Vergara c. Canada (Minister of Citizenship and Immigration), 2001 FCT 474

                                                                                                                                             Date: 20010515

                                                                                                                                  Docket: IMM-1818-00

Neutral reference: 2001 FCT 474

Between:

                                MARCOS VINICIO MARCHANT VERGARA

                                                                                                                          Plaintiff

                                                              - and -

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                     Defendant

                                                REASONS FOR ORDER

PINARD J.

[1]         The application for judicial review is from a decision by the Refugee Division ("the RD") on March 8, 2000 that the plaintiff is not a Convention refugee and, further, is excluded from the scope of the Convention pursuant to article 1F(b).

[2]         Thus, quite apart from its conclusion that the plaintiff was excluded under article 1 F(b) of the Convention, the RD held that the plaintiff could not establish a well-founded fear of persecution within the meaning of the said Convention, as appears from the following passage from its decision:

TRANSLATION

BASIS OF PLAINTIFF'S FEAR

Further, it appeared to us that the plaintiff had not presented evidence of a well-founded fear of persecution for his political opinions or on any other ground contained in the definition of a Convention refugee if he were to return to Chile.

The documentary evidence was that the Communist Party has been a legally recognized political party in Chile since 1990 [reference omitted]. Similarly, the documentary evidence indicated that no complaint of persecution or mistreatment had been filed by a member of the Communist Party in recent years, apart from noting the case of its president Gladys Marin, who was briefly arrested in 1986 for defamation of the former dictator Pinochet.

[3]         The RD further refused to accept the plaintiff's claim that on January 15, 1996 he was kidnapped by unknown persons and subjected to two days' interrogation about the names and addresses of union leaders. In this regard, the tribunal found it unlikely that the plaintiff would have been targeted simply because he was a former political prisoner, since unions are legally recognized in Chile, conduct their activities openly, their leaders are well known to the public and the plaintiff had never filed any complaint with the authorities. The RD concluded that this was an invention by the plaintiff used as a pretext for his decision to leave his country.

[4]         It is clear from reading the foregoing passage from the decision in question that the tribunal's conclusion about whether the plaintiff had a reasonable fear of persecution was based on several general observations, not merely on the incident of January 15, 1996. Accordingly, whether the tribunal erred in not believing the latter incident is not conclusive. I am not persuaded that the error, if there was one, had any effect on the final result of the decision (see, e.g. Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334 and Canadian Cable Television Association v. American College Sports Collective (1991), 129 N.R. 296 (F.C. Appeal)).

[5]         However, as there were five years between the 1991 incident (in which the plaintiff was arrested, beaten and interrogated about the FASIC reintegration project) and the alleged incident of January 15, 1996, I consider, against the background of events occurring in Chile since 1990, that the RD could well conclude that this 1996 incident was improbable.

[6]         The plaintiff did not persuade me that the inferences drawn by the RD, a specialized administrative tribunal, were unreasonable (see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C. Appeal)). On the contrary, the tribunal's conclusions about the absence of a reasonable fear of persecution appear to be generally well supported by the evidence in the record. There is accordingly no basis for substituting my own assessment of the facts for that given by the RD.

[7]         Additionally, I am also not persuaded, with regard to the exception pursuant to article 1F(b) of the Convention, that the RD made any error that requires intervention by this Court. In deciding that the political exception could not be applied in the circumstances to prevent implementation of clause 1F(b), the tribunal seems to have correctly applied the rules laid down by the courts, in particular Gil v. Canada (M.E.I.), [1995] 1 F.C. 508 (F.C. Appeal). The tribunal might well, relying on that precedent, not regard acts of sabotage and armed robbery committed by the plaintiff as political crimes in the absence of any logical connection between, on the one hand, these serious crimes affecting civilian populations and involving the risks of death or injury for them, and on the other the political objective.

[8]         Finally, Chan v. Canada (M.C.I.), [2000] 4 F.C. 390 (F.C. Appeal), which confirmed that there could be an exception to the exclusion under article 1F(b) where the claimant had already been convicted and served his sentence for the serious crime under the ordinary law with which he was charged, cannot assist the plaintiff in the case at bar. From his own evidence, it appeared that the plaintiff has never been convicted and served a sentence for dynamiting electric pylons which deprived several cities of electricity and for the armed robbery committed in a supermarket frequented by unarmed civilians. As these crimes served as the basis for his exclusion, the plaintiff therefore cannot benefit from the exception in Chan, supra.

[9]         For all these reasons, the application for judicial review is dismissed.

[10]       Since none of the questions suggested by the parties for certification dealt with the RD's conclusion that the plaintiff could not establish a well-founded fear of persecution; moreover, in view of the rules set out in Gil, supra; and in view of the foregoing reasons for dismissing the application for judicial review, the questions suggested do not meet the particular criteria laid down by the Federal Court of Appeal in Liyanagamage v. M.C.I. (1994), 176 N.R. 4, and so do not merit certification.

                      YVON PINARD                     

     JUDGE

OTTAWA, ONTARIO

May 15, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                         IMM-1818-00

STYLE OF CAUSE:                                             MARCOS VINICIO MARCHANT VERGARA v.     MCI

PLACE OF HEARING:                                       Montréal, Quebec

DATE OF HEARING:                           March 20, 2001

REASONS FOR ORDER AND ORDER BY: PINARD J.

DATED:                                                               May 15, 2001

APPEARANCES:

William Sloan                                        FOR THE PLAINTIFF

Marie Nicole Moreau                                           FOR THE DEFENDANT

SOLICITORS OF RECORD:

William Sloan                                        FOR THE PLAINTIFF

Montréal, Quebec

Morris Rosenberg                                                FOR THE DEFENDANT

Deputy Attorney General of Canada

                                                                                                                                             Date: 20010515

                                                                                                                                  Docket: IMM-1818-00

Ottawa, Ontario, May 15, 2001

Before: Pinard J.

Between:                                                                     

                                MARCOS VINICIO MARCHANT VERGARA

                                                                                                                          Plaintiff

                                                              - and -

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                     Defendant

                                                             ORDER

The application for judicial review of the decision by the Refugee Division on March 8, 2000 that the plaintiff is not a Convention refugee and, further, is excluded from the scope of the Convention pursuant to article 1F(b) is dismissed.

                      YVON PINARD                      

                                JUDGE

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.