Date: 20010828
Docket: IMM-5771-00
Neutral citation: 2001 FCT 957
BETWEEN:
OLGA PAULA BOLIVAR GASPARD
MARIA YSABEL CALLIRGOS BOLIVAR
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review from a decision by the Refugee Division ("the tribunal") on October 6, 2000 that the plaintiffs are not Convention refugees.
FACTS
[2] Maria Ysabel Callirgos Bolivar ("the principal plaintiff") and her mother Olga Paula Bolivar Gaspard are citizens of Peru. They alleged a fear of persecution in their country of origin for their political opinions and membership in a particular social group.
[3] The plaintiffs were born in Callao in the suburbs of Lima, where they have always lived. The principal plaintiff allegedly completed 19 years of schooling, including studies in law, at the conclusion of which in 1992 she obtained a law degree and the following year was admitted as a member of the Lima Bar. Most of her work was for a government institution, [TRANSLATION] "National Taxation" ("NT"), from 1994 to the end of 1998.
[4] The principal plaintiff lived with her mother, a widow since 1975 and the mother of six sons, one of whom was granted refugee status in Canada in 1992. The plaintiffs' problems resulted from the work which the principal plaintiff apparently did from 1996 onwards as assistant counsel to the counsel for investigating and resolving cases in the NT. As such, she was assigned to completely review the cases of four students who were members of the terrorist group "Shining Path", convicted for terrorism, and to the preliminary review of 20 other cases of people convicted of [TRANSLATION] "aggravated terrorism".
[5] In the case of the four students, the principal plaintiff claimed that she found that the latter had been tortured in prison by the police or the National Intelligence Service ("NIS") to force them to make guilty pleas. Despite an anonymous call from a person claiming to be with the NIS, advising her to affirm the decisions and convictions imposed by the lower courts, the principal plaintiff sent the Peru Supreme Court a report in which she rehabilitated the four students and proposed that the 20 other cases be immediately reviewed because of the irregularities discovered.
[6] Without holding a hearing, the Peru Supreme Court quickly acted on the principal plaintiff's recommendations and quashed the sentences of the four students, who were apparently released. The principal plaintiff did not know what had happened to the other 20 cases for which she recommended more complete review. She said she had had no contact with the four students released.
[7] The principal plaintiff maintained that from the time at which she submitted her report to the Supreme Court she encountered a multiplicity of problems: her best assistant was imprisoned, tortured and murdered by NIS people; her superiors took terrorist files away from her and changed her assistants; her aunt was injured in October 1998 when she was taking delivery of a booby-trapped package sent by the NIS to the principal plaintiff's mother; she said she was followed and constantly harassed on the telephone by NIS people in 1997 and 1998 - over a thousand calls - which urged her to submit her resignation to the NT, and she in fact did so in December 1998.
[8] The principal plaintiff claimed that she had unsuccessfully filed a complaint with the police station for the area in which she was living and even gone in person to the National Personal Security Department, but the officials did not take her request for assistance seriously. Although she said she and her mother changed their residence twice, the principal plaintiff maintained that the persons persecuting her continued to bother her, including sending her a direct death threat against herself and her mother in March 1999. She said this incident did not prevent her from completing her studies which she began in October 1997 with the Academy of Judges. Accordingly, on April 24, 1999 she took her final examination which opened up the possibility of her being appointed as a judge.
[9] Without waiting for the results of her examination, the principal plaintiff said she decided to leave Peru with her mother without delay. The plaintiffs, who both held valid passports with U.S. visas, flew from Peru on April 27, 1999, stopping in the U.S., where they remained for about ten days without requesting national protection. Using Canadian visas obtained in New York, the plaintiffs came to Canada by train on May 8, 1999. Two months later, on July 5, 1999, they claimed refugee status.
[10] The principal plaintiff claimed that she could not return to Peru, where she was still being sought by NIS agents who might kill her and harm her mother. She also pointed out that one of her brothers had been violently questioned about her barely two weeks prior to the hearing before the tribunal.
POINTS AT ISSUE
[11] 1- Did the tribunal apply the wrong burden of proof?
2- Did the tribunal err in concluding that the plaintiffs had presented no evidence of their subjective fear?
ANALYSIS
1- Did the tribunal apply the wrong burden of proof?
[12] The plaintiffs noted that the burden of proof that must be met is the balance of probabilities, not the subjective test used by the tribunal, namely [TRANSLATION] "to the tribunal's satisfaction". Accordingly, in the plaintiff's submission, the tribunal erred each time it indicated that the plaintiff had not satisfied the tribunal.
[13] For its part, the defendant indicated that the burden of proof was that of a reasonable chance of persecution, which means that the burden is less onerous than a probability of persecution.
[14] In order to determine whether the burden of proof imposed in the case at bar meets the rules laid down in Adjei v. Canada (M.E.I.), [1989] 1 F.C. 680 (F.C.A.), the defendant asked the Court to consider whether application of the test of a reasonable chance was used in respect of the facts in evidence, not merely confine itself to considering the use of the terms or expression used in the tribunal's reasons.
[15] The defendant relied on Osei v. M.E.I., 12 Imm. L.R. (2d) 49 (F.C.A.), in which the Federal Court of Appeal mentioned that what matters is to apply the right test, not formulate the test verbally.
[16] The defendant contended that in the case at bar it can be said that the test applied by the tribunal is the correct one, since it concluded its decision by saying that [TRANSLATION] "the evidence presented to the tribunal was insufficient to show that in the event the principal plaintiff returned to Peru there would be a ‘reasonable chance' of persecution, in accordance with Adjei."
[17] With respect, I cannot accept the plaintiffs' argument regarding the application of the burden of proof by the tribunal. The fact that the tribunal indicated that the plaintiffs had not satisfied the tribunal does not mean that the tribunal applied the wrong burden of proof.
[18] It appeared from the tribunal's conclusion that the tribunal knew the burden of proof on the plaintiffs, namely that they had to show a reasonable chance of persecution if they returned to Peru, and the fact that the tribunal used the word "satisfy" is only a means of indicating that the plaintiffs had not shown there was a reasonable chance of persecution. The fact remains that the plaintiffs had to "satisfy" the tribunal that there was a reasonable chance of persecution. This way of speaking does not indicate that the tribunal applied the wrong burden and there is nothing incorrect in the case at bar in the tribunal indicating that it was not satisfied that the evidence established a subjective fear.
2 - Did the tribunal err in concluding that the plaintiffs had not presented evidence of their subjective fear?
[19] Conclusions about a plaintiff's credibility are a matter for the tribunal. In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal indicated:
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 inferences drawn by the Refugee Division could not reasonably have been drawn.
[20] The plaintiffs maintained that the mere fact that the principal plaintiff did not produce exhibits showing the result of her work was not a reason undermining her credibility, since the fact that she swore that certain allegations were true created a presumption that they were.
[21] The plaintiffs further noted that the evidence received after the hearing specifically mentioned that the names of the accused in the cases which were reviewed could not be disclosed and therefore the plaintiff could not provide the evidence requested. The tribunal accordingly could not ask the plaintiff to provide what she was not entitled to give, and this was admitted even by a lawyer for the prosecution working in the Superior Court. In the plaintiffs' submission, the tribunal should have been satisfied with the plaintiff's testimony on this point.
[22] The plaintiffs noted that the tribunal had erred in not considering the evidence and reasons submitted in Exhibit D-2, which explained the reasons why the documents could not be supplied. In her affidavit, the principal plaintiff indicated that she testified at the hearing that the Court's decisions were not reported, but usually appeared in the government newspaper. She also mentioned that it might be difficult to find these resolutions as they took place some time ago and the newspaper's records were destroyed after a certain time. She also mentioned at the hearing that she would do what she could to obtain the resolutions. After the hearing she wrote to get these documents and her brother replied that it was impossible for her to obtain access to these records and recover these reasons.
[23] The principal plaintiff's brother then contacted Zoraidas Avalos Rivera to get access to the documentation sought by the tribunal. Mr. Rivera then sent a letter certifying that the principal plaintiff had done the work she said she had done and that it was not possible for him or for the principal plaintiff to disclose the names of the individuals whose cases had been processed by the principal plaintiff, including of course the documentation pertaining to this case.
[24] In this regard, the fact is that the tribunal's comments reflected the plaintiff's comments at the hearing. However, the tribunal did not specifically discuss the evidence obtained after the hearing which explained that the names of the accused could not be disclosed. Nevertheless, the tribunal was right to say, based on the plaintiff's testimony, that she had not made reasonable efforts to obtain the documents from the Peruvian Supreme Court. She did not make these efforts until after the hearing. I am prepared to admit that the evidence obtained after the hearing showed that the plaintiff had made efforts to obtain the documents explaining why the names of the students could not be disclosed. However, I do not feel that the tribunal's entire conclusion was vitiated by its conclusion regarding the plaintiff's efforts.
[25] The plaintiffs alleged that the principal plaintiff's lack of knowledge about the ad hoc committee could not lead the tribunal to conclude that the plaintiff was not credible, based simply on this lack of knowledge.
[26] The plaintiffs further argued that there was no rational connection between the plaintiff's knowledge about another review procedure and the specific information on how that procedure operated and whether the plaintiff had caused Shining Path supporters already convicted and imprisoned to be acquitted.
[27] In this connection, I do not think it is patently unreasonable for the tribunal to have concluded that a person working on reviewing files of persons unfairly convicted as terrorists should be aware of other remedies that existed for such unjustly convicted persons. At first sight this does appear surprising.
[28] The plaintiffs maintained that the tribunal's conclusion, namely that the plaintiff was able to go to her work without ever being bothered, was contrary to the evidence accepted by the tribunal, which recognized that the plaintiff had testified she was followed, received telephone calls demanding that she give up her job and had to leave her job in December 1998.
[29] In the plaintiffs' view, the tribunal's reasons should not be at variance with the summary of alleged facts given by the tribunal itself.
[30] Finally, the plaintiffs maintained that the tribunal erred in concluding, on the one hand, that the plaintiff continued going to work regularly despite the telephone harassment and other incidents involving the NIS which she suffered, but two paragraphs earlier the tribunal stated that she was unable to go in the usual way either to her work or to her courses without being bothered.
[31] In my opinion, the tribunal's conclusion was not unreasonable and reflects the plaintiff's testimony that she continued working and taking courses for three years. Contrary to what was argued by the plaintiffs, the tribunal did not conclude that the plaintiff had been harassed and was the victim of incidents caused by the NIS. The tribunal only reviewed the plaintiff's allegations in order to determine their credibility. In fact, the tribunal concluded that the plaintiff had not shown that she was actually harassed and even targeted by the NIS. The tribunal did not contradict itself and its conclusion was not unreasonable.
[32] Even if the tribunal erred on these points raised by the plaintiff, the fact remains that in paragraph 3 the tribunal concluded that even assuming that the principal plaintiff was credible she had not acted in the way a person would who feared for her life or safety. This conclusion is reasonable and supports the tribunal's decision that the plaintiffs are not Convention refugees.
[33] This application for judicial review is accordingly dismissed.
[34] In view of the dismissal of this application for judicial review the application that the plaintiffs' names be kept confidential in the style of cause of the decision to be published is also dismissed.
[35] None of the counsel submitted a question for certification.
Montréal, Quebec
August 28, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010828
Docket: IMM-5771-00
Between:
OLGA PAULA BOLIVAR GASPARD
MARIA YSABEL CALLIRGOS BOLIVAR
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
AND ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-5771-00
STYLE OF CAUSE: OLGA PAULA BOLIVAR GASPARD
MARIA YSABEL CALLIRGOS BOLIVAR
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 2, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: August 28, 2001
APPEARANCES:
Michel Lebrun for the plaintiff
Steve Bell for the defendant
SOLICITORS OF RECORD:
Michel Lebrun for the plaintiff
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Montréal, Quebec
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