Cepeda-Gutierrez v. Canada

Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC)


• Claim rejected on the basis that claimant had an IFA anywhere in Mexico outside Mexico City
• There were no issues related to credibility of the witness
• Claimant was part of a taxi drivers’ union which had formed to resist demands for bribes and payment by federal police
• Claimant moved to a friend’s house in Toluca for some time to escape police threats
• At that time believes he saw police trucks with tinted windows outside his friend’s house and so he returned to Mexico City, where he was again harassed by police
• No issue re: modification or challenging Rasaratnam test for IFA; however, given that the RPD failed to make any mention of the incident with the police trucks, the claimant’s position is that the RPD made the IFA decision without regard to the evidence

• [15] The Court may infer that the administrative agency under review made the 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 to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency’s interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

[16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

[17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, 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”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

• With respect to the reasonability of relocation in another part of Mexico, the RPD failed to consider the psychiatric report submitted by the claimant, which indicated that he would be likely to suffer severed triggering of PTSD symptoms if returned to Mexico:

[27] Finally, I must consider whether the Refugee Division made this erroneous finding of fact “without regard for the material before it.” In my view, the evidence was so important to the applicant’s case that it can be inferred from the Refugee Division’s failure to mention it in its reasons that the finding of fact was made without regard to it. This inference is made easier to draw because the Board’s reasons dealt with other items of evidence indicating that a return would not be unduly harsh. The inclusion of the “boilerplate” assertion that the Board considered all the evidence before it is not sufficient to prevent this inference from being drawn, given the importance of the evidence to the applicant’s claim.