Saturday, November 24, 2012

Moreno Sandoval—addressing a complaint of improper interpretation

Moreno Sandoval v. Canada (Citizenship and Immigration), 2012 FC 1273 (CanLII)

Judge: Justice O’Keefe; Date heard: October 15, 2012; Date decided: Octoer 31, 2012; Counsel for Moreno Sandoval: Richard Odeleye; Counsel for Minister: Suran Bhattacharyya; Place of Hearing: Toronto, Ontario.

The Applicants were Mexican citizens who had refused on the basis of lack of nexus, lack of credibility, failure to rebut the presumption of state protection, and lack of individualized risk. They requested a declaration that they were Convention refugees or persons in need of protection, or in the alternative to have the decision overturned.

The Principal Applicant worked in dairy sales. He was approached by men who wanted to join his business, and his wife and children were attacked. They fled to another city where he was again attacked. He tried to complain, but the police said that since the original incident happened in Irapuato, he’d have to make the report there. He did so, but felt that the police there weren’t responsive. The Human Rights Commission could not help them. They therefore fled to Canada, arriving in June 2009 (paras. 1-8).

The RPD found that the Applicants feared criminals, and therefore had no nexus to the Convention. Furthermore:

The [RPD] highlighted the Federal Court’s holding that a person’s risk is not personalized where the risk of actual or threatened violence is faced generally by others and not specific to the claimant. The [RPD] relied on documentation showing that thousands of citizens of Mexico have been victims of violence at the hands of criminals and drug cartels in Mexico. (para. 11)

The RPD doubted the Principal Applicant’s credibility on the basis of “material omissions and inconsistencies”, and stated that the Applicants may have left Mexico because of the generally rising levels of danger (pars. 13-14). The RPD also took issue with the police complaints, which it found inconsistent (paras. 15-20). The RPD also found that there was adequate state protection in Mexico, and that the Applicant did not rebut this presumption by going to the police, because they did not tell the police who the perpetrators were, or give the police adequate chance to provide protection (paras. 20-21).

The RPD’s findings largely revolved around credibility, and that was based on their testimony. In the hearing, the Applicants had complained about the interpretation. This was not addressed in the hearing, per se; the Member directed counsel to seek a remedy in writing at the conclusion of the hearing. Counsel did so. However, there is no indication that the complaint was considered by the Registrar or the Member (paras. 36-40).

Justice O’Keefe found that credibility, and therefore interpretation, were sufficiently central to the decision that it was a breach of procedural fairness, and therefore the decision would need to be overturned.

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