Docket: IMM-195-16
Citation:
2016 FC 820
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 19, 2016
PRESENT: The Honourable
Mr. Justice Roy
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BETWEEN:
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ABDEL KUDY CACHA COLLAS
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
As is too often the situation in cases in which
the government claims that people are inadmissible under section 34 of the
Immigration and Refugee Protection Act, SC 2001, c 27 (the Act),
this case is nebulous and the facts on which it relies were established
inadequately.
[2]
Mr. Cacha Collas filed an application
for judicial review of the decision by the Immigration Appeal Division (IAD),
which had itself reversed the Immigration Division’s (ID) decision. The
application for judicial review was made under section 72 of the Act.
[3]
The ID concluded that the government had not
established reasonable grounds to believe that Mr. Cacha Collas had
engaged in terrorism and that he had been a member of an organization that had
engaged in terrorism. The IAD came to a diametrically opposed conclusion, which
is the conclusion of which the applicant is seeking a judicial review.
I.
Facts
[4]
I find that the simplest way to present the
facts in this case is based on the facts that the government tried to present
before the ID, which constitute the Crown’s theory at its height whether the
elements available had all been admissible and which, had they been received in
evidence, allegedly would have sufficed to establish reasonable grounds to
believe, in order to arrive at the facts that were presented before the IAD. As
will be seen, those facts are clearly different from what the government
believed could be used and the residue is far from that initially submitted by
the government. The question that must then be resolved is whether these facts
suffice, in a reasonable manner, to establish reasonable grounds to believe.
[5]
The ID rendered its decision on
May 29, 2013, in which certain key facts were established, which are
not in dispute.
[6]
The applicant is a citizen of Peru and was born
on December 14, 1968. He lived in the District of Huaura, where he
was a farmer. On July 24, 1993, while he was in the Province of
Huara to, as he stated, buy avocado plants, he allegedly got caught in a
raid by the army and police. The exact circumstances of his interception are
unclear. It seems that he was arrested and beaten, apparently to the point of
unconsciousness, and allegedly ended up in a different, unknown location. It
seems that the applicant had signed a purported 100-page document in which he
admitted that “he was guilty.” Tried before a
military tribunal less than three weeks later, i.e. on August 13, 1993, he
was convicted of treason. It is understood that the only evidence presented
before the domestic court that specializes in terrorism cases was the written
statement that he had signed. Following his treason conviction, he was
sentenced to life in prison.
[7]
It would appear that the conviction for treason
is related to activities led by Mr. Cacha Collas in connection with
his alleged membership in the Shining Path (Sendero Luminoso)
Peruvian terrorist organization. It is undisputed that this well-known
organization is a terrorist organization within the meaning of section 34
of the Act. However, what is pointedly disputed is whether
Mr. Cacha Collas is a member of this organization and, even more, his
involvement in criminal offences.
[8]
Before the ID, the government relied on the
conviction recorded against Mr. Cacha Collas. As indicated at the
outset, if such a conviction was appropriate, one can infer that it would have
allegedly been difficult to contest the presence of reasonable grounds to
believe in membership in a terrorist organization. At the very least, this
would be an important element to consider.
[9]
The government also put forward a document
involving Mr. Cacha Collas, which was allegedly raised ten years
later (on February 3, 2004) to implicate the applicant and other
persons in acts of sabotage against a factory, assassinating a police general,
and transporting explosives. The document was allegedly a Peruvian judgment.
This involvement by the applicant was somewhat odd because he had been released
from his prison sentence on July 8, 2001, on humanitarian and
compassionate grounds related to his state of health. Moreover, it is
understood that this document does not target the applicant. It instead seems
that he is mentioned in the narrative involving other persons accused of
participating in terrorist acts that were allegedly committed by and on behalf
of Shining Path.
[10]
That statement is even more bizarre given that
most of the indicted were acquitted given that the evidence against them had
been obtained under torture. It was unclear just how the respondent allegedly
hoped to make use of this document. As we shall see further on, the IAD
disposed of it.
[11]
The ID had to conclude that the statement made
by the applicant had been obtained under torture and the ID therefore had to
dismiss the conviction for treason that, consequently, can no longer support
the reasonable grounds to believe in any membership in a terrorist group. The
government also claimed that it was able to find support for two pieces of
evidence. It falls back to a book that was allegedly written by a certain
Colonel Benedicto Jiminez, which states at page 181 of the
document that Mr. Cacha Collas was in possession of numerous
documents at the time of his arrest, which linked him to the Shining Path
organization. The contents of these documents are unknown and the government claims
that the author is credible because he was allegedly in charge of the National
Anti-Terrorism Directorate in Peru. Lastly, there was an article in the La Republica
newspaper dated August 14, 1993, which mentioned
Mr. Cacha Collas. The ID examined the three relevant pieces of
evidence submitted by the government. Whereas the government claimed that the
torture allegedly took place after Mr. Cacha Collas was convicted, it
was relatively satisfied by the testimony deemed credible, repeated numerous
times, that the torture allegedly took place when the incriminating statement
was recorded, long before the military tribunal conviction.
[12]
Colonel Benedicto Jiminez’s book did
not carry a lot of weight in the eyes of the ID. It is alleged that the book is
available on the Internet and that it is [translation]
“difficult to follow.” As such, it constantly
refers to aliases or nicknames that seem to be used by different people for the
same surname. The author of said novel was convicted twice for defamation.
Lastly, in most of the cases these same protagonists mentioned in the book were
acquitted of the terrorism offences because their statements had been given
under torture.
[13]
According to the Immigration Division, [translation] “without
that incriminating statement, there is no link between
Mr. Cacha Collas and the Shining Path organization, nor evidence
of any terrorist acts committed by him. Newspaper articles, more specifically,
Exhibit C-19, do not suffice to meet the criteria for membership in a
terrorist organization based on reasonable grounds to believe.”
[14]
The cascade of evidence is significantly
diminished if the applicant’s conviction in Peru is tainted by such a serious
and important defect as that of a statement obtained by torture.
[15]
The record does not state what evidence against
the applicant in Peru had resulted in the conviction. His conviction allegedly
depended on the statement.
[16]
That decision was the subject of an appeal
before the Immigration Appeal Board (IAB). The IAB rendered its decision last
November 20.
II.
The decision for which judicial review is
requested
[17]
As noted, the government’s position was at its
best when it claimed that the incriminating statement leading to the conviction
in Peru served as evidence of Mr. Cacha Collas’ participation in a
terrorist organization. Once that evidence was excluded because it was
presumably obtained by torture, the government must look elsewhere for the
source of reasonable grounds to believe.
[18]
The government therefore tried to use a judgment
that had allegedly been rendered on February 3, 2004, by the Specialized
Anti-Terrorism National Tribunal in Peru, a judgment that had it impose
sentences on individuals charged with terrorism. Mr. Cacha Collas had
already left Peru after he was released in 2001, after serving almost nine
years of a life sentence in prison; however, his name was mentioned twice, and
there is a reference to his statement regarding his participation. Nonetheless,
it indeed appears that it is the same statement obtained by torture that
reappeared. What is more, all except one of the accused were acquitted. That
leads the IAD to conclude that the same outcome should be reserved for that
judgment as that for this incriminating statement (IAD decision,
paragraph 27). The IAD thus excluded both the statement and the reference
thereto in a subsequent judgment to which the applicant was not a party.
[19]
Another attempt to improve his case was for the
government to seek to draw inferences in relation to a former spouse who
allegedly tried to file a complaint about threats that the applicant uttered
against her. It was claimed that the alleged acts of intimidation by
Mr. Cacha Collas apparently resulted from the ex-spouse’s threat to
denounce him as a terrorist. The IAD again concluded here that it should not
retain this element put forth by the government, insofar as the complaint was
allegedly withdrawn and given that this spouse was unavailable for
cross-examination.
[20]
It was thus up to the government to establish
the basis of reasonable grounds to believe two elements: the article published
in the La Republica newspaper and Colonel Jiminez’s book.
[21]
The La Republica newspaper article
is dated August 14, 1993. In inflammatory terms, it details the
terrorist actions of 21 individuals, 9 of whom had been divulged to the
press the previous day. Of those 9 individuals, Mr. Cacha Collas
was photographed and identified, clearly wearing a prisoner’s uniform.
[22]
By all indications, the article stemmed from
police information. From the outset, a summary of the crimes committed is
presented as having been confirmed by [translation] “the
spokesperson for the National Anti-terrorism Directorate.” The
conviction for the murder of 3 Japanese agricultural specialists [translation] “is
conclusive.” According to one source, the detainees are also responsible
for the death of [translation] “eight police officers.” The article states [translation] “is
charged” in the death of two engineers and one agricultural technician.
The newspaper reports what was received from the authorities who made a
spectacle of the 9 individuals considered to be the most serious
terrorists since the article states that “they will be
subjected to a summary judgment before a military tribunal, their faces
covered, and they would be charged with treason against the homeland, an
offence that carries a life sentence.”
[23]
This finding that the article in the La Republica
is merely a clip on a press conference held shortly before, and probably the
day before, is confirmed by the fact that another article, published the same
day but in another newspaper, El Comercio, states more or less the
same.
[24]
The IAD lent credence to that article. In
response to Mr. Cacha Collas’ criticism whereby the article was
written the day after his conviction, he counters that the article is written
in the future tense: “will be subjected to a summary
judgment . . . and would be charged with treason against the homeland.”
The IAD considers it to be a factual story.
[25]
As regards Colonel Jiminez’s book, the IAD
also lends it a certain probative value. This finding has been accepted despite
the fact that in the section that is relevant to our case, the book lists a
hodgepodge of pseudonyms to the effect that it is difficult to determine who
allegedly did what. Moreover, the book is presented in story format, without
really supplying any information sources. It is a story from the perspective of
someone who believes he knows, not someone seeking to demonstrate.
[26]
The author seems quick to accuse since the
evidence indicates that he was found guilty of defamation twice (1-year conditional
sentence of imprisonment in 2012, and a 3-year conditional imprisonment
and 30,000 soles in civil damages to the victim). The IAD excluded this
hardship, mentioning that there is no defamation connected to the book itself.
[27]
What is rather surprising is the IAD’s statement
whereby an acquittal on terrorism-related charges, because an accused has been
tortured, in the case of an individual mentioned in the book, does not
necessarily mean that he was not a member of said organization.
[28]
In fact, the IAD worded its decision not by
emphasizing the newspaper article and the book passage, but rather by impugning
the applicant’s credibility. The purpose of undermining the applicant’s
credibility is to demonstrate that he is not believed when he says that he did
not participate in terrorist acts or belong to a terrorist organization.
[29]
The IAD must seek to examine the credibility of
Mr. Cacha Collas on a number of different fronts:
a)
a complaint filed in 2006 with the
Inter-American Commission on Human Rights (IACHR) allegedly contained erroneous
or, at the very least, exaggerated facts about Mr. Cacha Collas’
state of health; moreover, the IAD had serious concerns about the issue of the
applicant’s health;
b)
the IAD wishes to hold against
Mr. Cacha Collas that he testified before it about the circumstances
of his arrest and whether or not he was allegedly a target in the raid;
c)
in his Personal Information Form used to explore
personal information for the purposes of a claim for refugee protection,
Mr. Cacha Collas states that he was visited by
President Fujimori, from Peru, in August 1993. The person who
accompanied the President allegedly wanted Mr. Cacha Collas to help
clarify an attack on the Japanese workers. Apparently without questioning Mr. Cacha Collas,
the IAD concluded [translation] “that it is not conceivable that the President of Peru would
visit a person who had been arrested in an entirely arbitrary manner and who
had no ties to any terrorist activity.” That assertion is ambiguous. Is
the IAD saying that the situation was so insignificant that the President of
the country would not pay a visit and that, therefore, the applicant was
exaggerating? Or is the IAD implying that the President only visited because he
knows that the applicant is guilty?
d)
The IAD is bothered by the fact that
Mr. Cacha Collas had not obtained [translation]
“his court records” from Peru. However, the IAD
does not seem concerned that the Canadian government did not obtain them either
when it wanted to declare a Peruvian national inadmissible for his terrorist
actions. The IAD is even holding against the applicant the fact that he did not
try to appeal his conviction, nor have it quashed.
[30]
Thus, the IAD arrived at its ultimate
conclusion. The applicant is generally not credible. It also seeks support on
the two single elements of documentary evidence: the newspaper article and
pages from a book. It does not accept the circumstances around the taking of
the photo that accompanied the August 14, 1993 La Republica
article; it does not seem to accept that he was forced to participate in the
press conference organized by the police forces. It does not believe him when
he says that he does not know the two other people photographed with him. It
believes that the article is factual. The pages from the book confirm
participation in a terrorist organization.
[31]
Despite the fact that it agrees that the
confessions were allegedly obtained by torture, the IAD does not believe in
random arrests nor that Mr. Cacha Collas was not involved in
terrorist activities. We were never given an explanation. Having found a lack
of general credibility without actually explaining the reason behind the lack
of credibility, and its resulting inferences, the IAD considered the newspaper
article and the passages in Colonel Jiminez’s book to be credible and that
the applicant’s general lack of credibility constitutes reasonable grounds to
believe that he was a member of the Shining Path, a terrorist
organization.
III.
Issues and standard of review
[32]
The Court finds that two issues are raised:
a)
Did the IAD reverse the burden of proof?
b)
Were the assessments of the evidence and the
applicant’s credibility a reviewable error?
[33]
As it is said, a reviewable error is a standard
of review. In this case, the reasonableness standard applies to determine
inadmissibility for security reasons (Mirmahaleh v Canada (Citizenship and
Immigration), 2015 FC 1085).
[34]
Note that under the standard of review, the
Court must decide whether it is reasonable to conclude that there were
reasonable grounds to believe that the applicant is a member of an organization
engaging in terrorism. In so doing, the exercise must not be transformed into a
search, on a preponderance of evidence, of membership in a terrorist
organization. Instead, it involves determining whether there are reasonable
grounds to believe within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law, on the understanding that
reasonableness is related to justification of the decision, transparency and
intelligibility of the decision-making process.
IV.
Arguments and analysis
[35]
In my opinion, the IAD’s decision is not
reasonable within the meaning of Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir].
A.
Reverse onus
[36]
The first issue can be quickly resolved. The IAD
did not unduly reverse the burden of proof.
[37]
If I understand clearly, the applicant’s
argument is the claim that given that the IAD acknowledged that the applicant
likely endured torture, it could allegedly not state in the same breath that
this does not imply innocence. For the applicant, this implies that the IAD
requires him to prove his innocence.
[38]
Unfortunately, the syllogism proposed by the
applicant is defective. In fact, it is true that obtaining admissions through
illegal means, such as torture, renders the confessions inadmissible. In any
case, a statement that is not willing and voluntary is inadmissible in
Anglo-Saxon inspired law. But this does not infer innocence; this does not
prevent proving otherwise (obviously subject to a decision that to pursue a
case would then constitute an abuse of process). The burden is not transferred
to the person to demonstrate his innocence as long as the government must have
reasonable grounds to believe in membership in a terrorist organization.
[39]
The applicant confused exclusion of evidence and
burden. Quite simply, the excluded evidence cannot be used in rendering the
decision. But the IAD had to have reasonable grounds to believe, without the
ability to use, or even consider, the purported confessions. When the evidence
obtained by torture is excluded, are there reasonable grounds to believe?
[40]
For this reason, the IAD had to examine the
remaining evidence to find reasonable grounds therein. To do so, it assessed
the applicant’s credibility for any relevant purpose and retained the La Republica
article and the passages from Colonel Jiminez’s book.
[41]
It is understandable why the applicant is
uncomfortable. The facts used as a basis for the IAD to declare that it has
reasonable grounds to believe seem quite flimsy. It may seem that the burden
was placed on the applicant to establish his innocence because the information
retained is so tenuous.
B.
Is the decision reasonable?
[42]
The respondent acknowledges in its memorandum of
facts and law that the IAD only justified the reasons to believe related to
paragraph 34(1)(f). Thus, the allegation is no longer that the
applicant engaged in terrorism acts (paragraph 34(1)(c)), but
rather that he allegedly belonged to an organization described in
paragraph f. These paragraphs read as follows:
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34 (1) A permanent resident or a
foreign national is inadmissible on security grounds for
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34 (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
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. . .
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[…]
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(c) engaging in terrorism;
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c) se livrer au terrorisme;
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. . .
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[…]
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(f) being a member of an
organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a), (b), (b.1)
or (c).
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f) être membre d’une organisation
dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera
l’auteur d’un acte visé aux alinéas a), b), b.1) ou c).
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[43]
Since it is recognized that the
Shining Path is an organization described in paragraph 34(1)(f),
what remains is only to determine whether the applicant is a member.
Section 33 of the Act ensures that this membership does not need to be
established based on a civil burden of proof, that is, on a balance of
probabilities. Reasonable grounds to believe in membership in a terrorist
organization is sufficient:
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33 The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from
omissions and, unless otherwise provided, include facts for which there are
reasonable grounds to believe that they have occurred, are occurring or may
occur.
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33 Les faits — actes ou omissions
— mentionnés aux articles 34 à 37 sont, sauf disposition contraire,
appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
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[44]
Canadian case law has firmly established that
reasonable grounds to believe lie between mere suspicion and the standard
applicable in civil matters of proof. Thus, in Mugesera v Canada (Minister
of Citizenship and Immigration), 2005 SCC 40, [2005]
2 SCR 100, the Court endorses the Federal Court of Appeal decision in
Chiau v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 297 [Chiau], whereby the reasonable grounds
to believe lie between mere suspicion and the standard applicable in civil
matters of proof on the balance of probabilities. Chiau refers to
reasonable grounds to believe as being “a bona fide
belief in a serious possibility based on credible evidence”
(paragraph 60). The Supreme Court repeated the same notion to some extent
when it ruled that “in essence, reasonable grounds will
exist where there is an objective basis for the belief which is based on
compelling and credible information.”
[45]
It may be useful to compare reasonable grounds
to suspect with reasonable grounds to believe to shed light on the notion of
reasonable grounds to believe. An interesting articulation of the difference
can be found in George v Rockett, [1990] HCA 26,
(1990) 170 CLR 104, a decision by the High Court of Australia.
The Court had to articulate the difference since both tests are found within
the same section of the law:
13. In considering the sufficiency of a
sworn complaint to show reasonable grounds for the suspicion and belief to
which s.679 refers, it is necessary to bear in mind that suspicion and belief
are different states of mind (Homes v. Thorpe (1925) SASR 286,
at p 291; Seven Seas Publishing Pty. Ltd. v. Sullivan
(1968) NZLR 663, at p 666) and the section prescribes distinct
subject matters of suspicion on the one hand and belief on the other. The
justice must be satisfied that there there [sic] are reasonable grounds
for suspecting that “there is in any house, vessel, vehicle, aircraft, or place
- Anything” and that there are reasonable grounds for believing that the thing “will
... afford evidence as to the commission of any offence”.
14. Suspicion, as Lord Devlin said in
Hussien v. Chong Fook Kam (1970) AC 942, at p 948, “in its
ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I
suspect but I cannot prove.’” The facts which can reasonably ground a suspicion
may be quite insufficient reasonably to ground a belief, yet some factual basis
for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees
(1966) 115 CLR 266, a question was raised as to whether a payee
had reason to suspect that the payer, a debtor, “was unable to pay (its) debts
as they became due” as that phrase was used in s.95(4) of the Bankruptcy Act
1924 (Cth). Kitto J. said (at p 303):
“A suspicion that something exists is
more than a mere idle wondering whether it exists or not; it is a positive feeling
of actual apprehension or mistrust, amounting to ‘a slight opinion, but without
sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a
reason to suspect that a fact exists is more than a reason to consider or look
into the possibility of its existence. The notion which ‘reason to suspect’
expresses in sub-s.(4) is, I think, of something which in all the circumstances
would create in the mind of a reasonable person in the position of the payee an
actual apprehension or fear that the situation of the payer is in actual fact
that which the sub-section describes - a mistrust of the payer’s ability to pay
his debts as they become due and of the effect which acceptance of the payment
would have as between the payee and the other creditors.”
The objective circumstances sufficient to
show a reason to believe something need to point more clearly to the subject
matter of the belief, but that is not to say that the objective circumstances
must establish on the balance of probabilities that the subject matter in fact
occurred or exists: the assent of belief is given on more slender evidence than
proof. Belief is an inclination of the mind towards assenting to, rather than
rejecting, a proposition and the grounds which can reasonably induce that inclination
of the mind may, depending on the circumstances, leave something to surmise or
conjecture.
[46]
If the suspicion is characterized by conjecture,
where evidence is lacking, reasonable suspicion is more than a reason to
consider or examine the possibility of the existence of the suspected fact.
Reasonable grounds to believe stem from objective circumstances and are based
on compelling and credible information. The key question is to determine
whether it was reasonable to consider the information retained as credible and
compelling, with an objective basis.
[47]
What, then, is the basis of the reasonable
grounds to believe invoked by the IAD? The respondent aptly tried to reverse
the order issued by the IAD, which had decided to base its decision on the
applicant’s lack of credibility to then incidentally mention the La Republica
article and Colonel Jiminez’s book. But the question then arises at the
outset: general lack of credibility in relation to what? And do the two
documents have an objective basis for believing in the credible and compelling
information?
[48]
A government that avails itself of
section 34 of the Act must be able to demonstrate that reasonable grounds
to believe exist. To do so, as we have seen, there must exist objective pieces
of evidence, with an objective basis, supporting the reasonable grounds to
believe. In this case, the IAD believed that the applicant had endured torture
to the extent that the confessions were excluded; in spite of this, it is
telling us not to believe the applicant’s claim that he was not a member of a
terrorist organization. But why? Because the complaint filed with the
Inter-American Commission on Human Rights addresses health problems that the
IAD considers exaggerated? How does this determine membership in a terrorist
group? Was the applicant not released from a life prison sentence after nearly
9 years of incarceration, on health-related humanitarian and compassionate
grounds?
[49]
We criticize the applicant for his story at the
time of his arrest. But was this not because the IAD suspected, yet did not
prove, that the applicant must have clearly been at fault for something if he
had been caught in the raid that way? The same can be said about the incident
involving President Fujimori. Not only was the applicant not confronted by
the IAD, but the inference drawn might well be that the President does not
visit people who are not guilty who could not help him solve the murders of
three Japanese nationals.
[50]
And what about the blame placed on the applicant
for not having obtained the court records in Peru and not having tried to prove
his innocence like the others, even though he left Peru nearly 15 years
earlier? When questioned about efforts made by the government, through its
Embassy in Lima, to obtain official documents, counsel for the respondent
candidly conceded that no such effort had been made. The applicant was
criticized for something that the government, who wanted to have someone
declared inadmissible, also did not do.
[51]
In the absence of evidence of membership in a terrorist
organization, how can the applicant’s credibility establish such membership?
If, as the IAD claims, the applicant’s credibility may have been lacking on
certain aspects, how could this have been useful for the purposes of believing
he belonged to a terrorist organization, with no objective evidence in this
regard? The absence of articulation on the use of a lack of credibility on
certain peripheral aspects is a serious infringement on reasonableness, which
is “concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process.” (Dunsmuir,
above, at paragraph 47)
[52]
One can therefore quite easily comprehend why
the respondent inversed the proposal before this Court, by trying to establish
reasonable grounds to believe at the outset, using the La Republica
article and Colonel Jiminez’s book. The IAD relied on the lack of
credibility supported by two instruments. The respondent did the opposite and
proposed the two instruments. The problem with these two elements of
documentary evidence is that they prove little. The explanation as to why they
are credible and compelling is unclear.
[53]
First, there is the La Republica
article dated August 14, 1993. The respondent, like the IAD, claims that
the reporting is factual. Merely reading the article shows that it is factual
reporting, precisely because the newspaper factually reports what was announced
at the press conference organized by the police authorities. The story is about
the press conference and the story provides no evidence of the facts and
charges divulged by the police. It was not facts that were reported, but rather
it was the story that was provided by the authorities. That article did not
establish the facts in a reasonable manner: it established that a press
conference was likely held on August 13, 1993, during which the
individuals presented as terrorists belonging to a [translation] “ruthless, seditious gang” were paraded around
while a [translation] “spokesperson for the National Anti-terrorism Directorate”
confirmed a series of serious crimes.
[54]
I admit that I was taken aback by the IAD’s
response to that argument to the effect that the article carried little
probative weight since it had been written the day after
Mr. Cacha Collas’ conviction. To contradict that argument, the IAD
noted a sentence in the article that mentions the summary judgment to be
rendered. It should therefore be understood that the IAD apparently questioned
the fact that the conviction took place the day before the article was published
(paragraphs 30-31). The disconcerting aspect is that not only is it not
clear how this assertion changes anything about the weight of the article and
apparently rendered it “factual,” but in its decision the IAD had stated a few
paragraphs above that it was not contested that [translation] “on August 13,
1993, a military tribunal found the respondent guilty of treason”
(paragraph 9). The article published on August 14, 1993, therefore
allegedly appeared the day after the applicant’s conviction. He was paraded
before journalists who recounted what the authorities said were crimes for
which the convictions had to be recorded. Since the parties did not offer any
argument about the possibility that the article constituted the fruit of the
poisoned tree if the applicant’s conviction resulted from torture, my reasons
in no way address this. I am satisfied in finding that to rely on such an
article because it is allegedly factual is unreasonable: this is not the case.
It does not establish membership in a terrorist organization; at most it
repeats the allegations made by Peruvian authorities.
[55]
Thus, the only reasons cited to retain that
article were manifestly unfounded, even in the event that the applicant was
allegedly convicted. The article merely reports statements by the police
authorities and does not attest to the authenticity of the alleged actions. If
it is acknowledged that the La Republica, like El Comercio
as well, merely reported what the police said, the probative weight of those
statements is in itself minimal. Recall, too, that the information that forms
the basis of the reasonable grounds to believe must be compelling and credible.
[56]
Colonel Jiminez’s book is hardly any
better. No one could determine the value of the information presented therein.
Not only is it difficult to understand who did what, among other things, due to
the pseudonyms used that may refer to different people, but the book is written
in such a way that it is impossible to know what is or is not true.
[57]
Nothing is known about the book. At the hearing,
it was confirmed that not even the publication date is known. The government
seems to have filed the document, no more. According to the ID, it came from
the Internet, which might imply that we could find it by searching the Internet.
It is not known what information sources enabled its author to make these
affirmations. Moreover, not even the author’s identity is corroborated. No
information is available about that document, so there is no way of knowing how
it could be credible. Moreover, could it be that the sources of the stories
presented are statements made under torture, since that seems to have been
fairly common if one considers the February 3, 2004 judicial decision as
evidence, in which only one of the many accused was convicted?
[58]
But there is more. The IAD excluded the criminal
convictions for defamation against the author of the work, if indeed he is the
author, under the pretext that the convictions are not related to the book
cited. With all due respect, that is not the issue. The convictions for
defamation emphasize the author’s propensity to be somewhat quick to accuse.
The defamation need not relate to the book itself. It is definitely relevant
when one must consider charges listed in a book, charges that are not supported
by evidence or demonstration. Thus, the book is difficult to follow, its origin
was not demonstrated and its author was convicted of defamation. With no
explanation as to why that work could be used in an inadmissibility matter for
security reasons, it is difficult to see how this could invoke features of
reasonableness if the reasonable grounds to believe must be taken from
compelling and credible information. However, nothing is known about the book.
[59]
As mentioned, the IAD first found its reasonable
grounds to believe in its conclusion that the applicant is generally not
credible. No explanation was provided as to how this transformed into
reasonable grounds to believe something. Although this lack of credibility
merely dismisses the applicant’s evidence, then the IAD should have only used
the La Republica article and the Internet document to satisfy the
existence of reasonable grounds to believe that the applicant belonged to a
terrorist group. However, the La Republica article proves nothing
apart from that a press conference was held on or around August 13, 1993,
during which the applicant was paraded around. This was not factual reporting
in the sense that the facts reported can be accepted as coming from an
independent, credible source. The information therein is neither compelling,
nor credible. As regards the work found on the Internet, it is impossible to
understand how writings with an unknown source, date, and author (apart from
what the book says about its author), or sources of information, can be
trustworthy, especially since the person who is depicted as the author is
allegedly the same person who was sued twice for defamation and convicted on
both accounts, resulting in conditional sentences. Such problems could not
reasonably be swept under the carpet by saying that the article is factual and
that the defamation does not relate to the document found on the Internet.
[60]
Essentially, the IAD did not believe the
applicant and two documents were found which mention the applicant. In my
opinion, this corresponds to suspicion, which, as Lord Devlin stated, “is a state of conjecture or surmise where proof is lacking: ‘I
suspect but I cannot prove.’” By definition, this does not constitute
reasonable grounds to believe.
[61]
The application for judicial review must
therefore be allowed. The appeal of the ID’s decision must be referred back to
the IAD to be re-addressed by a differently constituted panel.
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