alternatives, it is stated that, according to Andrew Reding, " '(W)histleblowers' of any profession, or people who 'unearth corruption' of powerful figures using 'documented evidence', would face legitimate fear throughout Mexico" (F.N.: Research Directorate, IRB, Ottawa, October 1997, p.2.4.9). The risk to fall victim to human rights abuse in Mexico would be mainly determined by
"The extent to which individuals within politically-sensitive groups-such as opposition parties (...)- exercise their conditional rights to dissent and, more specifically, to criticize the government or government official or present a serious challenge to the political status quo." (F.N.: Idem)
The principal claimant does not have a political profile per se. His situation is very different than that of the deputy to whom he referred in his testimony. At no time, either before or after these business transactions, was the principal claimant involved in any political party or movement of any sort. He never expressed publicly any opinion either in favour or against the government or the Zapatistas. His involvement in politics is limited to the appending of a business address on a political pamphlet and the use of his place of business as a meeting point on one occasion. These acts cannot, in the opinion of the panel, be interpreted as the exercise of a constitutional right to dissent or to criticize the government. Consequently, in light of the above, the panel finds that the claimant is not a member of a group at risk of falling victim to human rights abuse at the hands of the Mexican authorities. (CRDD's Decision, pp. 4-5)
[7] The 1997 document referred to by the CRDD in the passage quoted above is included in the Tribunal Record delivered for the present application. It remains uncertain as to how the document was produced into the Record. As I understand it, it might very well be that the document is part of the "standard information package" which is commonly referred to as background material for a claim of this nature. However, it is certain that the document was not produced by the Applicant and was not referred to during the CRDD hearing.
[8] I agree with counsel for the Applicant that the statement in the 1997 document is pivotal to the outcome of the CRDD's decision, and as such, should had been put directly in play by the CRDD during the course of the hearing. If this had been done, counsel for the Applicant would have had an opportunity to argue the relevance of the document. Indeed, counsel for the Applicant produced before the CRDD much more recent documentary evidence which, to my observation, establishes conclusively that as recently as 2000 and 2001, Zapatistas supporters are persecuted in Mexico for their political opinion (see Tribunal Record, pp. 430 and 419, respectively).
[9] As a result of the failure of the CRDD to provide an opportunity to counsel for the Applicant to make submissions with respect to the profile upon which so much weight was given in the reasons, I find that the CRDD committed an error in due process.
[10] It is apparent that in reaching its decision, the CRDD spent a great deal of effort comparing the Applicant's situation to the somewhat outdated profile founded on the 1997 document. In my opinion, an even greater effort was required of the CRDD to consider the much more relevant and apparently credible evidence of the Applicant and his wife with respect to risk of harm should they return to Mexico. Thus, in my opinion, the CRDD's failure to adequately address this evidence, considered together with the breach of due process found above, renders the CRDD's decision as patently unreasonable.
ORDER
Accordingly, the CRDD's decision is set aside and the matter is referred back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2905-02
STYLE OF CAUSE: JUAN MANUEL MUNIVE RODRIGUEZ
ROSA JULIA LOPEZ RIVERA
DANIEL MUNIVE LOPEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 27, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: MAY 28, 2003
APPEARANCES: Mr. J. Byron Thomas
For the Applicants
Ms. Marina Stefanovic
For the Respondent
SOLICITORS OF RECORD: J. Byron Thomas
Etobicoke, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030528
Docket: IMM-2905-02
BETWEEN:
JUAN MANUEL MUNIVE RODRIGUEZ
ROSA JULIA LOPEZ RIVERA
DANIEL MUNIVE LOPEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER