IMM-3305-96
BEFORE:
CARLOS
HUMBERO GONZALES FARIAS,
YAZMINA
FRANCIS ARANCIBIA LOYOLA,
Applicants
-
and -
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS
FOR ORDER
LUTFY J.
The applicants were members of a
“neighbours’ association”, a group of political dissidents in the suburbs of
Santiago, Chile, and eventually were among its leading organizers.
In April 1994, two of their
colleagues were arrested by the police. One was found in a coma and
hemorrhaging internally as a result of blows to his head and chest. He died a
few hours later.
In July 1994, the male applicant was
arrested during an altercation between some young people in the neighbourhood
and the security forces. He was held, beaten and freed three days later.
Surveillance of the neighbourhood by the security forces was stepped up. The
police stopped other demonstrations. The applicants are convinced that the
police station was protecting drug distributors and vendors in the area.
In June 1995, the applicants sought
their fellow citizens’ support in order to ask the senior authorities in
Santiago to dismantle the neighbourhood police station. Again, the applicants
were arrested, interrogated, beaten and harassed. They were freed the day
following their arrest. Two days later the applicants went to a radio station
to publicly denounce the conduct of the police officers. According to their
Personal Information Form, the applicants made the following statements:
[Translation] We were the
first to denounce the sale of drugs in our neighbourhood. We especially
denounced the complicity of the security forces in the area in this matter....
We denounced the local carabineros as being responsible for torture,
arbitrary detention, assaults against the people, etc. We openly asked that the
central government put an end to the institutional corruption and the failure
to prosecute the armed groups that act within the country as if Chile was their
personal property. We asked that the people be heard and that the police
station in question be shut down. We held the authorities accountable for any
violence to our persons and to the neighbours in the area.
In the hours following this denunciation, the
police searched for the applicants and one of their colleagues. They found the
latter, took him to the police station and beat him. The applicants think he
has now disappeared. In late June 1995, they requested refugee status in
Canada.
During the hearing, the members of the
Refugee Division asked no questions about these events. After reproducing the
applicants’ Personal Information Forms over eight of the nine pages in its
decision, and making no comment concerning their credibility, the Refugee
Division concludes that the applicants are not Convention refugees. The reasons
for this decision are expressed rather briefly:
[Translation]
We pointed out that in Chile the
right of association is allowed, as are free elections. The abuses of the carabineros
have been declared, some have even been dismissed and one can also request the
protection of the authorities if one feels threatened.
The gentleman tells us he
requested protection for the neighbours’ association whose interests he was
defending, but when the time came to do so for him he did not do so. He took
the necessary steps to enforce the rules and protect the needs of this
association. He says he is a victim of reprehensible acts but he never acted
accordingly. How can he criticize the authorities for not having protected him
if he did not request this protection? Furthermore, we have reason to question
his fear of persecution, given that no step was taken to get the Chilean
authorities to protect him, while the documentation shows us that at a number
of levels protection may be granted to individuals who need it.
We think that the gentleman has
not discharged the burden imposed on him by law to demonstrate to us that he
has a reasonable fear of being persecuted were he to return to Chile, and the
same applies to the female applicant, who bases her claim on that of her
husband.
In Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada established the
guidelines for demonstrating a state’s inability to protect its nationals and
the reasonableness of the refusal by the refugee status claimant to actually
solicit such protection. La Forest J. stated, at pages 724-26:
. . . only in situations in which
state protection “might reasonably have been forthcoming”, will the claimant's
failure to approach the state for protection defeat his claim. Put another
way, the claimant will not meet the definition of “Convention refugee” where it
is objectively unreasonable for the claimant not to have sought the protection
of his home authorities; otherwise, the claimant need not literally approach
the state.
. . . clear and convincing
confirmation of a state's inability to protect must be provided. For example,
a claimant might advance testimony of similarly situated individuals let down
by the state protection arrangement or the claimant's testimony of past
personal incidents in which state protection did not materialize.
. . .
A subjective fear of persecution
combined with state inability to protect the claimant creates a presumption
that the fear is well-founded. The danger that this presumption will operate
too broadly is tempered by a requirement that clear and convincing proof of a
state's inability to protect must be advanced.
The Refugee Division did not rule on
the applicants’ credibility. Accordingly, the events they related must be taken
as proved for the purposes of judicial review. Judging by their version, the
applicants established the death and disappearance of two of their fellow
dissidents in the wake of police intervention. The applicants and their
colleagues were victims of persecution by state agents. They made certain
approaches to the police authorities and on the public airwaves without
positive result. On the contrary, the threats and police intervention
continued.
In my opinion, in accepting the
applicants’ credibility, the Division had to explain the additional concrete
steps the applicants should, in its opinion, have taken in order to obtain
state protection. In this case the agents of persecution are state agents,
which was not the situation in Ward, supra. The Refugee Division
criticizes the applicants for failing to make further approaches to the same
state apparatus that was responsible for the agents of persecution without
explaining, either at the hearing or in its decision what methods were
objectively and reasonably available to them. The Refugee Division’s omission
in this regard requires the intervention of this Court.
In Mehterian, [1992] F.C.J. no. 545, the
Court of Appeal concluded:
Subsection 69.1(11) of the Immigration
Act requires that the Refugee Division “give written reasons” for any
decision against the claimant. If this obligation is to be met, the reasons
must be sufficiently clear, precise and intelligible that the claimant may know
why his claim has failed and decide whether to seek leave to appeal, where
necessary.
In the case at bar, the reasons are somewhat more
fleshed out, but not enough to meet the threshold laid down by the Court of
Appeal. Furthermore, we would have more clearly understood these reasons if the
further steps required by the Refugee Division had been discussed at the
hearing.
For these reasons, this application
for judicial review will be allowed. The decision of the Refugee Division is
quashed and the matter is sent back to another panel for rehearing and
redetermination.
The parties did not suggest that this
matter raises a serious issue of general importance.
Allan
Lutfy
Judge
Montréal, Quebec
October 3, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF
RECORD
FILE NO. IMM-3305-96
STYLE:CARLOS
HUMBERO GONZALES FARIAS,
YAZMINA FRANCIS
ARANCIBIA LOYOLA,
Applicants
AND:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Respondent
PLACE OF
HEARING:Montréal, Quebec
DATE OF
HEARING:September 29, 1997
REASONS FOR ORDER OF LUTFY J.
DATED:October 3,
1997
APPEARANCES:
Marie-Josée
Houlefor the applicants
Édith Savardfor
the respondent
SOLICITORS OF RECORD:
HOULE, TETLEY
Montréal,
Quebecfor the applicants
George Thomson
Deputy Attorney General of Canada
Ottawa,
Ontariofor the respondent
Email this Content