Date:
20050415
Docket:
IMM-8297-04
Citation:
2005 FC 511
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 15, 2005
PRESENT: THE HONOURABLE MR. JUSTICE
HARRINGTON
BETWEEN:
ANDRES
ALEJANDRO RAMIREZ CEVALLOS
CARMEN
GERARDA RAYGADA TRELLES
DANIELA
EUGENIA RAMIREZ RAYGAGA
DIEGO
ANDRES RAMIREZ RAYGAGA
Applicants
and
THE
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
[1]
This involves a principal applicant and his
family, who are all Peruvian nationals. The Refugee Protection Division of the
Immigration and Refugee Board (the panel) determined that the applicants were
neither Convention refugees under section 96, or persons in need of protection
under section 97 of the Immigration and Refugee Protection Act, S.C.
(2001) c. 27.
FACTUAL
BACKGROUND
[2] Mr. Cevallos and his family claim
to fear persecution due to their political opinions and their membership in a
social group, the family.
[3]
Andres, the principal applicant, was the chair
of a neighbourhood committee in Talarita, in the city of Piura, Peru. He
alleges that because he defended the rights of the neighbourhood’s inhabitants
and he reported a representative for misappropriation of funds and abuse of
power, he was persecuted by the representative and the police collaborating
with him. The representative reportedly promised some money to the committee
for improvements in the community, and he allegedly kept that money for his own
ends.
[4]
He alleges being threatened by the representative,
detained and tortured by the police from December 17 to 19, 2002, on false
charges. Fearing for his life and that of his family, the applicant obtained
passports for his children and family, and left for Lima in January 2003. As
they had been tracked by the authorities, the applicants decided to leave Peru.
They headed to the United States and arrived at the Canadian border on March
19, 2003, where they claimed refugee status.
IMPUGNED
DECISION
[5] During the hearing before the
panel, it was determined that there were too many inconsistencies in the
applicant’s oral testimony to believe the merits of his story.
[6]
The panel determined that the applicant’s
explanations about the activities that he had organized in his community as
chair of the neighbourhood committee in Talarita were [translation] “difficult, vague, and hesitant”.
[7]
The explanations of the funds granted by the
authorities were implausible. According to the panel, it would be implausible
for the authorities to give financial assistance to a neighbourhood committee
against which they themselves continuously set up obstacles to prevent it from
legally existing.
[8]
Some companies made donations to his committee
to help with the necessary equipment to undertake the services offered. When
asked to explain why the companies would give donations to an organization that
is not legally registered, the applicant testified that companies wanted to
help the community and that they probably received tax exemptions. The panel did
not find his explanation of the tax system to be satisfactory.
[9]
Nor did the panel believe the applicant’s
testimony that he reportedly had a petition signed by 200 people from the
neighbourhood to the representative in support of his request for financial
assistance, and that he allegedly kept no copy for his records.
[10]
The applicant’s lawyer in Peru went to the
DIRCOTE (special antiterrorism unit) office for the first time as a friend to
learn about the applicant’s detention, and for the second time as counsel to
receive information on the subject’s case. The panel deemed that it was
inconsistent for the lawyer to show up at the police station without identifying
himself as a lawyer, and furthermore, the applicant had not submitted any
letter or report indicating the result of his lawyer’s efforts, leaving the
tribunal to believe that he had not been detained or tortured by DIRCOTE.
[11]
When invited to explain why the new chair of the
committee reportedly mentioned the incidents that had occurred with the representative
in a letter addressed to the applicant after he arrived in Canada, the
applicant supposedly gave no explanation.
[12]
The applicant had also testified that he decided
to leave Peru in February 2003, whereas he had obtained passports for his
children in January, indicating that he did not have any subjective fear.
[13]
These findings by the panel are clearly errors.
ANALYSIS
[14] The Court can accept the argument
that some insignificant or decisive errors cannot invalidate the decision as a
whole (Miranda v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 437 (QL)).
[15]
However, it is difficult for the Court to accept
that any finding submitted by the panel to support its refusal of a refugee
claim is inconsistent with the evidence on record. The Court must intervene in
such cases, as set out in Kathirkamu v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 592 (QL), “The
Board’s decision is filled with so many errors and so few of its credibility
findings can be supported that the decision must be sent back for rehearing
from a differently constituted panel.”
[16]
Some examples of inconsistencies that were not
supported by the evidence include: (1) the applicant testified that the
committee would occasionally offer free breakfasts for underprivileged children
on Sundays, which is control to what the panel understood, that the breakfasts
were offered in the morning before school; (2) the applicant also testified
that his committee organized street barbecues that families from the
neighbourhood attended and that the profits from those barbecues went to
families in the same neighbourhood. However, the applicant did not say that the
families that participated in the barbecues were the same families that were aided
by the fundraising. (3) The applicant testified that he received the passports
for his children a month before his departure from Peru because he planned on
leaving, but decided to move to Lima to see if the situation improved. He gave
a clear explanation for the one-month delay before he left for Canada. (4)
Finally, when pushed to answer why companies made donations to his committee,
he explained that they wanted to help the community and that they probably
received tax exemptions. The panel seemed to have forgotten that the
application was a refugee claim and not a review of the Peruvian tax system.
[17]
Not only must we presume that an applicant tells
the truth (Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 (C.A.), but there is not a single shred of
evidence to justify the panel’s refusal to believe Mr. Cevallos. When a
decision is made in the absence of evidence to support it, it is a patently
unreasonable error.
ORDER
The
Court orders that the application for judicial review be allowed. The Board’s
decision is dismissed, and the matter is sent back for rehearing by a
differently constituted panel so that it can make a new decision on the matter.
No serious questions of general importance are certified.
“Sean
Harrington”
Judge
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: IMM-8297-04
STYLE OF CAUSE: ANDRES
ALEJANDRO RAMIREZ CEVALLOS
CARMEN GERARDA
RAYGADA TRELLES
DANIELA EUGENIA
RAMIREZ RAYGAGA
DIEGO ANDRES
RAMIREZ RAYGAGA AND
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 6, 2005
REASONS
FOR ORDER
AND ORDER: HARRINGTON
J.
DATED: APRIL 15, 2005
APPEARANCES:
Geneviève Clermont FOR
THE APPLICANTS
Ian Demers FOR THE
RESPONDENT
SOLICITORS OF RECORD:
Geneviève Clermont FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney General of Canada
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