Thursday, September 1, 2011

With respect to Mr. Loya Dominguez’s claim under section 96, the Board appears to have reached a negative determination on the basis that “there is no corroborative evidence to determine definitely the agent of persecution” (emphasis added). Although the Board stated this conclusion somewhat differently in paragraph 23 of its decision, where it observed that it did “not have enough corroborative evidence before [it] to make these connections [between Mr. Loya Dominguez and the La Linea cartel]” (emphasis added), a reader can only assume from reading these two statements together that the word “enough” meant “sufficient to determine definitively”. This was too high a burden. Mr. Loya Dominguez merely had to establish, on a balance of probabilities, a serious possibility of being persecuted in Mexico City by that agent of persecution (Rasaratnam, at 710).
[23] The Board also erred by appearing to reject Mr. Loya Dominguez’s claim on the basis of insufficient “direct evidence as to the agent of persecution” (emphasis added). In my view, the Board should have specifically addressed whether the circumstantial evidence adduced by him was such as to establish a serious possibility of persecution at the hands of the La Linea cartel, or its alleged affiliate, the Los Zetas cartel.
[24] Moreover, the Board erred by failing to address important evidence that was contrary to its conclusion on this point, namely, the fact that masked men visited Mr. Loya Dominguez’s wife in late 2009, five days after her return to Mexico, and searched her residence looking for him. This evidence corroborated Mr. Loya Dominguez’s testimony that the La Linea cartel is still interested in him, because he “mocked them by not doing what they wanted [him] to do.” It therefore should have been addressed by the Board (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35; Canada (Minister of Citizenship and Immigration) v Ryjkov, 2005 FC 1540; Ahmed v Canada (Minister of Citizenship and Immigration), 2004 FC 1076, at paras 13-15; Surajnarain v Canada (Minister of Citizenship and Immigration), 2008 FC1165, at paras 6 and 7; Uluk v Canada (Minister of Citizenship and Immigration), 2009 FC 122 at paras 16 and 32).
[25] It was unreasonable for the Board to fail to consider this evidence, together with: (i) the alleged links between the police in Mexico City and the La Linea/Los Zetas criminal network; and (ii) the circumstantial evidence that supported Mr. Loya Dominguez’s fear of persecution and future torture at the hands of that criminal network on grounds that at least in part related to his political opinions.
[26] Had the Board considered this evidence and concluded, on a balance of possibilities, that there was a serious possibility that the La Linea cartel has a continuing interest in pursuing Mr. Loya Dominguez, it would then have had to assess whether Mr. Loya Dominguez likely would be able to avail himself of adequate state protection in Mexico City (Cosgun v Canada (Minister of Citizenship and Immigration), 2010 FC 400, at paras 44-52).
[27] The points made in paragraphs 25 and 26 above are equally applicable to the Board’s assessment of Mr. Loya Dominguez’s claims under section 97, except that the test would have been whether there was a likelihood that the La Linea cartel has a continuing interest in pursuing Mr. Loya Dominguez.

2011 FC 1041
Key Issues: 
IFA wrong test, ignoring cogent evidence poor reasons