Caceres v. Canada (Minister of Citizenship and Immigration), docket IMM-2737-97

Date: 19980928

Docket: IMM-2737-97

BETWEEN:

     ENDIGO GUILLER CACERES HERRERA,

     MARIA VICTORIA ZAMORA CORONA,

     ERIKA YANDIRA CACERES ZAMORA,

     JANOTHAN VLADIM CACERS ZAMORA,

     JOSE RENATO MORALES ZAMORA,

     OMAR FERNANDO CAMPOS ZAMORA,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MULDOON, J.

[1]      This is an application for judicial review pursuant to section 82.1(1) of the Immigration Act, R.S.C. 1985, Chap. I-2, of a decision of the Convention Refugee Determination Division (CRDD) (C96-00282, C96-00283, C96-00284, C96-00285, C96-00306) dated June 11, 1997 in which the applicants were found not to be Convention refugees.

[2]      The applicants seek an order setting the decision of the CRDD and ask that their claim be heard by a differently constituted board.

[3]      The facts as set out below were taken from the personal information forms of the applicants. The applicants are citizens of Peru. Their claim to Convention refugee status is based on their political opinion and membership in a particular social group, namely as a member of the military police establishment. The principal applicants Endigo and Maria are spouses and the other four applicants are their children. The principal applicant, Endigo, was in the Peruvian Armed Forces from 1968 to 1970. After that time, he began his employment with the National Police of Peru. He was a member of the anti-subversive battalion of the Department of Anti-Terrorist Tactics until he left Peru in August 1990. This unit was responsible for counteracting the terrorist acts of the Sendero Luminoso (Shining Path). His section provided logistical support in communication and information regarding the Shining Path.

[4]      The family's problems began in 1989. At that time, the applicant Renato was enrolled in grade 11. Shining Path members infiltrated the school with the purpose of indoctrinating students. Renato was convinced to join the Shining Path and he was told to provide them with documents and important information regarding the movements of the police, since these documents were in his father's possession. Renato's parents convinced him that the Shining Path members were simply trying to use him in order to gain protected information from him. Renato severed all relations with the Shining Path and, as a result, he was beaten by members of the group in June 1989. At the time that he was beaten, Endigo was confined to police barracks.

[5]      In July 1989, Endigo decided to speak with the student members of the Shining Path at his son's school. He did not inform his supervisors of his actions. While at the school grounds, Endigo was approached by seven people and was beaten when he tried to convince them that he did not have the information and documentation they required. From that point onward, the applicants received death threats and threatening phone calls. The family considered leaving Peru but decided instead to enroll Renato in a different school in the Barranco district of Lima in August 1989.

[6]      Throughout that time, the applicant received continuous death threats and telephone calls. Their home was machine-gunned and was spray painted with signs informing them that they would be killed. The applicants did not report any of these acts to the police.

[7]      In July or August 1990, the family moved to the district of Campina. Endigo obtained a temporary discharge from the police and decided to leave Peru for the United States. On September 1, 1990, Endigo entered the United States illegally. He resided in California for four years before he made an application for political asylum (he filed his application on November 17, 1994). He states that he delayed making the application because he was uncertain that his family would be able to leave Peru before that time.

[8]      Maria states that she was personally attacked in August 1991, while living in the Campina district. Following this attack, she moved to the province of El Callao in September 1991. While she was living in El Callao she was attacked in March 1992 and she was informed that if her husband did not reappear she would "pay the consequences". As a result, she moved to the San Miguel district in Lima.

[9]      In September 1992, in retaliation for the capture and detention of one of the leaders of the Shining Path, her son and a group of friends were fired upon by a moving car. Two of Renato's friends were seriously injured but Renato escaped, unharmed. None of these incidents was reported to the police.

[10]      On May 29, 1993, the remaining applicants left Peru and arrived in the United States on December 1993. In June 1996,the applicant left California and arrived in Winnipeg.

[11]      The CRDD accepted Endigo's claim that he was a member of the National Police of Peru from 1971 until he left Peru in August 1990. The panel also accepted that Renato was recruited by the Shining Path. The CRDD did not believe, however that the applicants left Peru for the reasons outlined by them. At page 53 of the application record (AR), the CRDD wrote the following:

E. was a nineteen year member of the National Police anti-subversive unit whose mandate was to deal with the terrorist acts of the Sendero Luminoso and yet he made no effort to seek police protection for him and his family. He alleges that he did not discuss his situation with his colleagues or his superiors because it was a "delicate" matter and everyone looks out for himself. His main reason for not seeking protection was because "in Peru there is no such thing as protection for the police let alone citizens". The panel finds the claimant's actions to be implausible.

Although he held a "desk job" with the anti-subversive unit he also testified that he held a special position and was trusted with secret and confidential information. While the information he handled came in sealed packages, which he did not open, the claimant testified that it included anti-terrorist tactics and information related to a national strategy between the police and army to combat terrorism. Given that he held a special position in an anti-subversive unit of the police force, the panel finds its implausible that the claimant did not inform his superiors that the Sendero Luminoso planned to infiltrate this unit through his son R.

The principal claimant stated that his son was beaten after breaking off relations with the Sendero Luminoso in June 1989 and that he was beaten by Sendero Luminoso members in July 1989. There were death threats written on the wall of their home and machine gun fire and yet R. continued to go to school and E. continued to work for the police until he left Peru one year later.

In this case E. would be a threat to the Sendero Luminoso because he was a member of the anti-subversive unit and he knew they were targeting his son to get information from his unit. He also testified that he remains at risk today because he refused to collaborate with them. Further R. is an ex-member of the Sendero Luminoso who has inside information. Given the violent way in which the Sendero Luminoso deal with those who threaten its interests, the panel finds it implausible that nothing happened to E. for one year prior to leaving Peru and nothing happened to R. from June 1989 until he and his friends were fired upon by unknown persons in a passing car in September 1992.

* * *

The fact that they waited from July 1989 until July 1990 to find affordable housing and to change their place of residence during the time in which signs were painted on the walls of their home, their home was machine gunned and they were receiving life-threatening phone calls is not consistent with the actions of persons who fear for their lives. The panel finds this evidence not to be credible.

The principal claimant E. states that he would be at risk if he returned to Peru today because he would be seen to be a deserter from the police force and as such would be imprisoned with members of the Sendero Luminoso. While the panel agrees with counsel that this was not his reason for leaving Peru, it is certainly now being stated as a reason why he fears persecution should he be required to return.

On this point the panel notes that there was no mention of this fact in his interview with Citizenship and Immigration (C & I) officials on June 26, 1996 or in his Personal Information Form (PIF) prepared July 31, 1996. This information was only provided to the panel a week before his hearing and yet he testified that he learned of a warrant for his arrest for desertion from his friend W. in Los Angeles in 1992. When asked why his information was not in his PIF or given to C & I, he states that he did not tell the officials at Emerson because he was told he would have to provide information at a later date. He stated that at the time he did not place much importance on the information regarding the warrant for his arrest but now realized it is important.

M. was asked if she ever received a visit from the police in connection with the arrest warrant for her husband which would appear to have been in effect since 1992. She stated that she did not. After E. left Peru, M. and the family lived in villages outside of Lima and in 1992 moved back to the San Miguel District in Lima. If one were to believe that the Sendero Luminoso found her and inquired of her husband, it is difficult to believe that the police would not have located her to inquire of E.'s whereabouts when he did not return to seek a permanent discharge. Consequently, for all these reasons, the panel finds this evidence not to be credible and gives it no weight.

In the panel's view, no single implausibility or omission in both claimant's [sic] testimony or written information is especially significant. However, the cumulative effect of these omissions and implausibilities as they relate to the central issues in these claims cause the panel to find evidence not to be credible.

Based on this decision, the applicants raise the following issues in this application for judicial review:

1.      Whether the CRDD erred in law in determining that the applicant's stories were implausible;

2.      Whether the CRDD erred in not assessing the claims of the applicants on the basis of the information found to be true; and

3.      Whether the CRDD erred in placing weight on the arrest warrant issued against Endigo.

Implausibilities

[12]      It is important to note the Court of Appeal has stated that the CRDD is entitled to reject uncontradicted evidence based on implausibilities, common sense and rationality. When this is done, the question on judicial review is whether this conclusion is reasonable in light of the evidence presented. While the Court may more easily intervene in cases where there is finding of an implausible story than where there is a finding of lack of credibility, the standard of review is still a high one. In Aguebor v. Minister of Employment and Immigration, (1993), 160 N.R. 315, Mr. Justice Décary stated the following at pages 316-17:

It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inference drawn by the Refugee Division could not reasonably have been drawn.

[13]      On this issue, the applicants make some confusing arguments. The applicants argue that the finding that the stories were implausible is unreasonable in light of the evidence presented to the CRDD. In their written materials, the applicants assert:

The panel found it implausible that Endigio [sic] Caceres did not inform his superiors that the Sendero Luminoso planned to infiltrate the anti-terrorist unit through his son Renato. It must be remembered that the panel had previously found that Endigio [sic] Caceres was a member of the anti-subversive unit of the police and that Renato was recruited by the Sendero Luminoso. Consequently, although the panel did not articulate this, they must have found that Endigio [sic] Caceres did inform his superiors that the Sendero Luminoso planned to infiltrate the anti-terrorist unit through his son Renato. That is the only interpretation their finding of implausibility can bear. If that was indeed, their finding, then they had to further ask themselves what relation that finding had to do with the refugee definition. The panel does not find that because, contrary to his testimony, Endigio [sic] Caceres did inform his superiors that the Sendero Luminoso planned to infiltrate the anti-terrorist unit through his son Renato. Endigio [sic] fell outside the refugee definition. Nor could the refugee definition bear such an interpretation.

[14]      This judge has difficulty understanding this argument, in light of the fact that the CRDD expressly stated that it did not believe that Endigo, a member of the anti-terrorist unit of the police, would not, if the story were true, approach his colleagues to inform them of the activities of the Sendero Luminoso.

[15]      The applicants then argue that CRDD did not fully consider the evidence when it found it implausible that Endigo did not inform his superiors that the Sendero Luminoso planned to infiltrate the anti-terrorist unit through his son Renato. The applicants state that the country information filed at the hearing shows that fear gripped the country because of attacks by the Sendero Luminoso and the applicant Endigo did not discuss the threats to his family with his colleagues or superiors because it was a "delicate matter". The applicants state that given the widespread fear, if Endigo were to inform his colleagues that the Sendero Luminoso planned to infiltrate the unit, both Renato and Endigo would fall under suspicion by Endigo's own anti-terrorist unit.

[16]      However, at no time did the applicant relate this explanation to the CRDD, despite being given the opportunity to do so. All that the applicant stated was that the police would not have been able to assist him, even though he was a member of their forces. Without addressing the issue of whether the applicant meets the definition of a Convention refugee by establishing that he is unwilling or unable to avail himself of the protection of the state, it appears that the CRDD found it implausible that the applicant, being an agent of the state involved in particular with the activities of the Sendero Luminoso would not approach his colleagues with such information. That interpretation was reasonable for the CRDD to make in light of the evidence presented before it.

[17]      The applicants also argue that the CRDD erred in finding the applicants' story implausible based on the fact that nothing happened to the family for one year from the date of the beating to the time Endigo left Peru for the United States. In the case of Renato, the CRDD also found it implausible that nothing happened to him from 1989 until September 1992. The applicants assert that during this time, their mother was attacked twice and that they had to move, and consequently change schools several times in order to avoid the Shining Path.

[18]      This conclusion, however, is reasonably supported by the evidence. Given that the family claims to fear persecution on the basis of Renato's activities and Endigo's employment, and, in the face of the severe tactics of the Shining Path, the CRDD was entitled to conclude that the facts alleged were implausible. During the height of this family's problems with the Sendero Luminoso, the fact that the family did not report the problems, coupled with the fact that they did not attempt to move for one year in addition to the fact that Renato was not the subject of any attacks for a period of three years leads to a reasonable conclusion that the facts, as alleged are not plausible. Therefore, on this issue, the applicants' argument falls short of the standard necessary to invoke review, and setting aside.

Assessing the Applicants' Claims on the Information Provided

[19]      The applicants' second argument is that the CRDD erred by failing to assess their claims on the basis of the information found to be true. The applicants argue that the information found to be true by the panel was substantial and relevant to the determination.

[20]      However, reviewing the facts that the CRDD accepted as true, they relate only to the attacks on Maria, Endigo's wife. In particular, the CRDD states that:

. . . it is plausible that M. was a subject of random attacks which were rampant at that time in Peru. She spoke of mobilization orders, the presence of the army, searches of homes and car bombs which are substantiated by documentary evidence of occurrences between 1990 and 1992. However, we do not believe that she was attacked by the Sendero Luminoso due to the previous actions of her husband or her son who continued to live and go to school in Peru.

[21]      As such, the CRDD could not link the acts against her with persecution on a Convention ground. With respect to the other applicants, there was no other evidence of persecution accepted by the CRDD as plausible. As such, there was no other basis upon which to base their claims.

Arrest Warrant and the Duty of Fairness

[22]      The applicants take particular issue with the way in which the CRDD dealt with the arrest warrant and have alleged that its treatment in the decision amounts to an error of law and a breach of the duty of fairness.

[23]      The applicants state that the arrest warrant post-dates Endigo's flight, and is not central to his claim to persecution on the basis of his opinion and being a member of the police. They argue that if the panel considered the testimony about the arrest warrant central to Endigo's claim, the panel should have put the applicant on notice and given him an opportunity to corroborate this testimony. It was only after the reasons were issued that they realized that this testimony was central to the minds of the panel, as they aver.

[24]      The applicants also argue that the CRDD's finding, in which they state that if the Sendero Luminoso found her and inquired of her husband's whereabouts, the police would have similarly been able to find her when they learned that he had not returned after his temporary absence, is perverse and is not central to their claims as it is not the police they fear, it is the Sendero Luminoso.

[25]      On both of these points, it is important to note that the CRDD accepted that the arrest warrant was not central to Endigo's claim to persecution. The CRDD did state that the issue was relevant to the treatment he would face if he returned to Peru. On that point, he stated that he would be imprisoned with, and in close proximity to, members of the Shining Path, precisely the people from whom he is facing persecution. The CRDD does not, in any way, try to assert that the police are his persecutors. Rather, the finding that the police did not ask of Endigo's whereabouts goes to demonstrate that the CRDD did not believe that there was a warrant for the applicant's arrest, thus making his assertion that he would face persecution in prison irrelevant. While the applicant states that there is warrant for his arrest, as he was the one who raised this issue prior to the hearing, he ought to have provided corroborating evidence to prove this fact. The onus rests on the applicant to prove his claim, and in the absence of corroborating evidence, the CRDD was entitled to reach this conclusion.

[26]      The applicants' final argument is that the CRDD ought to have considered the claims of Renato separate from his parents, and was in error when it failed to do so. However, Renato's claim was based on the claims of the family as a whole and he did not testify at the hearing.

[27]      Accordingly, this application for judicial review is dismissed, and the CRDD's decision is affirmed.

[28]      The applicants' counsel proposes certification of the following question:

Does this Court have the power, under its jurisdiction to set aside a decision it finds to be perverse, to set aside a decision that a claimant is not a refugee on the ground that the testimony of the claimant is plausible when the Refugee Division finds the testimony of the claimant not to be plausible?

[29]      To this, the respondent's counsel replies:

The question proposed by the Applicant does not raise a serious issue of general importance as required by subsection 83.(1) of the Immigration Act. During the hearing, Mr. Matas indicated that this question is based on the reasons of Mr. Justice Noël in the case of Oduro v. M.E.I. (Tab 2, Respondent's Book of Authorities). However, Mr. Justice Noël's reasons are nothing more than an example of the type of statement which is often made in judicial review cases. A serious issue of general importance cannot be based on the statement that, "I would have been inclined to find otherwise . . . However, it is not for me to substitute my discretion for that of the board . . ." .

Furthermore, the question is not determinative of the case at bar. Unless your Lordship finds that there are aspects of the Applicants' testimony which you find plausible, contrary to the findings of the CRDD, then the answer to the proposed certified question can have no effect on the outcome of this case.

[30]      The respondent's counsel is quite correct. The Court declines to certify the above, or any question.

                                

                                 Judge

Ottawa, Ontario

September 28, 1998