Cepeda-Gutierrez v. Can. (M.C.I.) (1998), 157 F.T.R. 35 (TD)
MLB headnote and full text
Temp. Cite: [1998] F.T.R. TBEd. OC.054
Carlos Arturo Cepeda-Gutierrez, Mayelo Ivonne Macias De Cepeda and Arturo Itzhak Cepeda-Macias (applicants) v. The Minister of Citizenship and Immigration (respondent)
(IMM-596-98)
Indexed As: Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration)
Federal Court of Canada
Trial Division
Evans, J.
October 6, 1998.
Summary:
The Convention Refugee Determination Division of the Immigration and Refugee Board dismissed a refugee claimant’s claim for refugee status on the ground that he had an internal flight alternative anywhere in Mexico outside Mexico City. The refugee claimant and his wife and son applied for judicial review.
The Federal Court of Canada, Trial Division, allowed the application, set aside the board’s decision and remitted the matter for a redetermination.
Administrative Law – Topic 549
The hearing and decision – Decisions of the tribunal – Reasons for decisions – Sufficiency of – The refugee board held that a Mexican refugee claimant was not a Convention refugee because he had an internal flight alternative outside Mexico City – The refugee claimant argued that the board erred in finding that it would not be unduly harsh for him to relocate in Mexico – Further, the board failed to consider a psychologist’s evidence that his post-traumatic stress disorder could recur if he returned to Mexico – The Federal Court of Canada, Trial Division, set aside the decision, holding that the psychologist’s evidence was so important that it could be inferred from the board’s failure to mention it in its reasons that the finding of fact respecting relocation was made without regard to it – The board’s “boilerplate” assertion in its reasons that it considered all the evidence was not sufficient to preclude this inference given the importance of the evidence – See paragraphs 23 to 29.
Administrative Law – Topic 549
The hearing and decision – Decisions of the tribunal – Reasons for decisions – Sufficiency of – The Federal Court Act, s. 18.1(4)(d), provided that the court could set aside a decision where an administrative agency (incl. the refugee board) based its decision on an erroneous finding of fact made capriciously or without regard for the material before it – The Federal Court of Canada, Trial Division, stated that to attract intervention under section 18.1(4)(d), an applicant must satisfy the court, not only that the board made a palpably erroneous finding of material fact, but also that the finding was made “without regard to the evidence” – The court may infer that an agency made an erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant but contrary to the finding – See paragraphs 14 to 17.
Administrative Law – Topic 549
The hearing and decision – Decisions of the tribunal – Reasons for decisions – Sufficiency of – The Federal Court Act, s. 18.1(4)(d), provided that the court could set aside a decision where an administrative agency based its decision on an erroneous finding of fact made capriciously or without regard for the material before it – The Federal Court of Canada, Trial Division, stated that the court may infer that an agency made an erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant but contrary to the finding – Although an administrative agency need not refer to
every piece of contrary evidence, the more important the evidence that is not mentioned, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence” – See paragraph 17.
Administrative Law – Topic 549
The hearing and decision – Decisions of the tribunal – Reasons for decisions – Sufficiency of – The Federal Court Act, s. 18.1(4)(d), allowed judicial intervention where an administrative agency based its decision on an erroneous finding of fact made capriciously or without regard for the material before it – The Federal Court of Canada, Trial Division, stated that the court may infer that an agency made an erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention relevant but contrary evidence in its reasons – A statement by the agency in its reasons that it considered all the evidence will often suffice to show that the agency directed itself to all the evidence – However, such a blanket statement will not suffice when the evidence omitted from the reasons is squarely contradictory – Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on contrary evidence, it may be easier to infer that the agency overlooked the contradictory evidence when making its fact findings – See paragraphs 16, 17.
Administrative Law – Topic 5016
Judicial review – Certiorari – Grounds for granting certiorari – Failure to consider or take something into account – [See first and second
Administrative Law – Topic 549
].
Aliens – Topic 1326.4
Admission – Refugees – Refugee Division -Reasons – [See first and second
Administrative Law – Topic 549
].
Aliens – Topic 1334
Admission – Refugees – Appeals or judicial review – Scope of review – [See second
Administrative Law – Topic 549
].
Courts – Topic 4021.1
Federal Court of Canada – Jurisdiction – Trial Division – Decisions of federal boards, commissions or tribunals – [See second
Administrative Law – Topic 549
].
Cases Noticed:
Rasaratnam v. Minister of Employment and Immigration, [1992] 1 F.C. 706; 140 N.R. 138 (F.C.A.), refd to. [para. 8].
Rajapakse v. Minister of Employment and Immigration, [1993] F.C.J. No. 649 (T.D.), refd to. [para. 14].
Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; 87 F.T.R. 46; 29 Admin. L.R.(2d) 211 (T.D.), refd to. [para. 14].
Medina v. Minister of Employment and Immigration (1990), 120 N.R. 385; 12 Imm. L.R.(2d) 33 (F.C.A.), refd to. [para. 16].
Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.), refd to. [para. 16].
Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312 (T.D.), refd to. [para. 17].
Thirunavukkarasu v. Minister of Employment and Immigration (1993), 163 N.R. 232 (F.C.A.), refd to. [para. 23].
Singh (Gurmeet) and Narang v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 139; 30 Imm. L.R.(2d) 226 (T.D.), refd to. [para. 28].
Jhutty v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 763 (T.D.), refd to. [para. 28].
Canizalez et al. v. Canada (Minister of Citizenship and Immigration), [1997] F.T.R. Uned. 663 (T.D.), refd to. [para. 28].
Randhawa v. Canada (Minister of Citizenship and Immigration), [1998] F.T.R. Uned. 064 (T.D.), refd to. [para. 28].
Statutes Noticed:
Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1(4)(d) [para. 2].
Counsel:
Douglas Lehrer, for the applicant;
Brian Frimeth, for the respondent.
Solicitors of Record:
Vandervennen Lehrer, Toronto, Ontario, for the applicant;
Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This application was heard at Toronto, Ontario, on September 18, 1998, before Evans, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on October 6, 1998.
