Docket: IMM-26-11
Citation: 2011 FC 991
Ottawa, Ontario, August 11, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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CARLOS ANTONIO BARRIOS TRIGOSO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, dated 6 December 2010 (Decision), which refused
the Applicant’s application to be deemed a Convention refugee or a person in
need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The Applicant is a
citizen of Peru. He fears returning to that country due
to his involvement in political activity, which began in the mid-1980s when he
was a university student. As a student, he attended demonstrations against the
ruling party, the Accion Politica Revolucionaria de America (APRA) and became
known among the Juventud Aprista (the Young APRAs) as “The Terrorist.” In 1989,
the Applicant joined the Cambio 90 party, which supported Alberto Fujimori’s
campaign for the Peruvian presidency. He frequently discussed politics with his
customers and fellow merchants in the marketplace at Lima.
[3]
After Fujimori was
elected in 1990, the Applicant joined in “moralization” rallies against members
of the former APRA government who were suspected of being corrupt. These people
would be led from their homes and taken into custody by officers of the National
Intelligence Service (Servicio de Intelligencia Nacional [SIN]), one of whom
the Applicant recognized from his days in the Cambio 90 party.
[4]
In 1991, the
Applicant received an anonymous note threatening him with death. Because it referred
to him as “The Terrorist,” the Applicant concluded that it had been sent by the
Young APRAs.
[5]
In 1992, the
Applicant came to oppose Fujimori’s anti-union measures. He attended two
demonstrations against the government where he recognized the same SIN officer
whom he had seen at the moralization rallies. The Applicant claims that, in
July 1992, while police were breaking up an anti-government rally, he was attacked
by the same SIN officer and another man in a suit, both of whom tried to force
the Applicant to come with them before he escaped.
[6]
In December 1994, two
men identifying themselves as police officers approached the Applicant at his
workplace in the market and told him that they had caught the person who had
written the anonymous death threat in 1991. The Applicant claims that, when he refused
to go to the police station, they started dragging him away but he escaped.
[7]
In January 1995, the
Applicant was approached by the same SIN officer, who ordered him to stop. The
Applicant ran away in fear and, rather than return to his own home, went to
live at his aunt’s house.
[8]
In May 1995, the
Applicant traveled to the US. He remained there for more than 13
years without ever claiming asylum. He alleges that he did not know that he
could do so until 1998, at which time he was advised by his lawyer that it was
too late for him to make a claim. He also alleges that he applied for a work
visa but received no reply. The Applicant applied for a Peruvian passport in
2006. At that time, two strangers allegedly sought out the Applicant at his
house in Peru, one by telephone and the other by
personal visit.
[9]
The Applicant has
remained concerned that, if deported to Peru, he will be persecuted by APRA (which
forms the current government) due to his past anti-APRA activities. He also
fears being persecuted by SIN officers because he knows that they themselves
were involved in anti-APRA activities during the Fujimori administration.
Fearing that he would be deported from the US, he
came to Canada on 20 August 2008 and filed a refugee
claim two days later.
[10]
The Applicant
appeared before the RPD on 1 November 2010. He was represented by counsel and
an interpreter was present. The RPD refused his claim, having found that he was
neither a Convention refugee under section 96 of the Act nor a person in need
of protection under section 97. This is the Decision under review.
DECISION UNDER REVIEW
Nexus
[11]
The
RPD found that the determinative issue regarding the Applicant’s section 96
claim is nexus. Although the Applicant alleged subjective fear of returning to Peru, his
unsatisfactorily explained 13-year delay in claiming refugee status undermined
his credibility and caused the RPD to draw a negative credibility inference
with respect to subjective fear. Furthermore, he did not establish that his
fear was objectively well-founded.
[12]
The
Applicant did not provide sufficient persuasive evidence to demonstrate that he
was personally attacked during the July
1992 anti-government rally. Rather, it was more likely that he fell victim,
along with the rest of the crowd, to the police attempts to the break up the
protest.
[13]
The
RPD found that the Applicant’s belief that the Young APRAs issued the anonymous
death threat was speculation and also that the Applicant acted unreasonably in
running away from the police officers who approached him with the news that
they had arrested the person responsible. Similarly, the Applicant did not
provide a reasonable explanation for running away from the SIN officer who
approached him in January 1995, as there was no persuasive evidence to suggest
that the officer intended to harm him or to act in any capacity except an
official one.
[14]
With
respect to the Applicant’s forward-looking risk, the RPD found that there was
no persuasive evidence that the SIN or APRA would be interested in or target
the Applicant if he were to return to Peru today. There is no
reasonable explanation for the Applicant’s fear. He has been out of the country
for 15 years. The SIN was abolished in 2004, and there is no persuasive
evidence that its successor body has any intention of harming the Applicant. While
the political climate at the time of the Applicant’s flight from Peru was
turbulent, there is no persuasive evidence that his past opposition to the
Fujimori administration would make him a target, particularly considering that
the Fujimori administration is repudiated in Peru today. Moreover,
in 2009 there were no reported politically motivated killings, disappearances
or tortures in the Applicant’s home country and specific instances of past
abuses are not widespread. In addition, there is no evidence to support the Applicant’s
belief that the two people who sought
him out at his house in Peru in 2006 intended anything more than to
complete a background check for his Peruvian passport application.
Section 97
Risks
[15]
The
RPD found that the Applicant failed to establish a “specific, individualized
risk of harm” with respect to his section 97 claim.
ISSUES
[16]
The
Applicant raises the following issues:
a.
Whether the RPD erred
in its findings of fact and credibility or in its treatment of the evidence;
b.
Whether the RPD
conducted a proper section 97 analysis; and
c.
Whether the RPD
breached the duty of fairness by failing to provide an adequate recording of
the hearing.
STATUTORY PROVISIONS
[17]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear
of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité
et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection
de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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STANDARD OF REVIEW
[18]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[19]
The
first issue concerns the RPD’s findings of fact and credibility and its treatment of the evidence,
matters in which the tribunal has recognized expertise. The appropriate standard of review is reasonableness.
See Dunsmuir, above,
at paragraphs 51 and 53; and Ched v Canada
(Minister of Citizenship and Immigration), 2010 FC 1338 at paragraph 11.
[20]
The
second issue challenges the RPD’s section 97 analysis, which is a question of
mixed fact and law. The appropriate standard of review is reasonableness. See Saint Hilaire v Canada (Minister of Citizenship and
Immigration), 2010 FC
178 at paragraph 12.
[21]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
[22]
The
third issue challenges the adequacy of the recording and, consequently, the
fairness of the hearing before the RPD. Procedural fairness questions are
reviewable on a standard of correctness. See Toledo v Canada (Minister of Citizenship and
Immigration), 2005 FC
1572 at paragraphs 2-6; and Dunsmuir, above.
ARGUMENTS
The
Applicant
[23]
The
Applicant observes that a “significant portion” of counsel’s questioning
regarding the objective basis of the Applicant’s fear and his failure to claim
asylum in the US is inaudible
on the recording of the hearing. Given that lack of an objective was material
to the RPD’s rejection of the Applicant’s claim, the unavailability of a
complete transcript constitutes a breach of natural justice.
[24]
The
Applicant asserts that the RPD made no general credibility finding against him
and so must be assumed to have accepted all of his evidence as true. However,
it is obvious that the RPD did not accept the Applicant’s explanations with
respect to the following incidents: the July 1992 attack on him by two men
during the anti-government rally; the December 1994 attack on him by the two
men who identified themselves as police officers; the January 1995 encounter
with the SIN official; the two attempts by unidentified persons to contact the
Applicant at his home in Peru in 2006. In each instance, the RPD found that the
Applicant’s perception of the incident as a threat or a personal attack was
unreasonable. It “sanitized” the Applicant’s version of events to better suit its
own unreasonable inferences and erroneous plausibility findings, and it failed
to explain its reasons for doing so in clear and unmistakable terms. This, in
the Applicant’s view, constitutes a violation of the principles of natural
justice.
[25]
Furthermore,
the RPD ignored or misapprehended documentary evidence from 1997 which detailed
Peru’s human
rights abuses and which was supportive of the Applicant’s belief that these
incidents were of a threatening nature. As this Court held in Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425 at
paragraph 17, the more relevant and important the evidence, particularly
contradictory evidence, that is not mentioned by the tribunal the more willing
a court may be to assume that the tribunal erred in its findings of fact.
[26]
The
Applicant also challenges the RPD’s treatment of his reasons for failing to
make a refugee claim sooner. The RPD failed to acknowledge in its Decision that
the Applicant did apply for a work visa in the US but received
no response to his application. Moreover, his ignorance of how the asylum
system works should be believed, especially considering that the RPD did not
find him to be generally lacking in credibility. As the Federal Court of Appeal
stated in Shanmugarajah v Canada (Minister of
Employment and Immigration) (1992),
34 ACWS (3d) 828, [1992] FCJ No 583 (QL) at paragraph 3: “[I]t is almost always
foolhardy for a Board in a refugee case, where there is no general issue as to
credibility, to make the assertion that the claimants had no subjective element
in their fear ….”
[27]
With
respect to his section 97 claim, the Applicant contends that there is
uncontroverted evidence that he will be at risk due to his past political
activities if returned to Peru. The state is “actively permissive” of
human rights violations and corruption and protective of corrupt public
officials. Opponents of the state are under attack. The judiciary is politicized
and corrupt. The RPD’s failure to make a general negative credibility finding
means that all of the Applicant’s evidence should be accepted as truthful. Even
if the RPD had not accepted the Applicant’s claims, having accepted his
identity it was required to undertake a meaningful section 97 analysis. In
failing to do so, it committed a reviewable error.
The
Respondent
[28]
The Applicant argues
that the RPD failed to provide an adequate recording of the hearing but has
filed no supporting evidence, without which there can be no finding. In
addition, if credibility is not in issue, a transcript is not necessarily
determinative of the matter.
[29]
The
Respondent argues that refugee protection is surrogate protection and claims
for refugee protection are forward-looking. While evidence of past persecution
may support a well-founded fear of persecution in the future, it is evidence of
well-founded fear of that will occur in the future that is critical. The RPD
acted reasonably in finding that there was no persuasive evidence to indicate
that the current government of Peru would be interested in targeting the
Applicant more than 15 years after he first fled the country.
[30]
Although
the Applicant argues that it is unreasonable to expect claimants who are
ignorant of the asylum system to apply for protection, the jurisprudence is
clear that delay is relevant to the tribunal’s assessment of subjective fear.
[31]
The Respondent argues
that the RPD’s section 97 analysis was reasonable. The onus was on the
Applicant to adduce sufficient evidence to establish a prospective and
personalized risk of harm upon his return. In the RPD’s view, however, the
Applicant failed to provide any evidence to this effect.
The Applicant’s Reply
[32]
In
response to the Respondent’s assertion that the Applicant did not adduce
evidence regarding the deficiencies of the recording of the hearing, the
Applicant submits that he has provided a sworn affidavit in which he states
that important portions of the recording were inaudible.
The
Respondent’s Further Memorandum
[33]
The
Respondent submits that a review of the Certified Tribunal Record demonstrates
that the “vast majority” of the questions asked of the Applicant were audible
and the Applicant’s evidence is clear. At the end of the hearing, the RPD gave
permission for Applicant’s counsel to provide written submissions, which she
did and which the RPD considered. Any gaps in the transcript must be shown to
raise a serious possibility that the Applicant was denied a ground of appeal or
review. See Canada (Minister of Citizenship and Immigration)
v Liang,
2009 FC 955. The Respondent contends that there has been no prejudice in this
case.
[34]
The
Applicant challenges the RPD’s finding that he was not personally targeted in Peru but provided
no corroborating evidence that he was so targeted. The presumption that a
claimant’s sworn testimony is true can be rebutted by a failure to produce
corroborating evidence. The RPD recognized that, according to the documentary
evidence, Peru has a
democratically elected government and there have been no reports of
politically-motivated killings, kidnappings or torture. The Applicant’s
position amounts to disagreement with the manner in which the RPD weighed the
evidence, which affords no legal basis for the Court’s intervention.
ANALYSIS
[35]
The
RPD makes no credibility findings. The gist of the Decision is that the
Applicant provided insufficient evidence to establish a well-founded fear of
returning to Peru.
[36]
As
regards the Applicant’s own past experiences, the RPD found that there was
insufficient evidence to establish past targeting and, given the present
documentary package on Peru, there were no reasonable grounds to
expect prospective risk.
[37]
The
Applicant has attempted to attack the RPD’s findings on past targeting as being
disguised credibility and plausibility findings that have no evidentiary basis
and which overlook the available evidence on point. However, my reading of the
Decision and the transcript convinces me that this is not the case. The RPD did
not disbelieve that the events occurred; it simply could not accept the
interpretations and assumptions that the Applicant had placed upon those
events. The Applicant himself testified that he had no real basis for those
interpretations apart from his own fear.
[38]
When
he was asked why he thought he was being targeted in 1992 his answer was “I'm
not sure why, but possibly they identified me.” When he was asked why he ran
away from a security intelligence officer in 1995 and whether the officer was
trying to kidnap him or take him to the police station he said “I'm not sure.”
His explanation as to why he would not go with the two policemen in 1994 was
equally inconclusive.
[39]
When
he was asked why APRA and the present National Intelligence Services would
target him after 15 years, his answer was: “They never told me. I'm not sure,
but probably because of the information they think I have.”
[40]
The
Applicant says in his testimony “I am afraid, the fear is real.” But it is
clear that he could not offer anything persuasive from his own experiences to
justify that fear. The documentation also provided little in the way of support
for his fears. The Applicant has referred the Court to documentation emanating
from 1997, but the RPD examined the current country documentation which showed
that, despite past problems, there was no persuasive evidence that if the
Applicant were returned to Peru today, he would be targeted by the current
administration or its agents. Any fears the Applicant might have regarding the
current government of Peru or of members of SIN were speculative.
[41]
This
is the heart of the Decision. The Applicant raises other points but, even if
the Court were to accept them, they would not be determinative. The Applicant
has withdrawn any complaints he had regarding the adequacy of the record. Given
the lack of persuasive evidence on any personalized risk, the RPD’s section 97
analysis was reasonable.
[42]
I
can find no reviewable error with the Decision. Counsel agree there is no
question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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