Bustamante v. Canada (Minister of Citizenship and Immigration), 2002 FCT 499

Date: 20020430

Docket: IMM-1928-01

Neutral citation: 2002 FCT 499

BETWEEN:

                                                   MIGUEL ANGEL BUSTAMANTE

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MARTINEAU J.

[1]                 The applicant, a citizen of Peru, seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") wherein he was found not to be a Convention refugee.

[2]                 The applicant worked at the National Company of Peruvian Ports from April 1995 to January 1996. He claimed that in April 1995 he began to receive threatening telephone calls from "anonymous terrorists", which he later identified as members of the Shining Path, who asked for information about the Ports. The calls did not stop after he quit his job with the Ports. The applicant claimed that the calls continued even though he left Peru at the end of 1999 and even though he left his job five years ago. No actions were ever taken against the applicant or his family.

[3]                 The Board concluded that the applicant did not meet the requirements of the definition of Convention refugee. Section 2 of the Immigration Act (the "Act") reads as follows:

[4]                 The Board found that "... even if the applicant did receive the threatening telephone calls from some anonymous terrorists in 1996, there is no more than a mere possibility that he would be persecuted, for Convention reasons, if he were to return to Lima, Peru today". In reaching this conclusion, the Board relied on documentary evidence on the current strength of the Shining Path, the places where the terrorist group is most active and the response from Peruvian authorities to terrorism.

The panel has also given consideration to counsel's documentary evidence¹² (Exhibit C-5, Response to Information Request Number: PER32666.E, September 7, 1999) with regard to the activities of the Shining Path; however, the panel gives it very little weight, given that the reports cited in his documentary evidence date back to 1996. The panel prefers to accept the accounts in the foregoing documentary evidence, because they are more recent.

Even if the panel were to accept that some splinter faction of the Shining Path has infiltrated Lima and is wanting to establish its base for terrorism in the capital city, the panel still finds that, on a balance of probabilities, the Shining Path would not find the claimant's knowledge of the Peruvian Ports contemporary enough to warrant the group's interest. The claimant left his position with the NCPP in January 1996. The panel finds it reasonable to expect the Shining Path to be more interested in the updated data about the Peruvian Ports and to obtain such information from people who are either currently employed or have just recently left their positions.

Furthermore, even if the panel were to accept that some splinter faction of the Shining Path has infiltrated Lima and is planning to wage a campaign of terror in the city, it still finds that the Government's response to the slightest prospect of terrorism is such that, on a balance of probabilities, the claimant can access a viable protection from the state.

[5]                 Concerning the state protection issue, the Board, relying on documentary evidence, found that:

The Government of Peru is noted for its counter-terrorism measures in the 1980's and the 1990s-measures that, ironically, bordered on the authorities' violation of the human rights of those suspected to be terrorists. Documentary evidence¹³ (Exhibit R-3, Response to Information Request Number: PER33832.E, March 2, 2000) shows that even now, Peru's anti-crime efforts are a mere extension of the Government's anti-terrorism measures.

...

Further documentary evidence shows that the anti-terrorism measures of the Government are so brutal that sentences disproportionate to the crimes committed are known to have been issued.¹⁵(Exhibit R-1, U.S. Department of State 1999 Country Reports on Human Rights Practices: Peru, p. 14) In many cases, due process is not observed.¹⁶ (Exhibit R-1, U.S. Department of State 1999 Country Reports on Human Rights Practices: Peru, p. 15)

...

The panel determines that the foregoing documentary evidence simply points to the extent to which the Government is prepared to move to combat terrorism, whether real or suspected. Given this, the panel does not believe the claimant's story that the police dismissed his putative complaint that (a) the Shining Path had been asking him to disclose classified security information to the terrorist organization, (b) the Shining Path continued to pursue him even after he had resigned from his job with the Government, and (c) the Shining Path had threatened to kill him and his family if he did not comply with the terrorist organization's demands. The panel finds that such an alleged response of indifference on the part of the authorities is just not consistent with what documentary evidence suggests as their typical response-quick, repressive, brutal, excessive, and tantamount to a violation of the suspects' human rights.

...

Given all of the above, the panel determines that the claimant has access to a viable protection from the state. The claimant failed to show clear and convincing evidence to rebut this proposition. The panel finds no persuasive, reliable, or trustworthy evidence to show that the state mechanisms of Peru are in a state of breakdown or disintegration, to the point that it is unwilling or incapable of providing adequate protection to the claimant. The panel, on the other hand, accepts the claimant's assertion that the state protection mechanisms in Peru are not perfect; however, it is guided by numerous decisions by the Federal Courts, ruling that the standard for state protection is not perfection, but adequacy. The panel determines that the state protection mechanisms available to the claimant are more than adequate.

[6]                 The Board's conclusions are as follows:

After considering all of the evidence, the panel is satisfied that, on a balance of probabilities, there is not a reasonable chance or a serious possibility that the claimant would be persecuted if he were to return to Peru, by reason of political opinion (real or imputed), membership in a particular social group (citizens being threatened by the Shining Path), or any of the other grounds set out in the Convention refugee definition.

[7]                 The applicant asserts that the Board erred in misconstruing or ignoring his evidence and that it provided no rationale for preferring the documentary evidence over the presumptively true evidence of a claimant. He also submits that the Board made a material error in assuming that the threatening telephone calls imputed to the Shining Path occurred in 1996 since they actually began in April 1995. Furthermore, the applicant contends that the Board appeared to have considered that he was either lying or fabricating about being threatened by the Shining Path after 1996. The Board seems to assert that he suffered from schizophrenia which is untrue. The applicant concludes that the Board erred in law, breached the principles of fairness and that its findings are patently unreasonable.

[8]                 The applicant relies on Malala v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 290, a recent decision where the Court discussed the issues of inconsistency and principles of fairness. Dubé J. (as he then was) relying on Guo v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1185 reaffirmed that when there are inconsistencies the Board ought to raise them to the applicant:

The relevant jurisprudence established that inconsistencies in the claimant's evidence from which a Board may find a refugee claimant not credible must be put to the claimant and the claimant afforded an opportunity to explain the alleged inconsistencies. A review of this record indicates that this applicant was not confronted with the alleged inconsistencies in her evidence and given an opportunity to respond, as is required by the rules of natural justice. Specifically the applicant should have been given the opportunity to explain the alleged inconsistency with respect to her evidence relating to her Chinese work unit card and the PSB list of seized items. A failure to afford such an opportunity to the claimant constitutes an error in law.

[9]                 The Court refers, in Malala, supra, to "inconsistencies in the claimant's evidence from which a Board may find a refugee claimant not credible" such as discrepancies in his Personal Information Form (PIF) and one's testimony. In spite of the applicant's counsel's assertion, the case at bar does not rest on an adverse credibility finding made by the Board. The issue here is whether the Board could reasonably come to the conclusion that the applicant has not met his onus to provide satisfactory evidence that he meets the Convention refugee definition. The Board simply preferred the documentary evidence to the applicant's assertions. In this regard, the Board is entitled to give more weight to documentary evidence, even if it finds the applicant trustworthy and credible: Dolinovsky v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1784 (F.C.T.D.); Gomez-Carrillo v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1396 (F.C.T.D.); Oppong v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1187 (F.C.T.D.); and Noori v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 938 (F.C.T.D.).

[10]            In Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114, the Federal Court of Appeal provides a complete answer to the applicant's arguments. Hugessen J. wrote as follows:

... The "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.

[11]            Furthermore, it was decided in Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (F.C.A.) that:

We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely.

[12]            I find that the applicant has failed to show that the Board has made any error in preferring the more contemporary documented evidence about the current situation in Peru at the time of the claim which made no mention of Shining Path activity in Lima and which specifically stated that such activity is limited to remote jungle areas. The documentary evidence on file clearly shows that the Shining Path organization has been all but decimated by the Peruvian authorities. Furthermore, the Board found that the applicant did not present clear and convincing evidence that the state cannot protect him, even if the Shining Path were indeed making threatening phone calls. Based on the evidence on record, these findings were reasonably open to the Board.

[13]            As stated by Hugessen J. in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.):

The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.

[14]            In the case at bar, the Board determined that the applicant has access to viable protection from the state and that he failed to show clear and convincing evidence to rebut this presumption. These findings are not unreasonable. It is true that the Board also commented on the medical reports from various doctors which discuss the mental state of the applicant. Admittedly, even if some determinations were not supported, I find that those do not outweigh the ultimate determination that the applicant does not have a well-founded fear of persecution which is primarily based on the documentary evidence and the availability of adequate state protection. The Board's rationale to dismiss the applicant's claim is in no way based on the psychiatric evidence or on the applicant's mental state.

[15]            In conclusion, the applicant has failed to convince me that the Board has breached the principles of fairness, ignored relevant evidence, erred in law, or otherwise acted arbitrarily or made an unreasonable finding which would materially affect its conclusion not to find the applicant a Convention refugee.

[16]            The application for judicial review is dismissed.

[17]            Counsel for the applicant has proposed the following question to be certified:

Did the Refugee Division err in law or breach the principles of natural justice in that it did not put alleged contradictions (on which the Refugee Division relied to find that the claimant's evidence was not credible) to the claimant or confront the claimant?

[18]            The above question would not be determinative of an appeal and ought not be certified given the particular facts of this case (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (F.C.A.)).

OTTAWA, Ontario

April 30, 2002

                                                                                                                   Judge