Date: 20070319
Docket: IMM-1537-06
Citation: 2007
FC 291
Ottawa, Ontario, March 19,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ROBERTO AUGUSTO ARMAS CORNEJO,
MILENA FABIOLA ALARCON CUADROS,
XIMENA DANIELA ARMAS ALARCON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
On this
application for judicial review the Applicants, Roberto Augusto Armas Cornejo,
Milena Fabiola Alarcon Cuadros and Ximena Daniela Armas Alarcon (claimants),
challenge an unfavourable decision of the Immigration and Refugee Board (Board)
rendered on February 24, 2006. For the reasons which follow I allow their
application and direct that this matter be returned to the Board for reconsideration
on the merits. Before the Board, the Respondent Minister took the position
that Mr. Armas was inadmissible but that argument was rejected and it is not in
issue in this proceeding.
Background
[2]
Mr. Armas’
claim to protection was based on allegations that he was the target of certain
former members of the Peruvian Intelligence Service (SIN) for whom he and his
brother, Daniel, had worked as chauffeurs during the late 1990’s under the
infamous Fujimori regime. The Fujimori government collapsed in 2000 amid
widespread allegations of human rights violations including assassinations,
torture, intimidation and corruption – activities in which SIN was directly
implicated and which the Respondent appears to have acknowledged in its
position before the Board in challenging Mr. Armas’ admissibility.
[3]
Mr. Armas
contended that because he and his brother had knowledge of “names and faces”
they began to receive threats directed at ensuring their silence. Eventually
they were warned to leave Peru and both left for Florida with Daniel leaving in
August, 2000 and Mr. Armas following in October of that year. Mr. Armas also
testified that many of the SIN agents with whom he had worked remained in the
national police service or with the Peruvian armed forces. This evidence was
corroborated by documentary evidence submitted by Mr. Armas. It was contended
that those individuals were concerned about being exposed for their extensive
human rights abuses. This was the ostensible motivation for the threats that
were directed at Mr. Armas and his family. He also testified that he did not
fear the present government of Peru but only those members of the
national police service who had been employed by SIN.
The Board Decision
[4]
The Board
rejected the claimants’ claims but did accept that Mr. Armas and his brother
had worked for “a shadow organization” which was part of the Peruvian
intelligence apparatus. The Board found Mr. Armas’ credibility to be lacking
because of “many unexplained inconsistencies in [his] actions”. It also
rejected his testimony about the absence of state protection relying, instead,
on documentary evidence that the current Ministry of Justice has investigated a
wide range of “misdoings” by the former regime and has detained a number of top
former government officials. The Board also concluded that the claimants’ had
failed to make reasonable efforts to seek state protection before leaving Peru.
[5]
The Board
rejected Mr. Armas’ claim that he genuinely feared a return to Peru based on
the initial delay in leaving and on the failure of the “claimants” to seek
asylum in Florida upon first arriving there.
It also found an inconsistency between the evidence that Mr. Armas’ wife and
child were in hiding in Peru but, nevertheless, exposed
themselves to discovery by applying for passports. On the strength of this
supposed inconsistency, the Board found it to be improbable that the family was
in hiding at any time.
[6]
Finally,
the Board considered it to be important that Mr.Armas’ brother ostensibly
returned to Peru and that this “voluntary” reavailment
undermined the claims of Mr. Armas and his family as similarly situated
individuals.
Issues
[7]
(a) What
is the appropriate standard of review for the issues raised by the claimants?
(b) Did the Board make reviewable errors
in its treatment of the evidence before it?
Analysis
[8]
Because
the determinative issues in this case are all evidence-based, the standard of
review is either patent unreasonableness or reasonableness simpliciter.
However, because I have concluded that the higher standard has been met in this
case, it is unnecessary for me to conduct a detailed analysis on this issue.
[9]
There are
many problems with the Board’s treatment of the evidence which cumulatively
render its decision patently unreasonable. Indeed, some of those mistakes are
sufficiently serious, that they alone justify the setting aside of this
decision. These include failures to consider material evidence, significant
mischaracterizations of the evidence and a failure to recognize important
evidentiary distinctions among the three claimants.
[10]
One of the
Board’s key findings in rejecting these claims was that Mr. Armas’ brother had
returned to Peru to rejoin his family there.
The significance of the brother’s behaviour to the claimant’s claim to
protection was described as follows:
It can not be added that one could find a
more similarly situated individual than the principal claimant’s own brother.
They, after all did the same work, faced similar threats and allegedly fled the
country for similar reasons.
Accordingly, the Board finds that it is
not reasonable to accept that these claimants are more at risk in Peru than the
brother who has decided to voluntarily re-avail himself of the protection of
his home state.
[11]
The
problem with this finding of supposed reavailment is that Mr. Armas had
testified that his brother had returned only briefly to Peru (for about 3 days) before leaving for Chile to be reunited with his family there.
According to Mr. Armas, his brother’s spouse and children could not obtain visas
to enter Canada and his marriage was
threatened after several years of separation. Near the end of the hearing the
Board asked Mr. Armas to attempt to obtain evidence to corroborate his evidence
that his brother was in Chile. Although that evidence was
provided after the hearing it is nowhere referenced in the Board decision. Instead,
the Board concluded, in the absence of any evidence, that the brother remained in
Peru.
[12]
It seems
fairly obvious that the Board completely overlooked a considerable amount of
material evidence including a lengthy submission by the claimant’s counsel
submitted on November 14, 2005 after the hearing. This was material that the
Board agreed to accept. Included in that package were extensive submissions
and reports which contradicted the Board’s ultimate conclusions concerning the
availability of state protection. A good summary of that contrary evidence is
contained in the following passage from Counsel’s post-hearing submissions to
the Board:
In August 2004, the US Department of State
reported (at p. 1.3.8) that the government of Peru “is now weighing its response to the
CVR’s [TRC’s] recommendations that human rights violators be tried…”.
The US DOS Report on Human Rights
Practices for 2004 (February 2005) reported that during the year the government
“filed charges in 47 cases involving 150 persons whom the TRC identified as
possible human rights violators, but most cases remained under prosecutorial
investigation; only 16 persons have been formally charged.” (p. 2.2.16)
Human Rights Watch World Report 2005
states: “Peru’s progress in carrying out
the recommendations of its truth commission…. has been disappointingly slow.
Movement toward prosecuting state officials responsible for the worst human
rights violations has been obstructed by military courts. Civilian prosecutors
have advanced significantly in only a small number of cases.” (p. 2.3.1) The
special prosecutor’s office mandated to investigate 159 cases of disappearance
and another 43 cases referred to it by the TRC has filed charges in only 5
cases. None of the defendants is in detention. In addition, more than forty
former members of the Colina group are currently detained awaiting trial.
(p.2.3.2)
With respect to corruption under Fujimori
(as apposed to human rights abuses), the investigating attorney stated in
January 2002 that the extensive inquiry “will last more than five years”.
(p.2.4.7)
Finally, most recently Peru is seeking
the extradition of Fujimori himself from Chile. (See new evidence, faxed herewith: Washington
Post, November 7, 2005)
The male claimant testified that the SIN
agents he worked for as a driver were members of the police and the military.
The aforementioned evidence shows that the investigation and prosecution of SIN
agents for human rights violations is an ongoing, but slow and lengthy
process. The evidence also shows that many possible suspects are currently in
the police force, or, even if under investigation or facing charges, are not in
detention (i.e., at large or under house arrest). According to an editorial of
January 30, 2005 (C-6, Item 2, p. 5) the courts have released some members of
the Colina Group death squad due to “excessive detention” before trial. The
evidence shows, as well, that Montesinos himself exercises considerable power,
over the press and the “mafia”, from within prison. (See C-5, Package B, Item
5, p. 8; Peru Index, 2005, pp. 2.2.12,
2.4.7) Montesinos, while admitting the corruption charges against him, has not
admitted human right violations. (See C-5, package B, p. 11, April 20, 2004.)
That is, it is submitted that the agents
who the male claimant drove, and the “high-level officials of the national
Intelligence Service” who the TRC holds “criminally responsible for the
assassinations, forced disappearances and massacres by the ‘Colina’ death
squad” (Peru Index, p. 2.1.15) have every reason to anticipate that,
eventually, the authorities will get round to investigating them, or, if
already investigated, the authorities lack the direct identification evidence
which the male claimant and his brother Daniel could provide. They therefore
have every reason to ensure that the male claimant and his brother Daniel ware
not around to provide that evidence. This is even more so if Fujimori is
successfully extradited to Peru to face the charges laid
against him.
At the same time, it is evident that the
people who have been threatening the male claimant and his brother since August
2000 to the present, are free (that is, not detained) to carry through with
their threats to silence them, or as in the case of Montesinos, are able to
silence the male claimant from within prison. It is doubtful that the
authorities would be able to provide adequate protection, even if they were
willing. It is clear from the materials that the present government is
attempting to rebuild the democratic institutions of the state, but these
institutions are fragile. Further, there is considerable popular support for
the return of Fujimori. The DOS report makes clear that there are serious problems
of impunity within the police, who still practice torture, and witnesses are
threatened and intimidated from filing charges against security forces (police
and military) human rights violators. There is a lack of faith in the justice
system. At page 2.2.7 the DOS Report states:
The PNP was considered undermanned, had
problems with professionalism, and was often ineffective against common
criminal activity, and unable at times to meet its mandated responsibilities, such
as witness protection.
Corruption and impunity were
problems.
While “judicial reform continued to be a
priority of the Government, its “implementation was irregular”. (p. 2.2.9)
Further, as noted above, many of the former SIN agents remain within the PNP.
There are examples of the assassination
or targeting of witnesses. See C-7, Item 3, June 25, 2005 where a witness
against a drug-trafficking organization was murdered. Montesinos and the SIN
were implicated in drug-trafficking. A news article of February 2, 2005 (C-6,
p. 8) reports the attack on two witnesses against an international
drug-trafficking ring. One was killed. A news article (C-7, Item 4, undated)
reports that a PNP officer, Major Gavidia, states he was threatened by Felix
Murazzo, former Minister of Internal Affairs (i.e., responsible for the PNP) in
Fujimori’s regime, and a former SIN agent, to remain silent about Murazzo’s
ties with Montesinos. Major Gavidia says: “…he tried to silence me through
threats. That is why I hold Murazzo responsible for whatever happens to me or
my family”. Even a police major does not feel safe.
[13]
The above
evidence is simply ignored in the Board decision. Other evidence included
within the November 14, 2005 submission to the Board but nowhere noted in its decision
are medical reports concerning the minor claimant and corroborating
correspondence from Mr. Armas’ parents in Peru.
[14]
On this
point it is noteworthy that in footnote 2 to the Board decision the only material
from the claimants’ counsel noted to have been reviewed is a submission dated
November 4, 2005 dealing with the issue of Mr. Armas’ admissibility to Canada. No mention whatsoever is
made of the November 14, 2005 submission and the only reasonable inference to
draw from this is that this material evidence and counsel’s related arguments were
overlooked by the Board. This failure to reference key evidence has frequently
been found to be a reviewable error and for this point I would refer to the
recent decision of Justice Judith Snider in Jones v. Canada (MCI),
[2006] F.C.J. No. 591, 2006 FC 405 at para 37:
[37] As a general proposition the Board
is entitled to prefer some documentary evidence above others (Maximenko v. Canada (Solicitor General), [2004] F.C.J. No. 606, 2004
FC 504 at para. 18). It is also trite law to say the Board need not refer to
every piece of evidence before it (ibid.). However, if the Board fails
to discuss important, contradictory evidence, then this Court may conclude that
the Board ignored or misapprehended key facts and came to an erroneous decision
(Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1425 (T.D.) at para. 17). The questions becomes whether,
overall, this evidence is “so important and vital that failure to acknowledge
it may constitute a reviewable error” (Johal v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1760 at para. 10 (T.D.)).
In my view, the evidence that I have identified above falls into this
category. The Board’s failure to acknowledge and weigh this evidence is a
reviewable error.
[15]
The Board
also erred in its common treatment of these three claims to protection. It
seems to have concluded that the claims by Ms. Alarcon Cuadros and by the minor
child were entirely derivative from that of Mr. Armas. While there was
certainly some overlap among these claims and Mr. Armas was at the root of all
of them, the Board had an obligation to examine the evidence of individualized
risk. In fact, there was considerable evidence of threatening behaviour
specifically directed at the child and at Ms. Alarcon Cuadros after Mr. Armas
had come to Canada. Apart from the Board’s
global rejection of “the claimants’ allegations of a well-founded fear of
return to Peru” this evidence is totally
ignored. The unwarranted conflation of these claims is further magnified by
the Board’s sloppy treatment of the issue of delay. Although Mr. Armas was in
the United States for a few weeks before
claiming protection in Canada, his spouse and child were
not. They came to Canada later on and immediately
claimed refugee protection. Notwithstanding this evidence the Board wrongly attributed
delay to all of the claimants in the following passages from its decision:
The claimants left Peru on October 04,
2000 and went to the United
States of America
for over 1 month before coming to Canada
on November 17, 2000. The United
States is a
signatory to the 1967 Protocol, the claimants made no effort to seek protection
in that country. In my opinion, this constitutes conduct inconsistent with a well-founded
fear of persecution, and such conduct has been held by the Federal Court to
have a negative impact on a claim.
…
The claimants’ failure to seek out
refugee protection or asylum in the U.S. does serious harm to any allegations
of fear in Peru. Whatever temporary status
that these claimants enjoyed while in the U.S. would ultimately end and therein cause
return to Peru.
[16]
There is another
obvious mistake in the decision where the Board confuses Mr. Armas with his
brother and repeats the error of the date of departure from Peru for his wife and child by stating:
The principal claimant states that tells
[sic] the Board that he left Peru on August 23, 2000 and was joined there by
his brother, Roberto [Mr.
Armas] along with
the spouse and the minor claimant in Miami
on October 4, 2000.
[17]
All of
these errors are serious in their own right and indicate quite strongly that
the Board not only overlooked evidence but was also confused about the evidence
that it was relying upon.
[18]
The Board’s
negative plausibility conclusion dealing with the supposed inconsistency
between Ms. Alarcon Cuadros’ passport application and her ostensible attempt to
hide from Peruvian authorities is also somewhat contrived. Although Ms.
Alarcon Cuadros was apparently attempting to keep a low profile in Peru, her evidence indicated that her
whereabouts had been uncovered and she was faced with repeated threats to her
safety and to the safety of her daughter.
In addition, the agents of alleged persecution were in the
national police service and not part of the governing administration.
Presumably the only realistic and lawful means of getting out of Peru was with a passport. Faced with a
choice of remaining in Peru under a continuing threat or
seeking a passport as a means of escape, choosing the latter option cannot be
reasonably described as improbable or implausible. Indeed, seeking a passport
in the context of the actual evidence before the Board would not have placed
Ms. Alarcon Cuadros in any position of increased risk beyond that which she and
her daughter already allegedly faced.
[19]
The
Board’s decision in almost all of its aspects is patently unreasonable and
cannot be allowed to stand. In the result this application is allowed with the
matter to be remitted to a reconstituted Board for a re-determination on the
merits.
[20]
Although
I cannot identify an issue of general importance arising from this decision, I
did leave open to the parties the opportunity to consider that issue. In the result,
the Respondent will have seven (7) days to propose a certified question, if
any, with a right of reply within the three (3) days following.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed
with the matter to be remitted to a differently constituted Board for re-determination
on the merits.
"R. L. Barnes"
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