Date: 19990603
Docket: IMM-3012-98
BETWEEN:
JUSTO DAVID TELLO MANRIQUEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] This is an application under s. 82.1(6) of the Immigration Act, for the judicial review of a decision of the Convention Refugee Determination Division ("CRDD") dated 1 May 1998, where a panel found that the Applicant was not a Convention refugee.
Background
[2] The Applicant is a member of the Quechua speaking ethnic group of Peru. Together with other individuals, Mr. Manriquez formed a musical group known as "Wichasun" that addressed issues of human rights abuses by government security forces against Peru"s peasants and native peoples in their music and performance.
[3] The Applicant testified that, as a result of such criticisms, and the group"s association with the Movement of Popular Artists, the government felt the group was likely involved in efforts to support the work of the anti-government forces known as "Shining Path".
[4] Mr. Manriquez testified that Wichasun"s musical director had been detained and tortured on a number of occasions by the security forces, and that the group had experienced general harassment. Ultimately, in 1992, a member of the group, Hernan Orozco, was murdered just before a concert the group was to perform in. Another member of the band who witnessed the murder reported the crime to the police complete with the military license of the attacker"s vehicle, but that the military"s involvement in the crime was subsequently covered up. Following this incident, Justo Manriquez made efforts to protect both himself and his family.
[5] In March of 1995, Justo Manriquez testified that he and another member of the group were detained by the police at a concert in Lima. He said that he was held for 15 days under the anti-terrorism laws and tortured during this time.
[6] During the summer of 1995, Wichasun had been invited to Canada to play at a number of events and it was during this time that Mr. Manriquez claimed refugee status on the grounds of perceived political opinion or membership in a particular social group.
The Panel"s Decision
[7] In their decision, the panel felt that Justo Manriquez was not a credible witness, on the basis that they perceived his testimony to be "sometimes vague, embellished and self-serving". Further, they felt that his testimony regarding his alleged detention and torture was improbable and in light of these reasons, found Mr. Manriquez not to be a Convention refugee.
[8] At pages 11-13 of the transcripts of the hearing, both members of the panel engaged the Applicant in extensive questioning regarding his own position, that of the group, Wichasun, and the Movement of Popular Artists of which Wichasun was a part, regarding the Sendero Luminoso or Shining Path opposition movement.
[9] These questions focussed around the Applicant"s assertion that he and the above groups were opposed to violence from all parties in Peru and yet appeared to the panel to be more openly critical of the government security forces.
[10] The CRDD did not accept the claimant"s evidence both with respect to his political opinions and the details of his persecution, and in this regard at page 2 of its decision said this:
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The panel believes finds [sic] that the government of Peru has a legitimate right to take steps to maintain public order and eliminate terrorism. In coming to that finding the panel does not condone human rights abuses and does take into consideration the documentary evidence which shows that the Peruvian authorities do not have an umblemished record with respect to human rights abuses. But, having said that, the panel is not satisfied that it heard credible or trustworthy testimony testimony with respect to the political convictions or views of the claimant. [emphasis added] Although this area of questioning was not explored in detail, the claimant did give evidence which suggested that he was involved in activities that, given the unsettled political and economic nature of life in Peru in recent years, might be seen to be anti-government in nature. He certainly left the impression that he was prepared to openly criticize the government of Peru for its abuses of human rights but was far less willing to denounce the atrocities and human rights abuses of the Shining Path and other armed guerrilla movements in Peru. |
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If the panel had believed the claimant's testimony that he was indeed targeted by the Peruvian security forces his claim to Convention status might have been upheld. But, after a very careful consideration of all the evidence placed before it, the panel members were unanimously not satisfied that the claimant was in fact targeted by the security forces of Peru or that he had ever been sought after by any government agency in Peru. |
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[11] I find within the CRDD"s above-quoted words constitute a misdirection which taints its decision.
[12] It is obvious from the passage quoted that the CRDD formed a negative opinion of the applicant because of his failure to criticize the Shining Path equally with the Government. In fact, this opinion led to the illogical finding that, while accepting the applicant"s evidence with respect to his differential criticism, his evidence of the nature of his political opinion should not be accepted.
[13] In my opinion, whether the claimant criticized the Shining Path is wholly irrelevant to reaching a conclusion on the credibility of his evidence respecting persecution by the Government. Although the CRDD does provide details of inconsistencies in the evidence to support its finding that the claimant was not credible, this analysis is made within the context of unfair condemnation.
[14] Given the degree of effort the CRDD went to in order to express its condemnation, I find that this feature of the decision played a major underlying part in the other conclusions reached. As a result, since the conclusions reached are based on an irrelevant consideration, I find they are reached in reviewable error.
[15] Accordingly, the CRDD"s decision is set aside and the matter is referred back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
Judge
Toronto, Ontario
June 3, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: JUSTO DAVID TELLO MANRIQUEZ |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: THURSDAY, JUNE 3, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: CAMPBELL J. |
DATED: THURSDAY, JUNE 3, 1999
APPEARANCES: Ms. Patricia Wells
For the Applicant
Mr. Michael Beggs
For the Respondent
SOLICITORS OF RECORD: Patricia Wells
| 344 Dupont Street, Suite 306 |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990603
Docket: IMM-3012-98
Between:
| JUSTO DAVID TELLO MANRIQUEZ |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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