Date: 19981001
Docket: IMM-2494-97
BETWEEN:
GUILLERMO TORRES ARENAS,
NELDA DEL CARMEN MUNOZ OJEDA,
NELDY LORENA TORRES MUNOZ and
PAULA SOLEDAD TORRES MUNOZ,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] This application, pursuant to the Immigration Act, R.S.C. 1985, Chap. I-2, is for the judicial review of a decision of the Convention Refugee Determination Division (CRDD) dated May 23, 1997, in Toronto, wherein that tribunal determined that the applicants are not Convention refugees. (CRDD files T96-03867, T95-07937, T95-07938 and T95-07939.)
[2] The evidence received herein by the CRDD consisted principally, if not wholly, of the testimony of the first applicant (counsel called no others), his personal information form (PIF), documents submitted by the applicants' counsel, and documents providing externally gathered, usually reliable evidence about country-of-origin conditions, in this instance, Chile.
Facts
[3] The CRDD made the following observations under the headline: Summary of alleged facts:
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The narrative, provided in the PIF [exhibit C-2] of the principal claimant, Guillermo Arenas, was accepted as though it had been given orally and is appended to these reasons as Addendum "A". In addition to the information continued in his PIF, the principal claimant, in his oral testimony, provided further details concerning his experiences in Chile and responded to questions. Additional relevant information provided by the claimant during his oral testimony will be referred to in the analysis to follow. The narrative responses of the other three claimants are dependent on the response of the principal claimant. The counsel did not wish to call any of these three other claimants, although the panel addressed a few questions to Neldy Lorena Torres Munoz, one of the college-going daughters of the principal claimant. |
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[4] The CRDD under its headline, Analysis, states as follows:
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The critical issues addressed at the hearing were the credibility of the principal claimant's testimony, nexus of the claims to the refugee definition and the state protection in the context of the well-foundedness of their fears of persecution in prospect, if they return to Chile. |
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The CRDD set out its principles for assessing the evidence by referring to subsection 68(3) of the Act, and the jurisprudence. That tribunal thereby assessed the credibility or trustworthiness of the evidence, noting and briefly discussing: Maldonado v. M.E.I., [1980] 2 F.C. 302 at 305; Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C. C/A); and Adu, Petr v. M.E.I., A-194-92, Jan. 24, 1995, (F.C/A).
[5] The applicants' counsel sets out, in the applicants' record (AR) their version of the facts in fully elaborated narration. The respondent, in the respondent's record (RR) more concisely agrees with the basics. The hearing of this case produced no surprises in this regard.
[6] The principal applicant came to Canada on April 20, 1995 and waited until the other three applicants (his wife and daughters) arrived on December 31, 1995. They made their refugee claims that very day; and he did so on January 1, 1996. The CRDD panel mentioned that while delay in making a refugee claim is not an absolute bar to obtaining refugee status, the delay rather dilutes - even obviates - the necessary ingredient of subjective fear. The panel evinced a better grasp of principle than of arithmetic in writing:
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The principal claimant was waiting to make his claim until after the family members arrived, and then again he made his claim ten [sic] days after the family members made their claims, based essentially on his fear of persecution. |
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[7] Here is how the CRDD expressed its appreciation of the facts:
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* * * the substantive aspect of his testimony is that while working as a bodyguard of the Mayor, Rodrigo Gonzalez, of the City of Vina del Mar, during 1993-1994, he was given the duty of a security guard in Hotel O'Higgins, as a part of the security company called Delta Force from August 1993 until June 1994, when his troubles began. |
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He noticed the money laundering activities of a group of six people, whom he was assigned to guard from the beginning. He reported the incident to the Hotel Manager and as a result he was fired from his job, followed by persecution by Mayor Gonzalez and his men. From July 1994 to March 1995, he remained self-employed as a TV and VCR repairman. On February 24, 1995, he was beaten, interrogated and detained overnight by three men. He was also warned of the repercussions of his "big mouth" [sic] activities on his family members and on March 3, 1995, his wife was threatened to the same effect. |
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The principal claimant testified that he did not go to the police to report the incident because the police, the army and the politicians in Chile are all connected with the drug dealing and such money laundering business. In his view, Mayor Gonzalez certainly was. When it was pointed out to him that prior to his leaving the country, Mr. Gonzalez was no longer the Mayor and that he should have complained to the new Mayor, the claimant testified that he did not do so because he was not sure whether or not the new Mayor was also involved in drug dealings and money laundering activities, as Mr. Gonzalez was. When it was further pointed out to him with reference to the documentary evidence that, in Chile "democratic institutions are better established than in any other Latin American countries outside of Costa Rica" and that the judicial process in Chile is engaged in the trial of a number of police officers for their past human rights violations [ex. R-1], the claimant repeated his testimony that despite apparent democracy, the senators and politicians are "smoking pot" and that the judiciary is also associated with the wrongdoings of the police and the government officials. |
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The panel is not satisfied with this kind of vague and uncorroborated testimony. |
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Besides, the panel does not find a nexus to the claimant's allegations to the definition of a Convention refugee. He has a modicum of political views or affiliations; he is not a member of any particular social group, individually or as a political family nor does he fit into the other definitions of Convention refugee. |
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What he was possibly involved in was the angry reactions of a group of people, engaged in criminal professions, who [sic] knowingly or unknowingly he protected over a period of time. Had this been a notorious group, as the principal claimant describes, the panel does not believe that the gang would only intermittently harass and threaten him and his family. Such a notorious gang, when exposed to an unreliable witness, would not hesitate to eliminate him in the shortest possible time. |
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The panel members have carefully reviewed the evidence presented at the hearing. The panel's opinion is that there is no objective basis for the claimant's alleged fear of persecution, and this opinion is based on not only his generally non-credible evidence of his experiences but also the documentary evidence with respect to the democratic institutions and policies that provide adequate protection of law to the ordinary citizens of Chile. Indeed, in 1994 the UNHCR announced the application of its cessation clause for Chilean refugees, to the effect that the need for asylum in other countries no longer existed [ex. R-1]. This is an act that recognized the fundamental and positive changes that have taken place in Chile. |
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In view of the foregoing, the Refugee Division determines that Guillermo Torres Arenas is not a Convention refugee. |
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[8] While reading over the above findings of implausibility and lack of credibility one is just waiting for the panel to state the salient implausibility which is implicit and inherent in their reasoning, but which they slid over, saying only: "He reported the incident to the Hotel Manager and as a result he was fired from his job * * *".
[9] The principal applicant's main proposition was that nearly everyone in the police, army, municipal and national governments was corrupt and in cahoots with whatever group or organization the applicant alleged was persecuting him. But, why was he fired from his job, according to himself? According to paragraph 6 of his affidavit, sworn July 16, 1997 (AR, p. 16) as well as his PIF (AR, p. 13), when the applicant reported what he believed to be money-laundering (which it no doubt was) to the hotel manager, the latter ordered him to say nothing about it, and he, the applicant, made it plain that he did not agree to keep quiet. Now, given his fear of widespread corruption, it is not implausible for him to have so angered his boss? To whom was he doing to blab, given his description of how there was no one to whom he could turn? If he was merely being cheeky or hot-headed, surely he would have made such clear to the CRDD. Rather it looks like his careless oversight in an implausible story. That is why "as a result he was fired from his job, followed by persecution by Mayor Gonzalez and his men". The principal applicant may have been negligent in "perfecting" his story, but he otherwise does not seem to be so stupid as to have been so reckless as to have told his boss that he would not keep quiet, if the climate he described was as dangerous as he professed.
[10] The respondent's counsel makes the same sort of narrative as the CRDD, but also fails to express what is implicit in the CRDD's determinations:
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5. The principle [sic] Applicant claimed that while working as a bodyguard for the Mayor, Rodrigo Gonzalez, of the City of Vian [sic] del Mar, during 1993-1994, he worked as a security guard at the Hotel O'Higgins. It was while working in this capacity that the principle [sic] Applicant claims he observed money laundering activities of a group of six people, which he reported to the Hotel Manager and which resulted in his firing. Thereafter he alleges he was persecuted by the Mayor and his men. |
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6. The principle [sic] Applicant stated that he did not report this incident to the police because the police, the army and the politicians in Chile are all involved in drug trafficking and money laundering. While Mayor Gonzalez was no longer in power when the principle [sic] Applicant was leaving the country he stated he did no [sic] complain to the new Mayor because he may have been involved in the same activities. |
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According to the principal applicant's own version, he was fired because he would not agree to keep quiet. That is what is truly implausible, since, according to him, it was too dangerous to talk about what he saw to anyone in authority, in any event.
[11] The respondent argues:
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12. The Applicant accuses the panel of being biased and of manufacturing evidence. These are serious allegations which are without foundation or merit. The Applicant makes this bald assertion but fails to point to any evidence which supports his position, stating only that the panel's credibility findings were unreasonable given the evidence of drug trafficking and corruption in Chile. However the mere existence of these activities does not disturb the panel's finding much less indicate bias or manufacturing of evidence on the part of the panel. |
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Amen. The applicants have not met the burden of showing that the CRDD's inferences were not reasonable. (Aguebor v. M.E.I., (1993) 160 N.R. 315, at pp. 316-17.)
Mr. Justice Dubé, in a conclusion which is warranted in the present case, wrote in Vijayapackialuxmy Kanesanathan, (IMM-3965-97), September 24, 1998, as follows:
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[5] In spite of the very able presentation of the applicant's counsel, I cannot come to the conclusion that the decision of the Board was unreasonable. In matters of credibility, it is not for the Court to set aside the Board's conclusions and to impose its own appreciation. |
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[12] Both counsel at the hearing agreed that there is no determinative question of general importance to be certified here, and the Court agrees.
[13] The applicants' application to quash or set aside the CRDD's decision(s) is dismissed, without costs.
Judge
Ottawa, Ontario
October 1, 1998
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