Date: 20060816
Docket: IMM-6240-05
Citation: 2006 FC 977
Ottawa, Ontario, August 16, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
FELICIANO CARRILLO BOCANGEL
RITHA GLADYS ZEBALLOS DE CARRILLO
ENRRIQUE ANTONIO CARRILLO ZEBALLOS
(a.k.a. ENRIQUE ANTONI CARILLO ZEBALLOS)
CARLA BIANCA CARILLO ZEBALLOS
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are members of a Bolivian family who sought refugee protection in early
October, 2003. Their application was heard by the Immigration and Refugee
Board (Board) over four days between September 27, 2004 and July 13, 2005.
That application was rejected in a decision rendered on September 21, 2005.
The Board’s negative decision was based on adverse credibility and plausibility
conclusions made in connection with the evidence of the principal applicant, Feliciano
Carrillo Bocangel (Mr. Carrillo).
Background
[2]
Mr.
Carrillo’s claim for protection was founded upon his history of active
involvement in Bolivia in support of political opposition groups. The
record contains considerable uncontradicted evidence confirming Mr. Carrillo’s
political profile. That evidence clearly discloses that he had been
politically active since his student days commencing in the late 1960’s. In 1984,
he was one of the founders of a left-wing political party identified as the
Revolutionary Leftist Party (FRI). In early 2000, he was instrumental in the
formation of a coalition between the FRI and another left-leaning opposition
party known as the Movimiento al Socialismo (MAS).
[3]
According
to Mr. Carrillo, the MAS was an opposition party that ran second in the 2002
national elections. The leader of MAS was, and remains, Mr. Evo Morales. Mr.
Morales was subsequently elected as the President of Bolivia in the 2005
elections.
[4]
Mr.
Carrillo’s status within MAS was corroborated by a considerable amount of
apparently reliable documentary evidence including evidence tying him closely
to Mr. Morales. The record also contained evidence indicating that Mr. Morales
may have been the target of politically motivated threats, including death
threats.
[5]
It
is readily apparent from uncontradicted evidence in the record that Mr.
Carrillo had a considerable political profile within the opposition movement in
Bolivia, and was a strong advocate for the rights of the indigenous population
in that country.
[6]
Mr.
Carrillo’s claim for protection was centered on three primary incidents of
politically-motivated persecution. He claimed that his home had been set on
fire on December 10, 2002, that he had been beaten and shot by Bolivian
authorities during a violent street demonstration in La Paz on February
12, 2003 and that he had been beaten by the Bolivian military on June 15, 2003
while attending a political meeting in San Carlos. In
addition to these events, he claimed that he and other members of his family
had been repeatedly threatened because of his political involvement in
opposition to the Bolivian government.
The Board Decision
[7]
The
Applicants’ protection claim was resolved against them on the basis of adverse
credibility findings. The Board concluded that Mr. Carrillo was an unreliable
witness based upon its finding of implausibilities and testamentary inconsistencies
made up principally of the following:
a)
Mr.
Carrillo’s evidence was implausible in suggesting that the Bolivian police
would wait for political opposition groups to reach their destinations before
confronting them and, instead, would more likely have stopped them on the
road.
b)
There
was no evidence that members of the political opposition party or its leader,
Mr. Morales, had been persecuted by the authorities.
c)
The
failure by Mr. Carrillo to mention in his Personal Information Form (PIF) that
the authorities had been advised of a deliberately set fire at his home was a
material omission which he failed to adequately explain. This evidence was
found to be “fabricated” to bolster the refugee claim.
d)
Mr.
Carrillo’s evidence about being beaten by the authorities during a violent
uprising in La
Paz
on February 12, 2003 contained a number of discrepancies and implausibilities
and this aspect of his story was also “fabricated” around the corroborating
documentary evidence. The Board also disbelieved Mr. Carrillo’s evidence that
he had made a complaint about this incident to the Ombudsman.
e)
It
was implausible that the judicial police would ignore Mr. Carrillo’s evidence
of mistreatment by the Bolivian authorities.
f)
Mr.
Carrillo’s evidence of barriers to the political involvement of the indigenous
population was inconsistent with the documentary evidence and was, therefore,
not believable.
[8]
The
upshot of the Board’s decision is that it did not believe Mr. Carrillo’s
evidence of a history of persecution at the hands of the Bolivian authorities.
It rejected as unreliable the key evidence that he related concerning the
episodes of the burning of his home and the beating and gunshot injury
administered at the time of a violent political uprising in La Paz on February
12, 2003.
Issue
[9]
What
is the appropriate standard of review, and does the Board decision meet the
requisite standard?
Analysis
[10]
I
accept that, with respect to factual and plausibility findings made by the
Board, the appropriate standard of review is “patent unreasonbleness”. It is
not the Court’s place to substitute its decision for that of the Board unless
the Applicants can establish that the Board’s decision was based on erroneous
findings of fact made in a perverse or capricious manner, or without regard to
the evidence before it: see R.K.L. v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 162, 2003 FCT 116 at paragraphs 7-8.
[11]
Notwithstanding
the considerable deference that is owed to the Board’s factual conclusions, there
are a number of troubling aspects to its treatment of the evidence. The most
pronounced of the problems is the very selective treatment of the evidence by
the Board and its failure to place much of the evidence into the broader, and
essentially undisputed, context of Mr. Carrillo’s political involvement at a
time of profound political and social unrest in Bolivia. Notably,
the Board decision relates almost nothing about Mr. Carrillo’s political
activity or his profile as a leader of the political opposition in Bolivia. The
decision also virtually ignores key elements of the apparently reliable United
States Department of State Report for 2003 detailing a background of political
unrest and violence across Bolivia in 2002 and 2003. While
observing that Bolivia was a democracy with traditions of respect for human
rights, that particular report also confirms the killing of dozens and injuring
of hundreds of protestors during at least three large-scale episodes of violent
social unrest, the use of excessive force, arbitrary arrests and detentions,
beatings and a culture of impunity.
[12]
The
Board’s conclusion that Mr. Carrillo faced no more than a generalized risk of
harm in Bolivia is difficult to reconcile with the uncontradicted evidence of
his political profile and the situation of political and social unrest in that
country in 2002 and 2003. The failure by the Board to undertake a proper
contextual analysis of this evidence renders this conclusion patently
unreasonable: see Menjivar v. Canada (Minister of
Citizenship and Immigration), [2006] F. C. J. No. 5, 2006 FC 11.
[13]
The
Board rejected Mr. Carrillo’s evidence of being attacked by the Bolivian army
in La
Paz
on February 12, 2003 during a well documented violent political protest. Mr.
Carrillo testified that he was enroute to a political meeting when he was
recognized by the police and accused of inciting violence. He said that he was
shot on the leg, beaten and briefly held by the authorities. When the Board
confronted Mr. Carrillo with an apparent inconsistency about whether he was
beaten by the police or by the military, he did acknowledge some confusion at
the time brought about by a blow to the head. It was this inconsistency that
the Board used as the basis for disbelieving any part of Mr. Carrillo’s
evidence about being attacked. At the same time, the Board gave no meaningful
consideration to a medical report tendered in evidence confirming that
Mr. Carrillo’s injuries were the result of “a confrontation between
military, police and the people” and where the following injuries were noted:
-
bruising
to the frontal and parietal areas of the scalp and both eyelids;
-
traumatic
conjunctivitis in right eye;
-
bullet
wound in left leg showing entry and exit points; and
-
bruise
to the jaw.
Although the Board makes a passing
reference to this critical piece of corroborative evidence, it failed to draw
any conclusion about its authenticity or how the documented injuries could
otherwise have occurred. Evidence given of a gunshot wound would ordinarily be
difficult to falsify and, therefore, unlikely to be fraudulently advanced. The
Board’s silence on this issue suggests that it, too, had a problem in
reconciling this particular injury and the well-documented violence of February
12, 2003 with its conclusions that Mr. Carrillo had made the whole thing up.
Material omissions of this kind in the decision-making process will usually
require that a decision be overturned: see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17.
[14]
In
rejecting Mr. Carrillo’s evidence of being attacked on February 12, 2003, the
Board also relied upon an erroneous perception that he had failed to mention in
his PIF that he had been detained following this event. This was an error
repeated by the Board during its questioning of Mr. Carrillo. Although
the PIF lacks some detail, it clearly refers to Mr. Carrillo being apprehended
and later released by the authorities. This criticism by the Board of Mr.
Carrillo’s PIF statement was entirely unjustified as was its related finding
that his evidence on point was vague and evasive.
[15]
A
key aspect of Mr. Carrillo’s claim of persecution was an alleged beating
administered to him on the night of June 15, 2003 by hooded members of the Bolivian
army. This event was recorded in Mr. Carrillo’s PIF and he was questioned
about it during the Board hearing. A corroborating medical certificate was
tendered in evidence to the Board. Surprisingly, the Board decision contains
no reference whatsoever to either the event or to the medical report. This was
key evidence presented by Mr. Carrillo in support of his claim and the Board
had an obligation to consider it. The failure to do so is patently
unreasonable.
[16]
There
are several other problems with the Board’s treatment of the evidence. For
example, its plausibility conclusion dealing with the tactics of the Bolivian
Police in confronting opposition groups is not a reasonable basis for rejecting
Mr. Carrillo’s evidence on the point. His testimony on this point is no less
worthy of weight than the Board’s view and it is not a matter over which the
Board could claim any level of special expertise. This is the kind of
plausibility finding that ventures well beyond the assessment of normal and
rational human behaviour and which the Board must generally avoid making in the
absence of supporting evidence.
[17]
The
Board’s conclusion that there was no evidence that the MAS leader, Mr. Morales,
had been persecuted might have been technically accurate but the Board’s
failure to address the documentary evidence that he may have been targeted
for assassination is a further example of selectivity by the Board. The
evidence that Mr. Morales was a potential target of the Bolivian authorities
was all the more important to Mr. Carrillo’s claim because of their close
political association. If Mr. Morales was in danger, it stands to reason that
his close political associates might also be at risk. This evidence should not
have been ignored by the Board.
[18]
The
Board’s description of Bolivia as a democracy where
the freedom of association and assembly are generally respected is also a gloss
of the evidence. In 2003, the Bolivian political situation was far from stable
and human rights abuses were prevalent. This is well documented in the evidence
including the United
States
Department of State Report for 2003.
[19]
With
respect to Mr. Carrillo’s allegation that his home had been deliberately set on
fire in 2003, the Board seems to have been preoccupied with identifying relatively
minor inconsistencies between Mr. Carrillo’s PIF and his testimony. The simple
fact that there may have been omissions of detail from Mr. Carrillo’s PIF is
not a particularly sound basis for concluding that his entire description of
this event was “fabricated”. Here, the Board made no findings whatsoever with
respect to the central allegation that Mr. Carrillo’s home had been set on fire
by his political adversaries and no attention was paid to evidence which
corroborated certain aspects of that testimony. In adopting a piecemeal
approach to the evidence, the Board failed to assess Mr. Carrillo’s evidence as
a whole or in context. In that respect, the Board’s decision failed to conform
with the dictates of the Federal Court of Appeal decision in Djama v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 531 (F.C.A.).
[20]
In
summary, there are so many significant deficiencies in the Board’s analysis and
treatment of the evidence that the Board’s decision cannot stand. Those
deficiencies clearly meet the test for patent unreasonableness. In the result,
the Board’s decision is set aside with the matter to be remitted for
reconsideration on the merits by a differently constituted Board.
[21]
Neither
party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT ADJUDGES that the Board’s
decision is set aside with the matter to be remitted for reconsideration on the
merits by a differently constituted Board.
"R.
L. Barnes"
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