Fuentes Sierra et al. v. Canada (Minister of Citizenship and Immigration), (2009) 354 F.T.R. 243 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: October 01, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 354 F.T.R. 243 (FC);2009 FC 1048

Fuentes Sierra v. Can. (M.C.I.) (2009), 354 F.T.R. 243 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. OC.029

Ulises Fuentes Sierra, Loth Katiuska Martinez Magana, Cristian Ulises Fuentes Martinez and Carlos Samuel Fuentes Martinez (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1486-09; 2009 FC 1048)

Indexed As: Fuentes Sierra et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

October 15, 2009.

Summary:

The applicants applied for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board refusing the applicants' application to be deemed Convention refugees or persons in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act.

The Federal Court allowed the application and remitted the matter to a differently constituted panel of the Board for reconsideration.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The applicants (a husband, a wife and their three sons) were citizens of Mexico - The husband was formerly a radio reporter who conducted an investigation into drug traffickers, their links to the police, and the joint crimes committed by both - The husband was threatened and assaulted because of his investigation - He sought protection from the Department of Justice but was told nothing could be done - The family moved, only to be told that they would be harmed if they did not return to where they came from - The husband fled to Canada in June 2008 - After an alarming incident in which the wife and the sons were victims of an intentional automobile collision, they fled to Canada in July 2008 - The Refugee Protection Division of the Immigration and Refugee Board denied the applicants' refugee claim - The applicants applied for judicial review, asserting that the Board erred in law in that its credibility findings were made without regard for the evidence before it or was otherwise unreasonable - The Federal Court allowed the application - There were credibility and plausibility findings that created the impression that the Board was determined not to believe the applicants rather than engage with, and assess, the particulars of their evidence - This impression was confirmed by the Board's total failure to engage, and address, a large body of documentary evidence that supported the applicants' claim - The Board either failed to appreciate that this evidence was before it or deliberately ignored the evidence because it did not support the Board's own conclusions - This was a reviewable error that rendered the decision unreasonable - See paragraphs 23 to 48 and 63 to 69.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See Aliens - Topic 1322 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Sukhu v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 312; 2008 FC 427, refd to. [para. 20].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 22].

Tekie v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 25; 2005 FC 27, refd to. [para. 24].

Yada et al. v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 264 (T.D.), refd to. [para. 29].

Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.), refd to. [para. 29].

Ali v. Canada (Minister of Citizenship and Immigration) et al., [2008] F.T.R. Uned. 283; 2008 FC 448, refd to. [para. 41].

Santos v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 546; 2004 FC 937, refd to. [para. 41].

Modeste v. Canada (Minister of Citizenship and Immigration) (2006), 299 F.T.R. 95; 2006 FC 1027, refd to. [para. 43].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 49].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321; 103 D.L.R.(4th) 1; 20 Imm. L.R.(2d) 85, refd to. [para. 53].

Minister of Employment and Immigration v. Villafranca (1992), 150 N.R. 232; 99 D.L.R.(4th) 334 (F.C.A.), refd to. [para. 53].

Florea v. Minister of Employment and Immigration, [1993] F.C.J. No. 598 (F.C.A.), refd to. [para. 55].

Siloch v. Minister of Employment and Immigration (1993), 151 N.R. 76; 10 Admin. L.R.(2d) 285; 18 Imm. L.R.(2d) 239 (F.C.A.), refd to. [para. 56].

Pierre v. Minister of Manpower and Immigration and Pickwell, [1978] 2 F.C. 849; 21 N.R. 91 (F.C.A.), refd to. [para. 56].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81, refd to. [para. 56].

Dadi v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1999), 173 F.T.R. 123 (T.D.), refd to. [para. 57].

Balson v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 110; 2005 FC 197, refd to. [para. 59].

Antypov et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 860; 2004 FC 1589, refd to. [para. 59].

Tripathi v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 746 (T.D.), refd to. [para. 59].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 67].

Counsel:

Clifford D. Luyt, for the applicants;

Leanne Briscoe, for the respondent.

Solicitors of Record:

Clifford D. Luyt, Toronto, Ontario, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on October 1, 2009, at Toronto, Ontario, by Russell, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on October 15, 2009.